RANCHHODDAS CHHAGANLAL

DEVAJI SUPADU DORIK AND ORS.

lanuary 17, 1977

[A. N. RAY, C.J., M. R BEG AND JASWANT SINGH, JJ.]

Transfer of Property Act, 1882_:Sec. 53A-Doctrine of part performance- Whether transferee should be ready and willing to perform-Indian Penal Code-Finding without issue-Not sustainable-Cross objection-If judgment can be challenged by respondent without filing cross objection.

Article 133 of Constitution-Practice and procedure-Objection about validity of grant of certificate-To be raised at what stage .

. ,1 The appellant agreed to sell certain land to the respondents by an agreement for sale entered into between t):ie parties for Rs. 17,000/-. The respondent was put in possession pursuant to the said agreement after Rs. 12,000/- were paid.

He failed to pay the balance of Rs. 5,000/- in spite of demand by the appellant The appellant filed a suit for possession of the land and, in the alternative, for a decree for Rs. 5,000/- with interest.

The respondent contended that the agreed price was Rs. 12,000/- which wa~ already paid and that, therefore, Rs. 5,000 /- were not payable. The resoondent contended that if the court came to the conclusion that Rs. 17,000/- was the agreed price then the Court should take into account certain amount which was already paid by the respondent.

The Trial Court _decreed the appellant's suit for possession and came to th1 conclusion that the agreed price was Rs. 17,000/-. The High Court in an E appeal confirmed the finding of the Trial Court that the agreed price wai Rs. 17,000/-. The High Court, however, granted the decree of Rs. 5,000 /- with interest but refused the prayer for possession.

Allowing the appeal,

HELD : ( 1) The respondent was. never ready and willing to perform the aireement as alleged by the appellant: One of the ingredients of part performance under s. 53A of the Transfer of Property Act is tliat the transferee has F taken possession in part performance of the contract. In the present case, there was ncr performance in part by the respondent of the contract between the parties.

The doctrine of part performance is a defence. It i• generally not a sword but a shield. The act of part performance must be such a• not only to be referable to acontract such as that alleged but to be referable to no other title Section 53A requires a positive act of readiness and willingness on the part of the transferee to perform the agreement.

[624 A-E]

(2) The High Court wrongly found that there was an extension of the per- G formance of the contract by one year. There was no issue rai•ed on that point. It is well settled that there should be specific issues on question• of fact.

The contention that the appellant could not put an end to the contract if ther• was failure on the part of the respondent to perform the agreement is fallacious.

[ 624 F-G]

(3) It was not open to the resoondent to challenge the findin~ of the Hfh Court that the agreement was for Rs. 17.000/-. The respondent can certainly H

unnort the iudgment on anv ground which is onen to him under the imn1rnned

judgment. The respondent did not file any cross-obiection on the ftndin~ in the

judment of High Court about the nrice of the agreement. It 11, therefore, not open to him to challe11ge the finding.

[623 G-H]

A ( 4) The contention of the respondent that certificate was not competent because the value all along had not been over Rs. 20,000/- cannot be allowed t!' be taken at the late stage. If the respondent had taken this point at the t1e when the. matter was heard in the High Court the appelliint could have sausfied the High Court. Such a plea was not raised even in the statement of case. [623 D-Fl

Stare of Assain and Anr. etc. v. Basanta Kumar Dass etc. etc. (1973] (3}> S C.R. 158, followed.

' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 945 of 1972.

(From the Judgment and Decree dated 15-10-1969 of the Bombay High Court in First Appeal No. 420163). ·

V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·

Sharad Manohar and Suresh Sethi, for the respondents.

The Judgment of the Court was delivered by

RAY, C.J.

This appeal is by certificate from the judgment dated 15·0ctober 1969 of the Bombay High Court in First Appeal No. 420 of 1963.

The trial court by its judgment dated 24 June 1963 decreed the suit in favour of the appellant.

The High Court reversed the judgment of the trial court.

The pre-eminent question in this appeal is. whether the respondent has been ready and willing to perform the agreement entere<l into with the appellant.

The case of the appellant is that there was an oral agreement for sale of property consisting of agricultural land admeasuring 23 acres approximately for a sum of Rs. 170001-.

The respondent from time to time paid Rs. 120001to the appellant.

The respondent was also in possession of the property.

The appellant called upon the respondent to pay the full amount of purchase price.

The respondent failed to do so.

The nlaintiff, on respondent's refusal to perform the agreement, filed the suit.

In the suit the reliefs claimed were possession of the propertv and in the alternative a decree for Rs. 10,5001oomisting of the orinclnal sum of Rs. 50001as the b; ilanc<'" amount of purchase price and interest thereon amounting to Rs. 55001-.

The. princioa1 defence was that the agreement for sale was only for Rs. 12000/-, and that the respondent paid the amount in full.

The respondent characterised /the suit as 'mean Pffort to recover illegally the additional prjce of the os1ensible Rs. 5000/-_'.

The respondent alsoalleged that if the f'n11rt drdded that the nnce of the nroperty was agreed to be Rs. 170001-, then the respondent wi:iuld a~~ the Court to take into account the sum of Rs. 12000/- paid bv h1m and

also the sum of Rs. 15001paid by him from time to time therea.fter.

..

At the trial one of the issue$ was whether the appellant proved A -that llhe respondent entered into a 'Sauda' on 24 January 1952 with the appellant's father to purchase for Rs. 17000/- the properties men tioned in Schedule 'A' to the plaint.

The other issues were whether the defendant-respondent proved that the properties were agreed to be purchased for Rs. 120001-.

A corolilary to the issue raised in the written statement was whether defendant proved llhe circumstances in which it was made to appear that the 'Sauda' was for Rs. 170001-.

B In short the defendant alleged fraud against . the appellant.

The <:barge is that the appellant changed the figure to Rs. 17000/-.

The trial court held in favour of the appellant and rejected the defence .of .the respondent. -

Counsel for the respondent contended that the suit of the appellant was not maintainable.

It was said that the appellant was not compNent to maintain the suit by reason of provisions contained in sections .39 and 55 of the Indian Contract Act.

