\ I

NANCHAND GANGARAM SHETH

MALLAVPA MAHALINGAPPA SADALGE

January 30, 1976

[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]

28 7

Joint Hindu family-If duty cast on menibers to inform creditors by general notice regarding disruption of joint Hindu fa111ily-Creditor-Duty to inquire about the capacity of exccutant of a document.

Partnership Act, 1932-Sections 4 and 5-Difference.

Limitation Act, 1908-Section 2!(3)(b) "Manager of the family for the time being"-Meaning of-Erstwhile kana-1/ could keep an old debt alive and extend limitation against all the members of joini Hindu family.

The plaintiffappellant had business dealings with the joint family of the defendants.

He had instituted a suit claiming a certain sum of money from the defendants, one of the grounds being that even if the defendants proved that there had been a partition in the family, the family was still liable for the dues pertaining to the ancestral business carried on .bY allthe defendants either as members of the joint Hindu family or as partners of a firm.

Defendant 3 (respondent) stated that there was disruption of the joint family status on November 4, 1945. when defendants 1 and 2 and his deceased father unequivocally expressed their intention to separate and divided their movables.

He denied that defendants 1 and 2 had ever acted as managers of the joint family.

The trial Court and the High Court concurrently found that the joint family of the defendants had disrupted on November 4, 1945 and that no joint family business was in existence on the date when the last dealing of tho plaintiff with the defendants took place.

On appeal to this Court, it was contended that even if the joint family stood disrupted from November, 1945, in the absence of public notice by defendants 1 and 2 regarding the disruption of the joint family, the acknowledgements made by them as karta of the joint Hindu family would be binding on the erstwhile joint family under s. 45 of the Partnership Act, 1932.

Dismissing the appeal, HEID : ( 1) It is the duty of the creditor to ascertain whether the person

m~.king the acknowledgement still bolds his representative capacity as karta of the family. The law does not cast any duty upon the memrs of tho family to inform the creditors by a general notice about the disruption of the family.

If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status puts an end to the representative capacity of the karta and any acknowledgement of a deht made by him after such disruption cannot save the creditor's claim from bec:oming time barred against the other members. [298B-C] Pramod Kumar Pati v. Damodar Sahu, ILR 1953 Cuttack 221; Rengaswami Ayyangar v. Sivprakasem Pillai, !LR 1942 Mad. 251 (F.B.); Mutayala Ramacht:ndrappa v. Mutayala Narayanappa, AIR 1940 Mad. 339, approved.

Kashiram Bhagshet Shete v. Bhaga Bhanshet Redii A.i.R. 1945 Born. 511 over rukd.

(2) (a) The Legislature has excluded the joint Hindu trading families from the operation of the Partnership Act. Section 4 defines partnership as a relation between persons who have agreed to share the profits: of a business, and H according to s. 5 the Act governs only that relation of partnership which arises fro.'.Il contract and not from status, such as the one obtaining among the mem bm of a joint Hindu family trading partnership, [297C-DJ

(b) The words "manager of a family for the time being" occurring in s. 21 (3) (b) of the Limitation Act, 1908, indicate that at the time when the acknowledgement was made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family.

If <ft the relevant time the joint Hindu family, as such, was no longer in existence, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against aJI the members of the family, his representative capacity as karta being co-terminus \vith the joint status of the family. [297F-Gl

( c) Coparceners do not derive their title through the kart a of the coparcenaty.

Jn the instant case defendants 1 and 2 did not fulfil the requirements of 4 sub--s. (I) of s. 21 of the Limitation Act. [298Al '\

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1896 of 1968.

(Appeal by special leave from the judgment and order dated the 21st September, 1962, of the Mysore High Court in Regular Appeal (B) No. 287 of 1956).

H. B. Data and P. C. Bhartari for the appellant.

S. T. Desai and Naunit Lal for respondents 3 & 4.

The Judgment of the Court was delivered by

SARKARrA, J.-This is a plaintiff's appeal by special leave directed against a judgment of High Court of Mysore. The following pedigce table will be helpful in understanding the facts leading up to this appeal :

Mal Jappa Def. No. I

Mahalingappa (died in ! 922)

I Appa Saheb

Def. No. 2

I I Chandrakant Def. No. 3

I .

Sn1t. Balab1 (wife of Neelkanth Def. No. 4).

I Neelkanth (died on R-7-46)

The respondents are Hindus governed by Mitakshra School of Hindu Law.

Mahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. 'A' and 'N'), Mahalingappa and his sons constituted a joint Hindu family.

The family was trading in tobacco.

Mahalingappa, as Karla was managing the joint family business.

After his death, his eldest son, Neelkanth. father of Chandrakant, Defendant 3, began to look after the management of the family business 'N' also started C. N.

Tennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout. 'N' died on July 8, 1946.

Thereafter, 'A' (Defendant 2) continued and managed the joint family business and the family concerns with the consent of the other members. Nter 1951, the family business was managed by 'M' (Defendant 1).

The appellant had business dealings in tobacco and money dealings with the Defendants' joint family.

There used to be periodical verification of accounts and acknowledgements were made from time to

time by the Manager of the family.

The plaintiff's accounts were burnt in fire on October 22, 1949 and he had to reconstruct the accounts from available information and documents.

On April 15, 1953 accounts were taken, and the amount due from the defendants' family to the plaintiff was worked out and verified.

The accounts thus stated were acknowledged and signed by Defendant 1 and by Defendant 4, as guardian of her minor son, Defndant 3. A balance of Rs. 69,465/15/- was found due to the plamtdI from the defendants.

With the preceding allegations, the plaintiff on January 28, 1954 instituted the suit for the recovery of Rs. 75,000/-, comprising of Rs. 69,465/15/-, as principal, plus interest at 12 per cent per annum.

Subsequently by an amendment of the plaint, he added an alternative ground that if the Defendants proved that there had been a partition in the family, , they were still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.

Defendants 1 and 2 in their joint written statement admitted that there was an ancestral tobacco business of the family managed by 'N' till his death in 1946; that after N's death, the family business was managed by them (M & A) and that all the defendants were jointly liable for the plaintiff's claim. The defendants denied that there was ever a partition of the joint family. They however conceded that a deed of partnership, an agreement and a partition award had been brought into existence from time to time with the sole object of lessening the burden of income-tax, and they were 11ot intended to be acted upon. It was added that after the interim attachment of the property, Defendant 3, taking advantage of these bogus documents, obtained an ex parte decree to show that there had been division of the joint family, and that this decree was not opposed by the answering defendants because they were assnred that it would not be executed. They admitted that _the appellant's claim was partially true, but denied correctness of the total balance claimed as due.

They further averred that the suit was time-barred as the acknowledgement relied on by the plaintiff was not legal and could not extend limitation, that interest was wrongly calculated; that if they ( Defendant 1 and 2) were held liable, they should be allowed to pay in easy instalments.

Defendant 3 filed a separate written statement.

He resisted the plaintiff's claim, traversed the allegations in the plaint, and denied that there was any acknowlegement made on his behalf on April 15, 1953 by his mother, Defendant 4.

In the alternative he pleaded that she had no authority to acknowledge the debt so as to bind him as he was then a minor. Defendant 3 further stated that there was a disruption of the joint family status on November 4, 1945 when M, A and N unequivocally expressed their intention to separate, and divided the moYables, and thereafter, a decree for partition of the immovable property of the family was passed in 1949 on the basis of an arbitration award.

Defendant 3 asserted that this decree had been acted upon by the parties, He denied that Defendants 1 and 2 had ever acted manager of the joint family with the consent of the other memhers,

A and added that this question could not arise because of the earlier division of the family.

Defendant 4 in her written statement denied the plaintiffs' claim and supported the contentions raised in his written statement by Defendant 3.

She stated that Defendants 1 and 2, had taken her thumbimpressions on certain papers on the representation that they had been B properly managing the Tennis Bidi Factory which had fallen to the share of her husband.

She was never informed of the contents of the documents by the Defendants, who took undue advantage of her illiteracy.

The trial court held that the joint family had disrupted in 1945 and the plaintiff was aware of this fact; that the acknowledgements of C the debt had been made by Defendants 1 and 2 and not by Defendant 3, and on that account the suit was within time only as against Defendants 1 and 2; that Defendant 3 had on attaining majority repudiated his liability as partner; that the thumb-impressions of Defendant 4 on the acknowledgement had been taken by practising fraud; that in any case defendant 4 had no authority to acknowledge the debt on behalf of her minor son.

The Court, however, upheld the D appellant's contention that the old accounts had been destroyed in fire and that the plaintiff was entitled to interest at 12 per cent per annum.

On these findings, the trial court decreed the plaintiff's claim in toto against Defendants 1 and 2 but dismissed it against Defendants 3 and 4.

Against that judgment and decree of the trial court, the plaintiff E preferred an! appeal to the High Court.

The High Court has affirmed the findings of the trial court and dismissed the appeal.

Hence this second appeal by the plaintiff.

Defendants 1 and 2 did not appeal against the decree of the trial court which had consequently become final against them.

It is common ground between the parties that during the life-time of Mahalingappa, the family consisting of Mahalingappa and his sons, was a joint Hindu family trading in tobacco.

It is further not disputed that after the death of Mahalingappa, the surviving co-parceners continued to be joint and Neelkanth, the eldest son of Mahalingappa, managed the family business as Karla till November 4, 1945.

