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SUPREME COURT REPORTS 913

mentioned in ihe section and could not mean a date 1952 antecedent to 30t, h September, 1952.

B oppamna For the reasons given above, in our judgment, the Venkatcswaraloo detention of the petitioner in this petition and of those and Other• in the other petitions mentioned above, after the 30th v.

September, 1952, became illegal and we therefore Superintendnt, d. t h t th t't' th' · d . .

Central Jail, rrec t a e pe 1 10ners m is pet1t10n an m pet1- Hyderabad State tions Nos. 350, 356, 362 and 366 of 1952 be released - forthwith. They are in detention by reason of the MaJwjan J. extension order made on the 22nd September extending their detention up to 31st December, 1952. On that date the State Government had no jurisdiction to make that order under the law in force as it stood on that date. 30th September, 1952, had been specified as the date up to which their detention was to last by a subsisting and perfectly valid order and their detention order beyond that date is illegal and cannot be justified on the provisions of section 11-A (2) or on the provisions of section 11 ( 1) of the original Act.

Petitions allowed.

Agent for the respondents and intervener : G. H.

Rajadhyaksha.

THAKURAIN RAJ RANI AND OTHERS

THAKUR DWARKA NATH SINGH

AND OTHERS.

[MEHR CHAND MAHAJAN, s.R.DAS andBHAGWAnJJ, J

Will--Agreement by cousiJ> of testator to make monthly poymm•t to testator in consideration of giving hirn and his sons the remainder after life-esta.te to wid, ow--Grant of letters of administration- Question of animus testanfr-Whether res-judicata-Payments,

11..vhether condition precedent or ?nere consideration-Death of cousin before widoiir--Efi'ect of.

On the 7bh .T anuary, 1904, G, a cousin of S, executed au agreement in favour of S, the material portion of which ran as follows: ''Whereas my cousin S has proposed to make a bequest of his taluka in favour of his wife and after her death in my favour and

Jan. 23,

SUPREME CO~RT REPORTS [19.53]

1003 that of my sons ...... therefore by way of consicJ.eration for this concession and favour, I, tho executant, out of my O\Vn free will ThnkurahJ. Raj do hereby execute this agreement in favour of my cousin aforesaid

Eani that in the month in which the said cousin may execute the said and Of/""' will in my favour.and that ol my sons and lays the same along v. with an application before the Deputy Commissioner, Sitapnr 'fhnl,:ur Dwarka district, for sanction of the Members of the Board of Revenue, I Nath Singh shall from the 1st date of the month following that month conand Othera. tinne to pay the said cousin the sum of Rs. 50 in cash every month during his life so long as the said will remains in force ......

If I fail to perform the said contract the said cousin has power to have the same performed by me th1ougb the Court." This agree ment was registered on the 11th January. On the 18th January, S submitted a draft will for sanction and the will as amended and sanctioned was executed on the 28th .July, 1904. 'rhis will provided as follows: "after my death my wife for her lifetime shall l'emain in possession of my entire estate ...... without the po, ver of any sort to transfer the said properties and rights, that on the death of the said wife all the aforesaid property and rights shall devolve on my cousin G with a,11 proprietary powers ancl that on the death of G, the said entire property and rights shall deYolve on X, Y, Z, sons of G, in the following shares .... " The will also provided for maintenance for the daughter, sister, aunt and mother of S.

On tho application of G's sons (G having died) letters of administration with the will annexed were granted to them by the Chief Court of Oudh and this decision was affirmed by the Privy Conncil on appeal in 1937. 'rhe heirs of S thereupon instituted a suit against the sons of G for a declaration that the will was inoperative and ineffectual and that G's sons had in any case no right to the properties of S, as S had no animns testandi and G had also failed to pay Rs. 50 to S as agreed:

Held, (i) that the deed of agreement and the will formed parts of one transaction and formed one contract, consideration for the will being the agl'eement, and consideration for the agreement being the will;

(ii) as the Privy Council had decided that the will was the last will and testament of S and granted letters of administration, the question of ani1nu.s testandi was res jndicata;

(iii) with regtml Lo tbe plea that the monthly payment of Hs. 50 was a condition precedent to the validity of the will and that by reason of the non-fulfilment of this condition the will had become inoperative, such a plea \Vas also barred by res judicata as the Privy Council had granted letters of administration; and even on the n1erits the plea was untenable as the wife and other relations of the testator had also certain rights under the will which did not depend on the monthly payment by G;

 (iv) the question whethel' the payment of Hs. 50 wae a cou-

<liion precedent to the vesting of the legacy in G or G's sons was

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SUPREME COURT l{J~PORTS 915

not, however, rs j?ldiMta and it was open to tbe plaintiff to raise 196& such a plea; (v} on a proper interpretation of the terms of the agreen1ent, Thakurain Raj the payment of Rs .. 50 per month was not a condition precedent to Rani h fhl 'Gb andOthers t e vestmg o t e egacy m , ut merely a consideration, and the plaintiffs' remedy was to enforce the agreement if it was not v. duly performed; Thakur Dwarkti

( Nath Singh

vi) that as G obtained a vested remainder uuder the will, and Others. his interest did not [all into the residue on his death before the widow, but vested in his sons; and as the bequest to G did not lapse there was no question of anJ· resulting trust or of any intestacy with respect to the remainder, and G's sons were entitled to the estate under the will.

CIVIL APPELLA'l'F.

JuRISDW'.rlO)!: Civil Appeal No. 153 of 1951.

Appeal from the Judgment and Decree dated 2nd January, 1946, of the Chief Court of Avadh in First Civil Appeal No. 9 of 1940 arising out of the Decree dated 6th Xovember, 1939, of the Court of Civil Judge in Regular Suit No. 36 of 1937.

Dr. Bakshi Tele Chand (Onlcwr Nath Sn:vastal!a, with him) for the appellants.

Achhru Rarn (Bishan Singh, with him) for the respondents.

1953. Jammry 23. The Judgment of the Court waH delivered by

BHAGWA'L'I J.- -This is an appeal from the judgment and decree passed by the late Chief Court of Ondh, ttffirming the judgment and decree passed by the Civil Judge of Sitapur, dismissing the plaintiffs' suit.

One, Thakur Shankar Bux Singh, proprietor of the Estate known as Rampur Kelau, situated in District Sitapur (Oudh) was heavily indebted and the estate had been in the possession of Deputy Commissioner of Sitapur as receiver from 1892 up to 11th July, 1901.

Thereafter he was declared a disqualified proprietor under the provisions of Section 8 (D) (1) of thn C.P.

Court of Wards Act (r.P. Act Ill of 1899) and the Court of Wards took possession of the estate on the 1st August, 1901.

Cnder Section 34 of the Aet he was

SUPREME COURT REPORTS [1953]

1953 not competent to dispose his property by will without the consent in writing of the Court of \Vards, though 1.'hakurain Raj

llani prior to the 1st August, 1901, he had made four succesand Others sive wills, the last being dated 19th June, Hl01, under v. which he gave his estate absolutely to his wife.

h~/, nr Dwarka the 30th November, 1901, he made a will giving a life

Aath Singh interest to his wife and the remainder over to his cousin and Others.

Ganga Bux Singh after providing for certain legacies by

Bhagwati J. way of maintenance in favour of his three daughters, his father's sister and his mother. The Court of Wards withheld its consent to this will which thus fell through.

On the 7th January, 1904, Ganga Bux Singh executed in his favour a registered deed of agreement agreeing to pay him Rs. 50 per month during his lifetime with effect from the month in which he would execute a will in.favour of Ganga Bux Singh and his sons and submit the same for sanction of the Members of the Board of Revenue.

A draft of the will was accordingly prepared by him on the 18th January, 1904, under which he gave a life interest to his wife and the residue of the property to Ganga Bux Singh and after him to his sons after providing legacies for maintenance in favour of his daughters, father's sister and mother. The Board of Revenue intimated on the 25th May, 1904, that it would not withhold its consent to a will similar to that contained in the draft but altered in the light of the proposals contained in the further letter dated 27th April, 1904. He thereupon duly made and published a will on the 28th July, 1904, in accordance with the suggestions contained in the Board's letter dated 25th May, 1904, cancelling iill the previous wills executed by him. It appears that he handed over tho original of this will to Ganga Bux Singh Lut did not give any intimation of the execution thereof to the authorities and the authorities could only come to know of the same when Ganga Bux Singh gave the original will to the Special Manager on or about the 19th December, 1905.

He appears to have changed his mind thereafter and having embraced Christianity intended to marry a Christian woman and submitted to the Court of Wards on the 8th June, 1906, the draft of a new will which he

intended to excute in favour of his UhriRtian wife. 1963 The Board withheld its consent to that new will and 7,1 -. R . intimated on the 13th July, 1906, its refusal and also wk~:~:;• aJ communicated thereby the withholding of its consent and Others to the will already executed by him on the 28th July, v.

1904. A further attempt by him on the 21st Novem- 1'huku,- Dwarku ber, 1906, to obtain the consent of the Court of Wards Nath Singh to another draft will was also unsuccessful and the will and Others. datedthe 28th July, 1904, was the only last will a.nd BltagwatiJ. testament executed by him and got registered after consent obtained from the Court of \Vards.

Shankar Bux Singh died thereafter on the 28th July, 1922, and he being a Christian at the time of his death succrnssion to his property was governed by the Indian Succession Act.

His wife got l /3rd of the estate and the remaining 2 /3rds were divided in equal shares between his surviving daughter and the son of a pre-deceased daughter of his. Mutation was effected in the records of rights and the name of the widow was shown there as the owner of the estate in his place and stead. The Court of Wards relinquished charge of the estate sometime in November, 1925.