The gist of the contention IS that the appellant could not put an end to the contract if there was failure on part of the respondent to perform the agreement.

The sub- .mission is fallacious.

The case of the appellant has always been that

the respondent refused to perform the agreement.

The appellant all .along asserted that the agreement was that the property was agreed .to be sor.d only for a sum of Rs. 170001-.

The respondent refused to perform the agreement.

The suit therefore was competent and valid. ·

Another contention was raised by the respondent that the certificate was not competent because the value all along has not been over Rs. 20000/-.

This Court has held in the decision in State of Assam and A 11r. Etc. v. Basanta Kumar Dass Etc. Etc. reported in 1973

(3) S.C.R. 158 at page 168 that the objection to valuation cannot be allowed to be t?keill at this late stage.

But the graver objection to the respondent not being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the High Court the appellant could have satisfied the High Court or the appeilant would have failed.

This Court in any event, if a c.ertificate h:i, d been granted on a challenge being made, would have been in posse1Ssion of facts anti the judgment of the High Court on that question.

That is the main reason why the respondent should not be allowed to challenge the certificate at this stage.

The respondent has also not raised such a plea in the statement of case.

" D

The remaining question is one of substance and is the real issue.

It is whether the agreement has been performed.

Counsel for the G respondent submitted that it was open to the respondent to contend that the finding of the High Court that t1he agreement was for Rs. 17000/- should not be acc.epted.

Counsel for the appellant rightly challenged the competency_ of such an objection.

The respondent can certainly support the judgment o nany ground which is . open to him under impugned judgment.

The judgment is that the agreement was between 11he parties, and that the sale price was Rs.

H 17000/-. The respondent did not file any cross objection on the finding in judgment on that point.

It is therefore not open to the respondent to challenge that finding.

The principal hurdle in the way of the resporn; lent .is . that the respondent has never been ready and willing to perform the agreemen~, as .alleged by the appellant.

The respondent. alleged that the cons1derat10n for purchase was Rs. 12000/-. The respondent has never been ready and willing to perform the agreement alleged by the appellant.

The respondent relied on the doctrine of part-performance.

One of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property.

The most important consideration here is the contract. The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged.

The doctrine of part performance is a defence. It is a sword and nqt a shield. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract.

Tho appellant is right in the contention that there was never any performance in part by the respondent of the contract between the parties.

_ In Fry on. Specific Performance, Sixth Edition, at page 276 it is 1tated that "the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to be referable to no other title; and that the acts relied upon as part performanctJ must be unequivocally and in their own nature referable to some such agreement as that alle&ed". ·

The High Court found that the respondent performed in part th<J agreement alleged by the appellant.

It has been said by the appellant that the High Court should have appreciated that Section

53-A requires a positive act of readiness and willingness on part of the transferee to perform the agreement.

In the present case the respondent who was the transferee under the agreement did not perform his part of the contract from 1952 till 1963 that" is after the judgment

was pr.:>nounced by the trial court.

The High Court wrongly found that tJhere was an extension of the performance of contract by ono year.

There was no issue raised on that point.

It is well settl<:d that there should be specific issues on questions of" fact.

Parties did not go to trial on that question and there the High Court was in error in holding that there was an extension of time for performance of the contract.

It is therefore erroneous to say as the High Court did that

- the respondent can take advantage of the period between 1953-54.

Some attempt was :niade by counsel for the respondent that thrCJ was an admission bv the appellant's father that the purchase pnce was Rs. 12000/-. This contention cannot be accepted in vi"Y-7 of the finding of the High Court that the puchase price was Rs. 17000 /-.

One of the questions in the High Court was ere should be o award of interest on the sum of Rs. 5000 /- which had been paid.

The High Court rightly allowed interest at the rate of 6 per cent yer

annum.

We are told the amount of Rs. 5000/- has been deposited in the High Court.

For the foregoing reasons we are satisfied that the decree passed A by the trial court was correct and the High Court was in error in reversing the decree.

The High Court should not have reversed the . decree particularly when it was found that the respondent failed first in regard to the agreement alleged by the defendant_ and second in allowing the decree in favour of the respondent on the plea of par~ performance of a contract which was never pleaded by the defern; lant/

respondent and was not a contract upon which there could be any B performance in part.

The appeal is therefore accepted.

The Judgment of the High Court is set aside.

The judgment of the trial court is restored. Parties will pay and bear their own costs in this Court and the High Court.

The respondent will be at liberty to withdraw Rs. 5000/- depoited in the High Court.

P.H.P.

Appeal allowed.

RANCHHODDAS CHHAGANLAL

DEVAJI SUPADU DORIK AND ORS

lanuary 17, 1977

A. N. RAY, C.J.

M. R BEG

JASWANT SINGH, JJ.

Transfer of Property Act, 1882

Sec. 53A

Indian Penal Code

Article 133

s. 53A

Transfer of Property Act

Section 53A

V. M. Tarkunde

P. H. Parekh

Manju Jetlay

Sharad Manohar

Suresh Sethi

RAY

Indian Contract Act

Section

53


D. NAGARAJA ETC. v.

STATE OF KARNATAKA & ORS.

January 18, 1977

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]

<;:onstitutio'! of lndia-Aticle 226-Who can apply-Whether existence of a rzght essenllal-Mysore Village Offices Act 1908-Mysore Village Of]ices Abolition Act 1961.

Karnataka- General Services (Revenu, e Subordinate Branch) Village.Acco1111tant3 (Recruitment) Rules, 1970,

The appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908.

This Court in the case of Gow/a Dasrath amarao held that a la\\'. which recognises the custom by which a preferential nght f? an office vested m t_he members of a particular family was not consistant with the fundamental nght guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimination on the ground of descent _only was violative of Article 16(2) of the Constitution and, therefore, void.

With a view to give effect to the said judgment of this Court Mysqre Village Offices Abolition Act of 1961 was enacted abolishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908. The President gave his assent to the said Act.

Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to rgu late the recruitment, pay and other condltions of service of Village Accountants.

