SUNDER DASS

RAM PRAKASH

February 24, 1977

(P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ.]

!), lhi Rent Control !:let, 1958-Scc. 3-Pra:io-lnterpretation of ~-1,1tutes --Introduction of proviso with 1etrospective efject-iV!1et/Jer decree passed' t'arfi,-,- becon1c.1 a nu!fity-Lt'gaf fiction-Whether to be carried to logical conclusion.

The appellant purchased in a public auction a building \vhich was evacuee property.

Before the sale certificate was made out in fa\'our of the <tppdlant, the possession of the building was handed over to hi1n.

He in turn let f\Ut a shop in the said building to the respondent.

The aprelL1nt filed a suit for eviction in the Civil Court against the respondent.

The Civil Court passed a decree for eviction and negatived the contention oi the respondent thrit the Delhi Rent Control 1\ct. 1958 \~; as applicable anL!. therefore, the jurisdiction of the CiYil Court was barred.

The Court rclL::d on section J of the Delhi Rent Control Act which provides that nothing in the Act shall <ippl~' to any preinises belonging to the Government.

The decree for eviction \Vas continued by the Appellate C:ourt and then by the High Court in Second Appeal. Before ihc decree could be executed section 3 was atnended by adding <i proviso with retrospective efTect, \vhich proviJed that where any premi:-.es belonging to Clover~ nment have been lnrfully let out by any per5on, then notwithstanding any jpdgn1ent. decn:~ or order of any court the prov; sions of the i\ct \VOtild apply to the tcn<incy.

The Executing Court held that it \\'a<; not co1npctent to it to go into the question v,; bethcr the decree \\'as n::ndere'.1 a nullity on th<.:- ground !hat the jurisdiction of the Civil Court \Vas out>ted bv the introduction of the rroviso in section 3 \Vith retrospective eff<!ct since - the decree had become tin<1l bet\\een the partie'i.

The Appellate Court upheld the said decision. The f-Iigh Court in Second ,\ppe<1l reversed the dcci; ion of the tvvo courts b;_-Jow ;:;.nd held that the decree wa' :i nullity and coulJ not be executed.

Dismissing the ; ippeal this Court.

HELD: (I) An executing court cannot go behind the decree nor can it question its kgality or correctness but where a decree sought to be executed is a nullity for [acJ..: of inhetcn! jurisdiction in the court passing it, its invalidity F c;:;.n b,· se! ur in <In execution rrocceding. [h4C-f)j

Vidc Kirtin Sing/I \'. Cluu111111 l'a.s1u111 ll955J l S('R 177 and Set!z fliralal Patni v. Sri Kuti Nath, P962J 2 SCR 747. followed.

(_2) Since the proviso \VrlS introduced with retrospective effect it mLst be deemed to be part of section 3 since the time the Delhi Rent Control A<.:t was cnnctcd. [65-D]

East End D1n:lli11gs Co. Ltd. \'. Finsbury Borough Co11ncif (1952]

A.C. 132, '.1pprovcd.

As a rcult of the fiction the proviso n1ust be dcerncd to be part of s::ction 3 from the date of enactment of the Act.

The lof!ical ar, d inevitable conse~ qucnce of the introduction of the proviso in section 3 with retrospective effect \voulU be to read the proviso as if it \vere part of the sction at the date v,.hen the Act v,1as enacted. and the legal fiction created by the retrospective operation nu1st be carried to its logical extent and all the consequences and incidents must he worked out as if the proviso forms part of the section right from the beginning.

The phrase "notwithstanding any jt1dgment, decree or order of any court'' in the proviso makes it denr that the legislature intended that the finality of the judgment, decree etc .. should not stand in the way of giving full effect to the ietrospective operation of thci proviso in section 3.

[66C-GJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2006 1968. of A

(From the Judgment and Decree dated 26-11-1961 of the Punjab High Court Circuit Bench at Delhi in Execution Second Appeal No. 158-D of 1964).

Bishan Narain and D. N. Mishra, for the appellant.

V. S. Desai, B. P. Singh and A. K. Srivastava, for the respondent.

The fodgment of the Court was delivered by

BHAGWATI, J.-This appeal by certificate raises a short but interesting question of law relating to the interpretation and effect of the proviso to section 3 of the Delhi Rent Control Act, 1958.

The dispute in this appeal relates to a shop situate on the ground floor of a building bearing Municipal No. 624-36 (Old) 530-35 (New) situate in Sadar Bazar, Delhi.

The building was an evacuee property and it was acquired by the Central Government under section 12 o[ the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and formed part of the compensation pool. It was sold by public auction and the appellant being the highest bidder was accepted as the auction purchaser by the managing officer on 5th September,

1955. It does not appear from the record as to when the ppellant paid the full purchase price to the managing officer but presumably he did so before 23rd September, 1955 when the sale was confirmed in his favour by the managing officer.

The sale certificate was not issued in favour of the appellant for a considerable, time and we are told that even until now it has not been issued, but possession of the building was handed over to the appellant on 30th August, 1956 and a letter dated 3rd September, 1956 was addressed by the mauagin)! officer to the respondent intimating to him that since possession of the building had been handed over to the appellant. the respondent should pay rent to the appellant and otherwise deal directly with him with effect from 30th August, 1956.

