SHAMBHU PRASAD SINGH

MST. PHOOL KUMARI & ORS.

March .24, 1971

[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.)

Hindu Law-Family arrangeme11t-Principles for deciding wh<'lher a doc111nent is jan1ily arrange111ent.

Adverse possession-When established.

Raj Kun1ar, the common ancestor of the parties had four sons-Lalji Singh, Amar Singh, Ramji Singh and Raghunandan Singh.

Amar Singh had three sons, namely, Sonadhari. Girwardhari and Nankhu father of present appellant.

In 1898 Amar Singh purchased the land on which the house in dispute stood from his own funds but in the name of his brother Lalji Singh.

Nankhu was taken in adoption by Ramji Singh.

Shortly thereafter, in 1915, a document .Ex. l was executed between Raj Kumar's descendants.

In it the claim of Nankhu to a half share in the house in dispute \\'as recognised.

Tn 1949, Nankhu and the appellant filed the instant suit for a declaration of their half share in the house in dispute.

The defendants (present respondents) were the branches of Sonadhari and Girwardhari. The suit Vias resisted inter alia on the following grounds:

(i) that Ex. I was not a family arrangement but only a deed of relinquishment; and therefore Nankhu who had no anterior title to the house in dispute did nOt acquire any interest in it by virtue of Ex. I: (ii) that even if he had an interest in the house he lost it by reason of adverse possession by the respondent. The trial court decreed the suit. The decree was upheld by the Single Judge of the High Court. The Division Benoh however decided both the points of dispute in favour of the respondents.

It held that there was no dispute or conflict of interest between the branches of Amar Singh and Ramji Singh, and that Amar Singh and Nankhu had acted in concert in the execution of Ex. I which was therefore not a family arrangerr, ent.

It upheld the claim of the respondents that Nankhu and the appelb.nt had lost title to the house by the adverse possession of the respondentli. The visits of Nankhu and hi;; wife to the house were he!d by the Division Bench to be 'in the nature of visits of guests of the defendants'. In appeal to this Court against the judgment of the High Court.

HELD: (i) The arrangenient under challenge has to be considered as a whole for ascertaining v.hether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. lt is not necessary that there must exist a dispute actual or possible in the future, in respect of each and every item of property among all members arraigned one against the other. It v.ould be suffi. cient if it is shown that there were actual or possible claims and counterclaims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby ackDO\vledging title in one to whom a particular property falls on the assumption (not actual existence in law) that he had an antelior title therein. [191 F-GJ

Pullaiah v. Narasilnluun, A.LR. 1966 S. C. 1837, Sahu Madho Das v.

M11kund Ranr, [1955] 2 S.C.R. :?1 and Rani Mewa Kuwar v. Rani Hulas Kuwar. (1873-74) LR. l I.A. 157 at 166, applied.

18 l

SUPREME COURT REPORTS [1971] surr. s.c.&.

Williams v. Williams, (1867) 2 Ch. A. 294, referred to.

An examination of the terms of Ex. 1 showed that it was iocorm:I I<> assume, as the High Court did, that in the disputes amongst the different branches of the family, Nankhu and Amar Singh were actina in~. or that there was no conflict of ioterest among them. The parties to Ex. 1 arrived at a settlement in view of claims and cross claims by 10n.e aa; ain'it the others. Taken as a whole and in the light of the recitals and tho statements in the operative part of the document indicating conflict amongst the members of the family, the document represented an arrangement bona fide entered into, for settling existing or at any rate apprehended disputes, and therefore, satisfied the tests of a family arrangement laid down in the decisions of th~ Court. In this view Nankhu must be said to have ac~ quired a half share in the house in dispute under Ex. I. [193 H, 194 E-G]

(ii) Adverse posses.sion has to have characteristics of adequacy, conti~ nuity and exclusiveness. The onus to establish these characteristics is on the adverse possessors.

Accordingly, if a holder of title proves that be too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds. As between co-sharers, the possession of one con sharer is in law the possession of all co-sharers. Therefore to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. But once the possession of a cosharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession.

He must actually and effectively break up the exclusive possession of bis co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. For this purpose the mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient. [194 H-195 El

Kutha/i Moothavar v. Paringati Kunharankutcy, (1921) 48 LA 395, 404, Lakshmi Reddy v. Lakshmi Reddy, [1957) S.C.R. 195, 202, Moham

mad Bagar v. Naim-un-Nisa Bibi, A.l.R. 1956

A.mmakannu A.mmal v. Naravanaswami Mudaliar, A.l.R. 1~23 Mad. 633, approved.

Io view of the evidence in the present case the Division Bench was not justHied in interfering with the finding of fact concurrently given by the Trial Court and the learned Single Judge that the adverse possession by Baijnath which commenced from 1933 was sufficiently interrupted by acts of possession by Nankhu, and therefore his title was not extin&uished by adverse possession. [199 ABl

H The appeal must accordingly be allowed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1655 of 1966.

s. P. SINGH v. PHOOL IWMARI (She/at, J.) 183'

Appeal from the judgment and decree dated August 25, 1964 A. of the Patna High Court in Letters Patent Appeal No. 119 of 1958.

D. Goburdhun and R. Goburdhun, for the appellant.

S. V. Gupte, D. P. Singh and N: Nettar, for respondent No. I.

U. P. Singh for respondents Nos. 2 to 4.

The Judgment of the Court was delivered by

Sbelat, 1.-Two questions arise in this appeal. The first is whether the transaction evidenced by Ex. 1, dated March 20,

191 S was a family arrangement so as to confer on the appellant and bis father, Nanhku Prasad, smce deceased, title to a half share in the house in dispute. The second is that even if it was so, whether such title became extinguished as a result of adverse possession for the statutory period by Baijnath, the deceased husband of respondent I.

The parties are near relations.

The following genealogy explains the relationship amongst them :

Lalji Singh

I I l Sub• F•UJdar

I .

Sonadhar1

I Tarkc•hwar Pd.

alias Daljit (Deft. No. 2)

I (sons of Deft. 2-Nos. 3 to 7)

Rajkumar Singh

Amar 1singh Ramjj Singh Reshmi Kuer Patreja Kuor

I Balkcshwar

I Deena th

Girwardhari

Baijnacl Pd. alias NanuBabu died in 1948 Phu! Kumari Devi (widow) Deft. No. 1.

I NanhkuPd.

Singh (PIH'. No. I)

Sham~Pd.

Singh (PIH'. No. 2)

I Raghunandan

Singh

Kamaldhari

I KamtaPrasad

There is no dispute that Amar Singh purchased from his

own funds under a registered deed, dated January 20, 1898, the fl Uand on which the house in dispute stands.

His son, Nankhu, the deceased father of the present appellant, was taken in adoption sometime prior to March 20, 1915 by Ramji Singh and bis wife Patreja Kuer as they had no issue, whereupon Nankhu ceased

SUPREME COURT REPORTS (1971] SUPP. s.c.R

to have any interest in the properties owned by Amar Singh and his_ branch.

In 1933, Nankhu and the present appellant, then a minor, filed Suit No. 33 of 1933 against Sonadhari Tarkeshwar, Baijnath and Reshmi Kuer (the widow of Amar Singh, wrongly described by the High Court as the wife of Rajkumar in tlie genealogy set out in its judgment) in respect of certain properties. which had nothing to do with the house in dispute. The written statement filed in that suit was that Nankhu had been paid the price of his share in the house in dispute and that the entire house, consequently, belonged to and was since then in the exclusive possession of the defendants. That suit went upto the High Court when in 1941 a compromise application was filed by the parties settling that suit.

But, as the suit had nothing, as aforesaid, to do with the house in dispute, nothing was said about the allegation that Nankhu had been paid off ih respect of his interest in that house.

In 1949, Nankhu and the appellant filed the instant suit for :a declaration of their half share in the house in dispute.

In answer to the suit, the respondents raised three defences : (!) that Nankhu and the appellant derived no interest under Ex. I. Q) that assuming that they derived such interest, it was relinquished by them on being paid the price thereof, and (3) that in any event they Jost their interest by reason of adverse possession by the respondents The Trial Court rejected all the three defences raised by the respondents and decreed the suit, holding that Nankhu had acquired one half share in the said house under Ex. I.

Against that decree, two appeals were filed in the High Court, one by respondent 1 and the other by some of the other respondenls. These appeals were heard first by a learned Single Judge of the High Court. Before the learned Single Judge, the finding of the Trial Court that Nankhu and the present appellant had not relinquished their interest in the house on their being paid the price thereof was not disputed. The only questions agitated before the learned Single Judge, therefore, were whether Nankhu Jtad a half share, that is to say, whether he derived his title to lhe half share under and by virtue of Ex. I, and if so, whether he lost it as a result of adverse possession by the respondents.

In respect of the first question, the parties urged two conflicting pleas.