Rule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Officers on the date' of commencement of those rules provided thy fulfilled certain educational qualifications and were below a certain age. .Challenge to the constitutional validity of the said Act was negatived by this Court in the case of B. R. Shankaranarayana & Ors. v. State of Mysore AIR 1966 S.C. 1571.

The State Legislature enacted the Kamataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continuance of Village Accountants hold the said post immediately before the commencement of the Act.

Section 16 ( e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be "deemed to be village Accountants for such villages till other persons were appointed.

The 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970.

Rules 4 and 5 lay down the eligibility of the persons for the appointment as Village Accountant and the constitution of a Committee for selection and the method of selection.

The Recruitment Committee invited applications, interviewed the applicants who were eligible and prepard a list of selected pnd1dates and, th 0 reafter, issued the order of aopointment.

As the appellants had to give up their posts in co_nsequence of the fresh appointments they filed the present writ petitions impugning the velidity of rules 4 and 5 of the 1970 Rules on the ground that thoy were violative of Articles J4 and 16 of the Constitution and challenging the selection and aoonintment of resnondents Nos. 3 to 191 as Village Accountants and for a direction that they should be continued as Village Accountants.

The High Court dismissed the writ petitions.

Dismissing the appeals,

HELD : t. Though Article 226 of the Constitution in terms does not describe the classes of nersons entitled to applv thereunder. the existence of the right is implicit for invokinp; the. exercise. of the extra.ordinary jurisdiction by the High Court under the said Arttcle. It is well estabhshed that a person who.

is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity ()f the Abolition Act abolshing all hereditary Village Offices having been upheld' by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution. The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions. [631 E-H 632 A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 883 898-905/75. and

" I~ Appeals by Special Leave from the Judgment and Order dated 20-2-75 of the Karnataka 'High Court in Writ Petition Nos. 5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828 and 5829 of 1974.

R. B. Datar for the Appellants in all the appeals.

C V. P. Raman, Addl. Sol. Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals.

The Judgment of the Court was delivered by

JASWANT SINGH J.

This judgment isha!Q dispose of Appeals Nos. 883 and 898 to 905 of 1975 which are directed against the common D judgment dated February 20, 1975 of the High Court of Karnataka at Bangalore dismissing writ petitions Nos. 5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974 on the ground that the appellants had no right to maintain the same.

llhe circumstances leading to .these appeals are: The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908. 'In writ .petition No. 133 of 1959 entitled Gazu/a Daseratha Rama Rao v. State of A; P, .& Ors.(~) decided on Pecember 6, -1960, this Court held that a faw which recognised the custom by which .a preferential .Fight to an office vested in the members of a particular .family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised iby law with .regard to a hereditary office must yield to a fundamental right .and_section 6(1) of the Madras Hereditary Village Offices Act JU of •1895 in so ifar as it made discrimination on the ground of descent only was -violative of the fundamental right under Article 16 (2) .of ·.the Constitution and was void.

With a view to giving effect to the principle settled by this decision, the Legislature of the •then State "Jif 'Mysore comprising the •territories of the erstwhile States of Mysore . and coorg and certain .parts of the erstwhile States of Bombay, Hyderabad and Madras enacted the Mysore Village •Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act') abolishing all the hereditary villlage offices including the office of shambogue or. village Accountant created under the Mysore Village .offices Act, 1908.

Pursuant to sub"section (3) of section 1 which authorised the State Government 'to fix a date 1for the commencement .of the Act, the Government of Mysore issued a notification.on January 9, 1963 noti- 1fying that the Abolition Act would come into force with effect from February 1, 1-963.

(ll [19611 2 S.C.R. 931 =A.LR. 1961 SC. 564. 6-112 scrm

Shortly after the according of the assent to the Abolition Act by the President on July 8, 1961, tihe Governor of Mysore framed rules

clled the Mysore General Service (Revenue Subordinate Branch)

illage Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Constitution and other powers enab; ing him in that behalf. These Rules, as evident from their title, were designed to regulate the recruitment, pay and other conditions of service of Village Accountants.

Rule 10 of the 1961 Rules which was in the nature of a non obstante provision provided for the initial recruitment to the posts of Village Accountants to be made from amongst persons holding the posts of village officers on the date of commencement of those Rules provided that such persons had passed the S. S. L. C. examination or an equivalent examination and tlreir age did not exceed 40 years on the said date.

By a proviso which was introduced in the year, 1963, it was provided that in the event of persons satisfying the qualifications mentioned in Rule 7 not being available even after the vacancies are twice advertised, the recruitment should be made from amongst persons holding the posts of village officers who were not more than 50 years of age on the date of commencement of the said Rules and who had passed the Lower Secondary or Vernacular Final or equivalent examination.

By a notification issued on January 6, 1963, the Government of Mysore directed the D.eputy Commissioners to appoint persons recruited under the 1961 Rules as village accountants and relieve the then holders of their offices. On the issue of the aforesaid notification dated January 9, 1963, a number of writ petitions under Article 226 of the Constitution were filed in the High Court challenging the legality and constitutional validity of the Abolition Act on the ground that it was a piece of colourable legislation. During the pendency of the writ pe; titions, an ad-interim order staying the operation of the afore- . said Notification dated January 9, 1963 was issued by the High Court. ' As a consequence of the stay order, the appellants and a number of other persons who were holding the posts of Shambogues under the Mysore Village Offices Act, 1908 had to be continued by the State Government in the posts held by them.

The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B. R. Shankaranarayana & Ors. v.

State of Mysore('). Thus the constitutional validity of the Abolition Act was finally upheld by the Court. During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act') which came into force on April 1, 1964. Section 16 of the Act provides for the appointment of Village Accountants and the continuance of village accountants hold- ing the said posts immediately before the commencement of the Act.

uh-section (1) of section 16 lays down that, subiect to the general orders of the State Government and the Divisional Commissinner, the Deputy Commissioner can a?point Village ccountants fr villacres or groups of villages. Sub-section (2) of section 16 provides that the

(1) A.LR. 1966 S.C. 1571.

persons holding the office of the Village Accountant before the com- A mencement of the Act, shall be deemed to be Village Accountants for such villages till another person is appointed under sub-section (1) of section 16. Thus sub-section (2) of section 16, it would be seen, was; designed to cover the case of the persons who had perforce to be continued as Shambogues because of the aforesaid stay order issued by the High Court despite the abolition of those posts by the Abolition B

The 1961 Rules were repealed and replaced by another set of Rules called the Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970 (hereafter referred to as the 1970 Rules) made by the State Government in exercise of the powers conferred by sections 16 and 1 7 of the Act.