This Jetter was addressed to the respondent, because at that time the respondent was in possession of

one other shop in the same building as a tenant and pmsuant to this Jetter, he attorned tenancy in respect of that shop to the appellant. On

1st September, 1956, the appellant let out the shop in dispute (hereinafter referred to as the premises) to the respondent and the latter continued in possession of the premises as a monthly tenant. However, on 10th August. 1959 the appe_llant gave a notice to quit terminating the tenancy of the respondent and calling upon him tn hand over vacant possession of the premises by the mid-nightj of 31st August, 1959. The respondent declined to comply with the requisition contained in the notice and hence the aPoellant filed a suit in the Court of the Senior Subordinate Judge, Delhi on 1 Stt September, 1959 for recovery of possession of the premises from the respondent.

There was also a claim made in the suit for recoverv of arrea-rs of rent bu~ this claim is no longer material a_nd we need not dwell on it.

The respondent resisted the claim for eviction inter alia on the ground

that the certificate of sale not having been issued in favour of the

I appe!Jant, he was not the owner of the premises and hence he was not lega!Jy competent to let ont the premises to the respondent nor was he entitled to recover possession of the premises from the respondent.

The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958 which had come into force on 9th February, 1959 was applicable to the tenancy of the premises and by reason of section 50 of that Act, the civil court had no jurisdiction to entertain the suit.

The Trial Court took the view, on a reading of the decision of this Court in Ml s Bombay Sliil and Chemical Industries v. L. J. Johnson,(') that since the certificate of sale was not issued in favour of the appe!Jant, he had not become the owner of the premises and the premises continued to belong to the Government and by reason of section 3 which provided that "Nothing in this Act shall apply to any premises belonging to the Government", the Delhi Rent Control Act, 1958 was not applicable to the tenancy in respect of the premises and the civil court had jurisdiction to entertain the suit.

The Trial Court also held that since the full purchase price had been paid by the appellant and possession of the premises had been handed over by the managing officer to the appellant on 30th August, 1956, the appellant was legally competent to let out the premises to the respondent and lhe premises having been lawfully let out by the appellant to the respondent, there was relationship of landlord and tenant between the parties and since the 'tenancy was validly terminated by the appellant by giving notice to quit in accordance with the provisions of section

106 of the Transfer of Property Act, the appellant was entitled to recover possession of the premises from 'the respondent.

A decree for eviction was accordingly passed by the Trial Court in favour of the appellant.

The respondent preferred an appeal but the appeal was dismissed by the Additional District Judge, Delhi on substantially the same view as that taken by the Trial Court.

This was followed by a second appeal to the High Court but that appeal also met with the same fate and the decree for eviction became final between the parties.

Now, before the decree for eviction could be executed, an amendment was made in section 3 of the Delhi Rent Control Act, 1958 which is very! material.

We shall immediately refer to this amendment, but before we do so, it would be convenient to advert to a few relevant provisions of the Delhi Rent Control Act, 1958.

This: Act came into force with effect from 9th February, 1959 and it was intended to provide inter alia for control of rents and evictions .. Section 14, sub-section (I) granted protection to the tenant against eviction by providing that notwithstanding anything contained in any other Jaw or contract, no order or decree for recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant, but the proviso to this sub-section laid down certain grounds on which the Controller could. on an application made to him in the prescribed manner, make an order for recovery of possession of the premises.

Since the jurisdiction to make

(11 AJ.R. !958 S.C. 289.

an order for recovery of possession of premises on one or more of the specified grounds was given to the Coutroller under section 14, subsection (1), section 50 ousted the jurisdiction of the civil court by declaring that, save as otherwise expressly provided in the Act, no civil court shall entertain any suit or proceeding in so far as i1. relates inter alia to eviction of any tenant from any premises to wl1ich the Act applies or to any other matter which the Controller is empowered by or under the Act to decide. lf, therefore, the premises in the present case were premises to which the Act applied, the civil court would have no jurisdiction to entertain the suit filed by the appellant for recovery of possession of the premises from the respondent. But section 3, as it stood prior to its amendment, by Act 4 of 1963, provided that nothing in the Act shall apply to any premises belonging to the Government. The view taken by the Trial Court and affirmed by the Additional District Judge and the High Court was that since the certificate of sale was not issued in favour of the appellant, the premises continued lo belong to the Government and on this view, the Act clearly did not apply to the premises and neither section 14, sub-section (I) nor section 50 being applicable, the civil court continued to have jurisdiction to entertain the suit. This was the reason

why the decree for eviction was passed by the Trial Court against the respondettt and it was affirmed by the Additional District J u<lge and

the High Court.

But by the time the decree for eviction came tc1 be executed, the following proviso was added in section 3 by Act 4 o[ 1963 with retrospective effect :

"Provided that where any premises belonging to Government have been or are lawfully let by any person by vjrtue of an agrec1nent with the Govcrnn1ent or other\vise, then, notwithstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy."