The widow executed on the 16th August, 1927, a deed of gift conveying the bulk of the estate to her daughter and the son of the pre-deceased daughter. She also executed another deed of gift in the same year conveying the rest of the properties and on the 8th September, 1928, Ganga Bux Singh filed a suit in the Court of the Subordinate Judge of Sitapur for a declaration that under the aforesaid will she had only a life interest in tht.' property and the transfers made by her were void.

This suit was contested by her and one of the defences tRken was that Ganga Bux Singh could not maintain' the suit without first obtaining letters of administration with the will annexed. This defence was upheld and the suit wr.s dismissed on the 14th July, rnao.

Ganga Bux Singh having died in the meanwhile on the 19th October, 1929, his sons applied for letters of administration with the will annexed on the 25th September, 1930, on the original side of the Chief Court of Oudh.

This application w&s opposed by the

SUPREME COURT REPORTS [1953]

1963 widow and other heirs of Shankar Bux. Singh inter alia on the ground that the will had been executed without Thakurain Raj Rani the sanction of the Court of Wards. Mr. Justice Kisch

and Others delivered an elaborate judgment, negatived a.JI the v. objections and granted letters of administration with Thakur Dwarka the will annexed to the sons of Ganga Bux Singh on

Nath Smgk the Hith November, l93l.

An appeal filed by the and Others. widow and heirs of Shankar Bux Singh against that

Bhagwati J. decision was allowed bv the Bench of the Chief Court of Oudh at Lucknow oi1 the 8th September, 1933, and the orders passed by the lower court granting letters of administration with the will annexed were set aside.

The sons of Ganga Bux Singh took an appeal to the Privy Council and their Lordships of the Privy Council on the 7th May, 1987, reversed the decree of the Appeal Court and rrn; tored the decrne passed by Mr. Justice Kisch. Their Lordships however observed that the only effect of their decision was that letters of administration with a copy of the will annexed must be granted as prayed but that would not in any way lJl'eiudice anv proceediiws a"ainst anv of the benefi- J b b v ciaries which may be open to the respondents or any of them.

On the 9th tleptem ber, 1987, the widow, the claughter and the son of the pre-deceased daughter of Shankar Bux Singh, the plaintiffs, filed the suit out of which this appeal arises, against the three 8ons of Ganga Bux Singh, the defendants, for a declaration that the will dated the 28th July,

1904, wa.s inoperative and ineffectual and that in any case the defendants had no iight, title or interest in the properties in suit, that plaintiff 1 was entitled to hold the property in suit under the will of Shankar

Bux Singh dated 19th June, 1901, or that the plaintiffs 1 to 3 were entitled to the same as heirs-at-law of Shankar Bux Singh deceased under the provisions of the Indian Succession Act, and for further and other reliefs. In the plaint they alleged that the will was inoperative as Shankar Bux 8ingh had no animus testandi and that it was void and inoperative in respect of the testamentary disposition in favour of Ganga

,_ •

Bux Singh am\ his sons because Ganga Bux Singh 195.1 failed to perform his part of the contract as regards the f, hi JI

'J. 1hakurai'n Raj payment o mont y a owance and the defendants Rani therefore could not take advantage of or claim any ""d Others ben!!fit under that testamentary disposition and further v. the payment of the said allowance being a condition Tha; ur Dmka

precedent and the condition not having been fulfilled J>.ath Singh h d. 't' I t' Th d f' d 3 and Others. t e 1spos1 rnn 1ecame mopera 1ve. . e e en ant filed a written stat; ement on the 7th February, 1938, Bhagwati J. eontesting the plaintiff's claim. He contended that the plea as to the validity or effeet of the will was barred hy res j11dicata by virtue of the judgmt>n t of the Privy Council ch1ted 7th May, 1937.

He denied that the will was executed in consideration of the agreement.

He also denied that there was any contingent or conditional contract or any trace of the alleged condition in the whole of the correspondence between Shankar Bux Singh and the Board of Revenue.

The learned Civil .Judge, Sitapm, after considering the cvidenee, oral as well as documentary, led before him held that the will as well as the agreement formed one contract, that Ganga Bux Singh had failed to perform his promise or his part of the contract, that the only point which was agitated before their Lordships of the Privy Council was as regards the consent of the

Court of 'Vards and that therefore even though the plaintiffs were precluded from disputing the genuineness of the will they were not precluded from seeking a declaration to the effect that the defendants were not entitled to any benefit under the will, and that the decision therefore did not operate as res judicata so far as issues in the present case were concerned.

He however held that the contract clearly provided a remedy for breach on the part of either party, that Shankar Bux Singh did not in fact cancel the will and could not he said to have treated it as inoperative, that Ganga Bux Singh acquired a vested interest in the estate on the death of the testator and that on his death that interest devolved on his sons amongst whom were the defendants in the suit and that the plaintiffs were not entitled to any relief as claimed, T)le

SUPREME COCRT REPORTS [1953]

1953 plaintiffs filed an appeal to the Chief Qourt of Oudh.

The Chief Court of Oudh negatived the contention that Tl1akurai11 Raj h d ·

J d h Rani Shankar Bux Singh a no animu8 testan<ii an t at

and Others it was a will in form only and not in substance, holdv. ing that it was barred by res judicata by reason of the

Thakur Dwarh1 decision of their Lordships of the Privy Council. It

Xa; h Singh also negatived the contention that the bequest in and Other.1, .r f B s I d' . 1 b iavour o Ganga ux mg 1 was a con 1t10na equest

Bhagwati .r. or that Ganga Bux Singh having failed to fulfil his obligation to pay the gujara his original chamcter as a legatee changed into that of a trustee and he must hold the beneficial interest for the testator or his heirs.

The appeal was therefore dismissed with costs. The plaintiffs applied for leave to appeal to the Privy Council and the necessary certificate was grante<l hy the Chief Court of Oudh on the 8th August, 1947.

It is necessary at the outset to set out the deed of agreement and the will executed by Ganga Bux Singh and Shankar Bux Singh respectively on dates the 7th January, 1904, and the 28thJuly, 1904. The deed of agreement dated the 7th .January, 1904, ra.n as under:-

"vVhereas, my cousin Thakur Shankar Bakhsh Singh, Taluqdar of Rampur Kalan, has proposed to make a bequest of his taluka, immovables, movables, rights etc. in favour of his wife and after her death in my favour and that of my sons Dwarka Nath Singh, Ajodhiya Nath Singh and Tirbhuwan Nath Singh, therefore by way of consideration for this concession and favour, I, the executant, out of my own free will do hereby execute this agreement in favour of my cousin aforesaid that in the month in which the said cousin might execute the said will in my favour and that of my sons and lays the same along with an application before the Deputy Commissioner, Sitapur district, for sanction of the Members of the Board of Revenue, I shall from the 1st date of the month following that month, continue to pay to my said cousin Rs. 50 in cash every month during his life, so long as the said will remains in force and under this contract I make my person liable and hypothecate the same by virtue

of this agreement. If I, the; executant, fail to perform 1963 the said contract the said cousin has power to have Th k-. R . the same performed by me, the executant, through

" ';;~7 •J Court. If the will mentioned above executed by the and Other• said cousin, be not sanctioned by the Members of the v.

Board of Revenue or if under any circumstance, the Thakur D~""ka said cousin may himself revoke the said will, then from Nath Singh and Others. the time of revocation or refusal by the Board of Revenue the said cousin shall not be entitled to receive Bhagwati J. the aforesaid monthly amount of Rs. 50 and whatever money the said cousin might have received from me, the executant, up to the said refusal or revocation the said cousin shall necessarilv be bound to refund that money to me, the executaii.t."

The will dated the 28th July, 1904, was executed by Shankar Bux Singh in the terms following:--

"I am Thakur Shankar Baksh alias S. John son of Thakur Anant Singh, Taluqdar of Rampur and Grantee of Piprawan, district Sitapur. Out of my own free will, inclination and accord and consent I make a will that after my death my wife for her lifetime shall remain in possession of my entire Ilaqa (estate) as well as the movable and immovable property, left by me, together with the rights etc., relating to the said properties, without the power of any sort to transfer the said properties and rights, that on the death of the said wife all the aforesaid property and the rights shall devolve on my real cousin, Ganga Bakhsh with all the proprietary powers, and that on the death of Ganga Bakhsh the said entire property and the rights shall devolve on Dwaraka Nath, Ajodhia Nath and Tirbhuwan Nath, sons of Ganga Bakhsh, like Ganga Bakhsh himself, in the following shares: Dwaraka Nath annas 6, Ajodhia Nath annas 5, Tirbhuwan Nath annas 5: and that the persons mentioned below shall continue to get the maintenance allowance (Guzara) according to the amounts and conditions noted below:-·-

Musammat Permeshuri, my eldest daughter, married at Allahabad to the son of Rai Anant Ram, generation

19;3 after generation, (limited) to male issue,. Rs. 100 per month; Thakurain Raj

flani Musammat Chandrani, my younger sister, married and Othm to Rai Raghubir Bakhsh, son ofRai Kunwar Bahadur,

Rais of Shahabad, district Hardoi, generation after Thakur Dwarka generation (limited) to male issue, Rs. 60 per month;

No.th Singh

and Others, Mussamat 1-toop Rani, my real paternal aunt (father's sister), wife of Munshi Chedi Prasad deceased,

Bhagwati J. Rais of Qasba Mahona, district Lucknow, generation after generation, (limited) to male issue, Rs. 45 per month; Musammat Sohni, my mother for her life, Rs. 70 per month. * * * * Be it also known that my estate (Ilaqa) is under the Superintendence of the Court of Wards rmd the Hon'ble Members of the Board of Revenue have granted me power to execute the will so I do hereby execute this my last will cancelling all the previous wills executed by me." • It is clear from the terms of the deed of agreement that Ganga Bux Singh agreed to pay Rs. 50 in cash every month during the lifetime of Shankar Bux Singh in consideration of Shankar Bux Singh having proposed to make a bequest of the remainder in favour of Ganga Bux Singh and his sons and that it was after the deed of agreement was got registered by Ganga Bux Singh on the 11th .January, 1904, that the draft of the will was submitted on the 18th January by Shankar Bnx Singh to the Court of vVards.