C Rules 4 and 5 of the 197.0 Rules which were amended from time to time stood as follows on the relevant date :-

"4. Recruitment. ( 1) Recruitment to the cadre of village Accountant shall be made by direct recruitment from amongst:- D

(i) persons who have served as Village Officers;

(ia) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i) ; E

(ii) persons who have been regularly recruited as Pan~ chayat Secretaries in accordance with the rules in force at {he time of the -recruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ;

(iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at . the timi;: of recruitment and working as Panchayat Secretanes who-

(a) have passed the Middle School examination or any other examination declared as . equivalent thereto by the State Government; and

(b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if H sufficient number of eligible persons are not available under (ii) ;

( c) are not more than 50 years of age as on 1st April, 1967 ;

(iv) xx xx xx

(v) othrs, if sufficient number of persons are not available under any of the above categories.

(2) No persons other than the persons referred to in categories (ii) and (iii) of sub-rule ( 1) "shall be eligible for appointment under these rules unless . he has passed the S.S.L.C. examination or .any examination declared by the State Government as equivalent thereto.

( 3) The limit for appointment under sub-rule (I) shall be-

( i) 3 3 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and

(ii) 28 years in the case of others as on 1st January, 1970.

Provided that in the case of person who have served as Village Officer or as .Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.

Provided further that in the case of local candidates, such age shall be as~ 1st January, .1965 :

Explanation-For the purpose of this rule "Village Officer" means a person who held a 'Village Office' other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961) ."

"5. Committee for se/ection-(1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commissioner shall be the

Secretary.

(2) The Committee shall call for application for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Direct Recr_uitment by Selection) Rules, 1967.

(3) The decision of the Committee shall be final subject to the approval of the Divisional Commissioner.

( 4) The list approved by the Divisional Commissioner shall be published and appointments shall be made in order in which the names of persons selected are arranged in the 5aid list."

Pursuant to the 1970 Rules, applicatipns were invited by ·the A Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Hassan.

After sorting out the applications received in response to the advertisement, the Committee interviewed the applicants who were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants. This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition B No. 1871 of 1972 entitled Komari Gowda v. State of Mysore & Ors. and the Committee was directed to select the candidates afresh in accordance with law.

Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candidates which was publishe~ in the Karnataka Gazette on May 30, 1974.

Thereafter, the Deputy Commissioner, Hassan issued orders of appointment of the candidates who were selected by the Recruitment c Committee. Some of the candidates thus selecteQ were posted as Village Accountants under section 16 ~2) of the Act to the villages in which the appellants were functioning.

As the appellants, had to give up their posts in consequence of. the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of tl1e 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitu- D tion, (ii) th~ selection and appointment of repondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under s_ection 16(2) of the Act. The writ petitions having been dismissed by the High Court as stated above, the appellants have come up i11J appeal to this Court.

The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions.

It is well settled that though Article 226 of the Constitution in term~ does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also welrestablished that .a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B. R. Slwnkaranarayana & Ors.

v. State of Mysore (supra), and the first preference in the matter of appointment o~ Village Accountants having been given by Rule-4 of the 1970 Rules to all persons belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement 0£ Articles

14 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of . H persons arbitrarily selected from out of a larger group who are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational

qualifications for the post in question.. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions. The appeals accordingly fail and are dismissed but without any order as to costs.

P.H.P.

Appeals dismissed. '

D. NAGARAJA ETC

STATE OF KARNATAKA & ORS

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ.

Abolition Act 1961

Article 16

Article 16(2)

Mysore

Section 16

Section 16

Article 226

Articles 14 and 16

CIVIL APPELLATE JURISDICTION

R. B. Datar

V. P. Raman

N. Nettar

Pecember 6, -1960

Article 16

section 6(1)

Article 16

Bombay

Hyderabad

Madras

Offices Abolition Act, 1961

section 1

Government of Mysore

July 8, 1961

Article 309

January 6, 1963

Article 226

December 9, 1963

January 21, 1966

April 1, 1964

Section 16

section 16

section 16

section 16

section 16

sections 16 and 1

1st January, 1970

1st April, 1967

Hassan

November 19, 1972

May 30, 1974

section 16

section 16(2)

Articles 14 and 16

Article 226

Articles

14 and 16


PRITHVI RAJ TANEJA A

STATE OF MADHYA PRADESH AND OTHERS

lanuary 18, 1977

[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.] B

Land Acquisition Act, 1894, S. 23-Compulsory acquisition of land- Whether price paid for small plots a criterion for determining compensation for vast areas-Assesmient of market value, when to remain undisturbed.

The appellant's land was acquired and compensation was awarded to him by the Land Acq.uisition Officer. Demanding a higher amount, the appellant had the matter referred to the District Judge who increased the award, but still C discontented, the appellant went in appeal. The High Court also increased the compensation but could not satisfy the appellant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his l'arge area were sold at much higher rates.

Dismising the appeal, the Court,

HEID : 1. The price paid for small plots of land cannot provide a safe critarion for determining the amount of compensation for a vast area of land.

D The large area of land cannot possibly fetch a price at the same rate at which small plots are sold. [635 A-Bl

Smt. Padma Uppal etc. v. State of Punjab & Ors. [19.77]

1 S.C.R. 329, applied. ·

2. The essential thing is to keep in view the rlevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the E acquired land should not be disturbed. [635 D-E]

Thakur Kanta Prasad Singh (dead) by L. Rs v. State of Bihar A.I.R. 1976 S.C. 2219, applied.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1827 of 1970.

(From the Judgment andl Decree dated 28-4-1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).