Nankhu and the appellant contended that Ex. I was a family arrangement under which he got half share in the house and. that that family arrangement was valid and binding on the parties. The respondents, on the other hand, contended that Ex. I was only a Ladavi deed, that is, a deed of relinquishment. The argument on behalf of Nankhu and the appellant was that there were outstanding disputes between the different branches of the family of Rajkumar, and those disputes

s. P. SINGH v. PHOOL KUMAR! (She/at, J.)

were ultimately settled at the instance of and with the aid of certain family friends resulting in Ex. 1 by way of a family

~•rrangement. Therefore, even if Nankhu and the appellant were not able to show their anterior title to the house, they were entitled under Ex. J to a half share therein. The learned Single Judge accepted the contention raised by Nankhu and the appellant.

His reasoning in this connection was that although the land on which the suit house stood was purchased by Amar Singh out of his own funds, it was purchased in the furi name of Lalji, but there was no evidence that Lalji ever admitted to be the

furidar of Amar Singh. Consequently. though Nankhu, by his

"doption. lost all interest in the properties of Amar Singh, yet the fact that in Ex. I Amar Singh acknowledged Nankhu having a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a future dispute and that it was such an apprehended dispute which Ex. I. while dealing with the house. settled. The learned Single Judge added that even assuming that there was no existing or apprehended dispute and the settlement was made out of consideration for the peace of the family or preservation of its properties, the settlement would have to be regarded as a family arrangement. Regarding the plea of adverse possession, he upheld the finding of the Trial Court that Nankhu and the appellant had established their acts of possession during the statutory period. and that conse quently, the continuity and exclusiveness of the respondents' adverse possession had been disrupted.

On these findings. he dismissed the appeals and confirmed the decree passed by the Trial Court.

Respondent I thereupon filed a letters patent appeal which was heard bv a Division Bench of the High Court. The same two questions were reagitated. namely. as to the nature of Ex. 1, :rnd as to the adverse possession.

On the first question. the F reasoning adopted bv the Division Bench was on ihe following lines : -

(!) that the executants of Ex. 1 formed three conflicting groups, namely, -

ta) Suba, Faujdar and Balkeshwar. constituting one group G of members of Lalji's branch, being executants 1 to 3;

tbl Raghunandan and his son. Kamaldhari. being executants 4 and 5 and constituting Raghunandan's branch; and - -

(c) Amar Singh for himself and as the guardian of Baijnath, then a minor, Sonadhari for himself and as guardian of his minor son, Tarkeshwar, and Nankhu, who had,

SUPREME COURT REPORTS [1971] SUPP. s.c.lt.

as earlier stated, gone to the line of Ramji on his adoption, being executants 6, 7 and 8;

(2) that the disputes, in settlement of which Ex. l was executed by these three groups, were, as its recitals sh0w :

(a) conflicting claims made by the said three sets of executants as to whether they were joint or separate in status, the claim of executants l to 3 being that all the members of Rajlrumar's family were still members of an undivided Hindu family, and that therefore, 11lthough the properties stood in the names of and were in possession of individual members, they continued to be joint family properties including properties standing in the names of female members, namely, Reshmi and Patreja;

(b) the allegation by executants 4 and S (Raghunandan's branch) that all the four branches of Rajlrumar's four sons were separate and yet claiming share in the properties standing in the names of members of Lalji's branch, and

(c) the claim by executants 6, 7 and 8 (Amar Singh, Sonadhari and Nankhu-by now in the line of Ramji) that the parties were separate in status, and therefore, the properties in the names of the two said females belonged exclusively to them and the members ofthe other branches had no interest whatsoever in them;

(3) that the Trial Court and the learned Single Judge were in error in holding that what Ex. l did was to evidence relinquishment by the rest of the members of the family of their claims in properties standing in the names of or in possession of particular members, and thereby acknowledging their anterior title in such properties.

In fact Nankhu had no such anterior title, nor could be in law have any such title in the house in dispute in view of bis having got out of Amar Singh's branch as a result of his adoption by Ramji;

(4) that there was no subsisting or apprehended dispute between Amar Singh and his family, on the one band, and Nankhu on the other, the latter not having made any claim for a share in the house in dispute, and that therefore, there was no question of preservation of peace or family property, there being nothing on record to show that Nankhu had held out any threat to the family peace or pro~ therefore, there was a total want of mutuality as in consideration of Nankhu getting a half share.

s. P. SINGH v. PHOOL KIJMAlll (Shelat, J.)

Amar Singh got nothing in return and cases of the type of Williams v. Williams(') had no application;

(5) that the recitals in Ex. 1 showed that the only dispute which prevailed at the time was "branchwise" and in that dispute Nankhu did not set up any contest against Amar Singh and his branch and indeed, both of them acted in concert, both claiming that the members of Rajkumar's family were separate and the properties standing in the names of Reshmi and Patreja were their exclusive properties;

(6) that acknowledgement of exclusive title of Amar Singh

and Sonadhari (exccutants 6 and 7) to certain properties, and likewise acknowledgement of exclusive title of Nanhku (executant No. 8) to certain other properties set out in paras 3 and 4 of Ex. 1 were not by way of settlement of any existing or apprehended dispute between them, and therefore, that part of Ex. 1 could not be regarded as providing any consideration for conferring the half share in the disputed house on Nanhku.

On this reasoning the Division Bench declined to treat Ex. 1 as a family arrangement. The conclusion of the Bench clearly signified that it had relied on two fundamental premises: (1) that there were only three sets of executants, the third set consisting iof executants 6, 7 and 8, and (2) that Amar Singh and Nanbku ltad acted in concert as there were no conflicting claims by and between them.

In view of this conclusion there was no need for the Division Bench to go into the question of adverse possession. However, it decided to do so for the reason that although the finaing on the question of adverse possession was concurrent, it had been seriously challenged before it.

On this question, the Division Bench firstly relied on the Municipal Assessment Register for 1900-1901, (Ex. D), and the extract from the Demand Register of a Patna Municipality for 1915-16, <Ex. E). Ex. D showed the name of Amar Singh as the sole owner of the. property. Ex. E 1111entioned Sonadhari and Baijnath only as the owners of the house as Amar Singh had died soon after Ex. 1 was brought into existence. The Division Bench was impressed by the fact that though only recently, in March 1915, Nanhku's half share in tlie house had been acknowledged in Ex. I, his name was deliberately omitted in Ex. E, which meant that Sonadhari and Baijnath had ; openly asserted their title to the whole of the house and yet Nanhku took no steps to assert his title. Nor did he at any time

(I) [1867] 2 Ch. A. 294.

SUPREME COURT REPORTS [1971] SUPP. s.c.R

'pay his share of the municipal taxes and the costs of repairs carried out later on by Baijnath. The Division Bench was also impressed with the fact that even when Baijnath, in his written statement in suit No. 33 of 1933, claimed that Nanhku's share had been paid off and he had since then been in exclusive posses sion of the entire house, Nankhu took no steps to vindicate his title until he and his son filed the present suit in 1949 The Division Bench came to the conclusion that there was not only an assertion of a hostile claim by Baijnath but that that assertion was accompanied by an ouster which remained open and continuous throughout the statutory period.

As regards the evidence 1that Nanhku and sometimes his wife came and stayed i" the house, the Division Bench took the view that these were casual ,-isits "in the nature of visits of guests of the defendants". and therefore, did not have the effect of interrupting the continuity and the exclusiveness of possession by the respondents.

The Bench even observed that the respondents had completed their title by adverse possession long before Baijnath claimed exclusive possession in his said written statement in I 933.

In this view, the Division Bench held that Nanhku's title in the house was extinguished by adverse possession.

The Division Bench accordingly allowed the respondents' appeal with costs all throughout.

Both the conclusions of the Division Bench have been challenged before us as incorrect.

On the question as to the nature of Ex. 1 a large number of decisions were cited at the bar to show when a transaction , can be said to be a family arrangement. It is not necessary to advert to them as most of them have been considered by this Court in its previous decisions, wherein principles as to when an agreement can properly be regarded as a family arrangement have been set out. Thus, in Pullaiah v. Narasimham(') after setting out how courts in England view family arrangements, Subba Rao. J. (as he then was) observed that the concept of such a family arrangement has also been accepted by courts in India. adapting the concept to suit the family set up in this country which is different in many respects from that obtaining in England.

After examining some earlier decisions which he characterised as illustrations of how family arrangements were viewed. he summarised the Jaw as to a family arrangemect as follows: --

"Briefly stated, though conflict of legal claims i•1 praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.

Even bona fide disputes, present or possible, which may

(I) A. I. R. 1966 S. C. 1837.

s. P. SINGH v. PHOOL KUMAR! (She/al, J.) 189

not involve legal claims will suffice. Members of a joint A Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into buna fide

und the terms thereof are fair in the circumstances of a particular case, Courts .will more readily give assent to such arrangement than to avoid it".