It was this draft of the will amended as it was by the letter dated 27th April, 1904, that was engrossed in the will which was ultimately executed on the 28th July, 1904, after the letter of sanction obtained from the Board on 25th May, 1904.

The learned Civil Judge under the circumstanr:i>s uame rightly to the conclusion that the <leed of agreement and the will formed part of the same transaction, that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the wiU

I •

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SUPREiE COCR'r ilEPORTS 923

as well as the agreement formed one contract. This 1v53 finding was not challenged beforn the Chief Court of T' k-. R . 0

.._., . rta ura1n a; udh and could not be challenged before us.

There Rani was also a further finding of fact which was recorded and Other, by the learned Civil Judge and it was that Ganga Bux v.

Singh failed <tnd neglected to make any payment to 1'hakur JJ_warka Shankar Bux Singh in terms of the deed of agreement Na%'0 8Z"u" even though Shankar Bux Singh executed the will and "" t "' laid the same along with the application before the Bhagwati J.

Deputy Commissioner, Sitapur, for sanction of the Members of the Board of Revenue and that Ganga Bux Singh thus failed to perform his part of the contract.

This finding also was not challenged before the Chief Court of Oudh and could not be challenged before us.

The question therefore which falls to be considered by us is what is the effect of the failure on the part of Ganga Bux Singh to make the payments to Shankar Bux Singh in terms of the deed of agreement. It was urged by Dr. Tckchand, who appeared for the plaintiffs before us that by reason of such non-payment and the breach of contract on the part ofG; onga Bux Singh the will became ineffective and inoperative, that the payment of Rs. 50 per month during the lifetime of Shankar Bux Singh was a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh and that condition not having been fulfilled the legacy did not vest in Ganga Bux Singh and that on a true construction of the terms of the will Ganga Bux Singh acquired no vested interest in the remainder. He also urged that the scope of the Privy Council judgment was misunderstood by the Chief Court of Oudh and that both the questions as regards anhn1ls testandi and the payment of Rs. 50 per month being a condition precedent though they were bareed by res judicata in regard to the due execution of the will were still open to him as affecting the right of Ganga Bux Singh to the legacy which was provided for him by Shankar Bux Singh under the will.

In regard to the hist contention urged by Dr. Tekchand both the courts below were of the opinion that the question of animus testandi was barred by res

924 SUPREME COURT Rl!JPORTS [1953]

1953 , judicata.

It was held by their Lordships of , . R . the Privy Council that the will in 'dispute was 7 hakurain "J not revoked and that it was the last will and Rani and Others testament of Shankar Bux Singh. That decision necesv. sarily meant that the testator when he appended Thakur Dwarka his signature to the will was in a sound and disposing Nath Singh state of mind, was a free agent and duly executed the and Others. will in accordance with the law. The decision was

Bhaywati J. conclusive as regards the testamentary capacity, due execution and the representative title of the person to whom the letters of administration with the will annexed were granted. It was not open therefore to the plaintiffs to contend that the will which was executed by Shankar Bux Singh was a will merely in form and not in substance. The question of animus testandi . was therefore barred by res _judicata. In regard however to the question whether the bequest in favour of Ganga Bux Singh could t.ake effect by reason of default in payment the decision of the Privy Council did not constitute res _judicata and it was open to . the plaint' iffs to urge that contention.

Both the courts below therefore allowed the plaintiffs to agitate that question tl-.ough they came to a conclusion adverse to the plaintiffs.

We are of the opinion that there was no bar of res _judicata and the courts below were right in allowing the plaintiffs to agitate that question.

The payment of Rs. 50 per month to Shankar Bux Singh during his lifetime might be a condition precedent to the whole will coming into operation or might be a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. If the plaintiffs urged the former position that plea would certainly be barred by res _judicata. No court would grant a probate or letters of administration with the will annexed in regard to a will w':i.ich has ceased to be operative and was a mere scrap of paper. The plaintiffs could not therefore be heard to say that by reason of the non-fulfilment of the condition precedent the whole will had become inoperative, for that would run counter to th.e decision of th(} Privy Council. Even on merits such a position would be untenable for the simple reason that besides

 I

I •

Ganga Bux Singh there was the widow, who was given I91iJ a life interest and there were the three daughters, the " h ' d h h Thakurain Raj 1at er s sister an t e mother w o were given legacies by Rani way of maintenance and they were certainly not guilty and Others of non-fulfilment of any condition precedent. The will v. would certainly therefore stand so far as they were con- Thakur Dwarka cernedand the whole effect of the non-fulfilment of the Nath Singh condition precedent qua Ganga Bux Singh would be and Others. to prevent the vesting of the legacy in his favour.

Blmgwati J.

The latter position therefore would be available to the plaintiffs and they could contend that by reason of the non-fulfilment of the condition precedent by Ganga Bux Singh the legacy provided in his favour did not vest in him.

If the payment of Rs. 50 per month therefore constituted a condition precedent the plaintiffs were on firm ground and that position coulrl not and was not contested before us by the learned counsel appearing for the defendants. It therefore remains to be considered whether the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime

co11Rtituted a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh.

There is no doubt, as held by the learned Civil Judge, that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the will as well as the agreement formed one contract. But for Ganga Bux Singh having executed the deed of agreement Shankar Bux Singh • would not have forwarded the draft will to the Court of Wards for its sanction and he would also not have executed the will on the 28th July, 1904. The contract was an overall contract under which both the parties had to perform their respective obligations. The obligation on the part of Ganga Bux Singh was to execute the deed of agreement, agreeing to pay the moneys to

Shankar Bux Singh in accordance with the terms thereof.

The obligation on the part of Shankar Bux Singh was to execute the will and submit it to the Court of Wards for its sanction. Both these obligations were fulfilled by the parties and the two documents were supported by consideration and became Linding

!:126 SUPREME COURT REPOR'h:l [1953]

195J on beth the the parties. The non-perfonnanoe of the agreement to pay by Ganga Bux Singh"constituted at '11hakurai-n Raj '-' '-' Rani best a failure to fulfil his obligation and Shankar Bux

and Others Singh became entitled to pursue his rights and remev. dies against Gangti Bnx Singh by reason of the breach Thakur Dwarka of contract by him.

Nath Singh h . . lt was urged bv Dr. Tekchand t at the cons1derat10n and Others.

J here constituted tt condition precedent and that the

Blwgwati J. non-pa, yment of Rs. 50 per month by Ganga Bux Singh constituted non-fulfilment of condition precedent.

He relied upon the observations of Chief Justice \Vills in Acherley v. Vernon, 125 English Reports llOG at page llOS (Willes 153 at page 156):

"I know of no words that either in a, will or deed neoessmily make a condition precedent, but the smno words will either make a condition precedent or subsequent according to the nnture of the thing and the intent of the parties. If therefore a man devise one thing in lieu and c01rnideration of another, or agree to do anything or pay a sum of money in consideration of anything to be done, in these cases that which is the consideration is looked upon as a condition precedent.

So is the case of Peters v. Opie, 1 Ventr. 177, and 1 :Saund. 350. If a man agree to pay a sum of money to another pro lubore suo in pulling down a house, the pulling down of tho house is a condition precedent. So is the case of Thorpe and Thorpe, 1 Salk. 171, where a man agreed to pay a sum of money to another he releasing the equity of redemption in certain lands. And so is tb.e case of 'l'wmer v. Ooodwin, adjudged by Lord "Macclesfield and the rest of the Judges of B. R. upon great consideration, P. 13 Anne, in which case Goodwin wa.s to pay Tu111er 1500!. he assigning a judgment.

In all which mises it was holden that the party vd10 was to receive the money was not entitled to demand it until he had performed that which was the consideration of the payment, and which was considered in all these cases to be in the nature of a condition precedent. * * *

So likewis.e if it plainly appear to be the intent of 1953 the testator that the devisee shall not have the bene- 7,1 - fit of the devise unless he perform a certain act enJ'oiniakumin Ilaj Rani ed him by the devisor, this is a condition precedent ; and Others and the devisee shall have no benefit of the devise v. until he perform it, even though the condition be never Thakur Dwarka so umensonable if it be not illegal or impossible; for Naih Singh d d " and Others, CUJUB est ure eJUB eBt iBponere.

These observations were particularly relied upon by Bhagwati J, Dr. Tekchand in support of his contention that the payment of .Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent. to the vesting of the legacy in favour of Ganga Bux Singh.

While recognising the force of these observations we are constrained to observe that the terms of the deed of agreement negative any such contention. The agreement itself provided what was to happen if payment was not made in accordance with the terms thereof. If Ganga Bux Singh failed t, o perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative. In that event the agreement itself would become inoperative and no rights nuder the agreement would survive to Shankar Bux Singh.

The right which was therefore given to Shankar Bux

Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance.