S .. N. Andley' and Uma Dutta, for the appellants

Ram Panjwani and H. S. Harihar, for the respondents.

The Judgment of the Court was delivered by G

KHANNA, J. This is an appeal on certificate by Prithvi Raj Taneja {now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land.

' A plot of land measuring 27 bighas: and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction of a police station and residntial quarters fo1•

SUPREME COURT REPORTS

[1977] 2 S.C.R.

A policemen. A bigha, it is stated, i~ equivalent to 2,500 square yards.

The land sought to be acquired measured 68,658 square yards. Notification under section 4 of the Land Acquisition Act for the acquisition of the Janel was issued on April 7, 1961. The Land Acquisition Officer' as per award dated June 13, 1961 awarded compensation for the land at the rate o~ Rs. 100 per bigha. In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small B trees standing on the Jan'd. The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the land, and Rs. 800 for a house standing on the land. In all, the appellant was awarded a sum of Rs. 7,616 including solatium at the rate of fifteen per cent by , the Land Acquisition Officer.

The appellant wanted compensation for. the land at the rate of c Rs. 10 per square yard.

He accordingly had the matter referred to the District Judge.

Learned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.

Regarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer. In other respects, the award of the Land Acquisition Officer was upheld.

Computing sola- D tium at the rate of 10 .per cent, the total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six pe1• cent per annum.

The appellant not being satisfied with the award of the Additional Distiict Judge took the matter in appeal to the High Court. The High Court awarded compensation to the appellant at the rate of Re. 1 per square yard for the land in question.

The High Court also awarded Rs. 2,500 for the Joss of earnings to the appellant. Tl; le rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to fifteen per cent. In all, the appellant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.

The appellant thereupon obtained a certificate of fitness for appeal to this Court under article 133(1) (a) of the Constitution, as it stood at that time.

In appeal oefore us, Mr. Andley on behalf of the appellant has argued that more tl1an half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly. It is further

stated that the land in question abutts Ashok Nagar-Isagarh Road and is situated near the tehsil building and the railway station. Learned counsel has also referred to the fact that small plots of fand adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960. In this respect, we find that the High Court has considered most of the above ClrCl, lmstances and; has come to the conclusion that Re. 1 per square yard represents fair

market value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.

We agree with the High Court that the price

l'RITHVI RAJ v. MADHYA PRADESH (Khan, na, J.) 635

paid for small plts of land cannot provide a safe criterion for deter- A mining the amount of compensation for a vast area of land. We may in this context refer to a recent judgment in the case of Smt.

Padma Uppal etc. v. State of Punjab & Ors.(') wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that t_he large area of land cannot possibly fetch a price at the same rat~ a_t which smll plots are sold.

Section 23 of the Land Acquisition Act provides that in deter mining the amount of compensation to be. awarded for the, land acquired under the Act, the Court shall take into account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property.

C having due regard to its existing condition with all its existing advantages and itspotential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the: scheme for which the property is compulsorily acquired.

Jn considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.

There is an element of guess-work inherent in most cases involving D determination of the market value of the acquired land~ But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. [f the judgment of the High Court reveals that it has taken into consideration the relevant factors, the as_sessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by L. rs. v. State of Bihar(2 ). After having been taken through the E material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its finding.

The appeal consequently fails and is dismissed but in the circumstances without costs. ·

M.R.

Appeal dismissed.

----·--· ---------------

(I) [1977] l S.C.R. 329.

(2) A.LR. 1976 S.C. 2219.

PRITHVI RAJ TANEJA

A

STATE OF MADHYA PRADESH AND OTHERS

lanuary 18, 1977

H. R. KHANNA

R. S. SARKARIA

JASWANT SINGH, JJ.

Land Acquisition Act, 1894

S. 23

Supreme Court

Thakur Kanta Prasad Singh

CIVIL APPELLATE JURISDICTION

S .. N. Andley

Uma Dutta

Ram Panjwani

H. S. Harihar

G

KHANNA

Prithvi Raj Taneja

Madhya Pradesh High Court

section 4

June 13, 1961

article 133(1)

Andley

Ashok Nagar Municipality

Section 23

section 4


NARAYANA PRABHU VENKATESWARA PRABHU v.

NARA YAN PRABHU KRISHNA PRABHU & ORS.

January 19, 1977

[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J

. Code of Cvi/ Procedure-s. 11-Explanations II and VI-Scope of- Exzstence of right of appeal-If a bar of res-judicarn.

Explanation II to s. 11 C.P .C. provides that for the purposes of the section, the co.mpetence of a Court shall be determined irrespective of any provision as to a nght of appeal .from the decision of such Court. Expliination VI provides that where persons htagate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for. the putjJoes of this section be deemed to claim under the persons so litigatmg.

The respondents and the appellant were brothers. The respondents filed a suit for partition of the family properties in the Court of Additional Sub-Judge of competent jurisdiction. The appellant on the other hand filed a money suit against one of the brothers in the Court of a Munsiff in which he impleaded his other brothers. Ultimately, the money suit was transferred to the Court of the Additional Sub-Judge, where the partition suit was p.;\'nding and both the suits were tried together. In appeal, the High Court heard and decided both the appeals together and pronounced separate judgments in continuation but under separate headings and a separate decree was prepared in each appeal.

The appellant filed an appeal in this Court under Art. 133(l)(a) of the Constitution before its amendment, as a matter of right, against the judgment of the High Court in the partition suit.

A preliminary objection was taken by the respondents in this Court that tae appeal was barrec\ by res-::":icata in that the appellant did not file an appeal against the judgment and Jcree in the money suit. The appellant on the other hand contended that neither in law nor in equity was he barred by res-iudicata because he filed the appeal in the partition suit as a matter of right, which was not available to him in the money suit.

Dismissing the appeal,

HELD : The preliminary objection i~ supported by s. 11 of the Code of Civil Procedure read in the light of Explanations II and VI.

[644 BJ

1 (a) Section 11 enables a party to raise the statutory pie'\ of _res-iudicata if the conditions given therein are fulfilled.