The effect of the addition of the proviso with retrospective effect was as if the proviso had always been there right from the time when the Act was enacd. Therefore, when an application was filed by the appellant for execution of the decree for eviction against the re.; pondent on 31st August, 1963, an objection was raised on behalf of the respondent that by reason of the retrospective introduction of the proviso in section 3, the decree for eviction was rendered null and void as a decree passed by a court without jurisdiction and hence it was not executable against the respondent.

This objection was negatived by the executing court on the ground that that was not an objection which could be entertaine<; I in execution and the executing court must proceed to execute the decree which had become final between the parties.

The respondent preferred an aopeal but tl1e first appellate court took the view that, on the facts of the case, the proviso to section 3 was not attracted and hence the decrt:>c for eviction could nCJt be said to be one passed by a court without jurisdiction and on this view, it upheld the order of the executing court and rejected the appeal.

This led to the filing of a further appeal and in this appeal the High Court held that since the certificate of sale was riot issued in favour of the appellant, the building continucrl to belong

to the Government but the appellant having paid rhe full purchase price of the building and the sale of the building in favour of the

appellan~ having been confirmed and possession having been handed over to Ji; m in pursuance of the sale, the appellant was legally competent to let out the premises to the respondent and the letting of the the premises by the appellant in favour of the respondent on 1st September, 1956 was lawful and hence the condition for tl"o applicability of. the proviso to section 3 was satisfied, and since the proviso was introduced in section 3 with retrospective effect, it must be held that the Act was applicable to the premises at the date of the institution of the suit and consequently the civil court had no jurisdiction to entertain the suit and in that view, the decree for eviction was a nullity.

The High Court accordingly allowed the appeal and held that the decree for eviction being null and void could not be executed against the respondent.

This view taken by the High Court is challenged in the present appeal perferred by special leave obtained from this Court.

Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in lhe court passing it, its invalidity can be set up in an execution proceeding.

Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented.

Its nullity can be set up whenever and whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings.

The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree.

By doing so, the executing court -,, ould not incur the reproach that it is going behind the decree, bec<mse t\1e decree being null and void, there would really be no decree at all.

Vide Kirall Singh v. Chaman Paswan(') and Seth Hira/al Patni v. Sri Kali Nath.(') It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity' on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to •.:xccutc it against the respondent.

The position which obtained when the suit for eviction was instituted by the appellant against the respondent was that section 3. as it stood prior to its amendment by Act 4 of 1963, was in force and that excluded the applicability of the Delhi Rent Control Act. 1958 to premises belonging to the Governrn.ent.

The premises in the. present caw were vested in. the Go¥ernment under sect10n 12 of the DJSplaced

Perwns (Ccmpensation & Rehabilitation) Act, 1954 and they were sold by public auction to the appellant [!, nd though full purchase price

(!) [19551 I S.C.R. 117.

(2) [19621 2 S.C.R. 747.

' r

was paid by the appellant and the sale was confirmed in his favour and possession was also handed over to him, the certilicate of sale was, for some inexplicable reason, not issued in his favour. The Trial Court, therefore, took the view, and this view was affirmed by the Additional District Judge as well as the High Court, that the appelland did not become the owner of the premises and they continued to

bclmog to the Government and for this reason, it was held that the Delli: Reat Centro! Act, 1958 did not apply to the premises and the civil corn t had jurisdiction to entertain the suit for eviction.

The Trial Court also found, and this finding too was accepted by the Additional District Judge as well as the High Court, that though the certificate of sale was not issued in his favour, the appellant was competent to let out the premises and the letting of the premises. by him in favour of the respondent on 1st September, 1956 was lawful and since the tenancy of the respondent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent.

But, as pointed out above, section 3 was amended with retrospective effect by the introductioo

cf the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for cvictioi1 null and void.

Since the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time that the Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council(') in a passage which has become classical by reason of its felicity of language that "if you are bidden to treat an imaginary state of affairs as real, you n1ust surely, unless prohibited from dojng so, also imagine as real the consequences and ineidnts which, if the putative state of affairs had in fact existed, must inevitably have flowed fro111 or accompanied it.

One of those in this case is cn1ancipation from the 1939 level of rents.

The statute says that yott must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". The proviso must, therefore, for all legal purposes, be dCJOmed to have been included in section 3 as from the date of enactment of the Delhi Rent Control Act. 1958.

If that be the true po'sition, then obviously it must be held that the provisions of the Delhi Rent Control Act, 1958 were anplicable to the tenancy of the respondent, for the premises though belonging to the Government, were lawfully let out by the appellant to the respondent and the condiljon of the proviso was satisfied.

That was the position which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section 3, n1ust be held to have prevailed at the date of the institution of the suit and the provisions of the Delhi Rent Control Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide sect; on 50) and the decree for eviction was a nullity. Prima facie, it may appear somewh>at strange that a decree for eviction which was good and valid when it was made should be treated as null and void by

(I) [19521 A.C. 132.

A virtue of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso.

If, as a result of the said fiction, we must read the proviso as for1ning part of section 3 as from the date of enactment of the Delhi Rent Control Act, 1958, the conclusion is inescapable that thf civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional B District Judge and the High Court were in error in exercising jurisdiction in rela.tion to the suit when their jurisdiction was dearly excluded by section 50.