The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux

Singh is cmwPrned it was at no stage contemplated that he could forego the performanee of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood 1111revolrnd,

SUPREME COURT REPORTS [1953)

19.53 It is significant to observe on the otl; ter hand that

Tl ku--: R . two events were contemplated so far as Shankar Bux

w ;:~7 OJ Singh himself was concerned.

The one was the withand Others holding of the consent of the Court of Wards and the

v. other was the revocation of the will by Shankar Bux

Thakur D':'arka Singh himself. The sum of Rs. 50 per month was agreed Nath Smgh to be paid bv Ganga Bux Singh to him from the aad Others. h h "sh k B s. h d th u mont w en an ar ux mg execute e w1

Bhagwati J. and laid it before the Court of Wards for its sanction. The Court of \Vards might withhold its consent to the will and in that event whatever payments were made during the interval by Ganga Bux Singh to Shankar Bux Singh had to be refunded by the latter. Even though the Court of Wards might sanction the will Shankar Bux Singh might later on revoke the will and the consequence of such revocation was also provided in that Shankar Bux Singh was to refund to Ganga Bux Singh the amounts which he had paid up to the time of revocation to Shankar Bux Singh in accordance with the terms of the agreement. It has to be observed moreover that all these constituted independent obligations on the part of both the pacties. The obligation on th.e part of Ganga Bux Singh was so long as the will stood unrevoked to pay to Shankar Bux Singh Rs. 50 per month during his lifetime and the obligation on the part of Shankar Bux Singh was to obtain the consent of the Court of Wards and to leave the will unrevoked during his lifetime.

These obligations were independent of each other and the consequences of the non-performance of these obligations on the part of each of the parties were expressly provided in the agreement itself. It could not therefore be contended that the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent to the vesting of the legacy in his favour. That was merely a consideration provided by Ganga Bux Singh for the execution of the will by Shankar Bux Singh in his favour and if Ganga Bux Singh committed a breach of the agreement the only result was that Shankar Bux Singh would become \)ntitled to recover the amount due on such default

4 - •

from Ganga Bux Singh by having recourse to a court of law.

The contract would continue to subsist, the

Thakttrain Raj parties being relegated to their rights and remedies Rani thereunder as contemplated by the parties. and Others

hln spitefoRf th~ 0 non-paymehnt bSyhGakngaBBuxSS!nghh ?f ThakurvDwarka t e sum o . ~· l> per mont to an ar ux mg m Nath 8 ; ngh accordance with the terms of the agreement at no time and Others. did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a court of law for the re- Bhagwati J, covery of the amounts in respect of which Ganga Bux Singh was in default. He left the will unrevoked and on his death the will became effective as his last will and testament and operated to vest in Ganga Bux Singh an interes1i in the remainder as therein provided.

There is nothing in the will itself which in terms makes the bequest conditional on regular payment of the amount under the agreement.

The argument which was advanced by Dr. Tekchand based on section 81 of the Indian Trusts Act could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Oanga Bux Singh. It was certainly farthest from the thought of Shanlrnr Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Ringh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar

Bux Singh.

The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shanlrnr Bux Singh is equally of no avail.

The legacy in favour of Ganga Bux Singh was a legacy of the remainder of the estate whih vested in Ganga Bux 8ingh but was deferred in possession till after the extinction of the life interest created in favour of the plaintiff l. Ruch vested interest could devolve upon the dofondants, the heirs and legal representatives of

. 120

SCPREME COURT REPORTS [1953]

19.13 Ganga Bux Singh on the death of th() latter and the

7'hakurain llaj defendants were therefore as the heirs and legal repreflani sentatives of Ganga Bux Singh since deceased rightly and Other., entitled to the same. As the bequest was not v. conditional and did not lapse there onld be no ques- Thakur Dwarka t' f lt' t t f ' t h N h ,.. h ion o any resu mg rus or o any rntes acy wit at ui.11rf • • and Others. respect to the remamder.

The result therefore is that the appeal fails and must Bhagwat-i J. be dismissed \Vith costs.

Ja; n, 28.

Appeal dismissed.

Agent for the appellants: R11; iinder Narain.

Agent for the respondents: 0. P. Lal.

BEJOY GOPAL MUKHERJI v.

PRATUL CHANDRA GROSE.

[MEHR CHAND MAHA.JAN, S. R. DAs and

BHAGWA1'I JJ.]

Landlord and tenant-Permanent tenancy-Evidence-Inference froin po.<!session froni generation to generation, transfers, erection of structu, res and other ci1:cnmsttinces-J1Iere increase of rent, effect of.

Permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation and the fact of enhancement of rent Joes not necessarily n1ilitate n, gainst the tenancy being a permanent one.

When, therefore, in a previous suit the only <iuestion was whether the jama could be increasen and the jama was increased : Held, that this decision did not operate as res judicata on the tJ.U8sLio11 of permanency of the tenure in a snbsoquent suit for ejectment.

Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogen dra Krishna Banerji v. Szibashini Dassi (1940) 45 C.W.N. 590, Probhas Chandra Mallick v. Debe-ndra Nath Das (1939) 43 C.W.N. 828, relied on.

'Thiere possession for generations at a uniforin rent, or construe tion of permanent structures hy itself may not be conclusive proof of a permanent right but the cumulative effect of such facto coupled with other facts may lead to the inference of • permanent

I I

30t, h September, 1952

Hyderabad

31st December, 1952

30th September, 1952

section 11

section 11

G. H.

Rajadhyaksha

THAKURAIN RAJ RANI AND OTHERS

THAKUR DWARKA NATH SINGH

AND OTHERS

MEHR CHAND MAHAJAN

s.R.DAS

ThnkurahJ. Raj

I Nath Singh

28th .July, 1904

Chief Court of Oudh

Thakur Dwarkti

Nath Singh

CIVIL APPELLA'l'F.

JuRISDW'.rlO)

Bakshi Tele Chand

Achhru Rarn

Bishan Singh

BHAGWA'L'I

Civil Judge of Sitapur

Thakur Shankar Bux Singh

11th July, 1901

Section 8

Court of Wards Act

1st August, 1901

Section 34

SUPREME COURT REPORTS [1953]

1953

1.'hakurain Raj

llani

30th November, 1901

Aath Singh

Ganga Bux Singh

Bhagwati

7th January, 1904

18th January, 1904

25th May, 1904

27th April, 1904

28th July, 1904

Ganga Bux Singh Lut

19th December, 1905

13th July, 1906

Wards Nath Singh

Shankar Bux Singh

28th July, 1922

Indian Succession Act

16th August, 1927

8th September, 1928

Subordinate Judge of Sitapur

14th July, rnao

19th October, 1929

Shankar Bux. Singh

Thakurain Raj Rani

Kisch

Thakur Dwarka

7th May, 1987

9th tleptem ber, 1987

Ganga Bux Singh

Shankar

Bux Singh

Shankar Bux 8ingh

Ganga

,_ •

Bux Singh

Civil .Judge, Sitapm

Bux Singh

8th August, 1947

7th .January, 1904

vVhereas

Thakur Shankar Bakhsh Singh

Dwarka Nath Singh

Ajodhiya Nath Singh

Tirbhuwan Nath Singh

Sitapur district

Shankar Bux Singh

Thakur Shankar Baksh alias S. John

Thakur Anant Singh

Rampur

Piprawan

Sitapur

Ganga Bakhsh

Dwaraka Nath

Ajodhia Nath

Tirbhuwan Nath

Musammat Permeshuri

Lucknow

Musammat Sohni

11th .January, 1904

Shankar Bnx Singh

Rani

1'hakur JJ_warka Shankar Bux Singh

Tckchand

Tekchand

Bhaywati

Blmgwati

Gangti Bnx Singh

Nath Singh

\Vills

Thorpe

So is the case of Thorpe and Thorpe, 1 Salk.

Macclesfield

Goodwin

Naih Singh

Shankar Bux

Singh

Shankar Bux

Thakur D':'arka Singh

section 81

Indian Trusts Act

Oanga Bux Singh

Shanlrnr Bux Singh

Ganga Bux Ringh

Ganga Bux Singh

Bhagwat

iinder Narain

Agent for the appellants: R11; iinder Narain.

. P. Lal

MEHR CHAND MAHA.JAN

[MEHR CHAND MAHA.JAN, S. R. DAs and

BHAGWA1'I JJ.]

S. R. DAs


SCPREME COURT REPORTS [1953]

19.13 Ganga Bux Singh on the death of th() latter and the

7'hakurain llaj defendants were therefore as the heirs and legal repreflani sentatives of Ganga Bux Singh since deceased rightly and Other., entitled to the same. As the bequest was not v. conditional and did not lapse there onld be no ques- Thakur Dwarka t' f lt' t t f ' t h N h ,.. h ion o any resu mg rus or o any rntes acy wit at ui.11rf • • and Others. respect to the remamder.

The result therefore is that the appeal fails and must Bhagwat-i J. be dismissed \Vith costs.

Ja; n, 28.

Appeal dismissed.

Agent for the appellants: R11; iinder Narain.

Agent for the respondents: 0. P. Lal.

BEJOY GOPAL MUKHERJI v.

PRATUL CHANDRA GROSE.

[MEHR CHAND MAHA.JAN, S. R. DAs and

BHAGWA1'I JJ.]

Landlord and tenant-Permanent tenancy-Evidence-Inference froin po.<!session froni generation to generation, transfers, erection of structu, res and other ci1:cnmsttinces-J1Iere increase of rent, effect of.

Permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation and the fact of enhancement of rent Joes not necessarily n1ilitate n, gainst the tenancy being a permanent one.