Section 11 contams, m statutory form, with explanations, a very salutary principle of public policy. [641 GD]

In the instant case, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was competent to try both the suits. After the money suit had been transferred, the second Additional Sub-Judge actually tried and decided both of them. That was enough to make the difference in the jurisdiction of the Court in which the suits were initially filed, quite immaterial. Similarly the High Court was competent to hear the appeals from judgments in both cases. It heard and decided the appeals together. [642 A-C]

Narhari & Ors. v. Shankar & Ors. [1950] S.C.R. 754 distinguished.

Lonankutty v. Thomman & Anr., A.I.R. 1976 SC 1645=[1976] Supp. S.C.R. 74 followed.

Sheoparsan Singh v. Ramnandan Prasad Singh, AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Aniorlekar v. Dhondba 'Ea' V Bin Ganba' RA 'V' 'V' Ta' Mbve, ILR Vol. XV Bombay 104 and Avanasi Gounden & Or~. v.

Nachamma/, LLR 29 Madras 195 referred to.

Bhugwanbutti Chowdhrani v. A. If. Forbes ILR 28 Ca!." 72 approved.

(b) The expression "former suit" in Explanation I of s. 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res-iudicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res-judicata would emerge. [643 ll]

( c) One of the tests in deciding whether the doctrine of res-judicata applies to a particular case or not is to determine whether two inconsistent decrees will

come into existence if it is not applied.

In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title . which is common to others who make identical claims. If that very issue is litigated in another suit and decided, there is no reason why others making the same claim C cannot be held to be claiming the right in common for themselves and others.

Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. To hold otherwise would mean that there would be two inconsistent decrees.

[643 G-HJ In the instant case, the fact that the other suit was a money suit between the appellant and one of his brothers; who was also the respondent in the partition suit, does not mate any difference to the applicability of the principle of res-judicata, [643 CJ D Kumaravelu Chelliar & Ors. v. T. P. Ramaswamy Ayyar & Ors., AIR 1933 PC 183 followed.

Sheodhan Singh v. Smt. Daryao Kunwar, [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors. v. Banamali Sen & Ors., [1953] S.C.R. 154 referred to.

2. The question whether there is a bar of res-iudicata does not depend on the existence of a right of appeal of the same nature again~! each of the two decisions, but on the question whether the same issue, under the circumstances E given in s. 11, bas been beard and finally decided. [642 C-D]

In the instant case, the High Court heard and finally decided both the appeals before it. The mere fact that the appellant could come up to this Court" in app_eal as of right by means of a certificate of fitness under the unaamended Art. 13 3 (1 )( c) in the partition suit, could not ta1'e away the finality of the decision so far as the High Court had determined the money suit and no . attempt was made to question the correctness or finality of that decision even by means of an application for special leave. [642 D-E]

3. The appellant's application for condonation of delay in applying for leave to appeal against the High Court's judgment in the money suit must be dismissed. His delay in waking up to the existence of the bar of res-iudica{a is much too long to be condoned. The judgment of the High Court based oa the admissions of the appelant, does not disclose any error of law so as to deserve the grant of special leave to appeal. The partition suit was instituted as long ago as 1947. If tl:!ere is a case in which the nrincinle that litigation should have an end ought to be applied, it is this.

[644 C-FJ CNJL APPELLATE JURISDICTION : Civil Appeal No. 1763 of 1968. (From the Judgment and Decree dated the 28th July, 1964 of the Kerala High Court in Appeal Suit ; No. 843 of 1960).

T. C. Raghavan, Sardar Bahadur Saharya and V. B. Saharya, for the appellant.

T. S. Krishnmnoorthy Iyer and M. R. Pillai, for Respondent No. 1.

H T. S. Krishnamoorthy, P. K. Pillai and N. Suhdakaran, for Respondent No. 2.

The Judgment of the Court was delivered by

BEG, !- This is a defendent's appeal by Certificate granted by the Kerala High Coqrt under Article 133(1) (a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133.

The parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as 'Narayana'). Krishna, the plaintiff (now dead) was the 3rd son of Narayana. The defendant-appellant, Venkateswara, was the eldest of the four sons of Narayana. The partition suit related to 72 items mentioned in schedule 'A' to the plaint claimed by the plaintiff to be joint family property. It appears C that there was no dispute with regard to certain items, but, the defendant-appellant claimed. other items as his exclusive property on the ground that they had been purchased from his personal income due to his own enterprise and exertions and ability in carrying on business.

The Trial Court had accepted the case of the defendant-appellant that all items, except No. 35 and a part of item No. 52 which belonged to the 3rd defendant, were the self-acquired properties of the defendantappellant. The High Court reversed this finding on the ground that there was "little reliable evidence on record as to the exact source of the fund with which the first defendant started the trade". The High Court rejected the submission of the defendant-appellant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara.

The High Court relying on certain documentary evidence, including the letter-heads showing the business as that of '; P. N. Venkateswara Prabhu & Brothers" held that the business was joint family business.

The partition suit was filed originally in another Court but was sent to the Court of the Second Additional Sub Judge of Alleppey in 1957, and the preliminaryrl decree! was passed on 5th August, 1960.

The High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to be partible properties as part of Joint family business, but it excluded assets which came into existence after the filing of the partition suit which operated as a clear unequivocal expression of intention to separate. It also left the extent of mesne profits of landed properties to be decided in J?roceedings for the passing of the final decree.

It appeals that the defendant-appellant had also filed a money: suit in the Court of the Munsif only against defendant No. 3, one of the four brothers but all of them were impleaded in the partition suit.

The money sit was, however, transferred to the fil~ of the Aditional Sub Judge and tried together with the partition smt and was also decreed by the Additiom1l Sub Judge of Alleppey on the sam~ date as the partition suit. The plaintiff-respondent had appealed agamst both the decrees in the High Court. The two aoneals were henrd and decided together by the H; gh Court.

The High Court, after pronouncing judgment in the partition suit, proceeded to give judgment, A under a new heading and number of the appeal in the money suit. H said, in this separate judgment :

"The suit that gave rise to this appeal has been instituted by the respondent against the appellant for money due on 14-10-1123 on account of tobacco delivered to the latter's shop. The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant.