Eve~ in England, family arrangements are viewed as arrangements governed by principles Which are not applicable to dealings between strangers. The courts, when deciding the rights of parties under family arrangements, consider what is most for the interest of families and have regard to considerations which in dealings between persons not members of the same family would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to. the . binding effect of family arrangements. (see Halsbury's Laws of England, (3rd Ed.), Vol. 17, 215). Thus, in Williams v. Williams(') the Court held that a family arrangement might be such as the court would uphold although there were no rights in dispute, and if sufficient motive for the arrangement was proved, the Court would not consider the adequacy of consideration.

But the question of consideration or mutuality would arise, as Williams' case(') shows, when other considerations, such as existing or an apprehended dispute or the question of preser- ,'vation. of property or honour of the family, are absent, so that it is not necessary for a valid family arrangement that there must exist actual competitive claims or disputes or that the arrangements must be backed by proper consideration.

Even disputes 3ikely to arise in future or preservation of family property and honour would be sufficient to uphold an arrangement bona fide 1rnade between the members of a family.

What actually happens when such a family arrangement is lrnade is explained by Bose, J., in Sahu Madho Das v. Mukund

Ram\') in the following words :

"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is each party reli!lquishing all claims to property other tha~ they had previously asserted, to the portions allotted to them rspec.tively. That explains why no conveyance

~ reqmre~ m hese cases to pass the title from the one Ill whom 1t resides to the person receiving it under the

11) [1867] 2 Ch. A. 294.

(2) [19SS] 2 S. C.R. 22.

190 SUPREllll COUllT llBPORTS,

(1971] SUPP. S.C.R.

family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as tbe property falling to his or her share is concerned and therefore no conveyance is necessary."

He went on to say that this was not the only kind of arrangement which the courts would uphold, and that they would take the next step of upholding "an arrangement under which one 'set of persons abandons all claims to all title and interest in all the properties in dispute and acknowledges that the sole and !absolute title to all the properties resiaes in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to them as gifts pure and simple from him or her or as a conveyance for consideration when consideration is present". In such a kind of arrangement where title in the ientire property is ackowledged to reside in only one of them and thereupon that person assigns parts of it to others there would be a transfer by that agreement itself which obviously irl such a case would need a registered document.

This decision lays down the assumption underlying a family arrangement, namely, of an anterior title and its acknowledgement in one to whom a property or part of it falls under the arrangement. (see also Rani Mewa Kuwar v. Rani Hulas Kuwar('). Therefore, it is not necessary that there must exist an anterior title sustainable in law in such a person which the others acknowledge.

The arrangement under challenge has to be considered as a whole for ascertaining whether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. It is not necessary that there 1mnst exist a dispute, actual or possible in the future, in respect of each and every item oi' property and amongst a\! members \arrayed one against the other. It would be sufficient if it is shown that there were actual or possible claims and counterdaims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging title in one to whom a particular property falls on the assumption (not actual existence in Jaw) that he had an anterior title therein.

In the light of these decisions we must now examine Ex. 1 to see if the contention of the appellant that it was a family arrangement is correct or not.

The document Ex. 1, after reciting the death of the common ancestor, Rajkumar, his leaving him surviving four sons and the

(l} (1873-1874) L. R. 1 I. A. 157. at 166.

s. p. SINGH v. PHOOL KUMAR! (She/at, J.) 191

deaths of certain other family members thereafter, reads as A follows :

"Signs of ill feeling developed among us, the executants Nos. 1 to 8, and at the time of survey and settlement operations, dispute in connection with the properties arose.

On account of dispute, wrong statements and claim were made. On account of which the names of some of us, the executants were recorded in a wrong manner in the record of rights and in the office of the land Registration Department, in respect of some of the properties having regard to the real state of affairs and title. At the time of the survey and settlement operations etc. the claims and allegations of us, the executants Nos. I

to 3, were that we, the executants, are all members of the joint family and the properties standing in the names of a certain member of the family as well as those in the name of certain female member of the family, belong to the joint family.

Contrary to this, the claims and allegations of us executants Nos. 4 to 5 were that all the four sons of Raj Kumar Singh became separate and that executants Nos. 1 to 3 always continued to remain separate from the (other) executants and executants Nos. 4 and 5 separate from the (other) executants and executants Nos. 6 to 8 separate from the other executants, but in spite of this allegation of separation, executants Nos. 4 and 5, on account of dispute, made contrary to the real state of affairs with respect to certain properties owned and possessed by executants Nos. 1 to 3, and executants Nos. 6 to 8 also made allegations and claims of separation and it was alleged that executants Nos. 1 to 5 (?) neither had nor have any connection and concern with the properties, which. were and are in the names Of Mosst. Patriga Kuer and Moss!. Reshmi Kuer, although no party was member of a joint family, nor was any property joint. As the dispute among us, the executants is contrary to the real state of affairs, and in case the said dispute continues there is apprehension of consideration loss and damage to us, the executants, therefore, on the advice of the well wishers of the parties and of the respectable persons and on the advice of the legal advisers of the parties, as also with a view to set at rest all kinds of dispute, it was settled that all the disputes should be put to an end by executing a deed of agreement by way of a deed of relinquii!bment of claims ([adav1) and the proprty, which is actually owned and possessed by a certain party should be declared to belong to that party exclusively, and as a

192 SUP!tEMB COURT REPORTS [1971] SUPP. s.c.R

matter of fact, the family of us, the executants, is separate and the property, which stands in the name of a certain person, has been purchased from his or her funds, and in respect of his or her name should continue to remain entered in the land Registration Department etc. and the name should be entered if the same is not entered and the other parties totally gave up their claim with respect thereto."

Then follow paras 1 to 4 in each of which certain properties are set out, and in respect of which, title of each of the four sets of the executants is acknowledged by tbe rest.

Para 4, which relates to properties falling to the share of Nanhku, executant 8, commences with the declaration by the rest of the executants, including Amar Singh and Sonadhari, that Nanhku was \the adopted son of Ramji and Patreja Kuer, that certain properties set out therein were exclusively acquired by Patreja Kuer and that Nanhku, as the adopted son of Ramji and Patreja Kuer. was exclusiively entitled to them on the death of Patreja, and

hat "we, the executants Nos. 1 to 5, 6 and 7, and the heirs of executant No. 6 neither have nor shall have any claim, title or possession and connection in resj>ect thereof in any manner and on any allegation".

Following up the am.ngement made in Paras 1 to 4, four schedules giving particulars of properties which were acknowledged to be belonging to the four sets of executants were appended to Ex. 1.

As regards two houses, one at Rajipur and the other in dispute, Schs. 3 and 4 both set out a half share in them as belonging to executants 6 and 7 and the other half as belonging to executant 8, i.e. Nanhku, in each of them.

As already stated, the fundamental premise on which the Division Bench proceeded to consider Ex. 1 was that there were three sets of executants, namely, those belonging to Lalji's branch, i.e., executants 1 to 3, those belonging to Raghunandan's branch, i.e., executants 4 and 5, and the third set consisting of Amar Singh and Sonadhari executants 6 and 7, and Nanhku, executant 8.

The second premise on which the Division Bench rested its entire reasoning was that whereas there were disputes between the three sets of executants, there were no disputes between Amar Singh, Sonadhari and Nankhu, that in fact the three of them acted in concert, and that therefore, one half share . given to Nanhku in the house in dispute was altogether voluntarily given without any anterior title and without any claim or dispute raised by Nanhku in respect thereof.

In our view, both the premises were incorrect rendering the conclusion drawn therefrom untenable.

It is true that Amar Singh had in 1898 purchased out of his own moneys the land on which the suit house stands.

It is

s. P. SINGH' PHOOL KUMAR! (Shelat, J.)

also true that Nanhku was adopted sometime before the execution of Ex. I. and therefore, on the date of its execution he could not have any valid, claim enforceable in law any property belonging to Amar Singh and his branch. But, as stated earlier, a dispute or a contention, the settlement of which can constitute a family arrangement, need not be one which is actually sustainable in law. The harmony in a family can be unsettled even by competitive and rival claims which cannot be upheld in law.

Therefore, if Amar. Singh and the other executants or some of them were to challenge, for instance, the factum or the validity of Nanhku's adoption, or if notwithstanding his adoption, Nanhku were to make a claim in properties held by Amar Singh and his hranch or if some of the e.xecutants were to claim that the family of Rajkumar was still a joint and undivided family or that though the members of the family were separate, the properties held in the individual names of some of them including Reshmi K uer and Patreja Ku er were joint, there would be sufficient disputes to constitute a settlement of them a family arrangement.

A claim. made by executants I to 5 that the properties held_ by Reshmi Kuer and Patreja Kuer were not their separate properties but were joint family properties, liable to be partitioned amongst all, was bound to affect both Amar Singh and Nanhku. If such a claim were to be persisted and dragged to

t1 court of law there is no gainsaying that it would ; put into

jeopardy not only the interests of Amar Singh and Nanhku but also the harmony of the family.