When, therefore, in a previous suit the only <iuestion was whether the jama could be increasen and the jama was increased : Held, that this decision did not operate as res judicata on the tJ.U8sLio11 of permanency of the tenure in a snbsoquent suit for ejectment.

Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogen dra Krishna Banerji v. Szibashini Dassi (1940) 45 C.W.N. 590, Probhas Chandra Mallick v. Debe-ndra Nath Das (1939) 43 C.W.N. 828, relied on.

'Thiere possession for generations at a uniforin rent, or construe tion of permanent structures hy itself may not be conclusive proof of a permanent right but the cumulative effect of such facto coupled with other facts may lead to the inference of • permanent

I I

I . .. .

S.C.]{.

Sl1PRE.Y1E COURT REPORTS 931

1953 tenancy. Where \twas not known how the earliest known tenant acquired the tenancy or \Yhat the nature of the tenancy was, the tenancy had passed from one person to another by inheritance or Bejoy Gopal by will or by transfer inter vivas, in the deeds of transfer the Mukherji transferee was given the right to enjoy from generation to genera,~ v. tion for ever, pucka structures and tanks had been constructed, Pratul Chandra

Ghost. and though there was an enhancement of rent in 1860, the rent had not been increased since then : Held, that all these circumstances put together irresistibli led to the conclusion of a permanency of the tenure.

Probhas Chandra 1lfallik v. Debendra Nath Das (1939) 43

0. W .N. 828 referred to.

CIVIL APPELLATE JuRrnDICTION: Civil Appeal No. ri:~ of 1952.

Appeal from the Judgment and Decree dated the 20th January, 1950, of the High Court of Judicature tit Calcutta (Das and Gupta J, J.) in Appeal from Original Decree No. 141 of 1940 arising out of , Judgment and Decree dated the 8th May, 1940, of the Court of the Subordinate Judge, lst Court of Zillah Howrah in Title Suit No. 38 of 1948.

N. 0. Chatterjee (A. N. Sinha., with him) for tlw appellant.

Panchanan Ghose (Syama Chamn Mitter and A./{.

Dutt, with him) for the respondent.

1953. January 28. The Judgment of the Court was delivered by

DAs J. - This is an appeal by the plaintiff in an ejectment suit. His case was that defendant No. 1 Pratul Chandra Ghose was >1 Ticca tern111t of premises Nos. 2 and 3, Watkin's Lane, Howrnh, comprising an area of 1 Bigha 19 Cottahs of land 011 a rent of Rs. 78 per annum under the landlords Kumar Sarat Kumar Roy and Bibhuti Bhusan Cluitterjee, pro Jonna

defendants Nos. 2 and 3, that the plaintiff took a l\Iourashi l\Iokarari len, sc from these landlords on the 23rd September, 19:37, and thereby hecame the immediate landlord of the said defendant and that the teuancy was determined by a notice to quit dated the 7th October, 1937. The trial Court, amongst other

932 SUPREME COUR'r REPORTS [1953j

things, found as a fact that the tenancY. of the defendant Pratul Chandra Ghose was permanent, heritable Bejoy Chandra and transferable and was not liable to be determined Mukherji v. by notice. The plaintiff preferred an appeal to the

Pratul Ohandm High Court but the High Court dismissed that appeal

Ghose. holding, amongst other things, that the finding of the

DasJ. trial Court as to the na\ure of the tenancy was correct.

The plaintiff has now come up on appeal before us after getting a certificate from the High Court that it is a fit case for appeal to this Court.

Helying on the decision of the Privy Council in Dhanna 1vlal v. 1floti Sayar(') Shri N. C. Chatterjee appearing on behalf of the plaintiff-appellant contends that the present appeal is not concluded by the concurrent findinµ of the Courts below that the tenancy was permanent because that question was one of the proper inference in law to be deduced from the facts as found by the Court.s below.

The learned counsel has, therefore, taken us through the evidence mostly documentary, as to the nature of the tenancy. The earliest document referred to is Exhibit P /ll, being a conveyance executed in 1226 B. S.=1819-1820 by Sheikh Manik and another in favour of Mrs. Cynthia Mills Junior. How the vendors had acquired their title is not known.

By that deed of sale the vendors, for a money consideration, conveyed their interest in the lands described as J amai lands to the purchaser who, on payment of rent of Rs. 4-8-0 per kist, was to "go on possessing and enjoying the same with great felicity down to your sons and grandsons etc., in succession by constncting houses and structures." Mrs. Cynthia Mills died some time before October, 1855, and her son John Henry Mills who had succeeded her sold the premises to one Mrs. Sabina Love by a, conveyance Exhibit P/10 dated the 29th October, 1855. It appears from that deed that by that time a tank with masonry steps had been excavated on the lands which were described as a plot of rentpaying garden land. The consideration for the sale

(I) (1927)L.R. 51I.\.178.

I '

S.C.R.

SCPREME COURT REPOH.TS 938

was Rs. 1,00.D.

The following provisions of the sale

I953 deed are of importance :- Bej<>y Gopal "From this date being entitled to make gift and Mukherji sale of the said property, you do bring into your own v. possession the said lands etc., and on paying a1mually Pmtut Chandra to thP Maliks Zemindars Rs. 4-8-0 (Rupees four and Glwse. annas eight) in Sice<ts coins as rent and on getting Das J. your name mutated in place of mine and obtaining Dakhilas in your own name, you do go on possessing and enjoying the same with great felicity down to your sons and grandsons etc., in succession."

By a conveyance Exhibit P i9, dated the 10th October, 1856, Mrs. Sabina Love transferred the premises to one [<'rancis Horatio Dobsou.

The premises were there described as "garden land held under Mourashi Patta" which Patta has since been held to be a spnrious document in a subsequent litigation.

It appears from this document that Mrs. Cynthia Mills had ex ca vtited a tank and eonstructed a pucca ghat and laid out a garden and that on her death her son and heir John Henry Mills came into possession of the land and that he had sold the premises to }frs. Sabina Love and that after her purchase Mrs. Sabina Love had enclosed the said lands and had manufactured bricks with the earth of the land she purchased. The consideration for this conveyance was Rs. 1,200. It provided as follows :--

" From to-day you become the ow1wr of the said bnds with pmwrs of making gift and sale. On keeping the said lands together with the tank with all interests therein in your possession and under your control, and on paying according to the previous Pat ta the )fokarari <1nnual rent nf R.,. +-8-0 in Sicea coins into the Sherista of the Zemindar and on having the previous name • struck off from the landlord's Sherista mid getting your own name Tecorcled therein, you do go on enjoying and possessing the same with great felicity down to your sons, gmndsons etc., in succession."

On 10th Jeshta 1260 B.b. corresponding to 23rd }fay, 1859, a notice under sections 9 and 10 of Regulation V of 1812 was issued by the then Zemindars Rl}ni

Be.joy Gopal Mukherji

SUPREME COCRT REPORTS [1953]

Lalanmoni and Raja Purna Chandra Roy. It was addressed to "Mrs. Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of Salkhia." It ran as follows: -

v. "This is to inform you that you are in possession of Pratul Chandra l Bigha 19 Cottas oflands of different kinds as per the

Ghose. b d . . b 1 d d . th M l o-· _ oun aries given e ow as recor e m . e a . epart- Das J. ment in the said village for which according to your own statement you are paying a yearly rental of Rs. 4-12-6. But you have taken no settlement in respect thereof from our estate (sarkar). .Now on fixing the annual Jama of the said lands according to the prevailing rate as per Jamabandi at Rs. 137-8-0 a year, fifteen days' notice is given to you under the provisions of sections !land 10 of Regulation V of 1812 and you are hereby informed that within the said period you should appear before our Zamindary G'utchery and accept a Pottah after submitting a Kabuliyat according to the practice in respect of the land and J arna.

In default, nJter the expiry of the said period action will be taken according to law, and thereafter no plea shall be entertained."

The requisition not having been complied with, tho landlords evidently filed a suit being Suit .No. 590 of 1859.

The pleadings in this suit are not on the record.

On 21st September, 1860, the Principal Sudder Amin delivered his judgment, Exhibit 24. It appears from that judgment that the following two issues had been framed:-

" 1. vVhether the plaintiffs have served notice on the other party for assessment of J l1ma ?

2. whether a Jama can be assessed in respect of the disputed lands; if so at what rate?"

The Principal Sudder Amin overruling the objection of the defendants held that the landlords had full power to assess the rent and accordingly he fixed the rent at Rs. 2 per Cotta which worked out at Rs. 78 in respect of the entire iand. There was an appeal from that decision which, however, was dismissed bv the judgment Exhibit Z (2) delivered on the 18th J\farch,

1862. The J\fournshi Patta relied upon was rejected as

l •

S.C.R

SCPREME COURT REPORTS 935

it was not registered and appoared, on examination, to have been ne"'ly written and filed.

Thereafter the landlord filed a suit for rent of the disputed lands against Dobson and Exhibits Z and Z (1) are the certified copies of the judgment and order passed thereon.

On the 29th May, 1866, Dobson executed two mortgages (Exhibits P /6 and P 17) in favour of De Rozario and John Dominic Freitas for Rs. 4,000 and Rs, 2,000 respectively.

Tho two re-conveyances dated 29th February, 1874, and 12th March, 1874, are also on tho record. On 6th March, 1874, Dobson sold the premisPs to Henry Charles Mann by a deed which is Exhibit

P /5.

The consideration for the sale was Rs. 9,500.

It appears from this deed that by that time there were two brick-built dwelling houses on the property which came to be numbered as Nos. 2 and 3, Watkin's Lane. On 11th September, 188:3, Henry Charles Mann sold the premises to George .Jones for Rs. 10,000 : vi de Exhibit P /4.