The 'appellant, however, urged that the introduction of the proviso in Section 3 'should not be given greater retrospective operation c than necessary and it should not be so construed as to affect decrees for eviction which had already became final between the parties.

Now, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be sen to have been tneant by the legislature.

This rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should D have validity in the context of changed social norms and values. But even so, \Ve do not see ho\v the retrospccti\e introduction of the proviso in section 3 can be construed so as to leave unitnpaire<l a decree for eviction already passed, when the question arises in execution whether it is a nullity.

The logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the E date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning.

This would clearly render the decree.. for eviction a , nullity and since in execution proceeding, an objection as to nullity of a decree can al\vays be raised and the executing court can examine F whether the decree iS a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3.

Moreover, the \Vords "not\vithstanding any judgment, decree or order of any court or other authority" in the proviso niake it clear and leave no doubt that the legislature intended that the finality of "judgment, decree or order of any court or other autho- G rity" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions of the Delhi Rent Control Act, 1958 in cases falling witb- i-n the proviso.

We are, therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court vas ju'stified in declining to execute it against the respondent.

We accordingly dismiss the appeal with costs throughout but order A and direct the respondent to pay to the appellant all the arrears of rent in respect of the premises which remain to be paid by him to the appellant in the following instalments : Rs. 2,000/- on or before

30th April, 1977; and out of the balance a forthcr sum of Rs. 2,000 within three months thereafter and the balance, if any, by 31st

October, 1977.

The respondent through bis counsel undertakes to make payment of the arrears in the manner aforesaid.

P.H.P.

Appeal dismissed.

SUNDER DASS

RAM PRAKASH

February 24, 1977

section 3

section 3

section 3

section 3

section 3

Bishan Narain

D. N. Mishra

V. S. Desai

B. P. Singh

A. K. Srivastava

BHAGWATI

section 3

Delhi Rent Control Act, 1958

Delhi

Central Government

section 12

5th September,

1955

23rd September, 1955

30th August, 1956

3rd September, 1956

1st September, 1956

10th August.

31st August, 1959

Senior Subordinate Judge, Delhi

1 Stt September, 1959

9th February, 1959

section 50

section 3

Delhi Rent Control Act, 1958

section

106

Transfer of Property Act

Additional District Judge, Delhi

section 3

Delhi Rent Control Act, 1958

Delhi Rent Control Act, 1958

Section 14

section 14

section 50

section 3

section 14

section 50

section 3

31st August, 1963

section 3

section 3

Ji

section 3

section 3

section 3

section 3

section 3

Delhi Rent Control Act, 1958

Asquith of Bishopstone

section 3

Delhi Rent Control Act, 1958

section 3

Delhi Rent Control Act, 1958

section 3

section 3

Delhi Rent Control Act, 1958

section 50

Section 3

section 3

section 3

Delhi Rent Control Act, 1958

section 3

section 3

Delhi Rent Control Act, 1958

section 3

31st

October, 1977


MADHYA PRADESH STATE ROAD TRANSPORT

CORPORATION, BAIRAGARH, BHOPAL

SUDHAKAR & ORS. ETC.

April !5, 1977

[V. R. KRISHNA !YER AND A. C. GUPTA, JJ.]

Reasonable prophecy, principle of-Motor Vehicles Act, 1939, Section 1 lOB -Award of conzpensation-Death of, a child and also of earning wife in _an accident-Claimant husband not dependant on wife's income and remarrying within 11 months-Assessment of damages should be based 011 the principles of rec.jonable prophecy Fatal Accidents Act 1855, Section IA.

Bus accident-Victinz boy aged about four years coming fro1n a well-to-do fa1nily-Disabled by a compound fracture of right tibia and fabula lower third

near ankle joint-Award of compensation of Rs. 20,000 as enhanced by the lligh Court by way of damages is proper-Motor Vehicles Act, 1939, Section

llOR.

In a bus accident on June 23, 1961, one Mrs. Usha Kotasthane and her one year old son died.

One Sailesh Kumar, a boy of about four years coming from a well-to-do family was disabled due to a compound fracture of his right tibia and fabula lower third near the ankle joint.

Sudhakar Kotasthane, the huiband of the deceased and respondent No. I in C.A. 2254 of 1968 and Smt.

Indu Bala. Bhandari, mother of Sailesh Kumar and respondent No. 1 in C.A. 2255 of 1968 applied to the Motor Accident Claims Tribunal, Gwalior for compensation.

The Tribunal took into consideration (i) the loss of life of Sudhakar's wife which resulted into conditions of inconvenience, suffering, shock, derangement in house and the life for a period of nearly 11 months i.e., till he remarried and (ii) The fact that Mrs. Usha WREi working as Physical Instructress in a school getting a salary of Rs. 190/- p.m. in the scale of Rs. 150-10-250 and awarded a sum of Rs. 15,000/- as compensation as against the claim of Rs. 75,0001computed on the deceased's earnings. The Tribunal also awarded a sum of Rs. 10,000/~ as damages and Rs. 890/- as special damages to Smt. Indubala. Both the respondents and the a_.ppellant preferred appeals to the High Court from the decision of the Tribunal. The High Court enhanced the compensation to Rs. 50,000/- in the case of Sudhakar and to Rs. 20.000/- in the case of Indubala.