The recitals in Ex. 1 clearly show that whereas members of Lalji's branch were claiming that the family was still joint and undivided, and therefore, they had interest in all the properties irrespective of their standing in the names 0! particular individuals, Raghunandan and his son claimed that the members of lhe family were not joint and yet clailned share in all the properties including those standing in the names of Reshmi Kuer and Patreja Kuer. Thus the claims by executants 1 to 5 were definitely hostile to the interests of Amar Singh to the extent of the properties standing in the name of Reshmi K uer and of Nanhku to the extent of the properties standing in the name of Patreja Kuer. The claims made by the branches of Lalji and Raghunandan sought to bring all the properties into botch patch including those held by Reshmi Kuer and Patreja IKuer, thus, affecting the rights of A\Jlar Singh and Nanhku in the different properties and not the sam~;!>roperties. Their interests, therefore, were not identical and there was thus no reason

.193

for them to act jointly. Indeed, there was no evidence what-

. H soever and nothing in Ex. 1 itself to show that they were acting In concert as assumed by the Division Bench.

13-1 s. a. lndia/71

SIJPJUl)IB COURT REPORTS [1971] SUPP. s.c.R.

It is true that the recitals in Ex. 1 do not expressly set out any conllict of claims between Amar Singh and Nanhku. Never- :theless, it is significant that in para 4 of Ex. 1 the exccutants

fuimd it necessary to insert therein a declaration not only by executants 1 to S, but also executants 6 and 7 that Nanhku was the adopted son of Ramji and Patreja Kuer, that on the deatli of Patreja Kuer he, as such adopted son, was absolutely entitled to the properties set out therein in addition to those which stood in the name of Patreja Kuer. If the adoption of Nankhu was accepted by all and was not made the subject matter of any ijoubt or dispute, there was no necessity of including such a declaration and in particular joining executants 6 and 7 in such a declaration. If Amar Singh and Nanhku were acting in concert why had Amar Singh and his son, Sonadhari as executants 6 and 7, to be joined as declarants to the adoption of Nanhku.

Para 4 of Ex. 1 also shows that there were certain bonds and mortgage deeds standing in the name of Patreja Kuer which jwere acquired from out of the personal funds of Ramji.

Such a statement had to be acknowledged in paragraph 4 presumably :because rights in those bonds and deeds were not admitted to be the exclusive rights of Patreja. If those rights were to be treated as joint family property, as claimed by executants 1 to S, Amar Singh would get a share in them and to that extent hls interest must be said to be in conllict with that of Nanhku.

A simi1ar result would follow if properties standing in the name of Reshmi Kuer were to be treated as joint family properties. It would not, therefore, be correct to assume that in the disputes amongst the different branches of the family, Nanhku and Amar Singh were acting in concert or that there was no conflict of interest between them. In our judgment, the parties to Ex. 1 arrived at a settlement in view of claims and cross claims by some against the others. Taken as a whole and in the light of the recitals and the statements in the operative part of the document indicating conflicts amongst the members of the family, the document represented an arrangement bona fide entered into, for settling existing or at any rate apprehended disputes, and therefore, satisfied the tests of a family arrangement laid down m the decisions earlier referred to.

In this view Nanhku must be said to have acquired a half share m the house in dispute under Ex. 1.

On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly we!) settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor.

Accordingly, if a holder of title proves

s. P. SINClH v. PHOOL KUMA!tl (She/at, J.)

that he too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse posses- 11ion as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds. (see Kuthali Moothavar v. Paringati Kunharankutty('). As between co-sharers, the possession of one co-

harer is in Jaw the possession of all co-sharers. Therefore, to constitute adverse possession, ouster . of the non-possessing cosharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. (see Lakshmi Reddy

v. Lakshmi Reddy(') and also Mohammad Baqar v. Naim-un-Nisa Bibi.('" But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such a manner as it was possible to do. (see Wuntakal Yalpi Chanabasavana Gowd v. Y. Mahabaleshwarappa(')). The mere fact that a dispcssessed co-sharer comes and stays for a few days as a guest 18 not sufficient to interrupt the exclusiveness or the continuity of adverse possession so as not to extinguish the rights of the dispossessed co-sharer.

(see Ammakannu Ammal v. Naravanaswami Mudaljar(')).

On this issue, the parties led considerable evidence, oral and documentary.

On examination of that evidence, both the Trial Court and the learned Single Judge gave a concurrent finding that even if the possession by the respondents was adverse the appellant and his father had done acts of possession at various intervals which were sufficient to interrupt both the continuity and the exclusiveness of possession by the respondents.

The Division Bench, however, did. not agree with the concurrent finding on a re-appraisal of the evidence by it. It is not necessary for us to go into the details of tbat evidence once again as certain facts clearly emerge out of the evidence to prevent the extinguishment of Nanhku's and the appellant's title in the property as a result of adverse possession by tbe respondents.

 The principal facts which impressed tbe Division Bench were lfl tbat though in Ille Demand Register of Patna Municipality for 1915-16 IEx. El Sonadhari and Baijnatb were the only

<O [1921148 1. A. 395, 404.

(2) [19571 s.c.R. 19', 202.

(3) A. I. R.1956 S. C. '48. t4) [1955) IS; C. R.131, 138. (S) A. I. R. 1923 Mad. 633.

1951 I

SUPREME COURT REPORTS [1971] SUPP. s.c.R..

persons named as occupiers, Nanhku had not taken steps to include his name, (2) that all throughout it was Sonadhari and Baijnath who paid the municipal taxes and Nanhku at no time paid his share of the taxes or his share in the cost of repairs and laying of a water pipe in the house, and (3) that though in his written statement in suit No. 33 of 1933 Baijnath claimed that he was in exclusive possession of the house as he had paid Nanhku the proportionate price of his share, Nanhku did not

l~.ke any steps to vindicate his title until he and his son filed !he present suit in 1949 by which time the statutory period for adverse possession had already been completed.

There was, however, evidence of Nanhku and his wife having stayed on different occasions in the house.

But the Division Bench was of the view that such acts of possession were only casual and did not have the effect of interrupting the adverse possession of the respondents.

It needs to mention in this connection that N anhku was a 11 along residing in a village and not in Patna. Therefore, his acts of possession could only be when he came down from his village for some work to Patna.

In 1915-1916, when Sonadhari got his name and that of Baijnath entered in the Demand Register \Ex. E) it might be that Nanhku did not know that they had omitted his name. His half share in the house had been acknowledged in Ex. 1 only recently by Amar Singh and Sonadhari as well.

Relations between the parties had not yet become unfriendly so as to make Nanhku suspect that his name would be deliberately omitted in the municipal records or that possession by Sonadhari and later on by Baijnath would be treated by them as adverse. Baijnath, no doubt, was using the whole house, but so long as his possession did not amount to ouster his possession would be that of both the co-sharers. If Baijnath used the entire house, except when Nanhku stayed in it during his occasional visits, Nanhku would naturally think that Baijnath should pay the taxes. It was not the case of the r1spondents that Baijnath ever demanded a share in the taxes or a share in the cost of repair and that such a demand was refused by Nanhku.

The High Court on these facts was not right in observing that the title of Baijnath was already completed by rdverse possession long before Ba-ijnath filed his written statemellt in 1933, as mere use and enjoyment by him of the house, in the absence of such use amounting to ouster, would not make it adverse possession.

It was for the first time that in the written statement filed in 1933 Baijnath openly asserted his title to the whole of the house.

Since that assertion was accompanied by the fact that he was in enjoyment of the whole house~ that act would amount

s. P. SINGH v. PHOOL KUMAR! (Shelat, J.) 197

to ouster and adverse possession would commence as from that date.

Obviously, the earlier possession could not he tacked on to the subsequent possession because the plea in that very written statement was that Baijnath had paid off the price of Nanhlm's share thereby implied admitting Nankhu's title to a half share in the house. Suit No. 33 of 1933, in which Baijnath filed the said written statement, was settled in 1941. In the compromise application filed by Nankhu and Baijnath, both of them stated lhat they were residing in that house. That assertion by Nanhku was never dispute(! by Baijnath.

But apart from that assertion there was the fact that Nanhku had no other place to reside in Patna. His case was that whenever he visited Patna he used to stay in the house in dispute.

Apart from that assertion being natural, his evidence in that connection was corroborated by Prahhu Narain, P.W. 4, an Advocate residing in the neighbourhood.

The Division Bench brushed aside his evidence without giving any adequate reason although it had been accepted by both the Trial Court and the learned Single Judge. In the light of this evidence it is not possible to say that all throughout the period from 1933 till the statutory period for adverse possession was completed Nanhku had not stayed in the house at any time.

Respondent herself admitted that on suit No. 33 of 1933 being settled, relations between Nanhku and Baijnath became friendly.