The first matter in controversy is, whether on November 4, 1945, on account of an unequivocal declaration of an intention to separate made by the three sons of Mahalingappa, there was a disruption of the joint family status? The courts below have concurrently answered this question in the affirmative.

Mr. Datar, appearing for the appellant contends that this finding of the courts below that there was a division in the family on November 4, 1945, was not based on any evidence whatever and is consequently, unsustainable in Jaw.

We are unable to accept this contention.

The finding is based on good evidence which has been found creditworthy after due consideration by the two courts. Firstly, there is a recital of the fact of division on November 4, 1945, in the partnership deed, Ex. 197, dated October 25, 1946.

This deed has been written on a general stamp paper of the value of Rs. 30.

The date of the purchase of the stamp paper accords with the date of the execution of the deed.

This document therefore, could not have been brought into existence subsequently.

Secondly, there was an endorsement ou the Income-tax Return Ex.

309, relating to the previous year ending on November 4, 1945, that at the end of the year there has been a change in the status of the family.

Thirdly, there is the Arbitration Award (Ex. 294) dated November 3, 1948, followed by the decree (Ex. 295). This award is a registered document. The material recitals in this document are as under:

'The plaintiff (Chandrakant Nilkanth) and the defendants Nos. 1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.

During the lifetime of the plaintiff's father, he and the defendants Nos. l, 2 and 3 were living joint and all the three persons carried on the business of the joint family. Thereafter, as the minds of the plaintiff's father and of the defendants Nos. 1 and 2 were prejudiced on account of some domestic reasons, they began to live separately in the year 1945.

Thereafter they took accounts of the transaction,, with desire to get their immovable and movable properties and other busines; partitioned and got the capital amount in that business partitioned on 4th November 1945. So also they effected partitions in the other movables and the ornaments etc., of the family ....

Now the defendants Nos. 1 and 2 are objecting about the maintenance to be given to the defendant No. 3 (widow of Mahalingappa) as per agreement deed ....

The contentions of the defendants Nos. 1 and 2 are as follows :

We and our deceased eldest brother Sri Nilkanthappa were living joint. It is true that on 4th November 1945 we all three together have taken the accounts of the business and have l)lade divisions in the capital of the business.

It is true that accordingly we have proportionately divided the remaining movable articles and the ornaments etc. and have taken the same .... "

The award bears the signatures of the three arbitrators and on its ?asi.s the court passed a decree on August 9, 1949.

That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.

Under the award, prO\ision was made for the maintenance of Smt. Basawwa and the residence of Suryakant, the illegitimate son of Nilkanth.

The conclusion based on the above documentary evidence was reinforced by the courts below with admissions made by Defendants 1 and 2, in cross-examination, and also with an inference drawn against the plaintiff and Defendant 1 on account of the non-production of the account-books. In our opinion, the court below were justified in drawing the inference because Defendant 1, as is apparent from his wrtiten statement, is colluding with the plaintiff, and all circumstances suggest that these account-books must be with defendant 1.

The case of Defendant 3 is that on November 4, 1945, the accounts of the joint family were worked out and closed.

It was found that there was a capital balance of Rs. 64,023/11/- which was equally divided among the three brothers and the fact of this division was. noted in the account books which were in the possession of Defendant 1.

In the witness-box, Defendants 1 and 2 admitted IDat on November 11, 1945, each of the brothers got Rs. 21,340/3/9 and credit entries to that effect were made in the khata of each brother in the account-books of the shop.

Defendant 3 by an appljcation (Ex. 169) called upon Defendant 1 to produce in court the account-books, in his possession.

Notice of this application was received by Defendant 1 's Counsel on July 18, 1955.

Despite this notice defendant 1 did not produce the account books when he appeared in the witness-box on July 21, 1955.

He made a lame excuse that the account books had been given to Javali pleader after the service of summons in this suit on him ( defendant 1) because that pleader had asked him to bring the books containing the plaintiff's accounts. But the defendant gave him the books of the Bidi Factory and not of M. B. Sadalge shop.

Defendant 1, in cross-examination, clearly admitted that he had given to J avali pleader only those account books which contained the plaintiff's Khata "and not of previous years".

By any reckoning, this means that he did.not hand over the account books relating prior to the years 1949 to Javali Pleader.

Admittedly, after the death of Nilkanth, he was managing the busines's upto 1950, and, as such, was supposed to be in possession of the account-books.

The courts below were therefore, right in rejecting the explanation given by him for non-production of the account-books.

The explanation regarding the nonproduction of the books, given by defen?ant 2, who had mapaged the business after 1951, was equally unsatisfactory and was nghtly discarded.

In the light of what has been said above, it cannot be held tat there was no legal evidence before the courts below to base the findtng that the joint family had disrupted on November 4, 1945.

It is next contended by Mr. Datar that even if there was some declaration of separation in 1945 and subs.equently a decree for partition based on an award was passed m 1949, then. also, uch declaration award and decree were never acted upon. It 1s submitted that in holding to the contrary, the High Court has committe.d several errors of record and misconstrued important.documentary evidence.

'-,

According to Mr. Datar, the under-mentioned documentary A evidence unmistakably shows that the declaration of 1945, the award of 1948 and the partitjon decree of 1949 were not acted upon : (1). Affidavits Exhts. 221, 24 7 and 248 sworn on July 20, 1946, before a Magistrate by Defendants 2, 4 and 1 stating that they are members of a joint Hindu family and Defendant 2 is the manager of the family.

In the affidavit Ex. 24 7, Sm!. Balabai gave her consent to the management of the affairs of the joint family by defendant 2. (2). Application dated August 13, 1946 (Ex. 182), by Defendant 1 to Sales-tax Officer for transfer and registration of the licence, and application Ex. 208, dated September 30, 1946 made by defendants 1 and 2 on their behalf and on behalf of Chandrakant Defendant 3 informing the City Surveyor about the death of Neelkanth and requesting him to enter the Khata in the names of all the three defendants 1 to 3.

(3) Income-tax returns Exhs. 309 to 314 filed after the death of Neelkanth. ( 4). Resolution, Ex. 335, pased by the Board of Directors in te meeting held on July 30, 1946 permitting defendant 2 to redeem, Ill the capacity of Karta of the joint family, goods pledged with the Nipani Branch of the Bank by Neelkanth deceased. (5). Ex. 147, statement, date<l September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos. 1254 and 1264 may be cancelled and the name of defendant 1 may be entered again for both the numbers. Emphasis is on a sentence in this statement to the effect : "Two months have passed since the said partition".

In accordance with this statement, the mutation Ex. 263, was attested.

Both the courts below have fully considered this evidence, along with other .evidence, and come to the conclusion that these documents do not discount or alter the fact that the joint family had disrupted on November 4, 1945. The High Court has given reasons why the F evidence furnished by the deed oI partnership (Ex. 197) and the Arbitration Award, (Ex. 294) can be safely accepted.

In regard to Exs. 221, 247 and 248, the High Court has said that there is no evidence as to for what purpose these affidavits were sworn to and has rightly emphasised that in the absence of such evidence, it is difficult to draw any inference about the implications of G their contents.

Regarding the affidavit Ex. 247, purporting to have been sworn by Smt. Balabai, the High Court has said that she must have been mentally depressed being in mourning on account of the death o~ her husband which occurred only 12 days earlier; that she was an illiterate woman who thumb-marked whatever documents were presented to her, without understanding its contents. In this connection, the High Court referred to the statement of defendant 1, wherein H he has admitted that during defendant 3's minority, defendant 1 and defendant 2 were the only persons who looked after the business and defendant 4 never objected to whatever they did. and that they used

A to take defendant 4's thumb-impression whenever they thought it necessary in connection with the dealings of M. B. Sadalge shop.

As regards the applications Exs. 182 and 208, the High Court said, there was nothing inconsistent in the recitals of these documents, to show that there was no partition of the joint family.

The recital in Ex. 208 was found to be too technical to spell out the full legal B implications of the words "in the joint family".

Referring; to the Income-tax returns Exs. 310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management.

In Ex. 310, relating to the year ending c October 24, 1946, it is stated that 'N' and defendants 1 and 2 were Kartas of the family.

In Ex. 311, defendant 2 is mentioned as the manager of the "old Hindu Undivided Family". Similarly, Ex. 314, purports to have been filed by the H.U.F. relating to the year 1949-50 but this was filed on Feb. 13, 1954 after the institution of this suit.

The income-tax returns Ex. 312 and 313 relate to the previous years ending on 12-11-1947 and 22-12-48. Ex. 312 was submitted on D Demember 26, 1949 and Ex. 313 on December 22, 1953, both by defendant 2. The status of the assessee in these two returns is mentioned as "Firm''.

Ex. 315, is the income-tax return relating to the income-tax year 1948-49, the previous year. of which ended on November 12, 1947.

It was filed by defendant 4 as guardian of her minor son, defendant 3, E on December 22, 1949. The status of the assessee therein is shown as 'Individual'.

It relates to the business which was being run under the style of M/s. M. B. Sadalge.

It is mentioned in this return that )r each of the three defendants 1, 2 and 3 has 1 /3 share in the business Ex. 316 is the order of the Income-tax Officer passed on June 20 1950 wherein it is stated that l /3 share of defendant 1 in the profits of this firm was assessed on that date.

F Ex. 309 is the income-tax return relating to the previous year ended on November 4, 1945. It was filed by defendant 2 in 1946, after Neelkanth's death.