The court below, having found in the other suit the shops run by the parties to belong to the concernedfodividuals, has decreed the suit.

As we have reversed that •finding in A.S.

No. 843 of 1960 and found the shop standing in .the name of each brother to be a branch of the joint :family trade fo tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2-3-1124, the date of that partition suit, this suit has to be dismissed".

The judgments were, therefore, two separate ones given in one continuation but under separate headings. Separate decrees were prepared

in each appeal relating to a, separate case. -D

As the defendant appellant did not seek leave to file any appeal against the High Court's .judgment and decree in the money suit and there is no appeal before us against the decree in the .money suit, a ·

preliminary objection is taken on the ground that the .defendant's appeal now before us is baued by res-judicata.

Learned Counsel for the defendant-appellant urges that the two E suits were different in nature and were filed in different Courts originally so. that the Court trying the partition suit and the Court in which

the money suit was triable were not Courts of coordinate jurisdiction.

It was also objected that the .partition suit was earlier and Pie .money suit having been filed sixteen days later .could not be deemed -to be a suit decided earlier. Furthermore, it was pointed out that the judgment was common. It was also urged that all the four brothers were •F parties to the partition suit but the money suit was only between two brothers.

It is true that the appeals against both the decrees of the Trial Court were heard together in the High Court, and, although, .the appeal in the money suit is decided under a separate heading and the short judgment in it appears to be practically consequential on the judl!.tnent G in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees. ' It is urged that, whereas the defendant•appellant had filed an appeal on the strength of a certificate granted to him as a matter of right, following upon tne modification of -the decree of the Trial C0urt

by the Hi!.!h Court, the .defendant-appellant .had no such right ofl appeal in this Court. . Hence, it was submitted that neither in -Jaw nor in equity could the defendant-appellant be barred from putting forward his objections to the decree in the partition suit.

A Certain decisions were relied upon by learned Counsel for: the defendant-appellant Venkateswara in support of the contention that the plea of res judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case. We proceed to consider these cases.

Narhari & Ors. v. Shankar & Ors.,(') is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, "the Hyderabad Wing" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His

- Exalted Highness the Nizam's Judicial Committee. Technically, however, it was tliis Court's judgment. In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two sepa~ rate appeals. It elaborated the ratio of the decision as follows (at p. 757-758) :

"It is riow well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.

As has been observed by Tek Chand J. in his learned judg ment in Mst. Lachmi v. Mst. Bhuli (AIR 1927 Lah. 289) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.

The questi<>n of resjudicata arises only when there are two suits.

Even when there are two suits, it has been held that a decision given shriultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.

As such, there is no question of the application of the principle of res judicata.

The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal.

The two decrees in substance are one".

G . It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees dierent but the s?its were different. The mere fact that the judgments m the two smts we:e given to11ether or in continuation did ot matter. In fac.t, even m form. the iudgment in the appeal relatn:i11 to the money smt was separate from the rest of the judgment. And, in any case, there were two separate decrees.

(1) [1950] S.C.R. 754.

 We think that Section 11 Civil Procedure Code enables the party, to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much. the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence : firstly, interest reipublicoe ut sit finis litium-it concerns the State that there be an end to law suits; and, secondly, "nemo

debet bis vexari pro una et eadem cause"-no man should . be vexed twice over for the same cause.

Sir Lawrence Jenkings pointed out, in Sheoparsan Singh v. Ramntmdan Prasad Singh('), that the rule of res judicata "while founded on ancient precedent, is dictated by a wisdom which is for all time".

Litigation which has no end or finality defeats its very object. This object is decision 0£ disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to sec that disputes brought before its judicial organs by citizens are decided finally as early as possible.

Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy.

An "estoppel", even if it be "by record", rests on somewhat different grounds. Even such an estoppel savours of an equity or justice created by actions of parties the results of which have become

recorded formally behind which they are not allowed to go.

Reliance was also placed on Govind Bin Lakshmanshet Anjorlekar

v. Dhondba 'Ra'V Bin Ganba' Ra'V'Ta'Mbye( 2 ), on behalf of the appellant.

Here, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not operate as res judicata in suits before Courts in which questions were elaborately litigated and decided in cases which could go to the High Court in second appeal.

We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors. v. Nachamal( 3), where it was similarly held that :. "A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal".

We have to rememqer that Small Cause jurisdiction is a limited one exercisable only in specified matters.

Decisions given beyond jurisdiction to try an issue cannot operate as res judicata.

Our attention was drawn to explanation II of section 11, on G behalf of the respondents. It reads :

"Explanation II.-For the purposes of this Section, the competence of a Coui:t shall be determined irrespective of any provision as to a right of appeal from the decision of such Court",

(1) A.LR. 1961 P.C. 78=43 I.A .. 91.

(2)"1.L.R. Vol. XV Bombay 104.

(3) I.L.R. 2'J Madras 195.

It seems to us that section 11 itself refers to a Court which actually tries the two suits.

We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court.

That Court was, obviously, competent to try both the suits.

After the money suit had been transferred from the Court of the Munsif, thi:: Second Additional Sub Judge actually tried and decided both of them.

This was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial..

Similarly, the High Court was competent to hear appeals from judgments in both.

It heard and decided the two appeals together.

So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of, the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided.

That was certainly purported to be done 'by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal.

The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of 'the case under the unamended Article 133(1) (c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal. ·

Learned counsel for the respondents appears to us to have rightly relied upon.Bhugwaributti•Chowdhrani v. A.H. Forbes('), where itwas held that "in .order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way".

He also relied on Lonankutty v. Thomman & Anr.(2), a recent decision

of three Judges of this Court, where Chandrachud, J., observed (at p. 1650) :

"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit.

They filed a second appeal in the High Court only as against the decree passed by the District Court in AS. 66 of 1958 which arose out of the decree passed by the trial Court in the appellant's suit.

Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive".