If that he so, it was natural that Nankhu would stay in the house whenever he visited Patna in 1941 and thereafter.

The Municipal Survey Khasra (Ex. 2), dated December 19, 1933 mentions Nanhku along with Sonadhari and Baijnath as owners of the house.

Since this entry was made after Baijnath had made a hostile claim to the entire house in the written statement filed in suit No. 33 of 1933 on September 16, 1933, the entry must presumably have been made at the instance of Nanhku.

Such an act on his part would he a clear assertion of his title in the house.

Under the Bihar and Orissa Municipal Survey :Act, 1 of 1920, before such khasra was finalised it had to be published and objections to it. if any, had to be invited and disposed of.

No objection was ever raised by Baijnath to the said khasra.

It is surprising that Baijnath did not resist the entry in the khasra although he had made a claim to the whole of the property only three months before the date of the khasra.

That indicates that his claim was merely a counterhlast against N anhku's suit.

The view of the Division Bench that the occasional putting up by Nanhku and his wife in the disputed house was merely casual and was in the nature of visits as guests of the respondents

SUPREME COURT REPORTS [1971] SUPP. S.C.lt

I c

cannot be accepted. Such stay, however occasional, would not be casual as it was accompanied by an open assertion of his , title as evidenced by the khasra (Ex. 2). It could not also be that he stayed in the house as the guest of the respondents because after he filed the suit in 1933 and until it was settled, his relations with Baijnath could not have been friendly.

These acts on the part of Nanhku were ample enough to interrupt the continuity and the exclusiveness of possession by Baijnath.

The Division Bench also relied on a sale deed (Ex. Cl dated October 12, 1933, executed by Baijnath and Tarkeshwar in favour of one Kamalnain Pandey. The High Court appears to have

aken the view that the land sold under Ex. C appertained to pr was part of the land on which Amar Sil)gh had put up the disputed house, and that although Baijnath and Tarkeshwar sold part of that land, no objection was taken at any time to such a sale by Nanhku.

The recitals in Ex. C show that the land sold under Ex. C. was jointly purchased on January 20, 1898 by Amar Singh and one Gajadhar Singh for construction of a house thereon. Amar Singh had a share in the said land to the extent of I katha 15 dhurs while his co-purchaser had a share of 2 kathas 15 dhurs.

The recitals further show that Amar Singh's original intention in purchasing the land was to build a house thereon. He appears to have given up that idea as till this sale took place the land was lying waste and unutilised. It i~ important to note that this sale was for I katha 10 dhurs, out of

11 'katha 15 dhurs which was the share of Amar Singh.

This land obviously could not be the land on which the house in dispute was built, for, if that was so, Baijnath could not have

old away I katha 10 dhurs out of the total extent of I katha. 15 dhurs to which Amar Singh was entitled. The house could not have stood on 5 dhurs only. Therefore, the land sold under iEx. C was a land different from the one on which the disputed house was situate. This conclusion is also borne out by the description of the sold land in the schedule to Ex. C where its northern boundary is described as follows :

"North : Parti (waste) land thereafter the house of us, the executants."

This description shows that between the disputed house and the land sold under Ex. C there was to the north of it some waste land. The land sold under Ex. C being different land, the High Court was not right in relying on that sale deed to prove adverse possession on the ground that Nanhku never took objection to the said sale. He could not, as this land had nothing to do with the house in dispute. Besides the evidence discussed above, there was other evidence. But the incidents therein described were irrelevant on the question of adverse possession as they took

S. p, SINGH f, PHOOL JtUIWU (SMlat, J.) t It

fplacc in 1948 and thereafter, that is to say, a !Qng time a&r A title by adverse on would have been cmipleled if sach adverse possession were to be accepted as established. In view of the evidence discussed above the Division &n!:h was not justified in interfering with the finding of fact concumntly given by the Trial Court and the learned Single Judge that the -'- possession by Baijnath which. commenced from 1933 was sulli- • ciently interrupted by acts of on by Nanhku. and theRfore, his title was not extinguished by adverse possession.

In the view we take on both the questions. the aweaJ Dlllllt be allowed and the judgment and decree of the Division Beadi Ullust be set aside and the judgment and dccrcc passed by thc

Trial Court and upheld by the learned Single Jodgc must be C restored. The respondents will pay to the appellant his costs al throughout.

G.C.

SHAMBHU PRASAD SINGH

MST. PHOOL KUMARI & ORS

M. SHELAT

I. D. DUA

V. BHARGAVA, JJ.

L. R. 1 I. A. 157


HAR SHARAN VERMA

TRIBHUV AN NARAJN SINGH, CHIEF MINISTER

U.P. & ANR.

March 16, 1971.

(S. M. SIKRI, C. J., J. M. SHELAT, C. A.

VAIDIALINGAM, B A. N. GROVER AND A. N. RAY, JJ.j

Constitlltion of India, Art. 164(4)-Appointment as Cirf Minister of a person who is not a member of State Legislature-Yalidity'of app9in11ne 111.

The first respondent was appointed as Chief Minister of U.P. on October 18, 1970. His appointment was phallenged on the ground that he was not a member of either house of leaiS!ature at the time of appointment. In C appeal to this Court against the High Court's judgment dismissing the

petition under Art. 226,

HELD : Ci) Clause (4) of Art. 164 must be interpreted in the context of Arts. 163 and 164 of the Constitution. Article 163(1) provides that "there shall be a Council of Ministers with the Chief Minister at the h•ad to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions D or any of them in his discretion." Under cl.(!) of Art. 164 the Chief Minister has to be appointed by him on the advice of the Chief Minister.

They all hold office during the pleasure of the Governor. Clause (!)does not provide any qualification for the person to be sel.:cted by the Governor as Chief Minister or minister.

But cl. (2) make• it essential that the council of Ministers shall be collectively responsible to the. islativ~ Assembly of the State. This is the only condition that the Constitution E prescribes in this behalf. There Is thus no reason why _tile plain words of cl.(4) of Art. 164 should be cut down in any . rnannet and confined to a case where a Minister loses for Some reason his seat iii the Legislature of the State. That this is the correct meaning to be given to Art. 164(4) is supporte<I by the P<oceedings of the Constituent Assembly and the position as it , Qbtains In England, Australia and South Africa. [2G

H, 3EJ ..

ftl) If the Governor of a State appoints a Chief Mfuister and Council' P of Minister. none of whom are mc; mbers of the .State Leaislature, and the' Legislative Assembly of the State tQ wlioin the Council of Miriistera would be responsible endorses this unlikely _Council of . Minillters, there is noth'

ing in the-Coristitution: which would make this appoilitmetlt illesal. !3A-

B].

(iii) There can be no difficulty in Minilters who are not members "of the Legislature beina present at the time of the' Governor's address because Gi by virtue of Art. 177 they would be entiUed to be present at the meeting

of the Legislature addressed. by the Go:vemor.

[JC-DJ.

CIVIL APPELLATE JTJRJSDICTION : Civil Appeal No. 2205 Of 1970.

Appeal from the judgment and order dated November 4, 1970 of the Allahabad High Court in Lucknow Bench in writ petition H No. 1402 of 1970. .

The appellant appeared in person.

1-1 S.C. lndia/71

SUPREME COIJllT ltEl'OllTS [1971] stm. s.c.11.

L. M. Singhvi, R. Bana and-0. P. Rana, for the respondents.

The Judgment of the Court was delivered by

Slkri, C. J. In this appeal by certificate granted by the High Court under Art. 132 of the Constitution a short question 86 to the interpretation of cl. 4 of Article 164 of the Constitution arises.

This question has arisen in connection with the appointment on October, 18, 1970, of Shri Tribbuvan Narain Singh as Chief Minister of Uttar Pradesh. He was not a member of either House of Legislature of the Srate of Uttar Pradesh at the time of bis appointment.

The appellant, who is a rate-Payer of the Lucknow Constituency to the Uttar Pradesh Legislative As$embly, filed a petitioi) under Art. 226 of the Constitution in the High Court cballenging the appointment of the respondent as Chief Minister. The High Court dismissed the petition but granted a certificaite under Art. 132 of the Constitution, and the appeal is now before us.

Article 164(4) reads as follows :

"164(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State sball at the expiration of that periodi cease to be a Minister." The appellant contends that this clause only applies when a Miw- $ter, who is a Member of the Legislature of the State, loses his seat and the idea behind cl. (4) of Art. 164 is to give him a period of six months to get himself re-elected. The learned Counsel for the respondent, Mr. Singhvi, contends thait the scope of cl. (4) cannot be whittled down in this manner as there is no warrant in the language of the article.

He further says that even in England a person can be a Minister without being a Member of the House of Commons or the House of Lords. He further points out that a number of i:onstitutions contain similar provisions.

It seems to us that cl. (4) of Art. 164 must be interpreted in the context oi Arts. 163 and 164 of the Constitution.