The High Court has attached great weight to an endorsement on this return, which is to the effect, that there had been a change in the family status at the end of the year. This endorsement has been omitted from the printed copy of Ex. 309. Consequently, at G one stage, it was maintained by the counsel for the appellant that in repeatedly referring to this endorsement the High Cour~ ad committed an error of record.

We therefore, sent for the ongmal. We find that this endorsement is very much there in the original.

This endorsement was a valuable piece of evidence to show that, in fact, there had been a disruption of the joint family status at the end of the previous year, 1944-45, on November 4, f945.

H Thus the evidence furnished by the income-tax returns was conflicting. But the aforesaid endorsement on Ex. 309 was a clinchr. It was a statement made ante !item motam. It confirmed the testmg of

' •

Defendant 2 that the partition had taken place in 1945 and this tilted the balance against the contention of the plaintiff.

In such evidentiary value, it out-weighs the income-tax returns, Ex. 310, 311 and 314, in which the status of the assessee is sho\vn as H.U.F.

The High Court was therefore, not wrong in holding that all these documents taken together do uot show "that the family of the defendants had continued to be joint".

Discussing the resolution (Ex. 335)of the Board of Directors passed on July 30, 1946, the High Court said that this resolution was passed only 22 days after the death of Neelkanth and therefore, there was nothing unusual if all the members authorised defendant 2 to redeem the pledged goods as manager of the joint family.

In our opinion, it was not nnresonable to hold that the recital in this resolution with regard to defendant 2 being the authorised manager of the joint family, was made as a matter of expediency, and did not discount the case of defendant 4 that the joint family had disrupted on November 4, 1945.

The High Court found that the racital in Ex. 143, that the partition had taken place two months prior to this application, was obviously a mistake, as it was nobody's case that the partition had taken place in 1953.

This inference also was not implausible.

This document contains other palpable errors of a similar nature.

For instance, therein the age of defendant 3 is mentioned as twenty years, while he was hardly eighteen.

The High Court fonnd that the documentary evidence furnished by

the partnership deed (Ex. 197) dated October 25, 1946, the award E (Ex. 294) dated October 30, 1948, and the decree (Ex. 295) dated September 15, 1949, passed on its basis was entirely reliable. It further found that these documents had been acted upon.

In this connection, the High Court, rightly relied upon lhe admissions of defendant 1 in cross-examination. In the witness-box, defendant 1 had conceded that all the immovable property that had been allotted to defendant 2 under the award had. been sold away by him, and that F pursuant to the award, Rs. 7 ,000 /- had been paid to Heerabai and her son, Suryakant.

Defendant 1 further significantly admitted that on October 25, 1946 Rs. 16000/- and odd were to the credit of defendant 3 in the account books of M. S. Sadalge Shop. By virtue of the receipt, Ex. 167, dated August 9, 1949, defendants 1 and 2 acknowledged the deposit of Rs. 16005-15-0 in favour of the minor Defendant 3, payable with interest at Rs. 6/- per cent per annum.

G Defendant 1 admitted the correctness of the contents of this receipt.

It is undisputed that subsequently, defendant 3 has not only obtained a decree on the basis of this receipt against defendant 1, but has taken out its execution.

The High Court has also discussed the effect of the agreement (Ex. 99) which was executed between defendants 1, 2 and defendant H 4 as the guardian of the minor, defendant 3 on April 12, 1950. The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely,

A M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge. By this agreemenl, defendants 1 and 2 were called upon to credit to the business whatever amounts they had spent from out of the partnership assets.

Thepower of each of the defendants with regard to withdrawal of funds from partnership chest for personal expenses, was also restricted. This arrangement continued to be in force till the partnership was dissolved by another registered B deed on April 20, 1951.

Reference has already been made to Ex. 316, an order dated June 20, 1950, of the Income-tax Officer showing that defendants 1, 2 and 3 were being assessed on the basis that each of them had 1 /3rd share in the business.

In a joint Hindt! family business, no member of the family can say that he is the owner of one-half, one-third or onefourth.

The essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined.

Similarly, the pattern of the accounts of a joint Hindu family business maintained by the Karla is different from those of a partnership.

In the case of the former the shares of the individual members in the profits and losses are not worked out, while they have to be worked out in the case of partnership accounts.

In view of all that has been said above, we are of opinion that the co.ncurrent. finding of the courts below to the effect, that the joint Hindu family of the defendants had disrupted on November 4, 1945, does not suffer from any legal infirmity or gross error which would justify out interference in this appeal by special leave.

We therefore, take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide Ex. 394) of the plaintiff with defendauts 1 and 2 took place, or when on April 15, 1953 the accounts were stated and admitted.

Indeed, on the date, April 15, 1953, on which the plaintiff's cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.

Mr. Datar next contends that even if the joint status of the family stood disrupted from November, 1945, then also, on the principle of s. 45, Partnership Act, the acknowledgements made by defendants 1 and 2, representing themselves, jointly or severally, as Karla of the joint Hindu trading family, would, in the absence of public notice to G the traders in general or particular notice to the plaintiff, be binding on all the erstwhile members of the joint family.

Reliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete v. Bhaga Bhanshet Redij(').

As against this, Mr. Desai submits that Kashiram's case (supra) does not lay down the law correctly.

Counsel maintains that the con- H trary view taken by the other High Courts in these cases is sound : Pramod Kumar Pali v. Damodar Sahu('); Rengaswami Ayyangar v.

(I) A.LR. 1945 Born. 511

(2) 1.L R. !953 Ci ttack 221.

Sivyurakasam Pillai('); Muthyala Ramachandrappa v.

Muthyala A Narayanappa(').

Kashiram's case (supra) decided by an eminent single Judge certainly supports the proposition propounded by Mr. Datar. Applying the principle of s. 45 of the Partnership Act, 1932, the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta, either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgements or part-payments in respect of the same so as to extend the period of limitation.

With great respect to the learned Judge, we do not think that this is a correct enunciation of the Jaw on the point.

Firstly, the legislature has, in its wisdom, excluded joint Hindu trading families from the operation of the Partnership Act. Section 4 of that Act defines 'partnership' as "the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all".

Section 5 furth'1f makes it clear that this Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family trading partnership.

Secondly, ihe question whether an acknowledgement made by the karta of an erstwhile joint Hindu family after its severance, would extend limitation against all the former members of that family, turns primarily on an interpretation of clause

(b) of sub-section (3) of s. 21 read withs. 19 of the Limitation Act,

1908. Clause (b) of s. 21(3) provides:

"Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgement or payment made by or by the duly authorised agent of, the manager of the family for the time-being, shall be deemed to have been made on behalf of the whole family".

The key words in this clause are 'the manager of the family for the time being'.

These words unerringly indicate that at the time when the acknowledgement is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of. division, or disruption of its joint status, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitatfon as against all the members of the family, his representative capacity as karta being co-terminus with the joint status of the family.

Explanation (II) to s. 19 lays down that for the purpose of this section "signed" means signed either personally or by an agent duly authorised in this behalf. Section 21 (1) provides that the exprssion "agent duly authorised in thi~ behalf" in ss. 19 and 20 shall in the case of a person under disability include his lawful guardian or manager or an agent duly authorised in this behalf. It is well settled that

(I) I.L.R. 1942Mad. 251 (FB.)

(2) A.I.R. 1940 Mad. 339.

A coparceners do not derive their title through the karta of the . coparcenary. Defendants 1 and 2 do not fulfil the requirements of this sub-section.

It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgement still holds his representative capacity as karta of the farni!y.

The law does not cast any B duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of tne executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status, as already noticed, puts an. end to the representative capacity C of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditors' claim from becoming timebarred against the other members.

The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar

v. Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ . .in Muthyala Ramachandrappa

v. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).

We approve of the law enunciated on the point by the High Courts in these cases.

No other point has been argued before us in this appeal which fails and is dismissed with costs. ~

P.B.R.

Appeal dismissed.

I

NANCHAND GANGARAM SHETH

MALLAVPA MAHALINGAPPA SADALGE

January 30, 1976

R. S. SARKARIA

S. MURTAZA FAZAL ALI, JJ.

Partnership Act, 1932

Sections 4 and 5

Limitation Act, 1908

Section 2

4, 1945

November 4, 1945

s. 45

Partnership Act, 1932

Section 4

s. 5

s. 21

Limitation Act, 1908

s. 21

Limitation Act

H. B. Data

P. C. Bhartari

S. T. Desai

Naunit Lal

SARKARrA

High Court of Mysore

Mal Jappa

Appa Saheb

Mahalingappa

Malappa

Appasaheb

Neelkanth

Mahalingappa

Karla

Neelkanth

Chandrakant

Chandrakanth

July 8, 1946

October 22, 1949

April 15, 1953

January 28, 1954

Datar

October 25, 1946

November 3, 1948

Chandrakant Nilkanth

Mallappa

Appasaheb

Basawabai

4th November 1945

Nilkanthappa

August 9, 1949

Basawwa

Suryakant

Nilkanth

Mallappa Mahalingappa H Sadalge

Appasaheb

November 11, 1945

July 18, 1955

July 21, 1955

M. B. Sadalge shop

Balabai

Chandrakant

July 30, 1946

September 26, 1953

Nipani

March 15, 1948

November 12, 1949

February 13, 1954

Feb. 13, 1954

November 12, 1947

December 22, 1949

M. B. Sadalge

November 4, f945

September 15, 1949

Heerabai

M. S. Sadalge Shop

April 12, 1950

A M. B. Sadalge Shop

Tennis Bidi Factory

Chandrakant Neelkant Sadalge

April 20, 1951

June 20, 1950

October 15, 1949

s. 45

Bombay High Court

Desai

Kashiram

Sivyurakasam Pillai

s. 45

Partnership Act, 1932

Section 4

Section 5

s. 21

Limitation Act

s. 21(3)

s. 19

Section 21

ss. 19 and 20

Madras High Court

Varadachariar

Abdur Rahman

Orissa High Court


SURAJ BHAN v.