In both those sale deeds the transferee is granted a heritable right for ever. In the assessment books of the Howrah Municipality (Exhibits 22 series) thR interest of George Jones is described as Mourashi.

In the landlord's Sherista the nature of the tenancy is not stated and Dobson continues to be the recorded tenant (Exhibit D series).

There was, however, no eolumn in the rent receipts to indicate the status of the tenant. It appearK that on the death of George .Jones the estate came into the hands of the Administrator-General of Bengal representing the estate of George .Jones.

In the rent receipts of Dighapatia Raj the rent is said to he "received from , Jones- -Administrator-General of Bengal." In May,

1931, the plaintiff and the Administrator-General of Bcnga.l entered into an agreement for sale of premises Xo. 2, vVatkin's Lane, being a portion of the premises in question, fol' a sum of Rs. 10,001 and Rs. 1,001 was paid by the plaintiff as and by way of earnest money.

The landlords having declined to subdivide the groupd

rent between the two portions of the premises, namely, Xos. 2 and 3, vVatkin's Lane, and a portion of the Premises No. 2, vVatkin's Lane, having fallen down the

Bejoy Gopal

Mukherji

Pratul Chandra

Ghose.

Das J.

036 S"GPREME COFRT Rl~PORTS [1953]

1953 agreement for sale appears to have fallm} t.hrough. On

Be, ioy Gopal the 4th , June, 1932, the plaintiff suggested that a lease

Mukhe1ji for 20 years should be gra.nted which was refused by v. the Administrator-General, Bengal. Then there was Pratul Chandra some negotiation between the plaintiff and the

Ohos<.

Administrator-General of Bengal for the sale of both DasJ. the premises, Nos. 2 and 3, Watkin's Lane, to the plaintiff for a sum of Rs. 12,500. The pla; ntiff on 9th April, 1 !J33, sent a draft deed of sale (Exhibit 15) for the approval of the Administrator-General of Bengal deseribing the premises as a Mokarari Mourashi homestead.

On 21st April, 1933, Dighapatia Raj Estate wrote to the Administrator-General of Bengal saying that the tenancy waft a Ticca one. On 6th June, 1933, the Administrator-General of Bengal declined to approve the draft as drawn. After some further proposal by the plaintiff for a long lease he declined to purchase the property on the ground that the Administrator-General of Bengal had not a good marketable title. Nothing having come out of the negotiations between the plaintiff and the Administrator-General of Bengal the latter in September, 1936, invited offers for sale of the lands (Exhibit B). The defendant No. 1 made the highest offer of Rs. 12,251 and this was accepted by the Administrator-General in preference to the offer made by the plaintiff for Rs. 11,251. The Administrator-General accordingly executed a conveyance in favour of the defendant Pratnl Chandra Ghose (Exhibit P. X) who thereupon became the tenant of the premises. Having failed to obtain title to the premises from the Administrator-General of Bengal the plaintiff approached the landlords a.nd on 22nd September, 1937, obtained a Mokarari Monrashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only.

The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the nnderlea, se held by.the latter under the Administmtor-General of Bengal and obtained rent decrees. The plaintiff, however, on the strength of hi5 new title deeived from the superior landlords under the M:ourashi Patta served

notice on thedefendant Pratul Chandra Ghose on the l953 7th October, 1937, requiein0ct him to vacate the premises BeJoy Gopal on the last day of the month of Chaitra 1944 B. S.

Mukherji The defendant Pratul Chandra Ghose, not having v, vacated the premises, the plaintiff filed the suit out of Pratul Chandra which the present appeal has arisen.

Ghose.

Shri N. C. Chatterjee contends that in view of the DasJ. decision in the suit of 1859 it was not open to the defendant Pratul Chandra Ghose to contend that his tenancy was a heritable permanent tenancy. This point was neither pleaded nor raised in the trial Court but was put forward for the first time before the High Court. The pleadings of the 1859 suit are not on the record but the substance of the written statement appears from the judgment Exhibit 24 passed in that case. The issues framed in that case have already been set out. There was no issue regarding the character of tho tenancy, namely, whether it was permanent and heritable or otherwise.

The only question there was whether rent could be assPssed under the Regulation. There is nothing in that Regulation suggesting that rent could be assessed only if the tenancy was a ticca tenancy or that rent could not be assessed if the tenancy was a permanent one.

The question of permanency of the tenancy was not, therefore, directly or substantially in issue. \Ve find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation. The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration hut it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an i1gricultural tenancy in Shankarrao v. Sambhu Wallad('), The principle of that decision was applied also to non-agricultural tenancies in JogendraKrishnaBanerji v. Sm. Subashini Dassi('). In Probhas Chandra 111allik v. Debendra Nath Das(') also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained.

(r) (1940) 45 C.Vi/.N. 57

(2) (1940) C.'\\'.\I". 590.

(3) (r939) 43 cwx: 828,

Shri N. C. Chatterjee then contends, r, elying on the decisions in Rasamoy Purkatt v. Srinath il1oyra (1), Bejoy Gopnl

Mukherji Digbijoy Roy v. Shaikh Aya Rahman ('), Satyendra

Nath v. Charu Sankar (3) and Kamal Kumar Datta

Pratul Chandra v. Nanda Lal Dule (') that the tenancy in this case

Gh0"· cannot be regarded as a permanent one. The decisions

DaaJ. in those cases have to be read in the light of the facts of those particular cases. The mere fact of rent having been received from a certain person may not, as held in Rasamoy Purkatt v. Srinath.!Yloyra (supra) and Digbjoy Roy v. Shaikh Aya Rahman (supra), amount. to a recognition of that person as a tenant. Mere possession for generations at a uniform rent or construction of permanent structure by itself may not be conclusive proof of a permanent right as held in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of Satyendra Nath v. Charu Sankar (supra) on which Shri N. C. Chatterjee relies.

What, then, are the salient facts before us ? It is not known how the earliest known tenant Shaik Manik acquired the tenancy or what the nature of that tenancy was. The tenancy has passed from one person to another by inheritance or by will or by transfers inter vivas. In the deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgage~ have heen executed for substantial amounts.

Although there was an enhancement of rent in 1860 that rent has continued to he paid ever since then.

Portion of the premis~, namely, No. 2, Watkin'sLane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkin's Lane, residential buildings were erected which indicate that the lease was for residential purposes.

As already

(1) 7 C.W.N. 132

(2) 17 C.W.N. r56,

(3) 40 C.W.N. 854.

(4) (r929) l.L.R. 56 Cal. 738.

indicated thei; e have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors.

The names of :Nirs. Cynthia Mills and Dobson and Jones were mutated in the Zamindar's Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Jones's name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make any attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one.

The decision of Mukherjea, J., in the case of Probhas Chandra JY!allick v. Debendra Nath Das (supra) is definitely in point. In this Yiew of the matter we hold that the Courts below were right in dismissing the plaintiff'.s claim for ejectment.

In the result this appeal must fail and we dismiss it with costs.

Appeal dismissed.

Agent for the appellant: P. K. Ghose.

Agent for the respondent : Sukiimar Ghose.

SARASW' ATHI AMMAL v.

JAGADAMBAL AND ANOTHER. [MEHR CHAND MAHAJAN and S. R. DAS JJ.]

Hind11 la•v-S11ccession-Dancing girls of Sonth India- Whether dasi dauqhter excludes niarried dau, ghters-Uu.ston1,-Na tu re of evidence necessary to prove custo1n-- Hindu, law--Rulc preferring 1naidens to 11ia1-ried daughters, whether avplies to JJrostitute daughters.

The evidence on record did not establish the custom which bad been pleaded, namely that among the community of. do.sis

Bejoy Gopal

Mukherji

Pratul Oha.ndrct

Ghose.

DasJ.

Feb. 27.

Ganga Bux Singh

iinder Narain

. P. Lal

BEJOY GOPAL MUKHERJI

PRATUL CHANDRA GROSE

S. R. DAs

Bejoy Gopal

CIVIL APPELLATE

High Court of Judicature tit Calcutta

N. 0. Chatterjee

A. N. Sinha

Panchanan Ghose

Syama Chamn Mitter

Pratul Chandra Ghose

Kumar Sarat Kumar Roy

Bibhuti Bhusan Cluitterjee

Pratul Ohandm High Court

N. C. Chatterjee

Manik

Cynthia Mills Junior

Cynthia Mills

John Henry Mills

Sabina Love

29th October, 1855

10th October, 1856

Horatio Dobsou

10th Jeshta 1260 B.b

23rd }fay, 1859

sections 9 and 10

Raja Purna Chandra Roy

Dobson

Salkhia

Jamabandi

21st September, 1860

Sudder Amin

18th J\farch,

J\fournshi Patta

29th May, 1866

De Rozario

John Dominic Freitas

29th February, 1874

12th March, 1874

6th March, 1874

Henry Charles Mann

11th September, 188:3

George .Jones

Howrah Municipality

George Jones

Bengal

Dighapatia Raj

Das

Pratul Chandra

21st April, 1933

Dighapatia Raj Estate

6th June, 1933

Administrator-General of Bengal

Pratnl Chandra Ghose

22nd September, 1937

ourashi Patta

Shaik Manik

Jones

Mukherjea

P. K. Ghose

Sukiimar Ghose

MEHR CHAND MAHAJAN

S. R. DAS

Bejoy Gopal


S.C.R.

SUPREME COURT REPORTS 939

indicated thei; e have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors.

The names of :Nirs. Cynthia Mills and Dobson and Jones were mutated in the Zamindar's Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Jones's name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make any attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one.