Allowing the appeal in C.A. No. 2254 of 1968 and dismissing t.he appeal in C.A. No. 2255 of 1968, the Court.

HELD : (I) A method of assessing damages usually followed in England is to calculate the net pecuniary loss upon an annual basis and "to arrive at a total aw~ .. rd by multiplying the figure assessed as the amount of the annual 'dependency' by a number of year's purchase", that is. the number of years that benefit was expected to last taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand.

The huband may not be dependant on the wife's income, the ba.sis of assessing the damges payable to the husband for the death of his wife would be similar. [631 AB]

Rule in Mallet v. Mc Monga/e 1970 (A.C.) H. L. 166 at 174 quoted with approval.

P. B. Kadar v. Thatchamma AIR 1970 Kerala 241, approved.

In assessing damages certain other factors have to be taken note of such

a~. the uncertainties of life and the fact of accelerated payment-tht the H husband would be getting a lump sum payment "'hich but for his wife's death would have been available to him in driblets over a number of years. Allow ance must be made for the uncertainties and the total figure sCaled down accordingly. The deceased might not have been able to earn t!ll the age of retirement

for some reason or other, like illness or for having to spend more tin1e to look after the family which was expected to grow.

Thus, the amount assessed has to be reduced taking into account these imponderable factors.

[630 G-H]

In the instant case, the deceased had 35 years of service before her when she died.

The claimant's loss reasonably works out to Rs. 50/- a month i.e., Rs. 600/- a year.

Keeping in mind all the relevant factors and conungenc1es and taking 20 as the suitable n1ultiplier, the figure comes to Rs. 12,000. The Tribunal's award cannot, therefore, be challenged as too -low though it was not based on proper grounds. The High Court was alSo not right in estimating the damages at Rs. 50,000/- in the manner it did.

[631 BC]

C.A. 2255 of 1968 :

Though the possibility \\'a~ there, in the instant case, of the defornuty being removed by surgical operation v.hen the boy grew up to be 16 years, the other possibility of "likelihood to develop a permanent ]imp" cannot be altogether ruled out.

That being the position, the increase of general damages to Rs. 20,00Q/ ., in the instant case, in addition to Rs. 890 /· as special damages is proper. [631 DFl

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2254 & 2255 of 1968.

(From the Judgment and Order dated the 10-1-1967 of the Madhya Pradesh High Court in Misc. First Appeal No. 12/64)

Ram Panjwani. Rameshwar Nath, for the appel!ant in both the appeals .

. A. G. Rat11aparkhi, for respondent No. 1 in CA 2254/68.

S. K. Gambhir, for respondent No. 1 in CA No. 2255/68.

The Judgment of the Court was delivered by

GUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries.

Among the injured was one Sailesh Kumar, a boy ot about four years.

Claims for compensation were filed before the Motor Accident Claims Tribunal at Gwalior.

The application for compensation for the death of Mrs. Usha Kotasthane and her child was made by her husband Shri Sudhakar Kotasthane, and the claim in respect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari.

Sudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect ot Kotasthane's dead child.

The two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs.

Usha Kotasthane and the injury sustained by Sai!esh Kumar. C.A. 2254 of 1968 relates to the award in Mrs. Kot•asthane's case and C.A. 2255 of 1968 to that in the case of Sailesh Kumar.

As regards the death of Mrs. Usha Kotasthane, the claims tribunal awarded Rs. 15000/- as damages to her husband Sudhakar.

At the time of her death she was employed as a Physical Instructress in a school at Indore, getting a salary of Rs. 190/- per month, in the grade of Rs. 150-10-250. Admittedly Sudhakar remarried within a year of the death of his first wife.

This is how the tribunal dealt with the claim :

"In the present case, it is a case of the death of the wife.

The husband was not dependent on the earning of his wife.

He was himself earning independently.

The applicant has no where stated that on account of the death of his former wife, he has been deprived of her income, nor. that he was dependant upon her. It is true, that the wife of the applicant C was educated, healthy, employed, and earning.

As far as, the Joos of companionship is concerned, it is again true that he faced this loss for nearly, 11 months, after which, he married for the second time.

No cross-examilfaiion has been led by tlie non-applicant on the point that the second wife is as accomplished, educated, and healthy as the former one was.

The death of the wife of the applicant. must have D caused him mental shock, pain and inconvenient in his house hold.

The work in the house. which he could take from bis wife in looking to the household was also not available to the applicant during this period of 11 month.

The advantage of established married life with a child in the lap, was also lossed to the applicant during this time.

Taking into consideration all these facts, in favour of the applicant, and the E fact, against him that he was married again after 11 months, of the death of his wife, I think, it will be proper to award damages amounting to Rs. 15000/-, for the loss of life of his wife, which resulted into conditions of inconvenience, suffering shock derangement in house and the life, for a period of nearly 11 months."

Both :>udhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the High Court from the decision of the tribunal. The High Court proceeded as follows.