OM PRAKASH AND ANR.

February 2, 1976

[P. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.]

Code of Criminal Procedure 1973 (Act 2 of 1974)-S. 428-Scope of- Whether co11te1nplates a!TY challenge to co11viction-Procedure to inroke the section.

Practice-Interference by the Suprenie Court under Art. 136 of the Constitution, when the Crin1i11al Revision before the High Court for enhancement of

tlu~ sentence has become infructuous. by virtue of a judgment in the Crirninal Appeal which has become final uls 393 of Cr/. P.C. 1973 (Act 2 of 1974) is C not proper.

The respondent "OP" in:flicttid five stab wounds on the appellant "S" on 19-4-1973 but the appellant survived thanks to prompt medical attention and an immediate operation. The trial court convicted ''OP" under section 307 l.P.C. by its judgment dated 26-2-74 and sentenced him to 10 years rigorous imprisonment and also to a fine of Rs. 200/- The accused "OP" filed a (Criminal Appeal No. 442/74) in the Punjab High Court on the ground that he was entitled to set of! u/s 428 of the Cr!. P.C. 1973 (Act 2 of 1974), the period of his detention as an under trial prisoner against the period of imprisonment imposed upon him. The appellant "S" also filed a Criminal Revision No. 606/ 74 in the High Court for enhancement of the sentence against the accused.

Since there was no opposition from the State to the plea in the criminal appeal,,. the High Court accepting the appeal, reduced the sentence of the term of imprisonment to that already undergone by him.

Against the said appeal, there was no further appeal either by the State or by "S" and therefore the orders became final.

The criminal revision filed by "S" was however dismissed separately by the High Court for the "reasons recorded in Criminal Appeal No. 442/74". Unable to obtain leave under Art. 134(1) (c) of the ~Constitution,

"S" obtained special leave after notice to the accused "OP" and the State.

Dismissing the appeal, the Court

HELD: ( 1) It is clear from S. 428 of the Criminal Procedure Code. 1973

(Act 2 of 1974) itself that even though the conviction was prior to the enforce F ment of the code of criminal procedure benefit of Section 428 would be available to such a conviction. Indeed S. 428 does not contemplate any challenge to a conviction or a sentence. It confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner.

[30JH, 302A]

(2) The procedure to invoke Section 428 Criminal Procedure Code could be a Miscellaneous application by the accused to the court at any time while the sentence runs for passing an appropriate order reducing the term of imprison- G meat which is the mandate of the section. [302A]

(3) li; t the initat cas7, _in the absence of an appeal against the judgment of the, High Cour.t m Cnmmal Appeal No. 442 /74 either by the State or by the 1n1ured, that Judgment has become final.

The scope of criminal revision before the High Court was whether the sentence of ten years should be further enhanced, but that sentence itse]f disappeared by virtue of the judgment of the High Court in the Criminal Appeal. The criminal revision therefore became infructuous and the Supreme Court can do nothing about it while the judgment H of the High Court remains operative. [3020, EF]

Obiter : The order of the High Court was clearly unsu&tainable even in terms of section 428 Criminal Procedure Code as the only set off which was

urged for under lhc section and which was admissible, was a period of about nine months Of pretrial detention. [The Court disapproved of such a grossly lenient sentence imposed by the High Court and deprecated that the State ignored to take notice of such a grossly lenient sentence and for not preferring an appeal to the Court.]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal :No. 381 of 1975.

Appeal by Special Leave from the Judgmnt and Order dated the 10th January, 1973 of the Punjab and Haryana High Court at Chandigharh in Criminal Revision No. 606 of 1974.

V. C. Mahajan, S. K. Mehta and K. R. Nagaraja for the Appellant.

Ch. Ram Sarup and R. A. Gupta for Respondent No. I H. S. Marwah and S. P. Nayar for Respondent No. 2

The Judgment of the Court was delivered by GOSWAMI, J.-On April 19, 1973, the responpent Om Parkash ~· (hereinafter to be described as the accused) inllicted as many as five stab wounds on the appellant Suraj Bhan.

The injuries were very severe as will be found from the description given below :-

"!. Incised wound 5 cm x 2 cm x oblique spindle shape on the left side of the front of abdomen, 8 cm below the xiphisternum and 6 cm to the left of mid line.

Depth not probed edges were fresh.

2. Incised wo11nd 2! cm x 1 cm oblique, 6 cm on the left and 2 cm above injury No. 1, spindle shaped.

Edges were fresh and depth was not probed.

3. Incised wound 2t cm X 1 cm horizontal, spindle shaped 6 cm above the left anterior superior iliac spine.

Depth was not probed and edges were fresh.

4. Incised wound 1 cm X i cm X 2 mm deep, horizontal 6 cm inner to end at the level of left anterior superior iliac spine, edges were fresh.

5. Penetrating wound 5 cm X 21 cm X cavity deep, horizontal on the front of abdomen 2 cm to the right of mid line 10 cm below the level of xiphisternum, edges were clean cut and fresh the coils of small intestine protruding through the wound." The appellant had also to under-go an operation.

There is nc doubt that pronipt and proper medical attention alone saved the appellant from death.

The accused was convicted under section 307 IPC by the trial court by its judgment dated February 26, 1974 and sentenced to 10 years' rigorous imprisonment and also to a fine of Rs. 200/- in default ri ..

gorous imprisonment for one year.

Although the accused gave his

SURAJ BHAN v. OM PRAKASH (Goswami, !.) 301

age as 19 years, according to the trial court he appeared to be aged A about 23 years.

The accused appealed to the High Court against his conviction and sentence.

The appeal was numbered as Criminal Appeal No. 442 of 1974.

The injured Suraj Bhan also filed a Criminal Revision Application being numbered as 606 of 1974 for enhancement of the sentence passed on the accused.

The appeal was decided by a B learned single Judge of the High Court of Punjab and Haryana on January 10, 1975. It appears from the judgment of the High Court in that appeal that conviction of the accused was not challenged.

The only point that was argued was that the accused was entitled to set off the period of his detention as an under trial prisoner against the period of imprisonment imposed upon him under section 428 of the Criminal Procedure Code 1973 (Act No. 2 of 1974) which c came into force from April 1, 1974.

It appears also from the judgment that the State did not oppose the aforesaid submission on behalf of the accused.

The learned single Judge, therefore, passed the order in the following terms :-

"There is force in this submission of the learned counsel which is not opposed by the State counsel.

I am of the view that the ends of justice will be met if the term of imprisonment of the convict-appellant is reduced to that already undergone by him."

Having said so the learned single Judge dismissed the appeal maintaining the conviction and reduced the accused's term of imprisonment to that already undergone by him and also maintained the sentence

of fine.

Including the pre-conviction detention the accused served E only one year and eight months of the sentence.

It appears the State did not choose to prefer any appeal against the grossly inadequate sentence passed by the High Court.

On the other hand the injured Suraj Bhan made an application to the High Court for a certificate of fitness for leave to appeal to this Courrunder article l34(1)(c) of the Constitution without success and thereafter F obtained special leave from this Court after notice to the respondents including the State to show cause why special leave to appeal should not be granted.

We have described the above facts in some detail as we fail to appreciate why the State in this case should have ordinarily ignored to take notice of such a grossly lenient sentence.

The order of the High Court was clearly unsustainable even in terms of section 428, Criminal Procedure Code, as the only set off which was urged for under the section and which was admissible was a period of about nine months which the accused had served s an under trial prisoner prior to the conviction.

It is also clear from section 428, Criminal Procedure Code itself that even though the conviction was prior to the enforcement of the H Code of Criminal Procedure, benefit of section 428 would be available to such a conviction. Indeed section 428 does not contemplate any

5-L522SCI/76

challenge to a conv1ct10n or a sentence.

It confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner.

The procedure to invoke section 428, Criminal Procedure Code, could be a miscellaneous application by the accused to the court at any time while the sentence runs for passing an appropriate order for reducing the term of imprisonment which is the mandate of the section.

In the appeal before the High Court there was no scope for the High Court to reduce the sentence only to the period already under- \ gone under section 428, Criminal Procedure Code, in view of the only point argued before it.

Since in an attempt to murder hurt was caused, the maximum punishment under the second part of section 307 IPC would be imprisonment for life.

The injured was not satisfied with the maximum punishment of ten years contained in the first part of the section and moved the High Court in revision for enhancement of the sentence.

The revision was separately dismissed by the High Court for the "reasons recorded in Criminal Appeal No. 442 of 1974" and it is against this order of the High Court in revision that special leave was obtained by the appellant.

In the absence of an appeal against the judgment of the High Court in Criminal Appeal No. 442 of 1974. either by the State or .,, the injured, that Judgment has become final which means that the accused's sentence remains to be for a period of one year and eight months and a fine of Rs. 200/- in default rigorous imprisonment for one year.

The scope of the criminal revision before the High Court was whether the sentence of ten years should be further enhanced but that sentence itself disappeared by virtue of the Judgment of the High Court in the criminal appeal.