The decision of Mukherjea, J., in the case of Probhas Chandra JY!allick v. Debendra Nath Das (supra) is definitely in point. In this Yiew of the matter we hold that the Courts below were right in dismissing the plaintiff'.s claim for ejectment.

In the result this appeal must fail and we dismiss it with costs.

Appeal dismissed.

Agent for the appellant: P. K. Ghose.

Agent for the respondent : Sukiimar Ghose.

SARASW' ATHI AMMAL v.

JAGADAMBAL AND ANOTHER. [MEHR CHAND MAHAJAN and S. R. DAS JJ.]

Hind11 la•v-S11ccession-Dancing girls of Sonth India- Whether dasi dauqhter excludes niarried dau, ghters-Uu.ston1,-Na tu re of evidence necessary to prove custo1n-- Hindu, law--Rulc preferring 1naidens to 11ia1-ried daughters, whether avplies to JJrostitute daughters.

The evidence on record did not establish the custom which bad been pleaded, namely that among the community of. do.sis

Bejoy Gopal

Mukherji

Pratul Oha.ndrct

Ghose.

DasJ.

Feb. 27.

 Baraswathi Ani1nal v.

J agada1nbal and Another.

(dancing girls) in South India a dasi daughter succeeded to her mother in preference to the married daughters; nd in the absence of such custom, succession to a dasi must be governed by the rule of propinquity of Hindu law as a rule of justice, equity and good conscience and dasi daughters and married daughters \Vonld succeed to their mother's property in equal shares.

A rule that degraded relations are preferential heirs to undegro .. ded ones cannot be evolved merely on logical grounds; the existence of such a rule can only be justified on the basis of established custom.

Custom cannot be extended by analogy. It must be established inductively, not deductively, and it cannot be established by a priori methods. It cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another.

Shanmngathammal v. Gomathi Ammal (6 Nl.L.J. 861), distinguished. N'uasanna v. Gang" (I.L.H. 13 Mad. 133), Snbbaratna

Mudali v. Balokrishna Naidu (33 1I.L.J. 207), Subbaraya Pillai

v. Rmnaswami Pillai (I.L.R. 23 llfacl. 171), Balamndaram v.

Karnakshi Arnrnal (71 11.L.J. 785), and Abdtil Hnsein Khan v. Sama Dero (I.hl\. 45 Cal. 450: P .C.) referred to.

The rule of Hindu law by which a maiden is a preferential heir to her married sisters does not apply to daughters who are admittedly married to an idol and lead a life of prostitution.

Tara v. Krishna (I.L.R. 31 Born. 495) referred to.

CIVIL

APPELLATE

JURISDICTION: Civil Appeal No. 105 of 1952. Appeal from the Judgment and Decree dated the 16th September, 1949, of the High Court of Judicature at Madras (Snbba Rao and Chandra ReddiJJ.) in Appeal No. 162 of 1946 arising out of Judgment and Decree dated the 30th November 1945 of the Court of the Subordinate Judge of Tanjore in Original Suit No. 34of1945.

S. Ramachandra Iyer, for the appellant. 'l'. R. Srinivasan, for the respondents.

1953, February 27. The Judgment of the Court was delivered by - MAHA.JAN J. - One Thangathammal who was a dasi (dancing girl) lived in the Tanjoro district in Madras State and died possessed of some properties.

She left her surviving three daughters, Saraswathi, Jagadambal and Meenambal. Jagadambal filed the suit out of which

• •

,.. ., ..

8.C.R.

SLTPREME COURT REPORTS 941

this appeal aries against her sisters for partition of the movable and immovable properties set out in the pbint and for allotment of a thin! share to her therein. 8he alleged that her mothor was maried to one Thyagaraja Pillai, that the properties in suit were the stridhanam properties of her mother who died intestate on 26th July, 1943, and that according to the law or custom of the community to which the parties belonged she and her sistcrn were entitled to share equally the propertil's of her mother.

Saraswathi Ammal, the 1st defendant contested the snit. She pleaded that her mother was not a married womnn but n dnsi who followed her hereditttry occupa, tion and w<1s att<1ched to Shri Saranatha Perurnal temple at 'riruchurai in the Tanjore district, that of

the three daughters the plaintiff and the 2nd defendant married and lived with their husbands, while she (1st defendant) was duly initiated as a dasi in the said temple and remained unmarried and that according to the h1w and custom of the community, the mother's property devolved solely on her to the exclusion of the plaintiff and the 2nd defendant.

The 2nd defendant supported the 1st defendant's case. The material issue in the suit was issue No. 1 which was in these terms:-

" Who is the proper heir of Thangathammal. whether according to custom as set up by the plaintiff, all the daughters arc heirs, or according to the custom put forward by tbc 1st defendnnt, the unmarried daughters alone are entitled to inherit."

The Subordinate Judge dismissed the suit holding that Thaugathammal was a dasi and not a mttrried woman, that according to the custom of the dasi community in South India, a dasi daughter is regarded as a nearer heir to the mother than a married daughter and that the 1st defendant was entitled to remain in

possession of the suit properties. Agninst this decision an appeal was taken to the High Court. The High Court reversed the decrne of the 8nbordinate , Judge and held that the custom pleaded by the lst defendant

Saraswathi Ammal v.

J a.yadambal and Another,

Mahajan:J.

J9fjJ

Saraswat}u"

Anunal

J agadau1bal a, nd Another.

942 SUPREME COtJRT REPORTS [1953]

was not proved and that the rule of propinquity of Hindu law as a rule of justice, equity and good conscience, governed the succession and the married and dasi daughters were equally entitled to the inheritance.

It was further held that a dasi daughter was not in the status of <1 maiden or unmarried daughter for purposes of succession to stridhanam property. Leave to appe1tl to the Supreme Court was granted under article 1:33 of the Constitution.

After hearing the learned counsel for the appellant, we feel no hesitation in concurring with the decision of the High Court. It was contended that the High Comt was in error in holding that the custom set up by the defendant was not proved. To prove the custom that a dasrdaughter was a preferential heir and excluded her married sisters reliance was placed on the evidence of some mem hers of the communitv and reference was also made to certain instances. Th~ same kind of evidence was led by the plaintiff in support of her case.

The evidence of both the parties on the the issue of custom is of an unsatisfactory and inconclusive character and from it no inference can be drawn of the existence of a uniform, certain ancl ancient custom prevailing in the community on this point.

Out of the defendant's witnesses, the first witness, Rajagopal Pillai, deposed that his wife was the daughter of dasi Kamakshi who had six daughters of w horn three were married and three were dasis, that on Kamakshi's death, her dasi daughters alone would take the inheritance and that his wife, would be excluded. This statement does not hurt him in any way as his wife will not be bound by what he might state.

His bald assertion about the custom in the community is not of much value. He does not disclose any source of his information. In cross-examination he admitted that he did not know a single specific instance where such a custom was enforced. The second witness the point is the first defendant. She stated th1tt one Tulasi's sister Mangalam got no share in her mother Ammani's properties. In cross-examination it was adiuitted that Mangalam died about forty years ago,

.... , .

., .

, ,

i.e., some tim~ before the defendant was born.

She could therefore have no personal knowledge about Ammani's instance. No written record of that inheritance is forthcoming.

Mangalam's son Govindaswami Pillai appeared as D. W. 3.

He deposed that Mangalam's mother Ammani had divided her properties between her dasi daughters in her lifetime.

The instance therefore is not an instance concerning succession and cannot be treated as relevant in this enquiry. The 1st defendant further deposed to an instance in Srirangam when succession opened out on the death of dasi Chellappa. It was said that her property was taken by her dasi daughter Visalakshi to the exclusion of her married daughters Marakatham and Rukmini and that the assets were worth a lakh of rupees. One would have expected some written documents about that sucession if it took place in the manner deposed to. In the absence of any evidence from the descendants of Chellappa and in the absence of any documentary evidence regarding that succession it is difficult to place any reliance on this so-called instance.

Defendant No. 1 stated that her knowledge of it was only from hearsay, and the requirements of section 32 of the Evidence Act not being fulfilled, her evidence on this point cannot be treated as admissible. The third witness, about whom reference has alreacly been made, apart from deposing as to l\fangalam's instance also deposed about the instance of dasi l\foenakshi.

Her daughter Jeevaratnam is married to the witness. He said that Meenakshi's dasi daughters inherited her property and that his wife was exeluded. The only property alleged to belong to Meenakshi was a house, the value of which is not known. The succession is said to have occurred over twenty years ago. None of the daughters of Meemikshi have been examined as witnesses in the case, to enable the court to find out the details about it and merely on the statement of this witness the instance cannot be held proved. The fourth witness for the defendant is her non-contesting sister.

She said nothing on the on the question of custom. She, however, statecl

SaratJWathi

Arnmat

Jagadambal and Another.

Mahajan J.

Saraswathi

A1nn1al

J agada-111 bal and Another.

Mahajan J.

SUPREME COUH.T BEPORTS [19fi3]

that she was not entitled to a share. in the assets of her mother. \Vhen asked why sho was making that statement, she said that she was saying so because her husband and some elders (whose names were not disclosed) had told her so.

Evidence of this character on the question of custom cannot be seriouslr considered.

Venugopal Pillai is the fifth witness for the defendant. He is the husband of the second defendant.

His evidence regarding the instance ef Chellappa is purely hearsay. He deposed that he had learnt that a dasi's married daughter is not entitled to claim a share as she is not her heir in the presence of a dasi daughter and therfore he told his wife not to claim a share.

He did not disclose the source of his information. Jan.aid Ammal, the sixth witness, is a dasi.