The "span of her earning life" was counted as 35 years taking 58 years as the age of superannuation. For the first six years from the date of accident, the High Court took Rs. 200 /- as the average monthly income, and for G the remaining twenty-nine years of service the average income per month was fixed at Rs. 250/-. On this basis the High Court computed her total earning to be Rs. 96,000/-.

Giving allowance for her own expenses an~ also taking into account the promotions and consequently the mcreased salary she might have earned, the High Court thought that she could have "easily spread" half of this amount for the household and estimated the loss of income on account of her death H in round figures, at Rs. 50,000/-. The High Court enhanced the compensation accordingly.

Regarding Sudhakar's second marriage the High Court observed :

"But even so, the second marriage cannot be said to be a substitute for the first one.

The second wife is not an earning member of the family nor is it shown that Sudhakar has in any way benefitted from the second marriage financially.

Therefore the financial loss would be there despite the second marriage.''

On these findings the High Court allowed the appeal filed by Sudhakar Kotasthane and dismissed that preferred by the Madhya Pradesh State Road Transport Corporation.

The extract from the tribunal's order quoted above suggests that in fixing the quantum of compensation the tribunal was under the impression that the applicant had made no claim on the ground of pecuniary loss resulting from his wife's death.

In this the tribunal was clearly in error. In paragraph 11 of the claim petition, Rs. 75.000/-

is claimed as compensation and the paragraph makes it clear that the sum is computed on the deceased's expected earnings. If there were no such claim the tribunal would have been hardly justified in awarding Rs. 15000/- as damages for the mental shock and inconvenience suffered by the applicant for a period of 11 months only, after which he remarried.

The High Court also does not seem to be right in esti .. mating the damages at Rs. 50,000 /- in the manner it did.

Whether the deceased's average monthly salary is taken to be Rs. 200/- or Rs. 250/- we find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss.

It is not impossible that she would have contributed half of her salary to the household but then it is reasonable to suppose that the husband who was employed at a slightly hicller salary would have contributed his share to the common pool wbich would have been utilised for the lodging and board of both of them.

We do not therefore think it is correct to assume that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs. 100/- every month to the common pool, then his loss would be roughly not more than Rs. 50/- a month and, assuming she worked till she was 58 years, the total loss would not exceed Rs. 19.000/-.

But in assessing damages certain other factors have to be taken note of which the High Court overlooked, such as the uncertainties of life and the fact of accelerated payment-that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets over a number of years.

Allowance must be made tor the uncertainties and the total figure scaled down accordingly. Tile deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors.

Some element of conjecture is inevitable in assessing damages; Lord Pearce in Mallet v. Mc Monagle, 1970 (A.C.) (H.L.) 166 (17 4), calls it "reasonable prophecy". Taking note of all the relevant factors, the sum, of Rs. 15000/- awarded by the tribunal appears to be a reasonable figure which we do not find any reason to disturb.

A method of assessing damages, usually followed in England, as A appears from Mallet v. Mc Monagle (supra), is to calculate the net pecuniary loss upon an annual basis and to "arrive at the total award by multiplying the fignre assessed as the amount of the annual "dependency" by a nuinber of "year's purchase"", (p. 178) that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand.

The husband may not be dependant on the wife's income, the basis ot B assessing the damages payable to the husband for the death of his wife would be similar.

Here, the lady had 35 years of service before her when she died.

We have found that the claimant's loss reasonably works out to Rs. 50/- a month i.e. Rs. 600/- a year. Keeping in mind all the relevant facts and contingencies and taking 20 as the smtable multiplier, the figure come to Rs. 12,000/-. The tribunal's award cannot therefore be challenged as too low though it was not based on c proper grounds.

In a decision of the Kerala High Court relied on by the appellant (P. B. Kader v. Thatchamma : AIR 1970 Kerala 241 J, to which one of us was a party, the same method of assessing compensation was adopted.

The other appeal (C.A. No. 2255 of 1968) relates to the injury sustained by a boy aged about four years.

He suffered compound D fracture of his right tibia and fabula lower third hear the ankle joint with infection of the wound.

Skin-grafting had to be done and the boy had to remain in hospital from June 25, to August 4, 1961.

According to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so.

In any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when E 'another operation might remove it.

The tribunal awarded Rs. 10,000/- as general damages and Rs. 890 /- as special damages.

The High Court increased the general damages to Rs. 20,000 /-. It appears from the evidence that the boy comes from a well-to-do family. Though the possibility was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possibility cannot be altogether ruled out.

That being the position, we are not inclined

F . to interfere with the sum awarded by the High Court.

In. the result., appeal '."o. 2254 of 1968 is allowe~, the judgment of the High Court 1s set aside and the award of the tribunal is restored; appeal No. 2255 of 1968 is dismissed.

There will be no order as to costs in either appeal.

S.R.

C.A. 2254 of 1968 allowed.

C.A. 2255 of 1968 dismissed.