The criminal revision, therefore, became infructuous and we can do nothing about it while the Judgment of the High Court remains operative.

Unfortunately that judgment in the criminal appeal is not before us in this Court.

Although, therefore, we cannot approve of such a grossly lenient sentence in the present case, we have no other alternative than to dismiss the present appeal.

The appeal is, therefore, dismissed.

S.R.

Appeal dismissed.

~·/

SURAJ BHAN

OM PRAKASH AND ANR

February 2, 1976

P. K. GOSWAMI

JASWANT SINGH, JJ.

Code of Criminal Procedure 1973

S. 428

Art. 136

section 307

Punjab High Court

s 428

Art. 134(1)

S. 428

code of criminal procedure

Section 428

S. 428

Section 428

Criminal Procedure Code

Supreme Court

section 428

Criminal Procedure Code

V. C. Mahajan

S. K. Mehta

K. R. Nagaraja

Ch. Ram Sarup

R. A. Gupta

H. S. Marwah

S. P. Nayar

GOSWAMI

Om Parkash

Suraj Bhan

section 307

IPC

February 26, 1974

Suraj Bhan

High Court of Punjab and Haryana

January 10, 1975

section 428

Criminal Procedure Code 1973

April 1, 1974

section 428

Criminal Procedure Code

section 428

Code of Criminal Procedure

section 428

section 428

section 428

Criminal Procedure Code

section 428

Criminal Procedure Code

section 307

IPC


STATE OF GUJARAT

HAIDARALI KALUBHAI

February 3, 1976

[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.J

Indian Penal Code-Section 304A-lngredients of-Loss of control over the speeding truck causing the fatal injury falls under s. 304A.

On August 23, 1969, the respondent accused came in a tractor and stopped it on the highway.

Seeing the parked truck GTF 904 which he used to drive previously, the accused used the key of his tractor to start the same and drove it with the head lights on in full speed, The conductor of the truck owner \Vas also in the tractor at that time. The tractor while being driven by the field and while he was trying to turn towards the kutcha road, hit against the

cot in which the village Sarpanch who was resting on it and talking with three policemen.

The policemen jumped from the cot and sustained injuries, while the Sarpanch who was thrown away by the impact of the tractor to a distance of about ten feet from the cot, had grievous injuries to \Vhich he succumbed later. Since there was enmity between the deeeased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and v.ilful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch. The Sessions Judge convicted the accused (i) under s. 304 Part II, J.P.C. for causing the death of the Sarpanch and (ii) under s. 326 and 323. LP .C. for causing injuries to the two other persons and sentenced him for rigorous imprisonment for seven years and two years respec tively for the said offences.

On appeal to the High Couff, the conviction was altered to one under s. 304A only and the respondent was sentenced to rigorous imprisotHnent for 18 months and to a fine of Rs. 500/ ..

Dismissing the State's appeal by special leave, the Court,

HELD : ( 1) Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under s. 299, I.P.C. or murder under s. 300 I.P.C.

Each case Will depend on the particular facts established against the accused.

[305A-BJ

(2) Section 304A, by its own definition totally excludes the ingredients of s. 299 or s. 300, I.P.C. Doing an act with the intent to kill a person or

knowledge that doing of an act is likely to cause a person's death are ingredients \ of the offence of culpable homicide. When intent or knowledge is the direct F motivating force of the act complained of, s. 304A has to make room for the graver and more serious charge of culpable homicide.

[306 GH, 307AJ

(3) In the instant case, the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it _over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries. would not reveal the accused's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances dis closed in this case fit in more reasonably v.1ith the theory of loss of control G by the accused of the vehicle in high speed trying to take a turn for the kutcha road. The case falls under s. 304A, l.P.C. and not under 3. 304 Part II, l.P.C. [307-A-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 188 of 1971.

Appeal by special leave from the judgment and order dated the 29-9-1970 of the Gujarat High Court in Criminal Appeal No. 410 of 1970.

D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant.

K. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the respondent.

The Judgment of the Court was delivered by

GOSWAMI, J .-The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali. He was also convicted under sections 326 and 323 I.P.C. and sontenced to rigorous imprisonment for two years and to three months respectively in connection with injuries to two other persons.

On appeal to the High Court conviction was altered to one under section 304 A.l.P .C. only and the accused was sentenced to rigorous imprisonment for eighteen months and to a fine of Rs. 500/-, in default rigorous imprisonment for six months.

Briefly the facts are as follows :- It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad.

There is a big open space in front of the hotel towards the north and a kutcha. road branches off from the highway towards Dangarwa.

This kutcha road is almost in the centre of the open space in front of the hote•: measuring about 80 feet.

It is said that the portion immediately ir: front of the hotel is about two feet higher in elevation from the kutch<.

road.

On August 23, 1969, the accused came in a tractor anc!'. stopped the same on the highway. He saw truck No. G.T.F. 904 which was parked opposite to the aforesaid hotd of Vasudev (P.W. 7). The

owner of the truck had gone to the village leaving his conductor Usman Imamali (P.W. 11) in the truck. It is said that the accused used to drive this truck earlier with permission of the truck-owner. Thi5 time he used the key of his tractor to start the truck and he drove the same by the open field in front of the hotel.

He drove the truck with the head lights on in full speed straight on the steel cot on which the deceased was resting with the result that the truck dashed against \he cot and the deceased was thrown away to a distance of about tea feet from the cot.

Head Constable Revajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away.

There was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting.

The Head Constable with the other Constable came to meet the Sarpanch in connection with the investigation of a certain case.

Since there was enmity between the accused and the deceased on account of Panchayat elections the prosecution case is that the accused wilfully and deliberately drove the vehicle towards the cot with the intention of causing death to the deceased Sarpanch.

The accused was originally charged under secticn 302 IPC and under section 326 and 323 JPC with the result mentioned above. Hence this appeal by the State by special leave against the judgment of the High Court. .

The question that arises for consideration is whether the facts that are established against the accused fulfil the ingredients of section 304

' .

I I

GUJARAT v. HAIDARALI (Goswami, J.) 305

Part Il as submitted by Mr. Debabrata Mukherjee on behalf of the State. According to the learned counsel this is a clear case under section 304 Part II and conviction under section 304A is unsustainable.

Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299 IPC or murder nnder section 300 IPC.

If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide.

Each case will, therefore, depend upon the particular facts established against the accused, The prosecution in this case wanted to establish a motive for committing the offence against the Sarpanch. It was sought to be estabished that there was enmity between the Sarpanch and the accused and his relations on account of Panchayat elections.

Some evidence was led in order to prove that the accused and his relations were gunning against the Sarpanch for some time after the latter's election as Sarpanch. Even an anonymous letter was received by the Sarpanch

threatening his life which was handed over to the police by the Sarpanch.

Both the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive. Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case.

Even so, the learned counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under section 304 Part II IPC.

The following facts are established. The accused drove the truck at great speed with lights on. He had the conductor with him in the truck.

Some time before driving the truck the accused had seen the Constables talking with the Sarpanch at the spot in question. There is no evidence that the accused had a licence to drive the truck. It, however, appears from Ext. 70, which is a complaint in criminal case No. 160 of 1969 dated January 17, 1969 that the accused "had no licenc-e.... . while driving his truck No. GTF 704." While the two Constables jumped from the cot and escaped the deceased could not do so in spite of being alerted by the Head Constable as he was iu a lying posture on the cot.

It appears from the map of the scene Ext. 9 that the truck while being driven by the field was trying to turn towards the kutcha road at a point near the cot shown in the map.

This would go to show that the accused was unable to control t)le vehicle in high speed while taking a turn to get into the kutcha road from the open field and in this process hit the cot throwing the deceased out of the cot by the impact resulting in injuries which ultimately led to his death.

Even the Constables, who jumped from the cot, received injuries.

There was no direct impact of the persons with the vehicle in speed.

The accused in his statement under section 342, Criminal Procedure Code, stated as follows :-

"I took the truck in reverse first and as there were other trucks lying round about, I took out my truck from the available way.

The accilator (sic) stuck down and hence the truck went in full speed and did not remain in control. One truck was coming from opposite side with full light. While driving with (sic) this way, I heard some noise, and the conductor Usman told me that the truck had struck with something then I heard some shouts and realised that some persons were injured but I did not stop the truck through fear of assault ........ truck through fear of assault .......... I presented myself at the Police Station".

Now this version is sup_ported by Usman (PW 11) who, however, has been declared hostile by the prosecution.

He was cross-examined by the prosecution in order to show that he made a wrong statement in the examination-in-chief when he stated that the accused drove the truck with the key of the truck whereas he had stated before the police that the accused came on his tractor and started the truck with

his key. He was also cross-examined about a truck coming from the opposite side with full light that he had not stated to the police to that -... effect.

We do not think that the omission to mention before the police about another truck coming from the opposite direction can be a contradiction within the meaning of section 162, Criminal Procedure Code.

We also do not give much importance as to whether the accused drove the truck with his key or with the key of the tractor.

That has not much relevance in view of the fact that the accused admitted to have driven the truck. Besides, it is admitted by the prosecution witnesses (PWs' 2 and

6) that the conductor (PW 11) was in the truck when the accused drove the same. PWl 1 is, therefore, a natural witness and we do not find any reason to disbelieve him when he stated that a truck was coming from the opposite direction with full lights on.