Article 163(1) provides that "there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of bis functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion." Under cl.(!) of Art. 164, the Chief Minister has to be appointed by the Governor a.nd the other Ministers have to be appointed by him on the advice of the Chief Minister. They all bold office during the pleasure of the Governor. Cause (!) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but cl. (2) makes it essential that the Council of Ministers sha.Jl be collectively responsible to the Legislative As$embly of the State. This is the only condition that the Constitution prescribes in this behalf.

HAil SllAllAN VAllMA v, T. N. SINGH (Sikri, C. J.)

The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint

a. Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But if the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this nnlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal.

The appellant drew our a.ttention to Art. 175 in which it is provided that "the Governor may address the Legislative Assembly or, in the case of a State having a Lagislative Council, either House of !he Legisla.ture of the State, or both Houses assembled together, ancl may for that purpose require the attendance of Members."

He .said that it would be rather strange that the Ministers, who were not members of either the Legislative Assembly or the Legislative Council would not be present. But it seems to us that by virtue of Art. 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting.

It seems to us that in the context of the other provisions of the Counstitution referred to above there-is no reason why the plain words of cl. ( 4) of Art. 164 should be cut down in any manner and confined to a case where a> Minister loses for some reason his seat in the Lei; slature of the State. We are assured that the meaning we have given to cl. (4) of Art. 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Austrdia and South Africa.

An amendment(') was proposed in the Constituent Assembly that the following be substituted :

"A Minister shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legislative Council of the States as the case may be." This amendment was, however, negatived.

It is interesting to note the position in England. According G to Jennings(') :

"It is a well-settled convention that these ministers should be either peers or members of the House of the Commons. There have been occasional exceptions. Mr,

(I) Constituent Assembly Debates dated June I, 1949 Oftlcial Report H Vol. VIII. p. st.

(2) Cabin~ Government by Jennings-third edition, page 60.

SUPREME COURT RllPORTS [1971] SUPP. s.c.R.

Gladstone once held office out of Parliament for nine months. 'The Scottish Law officers sometimes, as in 1923 and 1924. are not in parliament, General Smuts was minister without portfolio . and a member of the War Cabinet from 1916 until 1918. Mr. Ramsay MacDonald and Mr. Malcolm MacDonald were members of the Cabinet though not in Parliament from the general eleetion of November 1935 until early in 1936."

"The House of Commons is, however, critical of such exceptions."

S. 64 of the Commonwelth of Australia Constitution Act inter a/ia provides that "after the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senetor or a member of the House ot representatives." Commenting on this Quick & Garran(~ state as follows :

"The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament.

There must be a Ministry to assist and advise the Governor General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry. cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence.

After the first general election, however, no Federal Minister is permitted to hold office for a longer peribd than three months, unless he is or becomes a senator or a member of the House of Representatives.

Section 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision, viz .. that after the first general election of the South Australian Parliament, no person should hold the offices of' Chief Secretary. Attorney-Oeneral, Treasurer, Commissioner of Crown Lands; and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly." This shows that Art. 164 (4l has an ancient lineage.

Section 14< 1) of the South Africa Act, 1909 reads thus :

"The Govemor-Generaf may appoint officers not exceeding (twelve) in number to administer such departments of State of the Union as the Governor-General in

(3) "Annotated Constitution of the Australian Commonwealth" by Quick & Garrail:, p. 711.

HAR >HARAN VERMA v. T. N. SING!! (Sikri, C. J.) 5

Council may establish; such officers shall hold office A during the pleasure of the Governor-General. They shall be members of the Executive Council and shall be the King's ministers of State for the Union. After the first general election of members of the House of Assembly, as hereinafter provide, no minister shall hold office for a longer period than three months unless he is or becomes B J member of either House of Parliament."

Hahlo and Kahn(') state thus :

"The rule of responsible government that Ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months C become members of either House."

In the result the appeal fails and is dismissed.

There will be no order as to costs.

G.C.

Appeal dismissed.

(4) ;, The British Commonwealth-The Deve opment of its Laws and Coustitutic'ns" by Hahlo & Kahn (Vol. Sp. 130). '

HAR SHARAN VERMA

TRIBHUVAN NARAIN SINGH, CHIEF MINISTER U.P. & ANR

S. M. SIKRI

M. SHELAT

B A. N. GROVER

A. N. RAY, JJ

Art. 164(4)

Art. 226

Art. 164

Arts. 163 and 164

Article 163(1)

Art. 164

Art. 164

Art. 164(4)

Art. 177

Art. 132

cl. 4

Article 164

Art. 226

Art. 132

Article 164(4)

Art. 164

Art. 164

Arts. 163 and 164

Article 163(1)

Art. 164

Art. 175

Art. 177

Art. 164

Art. 164

S. 64

Section 32

Art. 164

Section 14

South Africa Act, 1909


CRICKET ASSOCIATION OF BENGAL & ORS.

STATE OF WEST BENGAL & ORS.

March 24, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.J

Practice-High Court-Suo Motu lnterference with orders of low!!r courts under Crilninal Procedure Code-Propriety.

Code of Criminal Procedure (Act 5 of 1898), ss. 204(3), 248 and ~53(2) -Powers of Magistrate under.

A complaint was filed against the first appellant and others- -office bearers of the first appellant-under ss. 337 and 338, 1.P.C., read with s. 114, that they were rash and negligent in the matter of making seating arrangements etc., for spectators of a cricket match, with the result that the spectators became unruly and the police resorted to lathi charge and the bursting of tear gas shells, causing injuries to several persons. The Chief Presidency Magistrate examined the complainant and issued summons to the accused. Some of the office bearers challenged the order of the Chief Presidency Magistrate in a criminal. revision before the High Court and the High Court held: (a, l that the counsel appearing for the complainant conceded that no offence was made out under ss. 337 and 338 read with s. 114 l.P.C., (b) that in fact, the statements in the complaint do not make out the offences under ss. 337 and 338, and (cl that they make out only an offence under s. 336, l.P.C. and therefore the prosecution will have to be given a chance to establish that offence against the accused.

When the Chief Presidency Magistrate started to deal further with the matter, the complainant filed an application for leave to with~ draw the complaint against 8 accused and the Magistrate discharged those accused under s. 253(2), Cr. P. C. The complainant filed another application some time later seeking permission to withdraw the complaint against the rest of the accused on the ground that • he tiled the complaint only to voice the grievances of bana fide spectators and since the matter was being inquired into by an Inquiry Commission to find out the persons respo!l:sibJe. he did not intend to proceed with his complaint. The complaint as against some of the accused was dismissed under s. 204(3 ). Cr. P. C.. on the ground that the complainant had not deposited the necessary charges for issue of summons, and as regards others, the Chief Presidency Magistrate held that he could not allow the withdrawal of the complaint as the pro ceedings under s. 338 1.P.C., were warrant proceedings. He however passed an order discharging all the remaining accused under s. 253(2), Cr. P. C., because he held that no useful purpose would be served by proceeding fur ther with the complaint as the complainant was absent and no longer serious.

Thereafter, a Division Bench of the High Court issued suo motu notice to the complainant and all the accused, to show cause why the order dis

charging the accused should not be set aside; and, after hearing the parties the Court set aside the orders of the Chief Presidency Magistrate on the grounds that: (a) The discharge of some of the accused under s. 204(31 on the ground that the complainant had not paid the process fee for issue of summons was not proper, since in the relevant rules framed by the High

CltlCKET A5SCN. v. w. BENGAL (Vaidialingam, J.) 201

Court there was no provision for such payment; and (b) the orer .dis- A charging the remaining accused under s. 253(2), Cr. P. C. was not 1ustlfied in a warrant case.

On the question whether the order of the Hiah Court was justified.

HELD: In a proper case the High Court can take action suo mvtu aaainst lhe orders passed by the subordinate courts without being mo,-ed by any party; but the interference with the orders of the Chief Presidency B Magistrate by the High Court in the present case was not justified in the circumstances of the case. [2080]

(I) After the concession of the counsel for the complainant and the .categorical finding of the High Court that no offence under ss. 337 and 338

l.P.C., was made out and that investigation was to be made only in respect of ao offence under s. 336 I.P.C., the Magistrate had to proceed with the trial only for the offence under s. 336 l.P.C. [206H ; 207 A] C

(2) Assuming that the Chief Presidency Magistrate had still to pro- Ceed with the trial for offences under ss. 337 and 338 J.P.C .• and that the discharge under s. 204(3) Cr. P. C., was not justified. the Magistrate has :got ample jurisdiction to discharge the accused under s. 253(2), Cr. P. C., and in the present case, the Magistrate had given good reasons for discharging the accused. [2078-0]

(3) On the basis that the inquiry had to proceed for an offence under D s. 336, I.P.C., the position would be that the summons case procedure would have to be followed and under s. 248, Cr. P. C., the Magistrate had ample jurisdiction to permit the complainant to withdraw the complaint, and in fact, under that section, the Magistrate should acquit the accused, once he permits the complaint to be withdrawn. [208A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

E 270 of 1968.