SUDHAKAR & ORS. ETC

A. C. GUPTA, JJ.

Motor Vehicles Act, 1939

Section 1

Fatal Accidents Act 1855

Usha Kotasthane

Sailesh Kumar

Sudhakar Kotasthane

Motor Accident Claims Tribunal, Gwalior

Sudhakar

Usha WREi

Indubala

England

Ram Panjwani

Rameshwar Nath

A. G. Rat11aparkhi

S. K. Gambhir

GUPTA

Gwalior

Indore

Shrimati Indubala Bhandari

Sudhakar Kotasthane

Indubala Bhandari

Kotasthane

Madhya Pradesh High Court

Sai!esh Kumar

Kot•asthane

udhakar Kotasthane

Pearce

Kerala High Court

25, to August 4, 1961


GURPUR GUNI VENKATARAYA NARASHIMA PRABHU

& ORS.

B. G. ACHIA, ASSISTANT COMMISSIONER; HINDU

RELIGIOUS AND CHARITABLE ENDOWMENT

MANGALORE AND ANR.

April 15, 1977

(V. R. KRISHNA IYER AND A. C. GUPTA, JJ.J

Madras Hindu Religious and Charitable Endow1nents Act, 1951-S. 6(17) 'Public Temple'.

Ail inference of dedication to the public front the fac1 of mbnission into the tetnple and uses by the public is not correct.

S. 6(17) of the Madras Hindu Religious and Charitable Endowments Act, 1951 defines a temple as "temple" means a place b_y whatever desigruition known, used as a place of public religious worship, and dedication to, or for the benefit of or used as of right by, the Hindu Community or any section thereof, as a place of public religious worship.

The Deputy Comrnisioner, in a proceeding u/s 57 of Uadras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple'.

But in the suit No. DS. 106/1961 imtituted by the appellant trustees of the ten1ple for a declaration that the temple was a private temple and not a temple as defined in s. 6(17) or in the alternative that it was a denominationctl or sectional temple belonging to the Goud Sataswat Brafimin Community of Gurpur, the Subordinate Judge South Kanara, held on the evidence that this was a denominational or sectional temple belohging to the Goud Saraswat Community and allo, ved the alternative declaration.

The High Court on appeal found that this was a temple as defined ins. 6(17) of the Act 3nd taking a different view of th, e evidence held that 1he temple was a place of religious \'ilOrship dedicated to and used as of right by the general Hir_1du Community and was thus a public temple.

On appeal by certificate the Court,

HELD : (I) It is now well settled that "the mere fact of the public having been freely admitted to the temple cannot mean that Courts should readily infer therefrom dedication to the pubJic. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right."

[635 B-C]

Bihar State Board Religious Trust, Patna v.

Mahant Sri Biseshlvar Das, [1971] 3 S.C.R. ~80 (689) referred to.

(2) Jn the instant case the circumstances disclosed in evidence do not support the inference that Hindus generally used the temple as a place of worship as of right. The evidence is to the effect (i) that the temple was founded by 37 Goud Sarasv.'at Brahmin families of Gurpur, (ii) that the tn1stee managing the temple belonged always to themembers of said comn1unity, (iii) that thelended properties owned by the temple had aU been endowe? by members of the Community, (iv) that none of the \Vitnesses claimed a nght of ownership in the temple and the sma11 sevas \Vere voluntary, (v) that it was the members of the Goud Saraswat Brahmin Community who were allowed to participate in the more important ceremonies.

[634 B-D; 6350]

, (3) The High Court's finding that "numerous en?owment" h.ave .been made by Hindus not belonging to Goud Saraswat Brahm1n Com_mun1ty, is not subported by the evidence in the case. In the context of the Award (Ext. A-13) the term general body mentioned therein could only refer to the members

G. G. PRABHU v. B. G. ACHIA (Gupta, !.) 633

of the Goud Saraswat Brahmin Community and not to the Hindu Community A generally, because the proceeding concluded by the decree was confined to the members of the Community. [635 A-BJ

CIVIL APPELLAT.E JURISDICTION : Civil Appeal No. 2176 of 1968.

Appeal from the Judgment and Decree dated the 18-8-1965 of the My5ore High Court in M.F.A. No. 341 of 1964.

S. T. Desai, K. N. Bhat and R. B. Datar for the Appellants.

Narayan Nettar for Respondent.

The Judgment of the Court was delivere.d by

GUPTA, 1. The only question disputed in this appeal is whether a C temple, known as Varadaraj Venkataramana Temple at Gurpur in Mangalore Taluk, in Karnataka, is a public temple or a temple belongiug to Goud Saraswat Brabmin Community of Gurpur.

This is an ancient temple founded about 400 years ago. In a proceeding under section 57 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act), the Deputy Commissioner by his order dated January 17, 1961 held that the temple was a public temple and the Commissioner on appeal affirmed the ordi; r of the Deputy Commissioner on June 12, 1961. Thereafter the appellants who are the trustees of the temple instituted a suit, O.S. No. 106 of 1961, in the court of the Subordinate Judge, South Kanara, for a declaration that the temple was a private temple and not a temple as defined in section 6(17) of the Act or,_in the alternative, for a declaration that it was a denominational or sectional temple. belonging to the Goud Saraswat Brahmin community of Gurpur. There was also a prayer for cancellation or modification of the order of Commissioner dated June 12, 1961 affirming that of the Deputy Commissioner that this was a public temple. The Subordinate Judge held on the evidence that this was a denominational or sectional temple belonging to the Goud Saraswat Brahmin community of Gurpur and not a private temple. He further held that there was no evidence before the Deputy Commissioner justifying his order which was affim1ed by the Commissioner that it was a public temple. He observed that "it is incorrect to draw an inference of dedication to the public merely from the fact of user by the public".