Besides, the owner of the truck having not found the truck in the place where he had parked had already telephoned to the Police Station about someone taking away the truck. PWll, who is an employee of the truckowner, was, therefore, not even obliged to speak in favour of the accused. The facts disclosed in the prosecution evidence, therefore, do not make out a case of any wilful or deliberate act on the part of the accused in order to cause the death of the Sarpanch by driving the truck in the way he did.

Besides, the presence of the Head Constable and another Constable with the deceased whom the accused had himself seen prior to his driving the truck would run counter to a theory of wilful and deliberate act on the part of the accused to cause the death not only of the Sarpanch but necessarily also of the .

Constables.

Section 304A by its own definition totally excludes the ingredients of section 299 or section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a prsou's death are iagredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, section 304 A has to make room for the graver

GUJARAT v. HA!DARALI (Goswami, J.) 30 7

and more serious charge of culpable homicide.

Does this happen in A this case?

The tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries would not reveal the accused intention or any deliberate act with the requisite knowledge for an offence qf culpable homicide.

The facts and B circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road.

There is, therefore, no error committed by the High Court in holding that the falls under section 304A IPC and not under 304 Part II IPC.

The appeal is accordingly dismissed. c .

S.R.

Appeal dismissed.

STATE OF GUJARAT

HAIDARALI KALUBHAI

February 3, 1976

P. K. GOSWAMI

Indian Penal Code

Section 304A

s. 304A

Sarpanch

Sarpanch

s. 304

s. 326 and 323

s. 304A

Section 304A

s. 299

I.P.C

s. 300

I.P.C

Section 304A

s. 299

s. 300

I.P.C

s. 304A

s. 304A

Gujarat High Court

D. Mookherjee

S. K. Dholakia

M. N. Shroff

K. J. Shethna

Vimal Dave

Kai/ash Mehta

GOSWAMI

Haidarali Kalubhai

section 304

Indian Penal Code

Mahomadali Kasamali

sections 326 and 323

I.P.C

section 304

Nandasan

Mehsana

Ahmedabad

Dangarwa

August 23, 1969

Vasudev

Usman Imamali

Revajit

Dalpat Singh

Vavdinmiya

IPC

section 326 and 323

section 304

Debabrata Mukherjee

section 304

section 304A

Section 304A

section 299

IPC

section 300

IPC

Mukherjee

section 304

IPC

January 17, 1969

section 342

Criminal Procedure Code

Usman

Usman

section 162

Criminal Procedure Code

Section 304A

section 299

section 300

IPC

section 304

section 304A

IPC

IPC


3 08

HARI SHANKER TRIPATHI v.

SHIV HARSH & OTHERS

February 3, 1976

[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]

Represellfation of tile People Act (43 of 1951), ss. 2(1)(/zJ, 39(1)(a), 81(1), 87(1) and 1he Rules /rained by the Aflahabad High Court under Act, rr. 3 and 4-Allalzabad High Court Rules, 1952, rr. 4 and IO-Period of lin1itation

under s. 81 ( 1) for election petition expiring during sumnier vacation-Filing of petition on re-opening day-If barred-General Clauses Act (10 of 1897), s. IO-Applicability.

The respondent was declared elected on April 30, 1974, in the election to the State Legislative Council. The period of limitation of 45 days, prescribed bys. 81(1) of the Representation of the People Act, 1951, for filing an election petition, expired on June 14, 1974, when the High Court was closed for the summer vacation.

The appellant, therefore, filed the election petition on July 8, 1974, the re-opening day, challenging the respondent's election. The High Court dismissed the petition as having been filed out of time.

Allowing the appeal to this Court and remitting the matter to the High Court for disposal on merits.

HELD : The Hi, gh Court had issued' a notification that the entire period of the si1mmer vacation from lay 25, to July 7, 1974 was a closed holiday, As the period of limitation expired during the summer vacation, which was a closed holiday, the Registrar of the High Court \Vas not competent to entertain the election petition. nor could the appellant have presented the election petition legally to the Registrar during such period; and so. it is a case to which s. 10, General Clauses Act, 1897, applies and the appellant was justified in filing the petition on the re-opening day.

[312C-D; 3130-E; 318A-B]

( 1) Und.er r. 3 of the Rules framed by the High Court under the Representation of the People Act, every election petition shall be presented to the Registrar; and r.. 4 lays down that after the office report is complete, the Registrar shall place the petition forthwith before the Chief Justice for reference to the concerned Bench.

But, from these rules it could not be held that there was no impediment in the way of the appellant in filing the election petition before the Registrar as the office of the High Court was open and the Registrar was available, even though the Court was closed.

The presentation before the Registrar, required by r. 3, must be a legal presentation and not a mere physical presentation.

If on a day the office is open and only Judges~ do not sit, it v,1ould undoubtedly be a working day of the Court and the election petition could be presented to the Registrar or other officer.

But, if the Court was observing a closed holiday, then the Court is not open even though .the office may remain open for conducting ministerial or administrative work.

Rules 3 artl 4 refer to a situation where the Court is open, because, the Registrar has to take the legal steps of placing the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge.

This could not be done when the Court was observing a closed holiday.

[314C-GJ

Huku111dev Narain Yada1• v. Lalit Narain Mi.l'lira, [1974] 3 S.C.R. 31, explained.

Krishna Dhan Mullick v. U1nratul Zohra Begam, I.L.R. [1949] All. 433, :1pproved.

(2) (a) Further, r. 10 of the High Court Rules. which is the only provision which empowers vacation Judges to -hear matters, has a very limited scope and does not empov.er the Registrar to entertain or to receive an e1ection petitio!1.

Under the rule, normally, only criminal work shall continue to be dealt \\'Ith during vacation, and it is only when other matters require immediate attention

H. s. TRIPATH! v. SHIV HARSH (Fazal Ali, !.) 30 9

that the vacation Judges have jurisdiction to entertain them. Election petitions A do not come under these two categories, so as to be taken up when the Court is observing a closed holiday.

[315E, H-316B]

(b) The mere fact that a practice has grown up of the Registrar or Deputy Registrars or other officers receiving: a number of applications, which was not strfctly justified by the Rules, would not have the effect of converting v.'hat is legally a closed holiday into a working day.

[316B-C]

( c) Rule 4 of the High Court Rules-which pro\rides that 'where any particular number of days is prescribed by these Rules, the same shall be reckoned exclusive of the first day and inclusive of the last day, unless, the last day shall happen to fall on a day on which the offices of the Court are closed, in v.hich case the time shall be reckoned exclusive of that day

nlso ar:r, l of any succeeding day or days on v.:hich the offices of the Court continue to be closed'-cannot be relied upon by the respondei:tt, because, it applies only where the period of limitation is prescribed by the Rules.

[316G]

(3) For taking advantage of s. 10, General Clauses Act, 1897, it is necessary that,

(a) an act or proceeding is allowed to be done or taken in any court

er office on a particular day or within a prescribed period; and

(b) if the Court or office is closed on that day or the last day of the prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.

The proviso to the :; eclion makes the section inapplicable to cases where the Limitation Act applies.

Jn Hukuindev Narain Yadav's case [19741 3 S.C.R. 31, this Court held that ss. 4 and 5, Limitation Act, do not apply to election petitions. Therefore, s. 10, General Clauses Act applies in terms to the instant case. [313A-D]

H. H. Raja Harinder Singh v. S. Karnail Singh, [1957] S.C.R. 208, followed.

( 4) 'Public holiday' is defined in s. 2( I) (h) of the Representation of the People Act to mean any day which is a public holiday for the purposes of s. 25, Negotiable Instruments Act, 1881. But the term 'public holiday' refers only to such contingencies as are mentioned in s. 39(1) (a) of the Act, in the conduct of the actual elections.

Section 87 ( 1) shows that so far as the disposal of election petitions is concerned, once s. 80 confers power on the High Court to try them, s. 2(1)(h) would have no application whatsoever to their trial which will be governed either according to the Rules framed by the High Court under the Act, or the general Rules of the High Court, or in accordadce with the C.P .C. In the instant case, the High Court having framed Rules under the Representation of the People Act, which provide for the presentation of the petition to the Registrar. which could only be on a day which is not a 'closed holiday', the term 'closed holiday' will have to be referred to and not 'public holiday• defined in s. 2(1)(h). [317B-Hl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 699 of 1975.

From the Judgment and order dated l 0-2-1975 of the Allahabad High Court in Election Petition No. 45 of 1974.

J. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant.

S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.

Agarwala, for the respondent. ·

The Judgment of the Court was delivered by

FAzAL Au, J.-This is an appeal against the judgment of S. Malik, .I. of the Allahabad High Court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High

Court The electio_n petition was filed by the appellant who was one of. the ten can~1dates for the rnernbership of the U.P. Legislative Council from Bastl-curn-Gorakhpur Local Authority Constituency.

The results of the aforesaid election were declared on April 30, 1974 and the appellant Jiled the election petition in 1jJe High Court on July 8, 1974 praying that the election of respondent No. 1 be declared void and that the appellant be declared to be duly elected. The election petition was placed for hearing before the learned Judge after he was assigned as a Judge to hear the election petition by the Chief Justice and the learned Judge framed 20 issues in the case.

Issue No. 8 related to the question as to whether the election petition

had been properly prnsented and was within tirne.

As Issue No. 8 related to the maintainability of the petition on the point of limitation, the learned Judge took up this matter as a preliminary issue, and after hearing the parties he held that the petition having been filed beyond time merited dismissal under s.86(1) read with s.81(1) of the Representation of the People Act, 1951.