Appeal by special leave from the judgment and order dated .January 14, 17, 1968 of the Calcutta High Court in Criminal Revision No. 475 of 1967. ·

C. K. Daphtary, Na/in Chandra Banerjee, D. N. Mukherjee and Mukul Gopal Mukherjee, for the appellants.

F ..

The respondent did not appear.

The Judgment of the Court was delivered by

Vaidialingam, J.-This appeal, by special leave is, directed against the judgment and order dated 14/17 June, 1968 of the Calcutta High Court in Criminal Revision No. 475 of 1967 reversing the orders passed by the Court of the Chief Presidency Magistrate, Calcutta, discharging the accused-appellants.

The circumstances leading up to the order of the H1gh Court may be indicated : The second respondent filed a complaint on JMuary 3, 1967 before the Court of the Chief Presidency Magistrate, .Calcutta, in respect of the incident which took place on the

SUPREME COURT lll!PORTS [1971] SUPP. s.c.R.

second day (January I, 1967) of the Second Cricket Test Match between India and West Indies at the Eden Gardens. The Test Match was to be played under the control, management and supervision of the Cricket Association of Bengal, which had sold tickets of various denominations for the game.

There were tickets sold for all days of the Match and. there were arrangements made for the sale of daily tickets.

The game started as scheduled on December 31, 1966.

The play was interrupted by a number of spectators scaling over the fencing erected around the play ground and entering the cricket field; However, nothing untoward happened on that day.

According to the prosecution, the first appellant started selling tickets announcing that arrangements had been made for the accommodation of about 60,000 spectators, while as a matter of fact nearly a lakh of spectators were admitted into the enclosure. The sitting arrangement was most inconvenient and highly unsatisfactory.

The arrangements made by the first appellant for acoommodating the persons inside the enclosure were so grossly inadequate that it tended to endanger the personal safety of the spectators. On the day in question, the complainant, who was a holder of a season ticket for Rs. 451 • went to attend the game and found all the stands jampacked. Notwithstanding this the people with tickets were being pushed into different enclosures with the result that the spectators within the enclosures started jumping over the fence and occupied the space between the lines of the field and the fencing. The police, unable to control

tlie rush and confusion caused by the behaviour of the crowd, suddenly started a lathi-charge followed by the bursting of tear gas shells. which resulted in causing injuries to various persons. This infuriated the crowd, which retaliated by acts of arson.

The arrangements for going out of the enclosures were also grossly inadequate with the result that some of the spectators who wanted' to clear out quickly in panic sustained injuries. The Match had to be abandoned for the day.

On these facts the complainant alleged that the first appellant who acted most rashly and negligently in over-selling the tickets and admitting a large number of people than could be conveniently accommodated inside theground and thereby endangered human lives and the personal safety of thousands of spectators. It was further alleged that as a matter of fact the rash and negligent act of the first appellant also rmulted in hurt being caused to a number of persons, who had come to witness the Match. Apart from the Cricket As~ ciation of Bengal, which was the first accused, he made 33 persons accused in his complaint petition. Those persons were the President. the Vice-President and other office bearers and Members of the Working Committee of the Cricket Association of Bengal.

The complainant prayed for issuing summons against the 34~

CRICKET~ ... w. BENGAL (Vaidialingam, I.)

accused persons under ss. 337 and 338 read with s. ll4 of the Indian Penal Code and to proceed against them according to law.

On January 3, 1967 the Chief Presidency Magistrate examined the complainant and heard his counsel. As the Chief Presidency Magistrate was prima facie satisfied there was a case, he issued summons to the persons shown as accused under ss. 337 and 338 read with s. 114 of the Indian Penal Code. fixing

February 13. 1967 for appearance.

The complainant had also made a prayer for issue of search warrants and foc seizure of the account books and other relevant papers in the custody of the first accused appellant and search warrants were issued on January 6, 1967.

Some of the office bearers of the first appellant on receipt of summons challenged befOre the High Court in Criminal Revision No. 19 of 1967 the orders of the Chief Presidency Magistrate issuing summons and search warrants.

They also prll}'ed for quashing the complaint on the ground that the allegations even if fully established will not establish an offence under s. 337 and I or s. 338 read with s. 114 or any other section of the Indian Penal Code, and that the complaint was misconceived and constitutes an abuse of the process of the Court.

The learned Single Judge stayed further proceedings before the Chief Presidency Magistrate and issued summons to the State and the complainant After hearing all parties, the learned Single Judge ultimately, by his order dated February 24, 1967, dismissed the Criminal Revision No. 19 of 196 7. There were three points to be noted in the order of the learned Judge, namely, (!) Mr. Dutt, counsel appearing for the complainant conceded before the High Court that the process issued by the Chief Presidency Magistrate under ss. 337 and 338 read with s. 114 of the Indian Penal Code is misconceived (2) the High Court has given a finding that the statements made in the petition of complaint do not constitute the essential elements to make out offences under ss. 337 and 338 1.P.C., and (3) nevertheless, prime facie it cannot be stated tht the elements of an offence under s. 336 1.P.C. are not contained in the complaint, and therefore the prosecution M'ill have to be given a chance to establish, if they can. that an offence under s. 336 I.P.C. has been committed.

Though Ultimately the criminal revision was dismissed, it will be seen from the aspects mentioned above that the complainant has conceded that the allegations in the complaint will not make out an oft'l:oce under ss. 337 and 338 l.P.C.

Apart from this conccssion, the learned Single Judge after independently considering the avcrments in the complaint has also held that no offence under s. 337 and 338 is disclosed in the complaint and that the issue of

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

summons in respect of those offences cannot be upheld. But tfie High Court was prepared to give an opportunity to the prose cution to establish, if they can, that an offence under s. 336 J.P.C., at any rate, has been committed by the accused. It is needless to state that the Chief Presidency Magistrate was bound to have due regard to these directions contained in the order of the High Court when the case was to be proceeded with again in his court.

After the disposal of Criminal Revision No. 19 of 1967 by the High Court on February 24, 1967 and in consequence of the stay of proceedings being vacated, the Chief Presidency Magistrate proceeded to deal further with the complaint.

On March 2, 1967 the complainant filed an application before the Chief Presidency Magistrate for leave to withdraw the complaint against eight accused, namely, accused Nos. 8, 10, 11, 22, 26, 31, 32 and 33. The reason given by the complainant was that !he said accused persons had ceased to act as members of the Working Committee at the material time. On March 20. 1967 the Chief Presidency Magistrate discharged under s. 253(2) Cr.

P.C. the eight accused as prayed for by the complainant in his application dated March 2, 1967, after accepting the reasons given therein. The accused so discharged wre Nos. '8, 10, II, 22, 26, 31, 32 and 33.

On May 31, 1967, the complainant filed another application before the Chief Presidency Magistrate seek ing permission to withdraw the complaint against the rest of the accused.

In that application he stated that he had filed the complaint to voice the grievances of the bona fide spectators, who had purchased tickets for witnessing the Cricket Test Match.

He had further mentioned that an Inquiry Commission called the "Sen Commission" was already inquiring into the events con- /nected with the incident that took place on January 2, 1967 in order to find out the persons responsible for the same.

Under these circumstances, the complainant stated that he does not pntend to continue the complaint instituted by him.

On June 8, 1967, the Chief Presidency Magistrate dismissed the complaint as against accused Nos. 16, 17, 18, 19, 23, 27, 30 •and 34, under s. 204(3) Cr. P.C. on the ground that the complainant had not deposited the necessary charges for issue of summons. It was noted by the Chief Presidency Magistrate that the complainant though called was absent.

Dealing with the application dated May 31, 1967 filed by the complainant for permission to withdraw the complaint, the Chief Presidency Magistrate has stated that he cannot accord permission to with draw the complaint as the proceedings .under s. 338 I.P .C. are warrant procedure proceedings. But the Chief Presidency Magis

trate has further stated that no useful purpose will be served by

CRICKET ASSCN. v. W. BENGAL (Vaidialingam, J.)

proceeding further with the complaint as the . complainant was not present and was also not serious to proceed with the complaint as is evident from his conduct in comitting several defaults.

For these reasons the Chief Presidency Magistrate passed an order discharging all the other remaining accused under s. 253(2) Cr.

P.C. Therefore, it will be seen that by the two orders dated March 20, and June 8, 1967, referred to above, the Chief Presidency Magistrate discharged all the accused and terminated the proceedings initiated by the second respondent.

The news regarding the termination of these proceedings appeared in some of the Dailies in Calcutta on June 10, 1967.

On seeing the said news item, the High Court by its order dated June 13, 1967 called for the record pertaining to the case from the court of the Chief Presidency Magistrate, Calcutta.