Accordingly, he allowed the alternative declaration asked for by the plaintiffs and modified the order of June 12, 1961 made by the Commissioner affirming the order of the Deputy Commissioner dated January 17, 1961. From the decision of the trial court, the respondents preferred an appeal to the High Court. The appellants before us also filed a cross objection contending that the Subordinate Judge should have held that the temple was a private temple and not a denominational or sectional temple. The High Court found that this was a temple as defined in section 6(17) of the Act. On the evidence also the High Court took a differi; t view froi:i the tial court and held that the temple w<W> a place of reltg10us worship dedicated to and used as of right by the general Hindu community and was thus a public temple.

On this

SUPREME COURT REPORTS

view the High Court allowed the appeal and dismissed the cross-objection. The appeal before us is by the plaintiffs on certificate granted by the Karnataka High Court.

The Subordinate Judge held on the evidence that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur, that the trustees managing the temple belonged a•lways to the members of the said community, that the landed properties owned by the temple had all been endowed by members of this community, and that there was no reliable evidence of endowment of any immovable property by any person outside the community. The Subordinate Judge on .i:onsidering the evidence of defendants' witness Nos. 2 to 4, on whom the defendants relied to prove that the temple was dedicated to the general Hindu community, found that none of them claimed a right of worship in the temple and the 'sevas' offered by them were voluntary and the income from such sevas was also small. He further found that i.t was only the members of the, Goud Saraswat Brahmin community who were allowed to participate in the more important ceremonies. It was observed that the fact that Hindus other than those belonging to the Goud Saraswat Brahmin community were not prevented from worshipping in the temple did not "deprive the temple of its sectional character", that it was "incorrect to draw an inference of dedication to the public merely from the fact of the user by the public". Thus the decision of the Subordinate . Judge was that the temple was not a public temple because it was not dedicated to the general Hindu community but for the benefit of Goud Saraswat Brahmin community of Gurpur.

The High Court held that the definition of temple in section 6( 17) of the Act covers the temple in question.

The definition is as follows:

" "temple" means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of public religious worship;"

Even on the findings recorded by the Subordinate Judge, this would be a temple dedicated to or for the benefit of a section of the Hindu community and as such covered by the definition. The High Court reversed the decision of the Subordinate Judge and held that "facts of the present case lend support to the conclusion that the temple must have been dedicated for the benefit of and used by the Hindu community and is being used by them, as of right, as a place of public religious worship". The facts that weighed with the High Court were that Hindu's

generally came to worship in the temple and were not turned away and that when the deity is taken out in procession, members of the Hindu community other than Goud Saraswat Brahmins also offer "araties".

The claim made by some of the witnesses for the defendants that they used to consult the orac.Je in the temple also seemed to the High Court a significant circumstance. But the High Court appears to have overlooked that these witnesses admitted that "before consulting the oracle,

G. G. PRABHU v. B. G. AC.RIA (Gupta, J.) 635

the manager must be told of it and it is he, who could consult on their behalf". The High Court bas recorded a finding that "numerous endowments" have been made by Hindus not belonging to Goud Saraswat Brahmin community. This is not however supported by the evidence in the case. Another circumstance which impressed the High Court was the recital in an award (Ext. A-13) which was made part of the decree (Ext. A-3) in a previous proceeding between the members of Goud Saraswat Brahmin community thems, lves, that the trustees of the temple should place the accounts of income and expenditure before the "general body''.

This "general body" according to the High Court implied the Hindu community generally. In the context of the award (Ext. A-13) it is however clear that the 'general body' mentioned therein could only refer to the members of the Goud Saraswat Brahmin community because the proceeding concluded by the decree was confined to the members of the community. The law is now well settled that

"the mere fact of the public having been freely admitted lb the temple cannot mean that courts should readily infer therefrom dedication to the public.

The value of such public user as evidence of dedication depends on the circumstances which give strength fo the inference that the user was as of right". (see Bihar State Board Religious Trust, Patna v. Mahani Sri Biseshwar Das('). We find that the circumstances disclosed in evidence in this case do not support the inference that Hindus generally used the temple as a place of worship as -of right.

The appeal is accordingly allowed.

The Judgment of the High Court is set aside and that of the trial court restored.

In the circumstances of the case we make no order as to costs.

S.R.

Appeal allowed.

B. G. ACHIA, ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT MANGALORE AND ANR

April 15, 1977

V. R. KRISHNA IYER

A. C. GUPTA, JJ

S. 6(17)

S. 6(17)

s 57

Gurpur

Mangalore Taluk

Karnataka

s. 6(17)

CIVIL APPELLAT.E JURISDICTION

S. T. Desai

K. N. Bhat

R. B. Datar

Narayan Nettar

GUPTA

section 57

January 17, 1961

June 12, 1961

Subordinate Judge, South Kanara

section 6(17)

section 6(17)

Karnataka High Court

section 6( 17)