The election petition of the appellant was accordingly dismissed by the High Court by its order dated February 10, 1975 and it is against this order that the present appeal has been preferred in this Court.

The facts of the case lie within a very narrow compass.

It is not disputed that the results of the election were declared on April 30, 197 4 and normally the election petition should have been filed in the High Court within 45 days from this date.

Accordingly the period of limitation expired on June 14, 1974.

The petition was, however, presented before the Registrar on July 8, 1974.

The appellant relied on the fact that he was not in a position to file the petition in the High Court on June 14, 1974 because the High Court was closed for the summer vacation and as the High Court was observing a closed holiday the appellant was entitled to file the petition on the re-opening which was July 8, 1974 and accordinly he filed the petition on that day.

The appellant, therefore, claimed that his petition was not time-barred in view of the provisions of s. 10 of the General Clauses Act, 1897 which would apply to this case.

The learned counsel for the appellant has reiterated the same argument before us as in the Court below and has submitted that for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High Court, the appellant was legally entitled to file the pe_tition only on July 8, 197 4 when the High Court re-opened.

The learned Judge of the High Court rejected 'the contention of the appellant on two grounds.

In the first place the learned Judge thought that the matter was clearly covered by the decision of this Court in Hukumdev Narain Yadav v. Lalit Narain Mishra. (1) Secondly the learned Judge was of the opinion that although the High Court ws closed for the summer vacation, the office of the High Court was open and the Registrar was available for ei; i'.ertaining any petition of an urgent nature which was filed by any pettllonr and the Vacat1011

I I

~ r

Bench also functioned during the vacation.

In these circum8tances the learned Judge thought that there was no justification for the appellant to have waited till the re-opening of the High Court in order to file the election petition.

Mr. S. N. Misra appearing for the respondents more or less supported the view taken by the learned Judge and he also put forward certain additional arguments which will be dealt with later.

After having heard the arguments of the parties and going through the record, we find that the view taken by the learned Judge is legally erroneous.

The learned Judge appears to have drawn an analogy from the facts in the case of Hukumdev Narain Y adav (supra) which appear to be clearly distinguishable from the facts of the present case.

In the case of Hukumdev Narain Yadav this Court was not calkd upon to consider the legal significance of the Court having been closed due to summer vacation, but was considering a case where the Court was undoubtedly open but the petition was filed on the Monday instead of the previous Saturday which though a working day of the Court was not a day on which the Judges were usually sitting.

Secondly the learned Judge appears to have completely overlooked the provisions of s. I 0 of the General Clauses Act, particularly in view of the fact that this Court has held that ss. 4 or 5 of the Limitation Act did not apply to election petitions.

To begin with we would first deal with the case qf Hukumdev Narain Yadav (supra).

What had happened in that case was that the election petition was filed on March 20, 1972 instead of being filed on Staturday March 18, 1972 which was the last day on which the limitatiori exp~ The election petitioner sought to cross the bar of limitation on the ground that Saturday not being a working day of the Court, the petitioner was entitled to file the petition on the next working day, namely, Monday.

This Court on a consideration of various factors negatived this contention and held that even though the Judges of the High Court did not usnally sit on Saturdays it was undoubtedly a working day of the Court and it could not be said that the Court was observing a closed holiday on Saturday.

After referring to a large number of decisions and traversing various provisions of the Limitation Act, this Court observed as follows:-

". . . . for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in s: 4, ss. 9 to 18 and s. 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law ................................ .

For all these reasons we have come to the conclusion that the provisions of s. 5 of the Limitation Act do not govern the filing of election petitions or their trial, and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay." This Court accordingly held that s. 4 as also s. 5 of the Limitation Act had no application to the election petitions on the true interpretation of s. 29 (2) of the Limitation Act.

The Court also held on a

reading of rr. 6 & 7 with r. 26 of the Patna High Court Rules that even though the Judges were not sitting ou Saturdays the election petition could be presented on a Saturday to the Registrar or other Officers as envisaged.by r. 26.of the Patna High Court Rules.

In the instant case, however, the period of limitation provided by s. 81(1) of the Representation of the People Act appears to have expired during the snmmer vacation which according to the notification of the Allahabad High court was declared to be a closed holiday.

By virtue of the notification of the Allahabad High Court dated September 22, 1973 when the High Court Calendar for 1974 was approved by the Court after inviting objections from the members of the public, a list of days had been mentioned to be treated as closed holidays.

The last part of this notification runs thus :

"List of days to be observed as closed holidays in the High Court of Judicature at Allahabad during the year 197 4.

Name of holidays Dates on which they fall Days of the Number ,- -"- --, week of days According to According to Gregorian Indian Calen- Calendar dar saka era

1 2 3 4 5

Summer Vacation May 25 to Jyaistha 4 to Saturday 44 July 7.

Asad ha 1 !, t 896 to Sunday "

In view of this notification, therefore, the legal position would be that the summer vacation, namely, the period starting from May 25 and ending.on July 7, 1974, would be deemed to be closed holidays in the High Court.

Thus it follows that June 14, 1974, which fell within this period would also be a closed holiday.

If, therefore, the period of limitation under s, 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 197 4, then s, 10 of the General Clauses Act would apply in terms and the appellant would be fully justified in filing the petition on July 8, 197 4 when the Court re-opened after the summer vacation.

The relevant portion of s. 10 of the General Clauses Act runs thus :

"10. (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in an)I Court or office on a certain day or within a prescribed period, when. if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open :

Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies."

..,.,,

I I

Analysing the section it would appear that the following conditions A must be satisfied before a litigant may take advantage of the protec- tion of s. 10 of the General Clauses Act :

( 1) that any act or proceeding is allowed to be done or taken in any court or office on a particular day or within a prescribed period;

(2) that if the court or office is closed on that day B or the last day of prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.

The proviso to s. 10 makes these provisions inapplicable to cases C where the Limitation Act applies.

In the instant case which arises out of the election petition it is manifest from the judgment of this Court on H ukumdev Narain Y adav (supra) that the provisions of ss. 4 and 5 of the Limitation Act do not apply.

It is also clear from the notification of the High Court referred to above that the entire period of the summer vacation starting from May 25 to July 7, 1974, was a closed holiday. Thirdly the period of limitation pres- D cribed by s. 8 ( 1) of the Representation of the People Act expired on June 14, 1974 during the summer vacation.

In these circumstances the inescapable conclusion would be that s. 10 of the General Clauses Act would apply in terms and the appellant would be entitled to file the election petition on July 8, 1974 as he did.

In H. H. Raja Harinder Singh v. S. Karnail Singh(') while inter- E pretating s. 10 of the General. Clauses Act, this Court pointed out the necessary conditions that are required to invoke s. 10 and held that s. 10 clearly applied to election petitions.

In this connection, this Court observed as follows :

"Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open.

For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that perio<, l should expire on a holiday. . . . . . . . . . . . ... We entertain no doubt that the legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that s. 10 is not applicable to petitions falling within Rule 119.

We are also unable to read in the proviso to s. 37 of the Act an intention generally to exclude the operation of s. 10 of the General Qauses Act in the constrncti.Qn of the Rules, as that will be against the plain language .of Rule 2(6) ................................. The

(1) [19571 S.C.R. 208.

operation of snch a beneficent enactment as s. 1 O of the General Claµses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.

We are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time."

In these circumstances, therefore, s. 10 of the General Clauses Act furnishes a complete answer to the reasons given by the learned Judge in holding_ that the election petition filed by the appellant in the High Court was barred by time.

Another reason given by the learned Judge was that even though the High Court was closed its office was open and the Registrar was available to receive any election petition.

This reasoning of the High Court fails to consider the distinction between the opening of the Court and opening of the office.

While the Court may be closed, the office may remain open for conducting ministerial business or administrative work.

So far as the election petitions are concerned Mley are matters of moment and if the power to receive these petitions was delegated to the Registrar by the Rules framed by the Allahabad High Court under the Representation of the People Act, the Registrar must be deemed to exercise a judicial power which could not be exercised when the Court was observing a closed holiday. It would appear that under the rules framed by the High Court of Allahabed regarding the trial of election petitions, r. 3 required that every election petition shall be presented to the Registrar and r. 4 laid clown that after the office report etC. is complete the petition shall be laid forthwith before the Chief Justice for reference to the Bench concerned.

The learned Judge seems to think that in view of these rules there was no impediment in the way of the appellant in filing the election petition before the Registrar who was available during the summer vacation even though the Court was closed.

We are, however, unable to agree with this view. These rules clearly refer to a situation where the Court is open, because the Registrar has to take legal steps, namely, the placing of ti)e petition immediately before the Chief Justice for reference to the Bench concerned and the a5'ignment of a Judge.

This could not be done when the Court was observing a closed holiday.

The presentation before the Registrar as required by r. 3 of the aforesaid rules must be a legal presentation and not a physical presentation.

For instance, if the Registrar visited the High Court on a Sunday or on any public holiday, could it be said that the election petition could be presented to him and the Registrar may be asked to entertain the same.

The answer to this question must obviously .be in the negative.

Therefore, the position would be the same if the Court by virtue of the notification issued on Scptemller 22, 1973, was observing a closed holiday during the summer vacation.