She deposed that she has five daughters of whom two are married, one is a dasi and the other two are young girls and that according to their caste custom her properties on her death would devolve on her dasi daughters and that the married daughters must remain content with the presents given at their marriage. In cross-examination she admitted that she was deposing about the caste custom not from any specific instance in which the custom was observed hut at the request of the defendant, and that she had heard of this custom from her elders whose names she did not disclose. She further admitted that she had an uncle living but she did not even ask him about the custom. The witness, it appears, knows nothing about the custom and is giving evidence in order to oblige the defendant.

The next witnesB who gave evidence on the issue is D. W. 8, Kanrnlathammal, a dasi. Her mother was also a dasi. She deposed that her mother's properties were divided between her and her other dasi sister and Amba, her third sister, who was married, was not given a share.

In cross-examination she admitted that Amba never asked for a share.

Neither was Amba produced, nor any written municipal records showing that the witness actually inherited the property of her mother to the exclusion of Amba.

It is difficult to hold this incident proved mnrely on the

' •

~ !

. •

vague testimony of this witness.

Pappathi Ammal, the next witness in the case, is also a dasi. She deposed that her father's mother's property devolved on her two dasi daughters on her death and that there was no married daughter in existence. This evidence is of a neutral character and is not of much use on the question of custom pleaded in the case. Apart from asserting that in this community dasi's property devolves on her death only on the dasi daughters to the exclusion of married daughters, she cited the instance of Chellappa, a dasi of Srirangam. It was elicited in cross examination that Chellappa left a house and landed properties.

No explanation is forthcoming why documentary evidence of revenue records about this instance has been withheld.

Oral evidences as to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the Lest kind of evidence is given. The last witness in the case is Rajamani Ammal, another dasi who does service in Sri Ranganathaswami temple. She also referred to the instance of Chellappa. She said that her jewels which were worth Rs. 1,000 would pass on her death to her dasi daughter. She went to the length of saying that if a dasi leaves an only child who is a married woman, even then her properties will pass to a next heir such as a cousin and not a married daughter. This is all the evidence led by the defendant to prove custom. On this meagre and unsatisfactory material we cannot hold th11t the custom pleaded is proved. The opinion evidence is not of a convincing character and evidence as to specific instances in support of the custom is really nil.

Our attention was also drawn to a decision of the lVIadras High Court in Shanmugathammal v. Gomathi Ammal(') In that case the plaintiff, a member of the dasi community, claimed to succeed to her deceased maternal aunt and pleaded that the three surviving sisters of the deceased who were impleded as defendants were not entitled to inherit because one of them

(r) 67 'l.L.J. 861,

ScwaBwathi

Animal

Jagadamho.l and AnotheJ'

MahajanJ.

SaraRwa.th.i

A1nmal

Jagndanibal r11vl A nothe1,

Mahajan J.

had been adopted by another dancing, girl and the other two had become married.

The issue raised in the case was whether the custom set up by the plaintiff that among dancing women married women are excluded by a woman who continues to be a dasi is true, valid and enforceable.

Certain dasis gave evidence in support of the custom.

No evidence whatever was given to the contrary and the custom pleaded was held proved in the circumstances of that case. Emphasis was laid on the circumstance that there was no evidence whatsoever against the plaintiff and defendants 2 and 3 who denied the existence of the custom in their written statements did not venture to deny it on oath in the witness box. The dasi community concerned in that case was a small one consisting originally of twenty houses of which only seven.or eight were then in existence and in that situation it was said that the custom might well be one that was well recognized and so much a part of the consciousness of the community, that any dispute like the present dispute amongst so small a body of women would be an extremely rare occurrence and therefore impossible of proof and that the plaintiff could not reasonably be expected to search the presidency for witnesses to speak to some similar dispute in other places. In our opinion, that decision does not furnish a good judicial instance in respect of the custom pleaded in the present case.

There is no evidence that the customs of that small community of dasis are applicable to the community of dasis in the present case which form a considerable community in this district. Moreover, the case was decided on the peculiar circumstances of that case on very meagre materials and did not lay down any general custom of dasis on this point.

It is unnecessary to examine the plaintiff's evidence in detail. Suffice it to say that it is more than sufficient to rebut the evidence led by the defendant and it neutralizes its effect, if any. In the absence of proof of existence of a custom governing succession the decision of the case has to rest on the rules of justice, equity and good conscience because admittedl; v no

:.

clear text of .Hindu law applies to such a case. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mother's property in equal shares.

No exception can he taken to this finding givPn by the High Court. :N" o other rule was suggested to us leading to a contrary result.

It was argued that the dasis have a distinct status in Hindu society mid that a rule has b1wn evolved by judicial decisions under which the state of degradation hy itself furnishes a rule of preference in a competition between dasi daughters and married daughters.

The juidicial decisions referred to concern the community of prostitutes and the rule evolved concerning them has been abrogated by later decisions. It was contended that though the said rule had been abrogated and was no longer applicable to that community concerning which it was evolved, it should by analogy be applied to cases of succession to dasis.

N arasanna

v. Gangu(') was the first case cited. There, an adopted niece of a prostitute dancing girl was preferred to a brother remaining in caste. It was said that the legal relation between a prostitute dancing girl and her undegraded relations remaining in caste becomes severed and thev are therefore not entitled to inherit the estate. In" Subbaratna Mudali v. Balakrishnaswami Naidu('), the next case cited, the facts were that a deceased woman Palani inherited the property in dispute from her mother N agu, who inherited it from her mother Mottai who again inherited it from her father Arunachalam. Arunachalam had two brothers Ramaswami and Mathurbutham and the question in that case was whether Mathurbutham's daughter Seethai or Ramaswami's daughter's son Marudamuthu Mudali was the heir of Palani. The learned judges held that Mathurbutham's daughter was preferential heir to Ramaswami's daughter's son.

It was pointed out that the rule of preference based on degradation was no longer good law. It was, however~

(r) I.LR. 13 ~[ad. IJ3.

(2) 33 ~LL.J. 207,

• 19.53

Saraswathi

A1n11u1.l

\'.

J(/gadarn.bal and Another.

t.lf.ahajfln .J,

• 1953

Sa1a.swa, lhi

Annna.l

Jagadarnbal and Another.

Mahajan J.

SUPREME COGRT REPORTS [1953]

added that in cases of dancing girls the law remained as it was before.

Our attention was also drawn to certain observations in Subbaraya Pillai v. Ramaswami Pillai(') at page 177, and to the Q..eoision in Balasundarani v. Ka.makshi Ammal('). In the former case the learned Judges rejected t.he broad proposition that degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family and also between her and the members of her husband's family.

We think that decision on this point is sound in law.

Degradation of a woman does not and cannot sever the ties of blood and succession is more often than not determined by ties of blood than by the moral charli'cter of the heir.

In Balasundaram v. Kamakshi Ammal(') it was held that thc1 property acquired by the mother had been acquired by her as a married woman and notwithstanding her lapse into unchastity, it devolved on her daughters clothed with the ordinary character of property acquired by a Hindu female, that is to say, the daughters took a life estate in it.

The learned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the Jll'inciples of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones.

As already said, "we cannot subscribe to the view that any such rrile can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evi. dence has been led in this case to establish that the daughters of a dasi by marriage lose their right of in heritance and form a separate community. The correct approach to a case where it party seeks to prove a custom is the one pointed out by their Lordships of the

\I) J.L.R. 23 Mad. 17r. .

(2) ?1 i\1.L.J. 785.

Privy Council in Abdul Hussein Khan v. Soma Dero(' ).

It was there 'said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be estabished inductively, not deductively and it cannot be , established by a priori methods.

Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily follow. ing the same custom.

The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own showing living a life of prostitution. The text of the Mitakshara dealing with the case of a virgin can. not be applied to her case. [Vide Tara v. Krishna(')].

It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute with in the ambit of that text.

For the reasons given above we see no force in this appeal and it is dismissed with costs.

Appeal dismissed.

Agent for appellant: S. Subramaniam, Agent for respondent No. 1 : M. S. K. Aiyangar.

(r) l.L.R. 45 Cal. 450 (P.C.)

(%) I.L.R 3I Bom. '\95.

Saraswathi

Ammal v.

Jagadamhal and Another.

Mahajan J,

Cynthia Mills

Dobson

Jones

P. K. Ghose

Sukiimar Ghose

SARASW' ATHI AMMAL

JAGADAMBAL AND ANOTHER

MEHR CHAND MAHAJAN

Bejoy Gopal

Pratul Oha.ndrct

High Court of Judicature at Madras

Snbba Rao

Chandra ReddiJJ

S. Ramachandra Iyer

R. Srinivasan

MAHA.JAN

Thangathammal

Madras State

Saraswathi

Jagadambal

Meenambal

Thyagaraja Pillai

26th July, 1943

Saraswathi Ammal

Saranatha Perurnal

Tanjore district

Thangathammal

Thaugathammal

South India

Supreme Court

article 1

Rajagopal Pillai

Kamakshi

Tulasi

Mangalam

Ammani

Govindaswami Pillai

Srirangam

Chellappa

Visalakshi

Marakatham

Rukmini

section 32

l\fangalam

l\foenakshi

Jeevaratnam

Meenakshi

Meemikshi

Mahajan

Saraswathi

Venugopal Pillai

Jan.aid Ammal

Kanrnlathammal

Amba

Pappathi Ammal

Srirangam

Rajamani Ammal

lVIadras High Court

Palani

N agu

Mottai

Arunachalam

Ramaswami

Mathurbutham

Seethai

Marudamuthu Mudali

S. Subramaniam

M. S. K. Aiyangar