On August 1, 1967 a Division Bench of the Calcutta High Court issued suo moto a Rule (Criminal Revision No. 475 of 1967) to the complainant and the 34 accused persons to show cause why the orders discharging the accused persons passed on March ZO, and June 8, 1967 should not be set aside.

The learned Judges after hearing all the parties, by the impugned judgment set aside the two orders of the Chief Presidency Magistrate discharging the accused. The Chief Presidency Magistrate was directed to proceed with the complaint and dispose it of according to law.

But the learned Judges directed that the proceedings need be continued only against the 14 accused, namely, Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, J 4, 15 and 26. The learned Judges have held the discharge of some of the accused under s. 204(3) Cr. P.C. on June 8, 1967 on the grQund that the complainant has not paid the process for issue of summons is not proper. According to the High Court there is no provision under the relevant rules framed by the High Court for payment of any process for issue of summons in respect of cognizable offences whether the case is instituted on a complaint or not.

Similarly the High Court held that the orders discharging, under s. 253(2) Cr. P.C. some of the accused on March 20, 1967 and the remaining accused on June 8, 1967 are also not justified as the proceeding under s. 338 I.P.C. was that of a warrant case.

Mr. C. K. Daphtary, learned counsel for the appellants in attacking the order of the High Court has pointed out tliat ihere was no justification for the High Court to interfere silo molo with the orders passed by the Chief Presidency Magistrate discharging the accused; in the circumstances mentioned by him.

The counsel also pointed out that the Divisi\>n Bench has not properly appreciated and given effect to the directions given in

20S

216 SUPlllO! COURT llPOll'lll [1971) SUPP. s.c.R.

the jlldgment of the learned Single Judge in Criminal Revision No. 19 of 1961. After the onler of the learned Single Judge, the coonsel pointed out, that the proceedings have to be continued by the Magistrate only to inquire if an offence under s. 336 I.P.C. has been made out. In such a trial the summons case

ure has to be adopted and the Magistrate has got ample. jurisdiction to permit the complainant, under s. 248 Cr. P.C. to withdraw the complaint Even on the basis that the charges under ss. 337 and 338 survive and the warrant case procedure is to be adopted. Magistrate has jurisdiction under s. 253(2) to discharge the accused. Considering the matter from any point of view, the interference by the High Court is not justified.

Ncithec the State nor the complainant has appeared before us to support the order of the High Court We have already 1cfmed in great detail to the circumstances under which the imPQgDed order was passed as they give a cleBl and complete pktute of the whole matter. We have gone through the reasoning of the learned Judges and we are satisfied that the interferena: with the orders of the Chief Presidency Magistrate by the High Court was not justified and was not warranted in the circumstaoocs of the case.

'The fundamental error committed by the Division Bench is that it has proceeded on the basis that the learned Single Judge on the fonncl' occasion in Criminal Revision No. 19 of 1967 has not held that the prosecution under ss. 337 and 338 is not made out. We have already referred to the fact that during the hearing of Criminal Revision No. 19 of 1967, Mr.

Dutt, learned counsel appearing for the complainant conceded that the issue of process under ss. 337 and 338 I.P .C. was misconcllived. On the other band, the Division Bench proceeds on the basis that no such concession has been made, which is erroneous as a fact.

Again e\'m apart from the concession. the learned Single Judge afkc discussing the essential ingredients of an offence under

~- 337 and 338 l.P.C. has categorically held in his order tkat

the statements made in the complaint petition do not go to make up the cssenrial ingredients for an offence under ss. 337 and

338. 'The learned Single Judge has also found that it is not possible at that stage to say that no offence even under s. 336 l.P.C. has been committed.

It is on this reasoning that the learned Judge. though technically did not quash the proceedings, ga..e a dear indication that the prosecution is given a chance

to establish. if they can, that the accused have committed an olfencc under s. 336 l.P.C. After the concession of the counsel for the complainant and the categorical finding of the learned Judge that no offence under ss. 337 and 338 I.P.C. is made out &nd that an investigation is to be made only in respect of an

CRICKET ASSCN. v. w. BENGAL (Vaidialingam, :.) 207

.offence under s. 336 I.P.C., it is idle to expect the Magistrate A to ignore these clear directions and proceed with the trial again for an offence under ss. 337 and 338 I.P.C., as if nothing had happened. That is exactly what unfortunately the Division Bench bas done. It bas ignored the concession of the counsel. It has ignored the clear finding of the learned Single Judge as also the directions given by him.

It is this serious mistake committed B by the Division Bench that has resulted in the passing of the order under attack. The legality of the orders passed by the Chief Presidency Magistrate can be considered from two points of view.

Assuming that the Chief Presidency Magistrate has

till to proceed with the trial for offences under ss. 337 and 338, I.P.C. it is no doubt true that he has to follow the warrant case procedure. Even under such circumstances, the Magistrate C has got ample jurisdiction to discharge the accused under s. 253(2) P.C. Section 253 deals with the discharge of accused.

Subsection (]) deals with the discharge of an accused when the Magis- :trate after taking all evidence referred to in s. 252 Cr. P.C. and ; making such examination of the accused, if any, as may be found necessary, finds that no case against the accused has been D made out, which if unrebutted, would warrant his conviction. Subsection (2) of s. 253 is to the following effect :

"253(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be E groundless."

This sub-section gives ample jurisdiction to the M'a)listrate to discharge an accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case.

Sub-section (1) under those circumstances will not F operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section (2). It is under. sub-section (2) of s. 253 that the Magistrate has discharged the accused.

He has given good reasons in the order for discharging the accused.

ssuming that the Division Bench is right in holding that the discharge under s. 204(3) Cr P.C. is not justified, we will proceed on the basis that the said order is one of discharge under s. 253\2).

We. have. alrady re.ferrd earlir to the. re.asons given by the complamant m his apphcat10n seekmg perm1ss1on to withdra~ the complint as. well as to the reasons given by the Magistrate for d1shar{lmg the accused. There is no controversy !hat at the mtenal time, th.e Sen Commission was inquiring mto th~ 1denhcal matter v:h1ch was the subject of the criminal complamt.

Under those circumstances, it cannot be said that

208 SUPREME COURT RBPOR11l [1971] SUPP. s.c.R.

the discharge of the accused by the Magistrate is either illegal or not justified.

Even on the basis that the inquiry has to proceed for an offence under s. 336 I.P.C., the position will be that the summons case procedure will have to be followed.

Even then, under s. 248 Cr. P.C. the Magistrate has ample jurisdiction to )Jennit the complainant to withdraw the complaint.

In fact under s. 248 Cr. P.C. the Magistrate should acquit the accused, once he permits the complaint to be withdrawn.

Even if the oraer of discharge is to be treated as passed in a case where summons case procedure is to be followed, it was within the jurisdiction of the Magistrate and hence it cannot be characterized as either illegal or not justified.

We accordingly hold that the Division Bench was not justified in interfering with the orders dated March 20, and June 8, 1967 passed by the Chief Presidency Magistrate, in the circumstances of this case. We, however, make it clear that we have no doubt that in proper cases the High Court can take action suo moto against the orders passed by the subordinate courts without being moved by any party.

In the result the appeal is allowed. The judgment and order of the High Court in Criminal Revision No. 475 of 1967 are set aside and the orders of the Chief Presidency Magistrate dated March 20, and June 8, 1967 will stand restored.

V.P.S.

Appeal allowed.

CRICKET ASSOCIATION OF BENGAL & ORS

STATE OF WEST BENGAL & ORS

A. N. RAY, JJ

Crilninal Procedure Code

Code of Criminal Procedure

ss. 204(3), 248

ss. 337 and 338, 1

s. 114

ss. 337 and 338

s. 114

ss. 337 and 338

s. 336

s. 253(2)

s. 204(3 )

s. 338

s. 253(2)

s. 253(2)

ss. 337 and 338

s. 336

I.P.C

s. 336

ss. 337 and 338

s. 204(3)

s. 253(2)

s. 336

I.P.C

s. 248

ss. 337 and 338

Indian Penal Code

ss. 337 and 338

s. 114

Indian Penal Code

s. 337

s. 338

s. 114

Indian Penal Code

ss. 337 and 338

s. 114

Indian Penal Code

ss. 337 and 338

s. 336

s. 336

I.P.C

ss. 337 and 338

s. 337 and 338

s. 336

s. 253(2)

s. 204(3)

s. 338

s. 253(2)

s. 204(3)

s. 253(2)

s. 338

I.P.C

s. 336

I.P.C

s. 248

ss. 337 and 338

s. 253(2)

ss. 337 and 338

ss. 337 and 338

ss. 337 and

338

s. 336

s. 336

ss. 337 and 338

I.P.C

s. 336

I.P.C

ss. 337 and 338

I.P.C

ss. 337 and 338

I.P.C

s. 253(2)

Section 253

s. 252

s. 253

s. 253

s. 204(3)

s. 253

s. 336

I.P.C

s. 248

s. 248