A similar question appears to have arisen before the- Allahabad High Court in a case on appeal to the Federal Court where six weeks time for depositing security money expired during the High Court vacation and the Allahabad High Court clearly pointed out that the mere fact that certain ministerial officers of the

Court were available to conduct the routine matters would not indicate that the Court was open. In this connection the Allahabad High Court in Krishna Dhan Mullick v. Umratul Zahra Begam( 1) observed as follows :

"The six weeks within which security could be deposited expired during the High Court vacation. It the period expires on a closed holiday, it is not disputed that the time would be excluded in computing the period of six weeks.

This is done under section 10 of the General Clauses Act (X of 1897) ........................ The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open. There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the ministerial officers attached to the Court are an office within the meaning of the term in section 10 of the General Clauses Act and they have a separate existence from the Court."

We find ourselves in complete agreement with the observations made by the Division Bench in the aforesaid decision, and in fact this clearly brings out the real distinction between the functioning of the office of the High Court and of the High Court itself.

Furthermore, it would appear from r. 10 of Ch. V of the Allahabad High Court Rules, that this is the only provision which empowers the Vacation Judges to hear certain types of matters.

The rule may be extracted thus :

"10. (1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice.

They may also exercise the original and appellaie jurisdiction vested in the Court in any miscellaneous matter or any civil matter connected with, relating to, or arising out of, the execution of a decree, which may in their opinion, require immediate attention.

Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by

more than cne Judge.

(2) Subject to any general of special order of the Chief Justice, Vacation Judges shall, in the absence of the Chief Justice. exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of -Benches, listing of cases and other like matters."

A perusal of r. 10 would clearly indicate that only criminal work H shall continue to be dealt with during the vacation by such judges as --------

(l) I.L.R. [1949] All. 433.

may be appointed for the purpose by the Chief Justice.

The second part of r. 10 no doubt gives jurisdiction to the Vacation Judges to entertain other matter, but the rider is that those matters must require immediate attention. This rule no where empowers the Registrar to entertain or to receive an election petition. Rule 10 of Chapter V has a very limited scope and does not include election petitions which cannot be said to be cases of a criminal nature or those requiring

immediate attention so as to be taken up even , when the Court is observing a closed holiday. It is true, as the learned Judge pointed out, that the office of the High Court was open and the Registrar or the Deputy Registrar etc. were receiving a number of applications, but the mere fact that such a practice had grown which may not have been strictly justified by the statu\ory Rules would not have the effect of converting what is legally a closed holiday into a working day.

Similarly as indicated above, this Court in Hukumdev Narain Yadav's case (supra) was not at all called upon to consider the significance of a closed holiday but was deciding a case where on all accounts the day on which the limitation expired was a working day of the Court and where the Court was factnally and legally held to be open.

In these circumstances, therefore, the analogy drawn by the learned Judge from that case does not hold good in the facts of the present case.

Mr. S. N. Misra appearing for the respondents advanced two contentions before us.

In the first place he drew our attention to r. 3 of Chapter I of the Allahabad High Court Rules, the relevant part of which may be extracted thus :

E " 'Registrar' includes-

(i) the Deputy Registrar at Lucknow, in matters relating to the Lucknow Bench;

(ii) the Joint Registrar or any other officer, with respect to such functions and duties of the Registrar as may have been assigned to tbe Joint Registrar or such officer by the Chief Justice, and

(iii) in the absence of the Registrar, the Joint Registrar or any other officer authorized to act on his behalf;"

Rule 3 no doubt provides that the Registrar includes the Deputy Registrar and other officers.

Rule 4 of Chapter I would have no application to the present case because this rule applies only to snch cases where the period of limitation is prescribed by the Rules.

In the instant case, the period of limitation is not prescribed by the Rules made by the High Court of Allahabad but bys. 81(1) of the Representation of the People Act itself, and therefore this rule cannot be of any assistance to the respondents.

It was then suubmitted that under s. 2(1) (h) of the Representation of the People Act, "public holiday" was defined as meaning any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881. It was contended that as the notification issued by the High Court declared the summer vacation

to be a closed holiday it could not be construed as a holiday under s. 25 of the Negotiable Instruments Act and it would not be deemed to be a public holiday of which the appellant could have taken any advantage.

The argument is undobutedly attractive but on a deeper probe it does not appear to be tenable.

The term "public holiday" referred to in s. 2(1) (h) of tbe Representation of the People Act has nothing to do with any administrative functions exercised by the High Court but refers only to such contingencies as are mentioned in the conduct of the actual elections under the provisions of the Representation of the People Act.

For instance s. 39(1) (a) provides thus :

'39, (1) .As soon as the notification calling upon the elected meinbers or the members of the Legislative Asscmbiy

of a State 6r the members of the electoral college of a C Uniou territory to elect a member or members is issued, the Election Commission shall; by notification in the Official Gazette, appoint-

( a) the last date for making nominations which shall be the seventh day after the date of publication of the firstmen tioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday."

'Ihe word "public holiday" nscd ins. 39(1) (a) would undoubtedly refer to public holiday as defined in s. 2 (1) (h) of the Representation of the People Act.

So far as the disposal of the election petitions is concerned, once s. 80 confers the power on the High Court to try an election petition, s. 2 (1) (h) would have no application whatsoever to the trial of such election petition by the High Court which will be governed either according to tbe Rules framed by the High Court under the Representation of the People Act or under the general Rules of the High Conrt or in accordance with the Code of

Civil Procedure.

This is borne out by s. 87 (1) of the Representation of the People Act which may be extracted as follows :

"87. (!} Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. 1908, to the trial of suits:

Provided * * * * *" In the instant case the High Court having framed the Rules nndcr the Reprcsantation of the People Act which provided for the presentation of the election petitions to the Registrar, which as we have held could only be done on a day which is not a closed holiday, the term "closed holiday" would have to be referred to as defined by the Hi!!h Court Rules and not by s. 2 (1) (h) of the Representation of the People Act.

In these circumstances, therefore, the contention nf th.: respondents on this score must be overruled.

For the reasons given above we are satisfied that as the period of limitation expired during the summer vacation which was a closed

6-52'.SCI 176

holiday by virtue of the notification issued by the High Court, the Registrar was not competent to entertain the election petition nor could the appellant have presented the election petition legally to the Registrar during such period.

We are further satisfied that this is a case in which s. 10 of the General Clauses, Act applies in terms and the appellant was fully justified in filing the election petition on the reopening day of the High Court, namely, July 8, 1974.

In these circumstances the view taken by the High Court that the election petition was barred by time is wrong on a point of law, and the finding of the learned Judge on issue No. 8 cannot, therefore, be sustained.

The appeal is accordingly allowed, the order of the High Court dated February 10, 1975, is set aside and the matter is remitted to the learned Judge for trying the election petition in accordance with C the law.

In the special circumstances of this case we make no order as to costs, in this Court.

V.P.S.

Appeal allowed.

08

HARI SHANKER TRIPATHI

SHIV HARSH & OTHERS

P. K. GOSWAMI

S. MURTAZA FAZAL ALI, JJ.

Represellfation of tile People Act

Allalzabad High Court Rules, 1952

s. 81

Representation of the People Act, 1951

s. 10

General Clauses Act, 1897

Representation of the People Act

[1974] 3 S.C.R. 31

s. 10

General Clauses Act, 1897

Limitation Act

Jn Hukuindev Narain Yadav

ss. 4 and 5

Limitation Act

s. 10

General Clauses Act

s. 2( I)

Representation of the People Act

s. 25

Negotiable Instruments Act, 1881

s. 39(1)

Section 87

s. 80

s. 2(1)(h)

Representation of the People Act

s. 2(1)(h)

Allahabad High Court

J. P. Goyal

S. P. Singh

G. S. Chatterjee

S. N. Misra

K. C. Agarwala

M. M. L. Srivastava

E. C.

Agarwala

FAzAL Au

S. Malik

Representation of the People Act, 1951

February 10, 1975

April 30, 197

June 14, 1974

July 8, 1974

s. 10

General Clauses Act, 1897

July 8, 197 4

S. N. Misra

Hukumdev Narain Y adav

Hukumdev Narain Yadav

General Clauses Act

ss. 4

Limitation Act

March 20, 1972

Limitation Act

ss. 9 to 18

s. 22

s. 5

Limitation Act

s. 4

s. 5

Limitation Act

s. 29

Limitation Act

Patna High Court

s. 81(1)

Representation of the People Act

Allahabad High court

September 22, 1973

High Court of Judicature at Allahabad

Representation of the People Act

July 7, 197

General Clauses Act

July 8, 197

s. 10

General Clauses Act

Limitation Act

s. 10

General Clauses Act

s. 10

Limitation Act

ukumdev Narain Y adav

ss. 4 and 5

Limitation Act

May 25 to July 7, 1974

s. 8

Representation of the People Act

s. 10

General Clauses Act

s. 10

s. 10

s. 10

s. 10

s. 37

s. 10

s. 1

May 18, 1954

s. 10

General Clauses Act

Representation of the People Act

High Court of Allahabed

Scptemller 22, 1973

section 10

General Clauses Act

section 10

General Clauses Act

Allahabad

Lucknow

High Court of Allahabad

Representation of the People Act

s. 2(1)

Representation of the People Act

section 25

Negotiable Instruments Act, 1881

s. 25

Negotiable Instruments Act

s. 2(1)

Representation of the People Act

Representation of the People Act

s. 39(1)

s. 2

Representation of the People Act

s. 80

s. 2

Representation of the People Act

s. 87

Representation of the People Act

the Code of Civil Procedure

s. 2

Representation of the People Act

s. 10