It was also observed there :

"The decision of the District Court was given in an appeal arising out of a suit. which, though instituted subse-

(1) I.L.R. 28 Cal. 78,

(2) A.T.R. 1976 S.C. 1645=[1976] Supp. S.C. R. 74.

N. PRABHU v. Pi<Am:u V. N. PRABHU K. PRABHU (Beg,].) 643

quently, stood finally decided betore the High Court disposed of the second appeal.

The decision was, therefore, one in a 'former suit' within the meaning of section 1 l, Explanation I, Civil Procedure Code". ·

The expression "former suit'', according to explnatinn . I <?f . section 11, Civil Procedure Code, makes it clear that, 1f a dec1s1011 is given before the institution of the proceeding which is .sought to be B barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res jqdicata would emerge.

This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty's case (supra).

The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case.

Learned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of section 11, Civil Procedure Code which provides as follows :

"Where persons litigate bona fide in respect of a public D right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating".

On the other hand, learned counsel for the respondent submits that the case of the respondents fully covered by this explanation and E relies on Kumaravelu Chettiar & Ors. T. P. Ramaswamy Ayyar & Ors.(') where it was held:

"Explanation 6 is not confined to cases covered by 0.1, R. 8 but extends to include any litigation in which apart from the Rule altogether, parties are entitled to represent interested persons other than themselves".

We think that the submission made by the learned counsel for the respondents is sound.

In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If hat very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others".

Each of them can be deemed by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees.

One of the tests in deciding whether the 'doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.

We think this will be the case here. ·

(I) A.T. R. 1933 P.C. 183. 7-l 12SCT/77

We nee.d not deal with other cases of this Court cited, jncluding Sheodan , smgh .v'. Smt. Darya<! Kunwar('), which supports the respondents subm1ss10ns, and Ra1 Lakshmi Bai & Ors. v. Banamali Sen & . Ors. ('), which is not directly applicable inasmuch as that was a case in which the general principles of res judicata and not section .11 Civil Procedure Code, were applied.

The preliminary objection m the asc befoe. us is fully supported, for the reasons given above,

y sectio~ 11, Civil Procedure Code read in the light of the .Explanation mentioned above.

Consequently, the preliminary objection must prevail.

Lerned counsel for the appellant, conscious of the difficulties in his way, filed after the hearing of the appeal was begun before us, an C . application for condonation of delay in applying for leave to appeal against the judgment of the High Court m the money suit.

He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his client's favour.

On the other hand, learned counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up

to the existence of the bar on the part of the appellant is much. too long to be condoned.

Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal.

Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit.

We may mention here that the partition suit was instituted as long ago as 194 7 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.

We, therefpre, reject the Civil Miscellaneous Petition No. 8585 of 1976, the application for condonation of delay in the filing the Special Leave Petition.

We dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the over-delayed special leave petition No. 2816 of 1976.

The result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the parties will bear their own costs.

P.B.R.

(1) [1966] 3 S.C.R. 300

(2) [1953] S.C.R. 154.

Appeal dismissed.

. \

NARAYANA PRABHU VENKATESWARA PRABHU

NARA YAN PRABHU KRISHNA PRABHU & ORS

January 19, 1977

A. N. RAY, C.J.

M. H. BEG

s. 11

s. 11

Art. 133(l)(a)

s. 11

the Code of Civil Procedure

Section 11

Section 11

s. 11

[1966] 3 S.C R. 300

s. 11

Art. 13

Kerala High Court

T. C. Raghavan

Sardar Bahadur Saharya

V. B. Saharya

T. S. Krishnmnoorthy Iyer

M. R. Pillai

H T. S. Krishnamoorthy

P. K. Pillai

N. Suhdakaran

Article 133(1)

Article 133

Krishna

Narayana

Venkateswara

Venkateswara

P. N. Venkateswara Prabhu & Brothers

5th August, 1960

Supreme Court of India

is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, "the Hyderabad Wing" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His
Exalted Highness the Nizam's Judicial Committee.

Mehr Chand Mahajan

Naik

Hyderabad

Tek Chand

Section 11

Civil Procedure Code

Lawrence Jenkings

Section 11

Civil Procedure Code

Madras High Court

Avanasi Gounden

section 11

section 11

section 11

Article 133(1)

Chandrachud

section 1

Civil Procedure Code

section 11

Civil Procedure Code

Lonankutty

section 11

Civil Procedure Code

Kumaravelu Chettiar

T. P. Ramaswamy Ayyar

Sheodan

Darya

Civil Procedure Code

Civil Procedure Code

[1966] 3 S.C.R. 300


SASHI PRASAD BAROOAH

THE AGRICULTURE INCOME-TAX OFFICER, SHILLONG,

ASSAM & ORS.

January 19, 1977

(H. R. KHANNA AND R. S. SARKARIA, JJ.]

Assam A;; ric11/t11ral Income Tax Rules, 193,9 r. 23-Scope oj- Rule if ultra vi res.

Rule 23 of the Assam Agricultural Income-tax Rules, 1939 provides that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu undivided family hithert0: assessed as undivided or joint, such family shall be deemed, to continue to be a Hindu undivided or joint family.

The assessee was the Karta of a Hindu undivided family,_which was assessed to agricultural income-tax in respect of income derived from the manufacture and sale of tea.

The assessee contended before the Agricultural Income-tax Officer that, since there was disruption of the Hindu undivided family, no agricultural income-tax was payable exen though agricultural income had arisen from tea estates. This plea was rejected.

His petition under Art. 226 of the Constitution impugning the validity of r. 23 had been dismissed by the High Court.

Jn appeal to this Court it was contended that (i) after the dissolution of the family no assessment order could be made under r. 23 in respect of such disrupted Hindu Undivided family (ii) the State Government had no power to make a rule for the assessment of a Hindu undivided family after a partition took place in the family.

Dismissing the appeals,

HELD: (1) The language of r. 23 clearly warrants the conclusion that in the absence of an order apportioning the libility to tax on the basis of parfition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed, for the purpose of the Act to continue to be a Hindu Undivided family.

No order apportioning the liability to tax on the basis of the alleged partition having been passed, the family shall continue to be treated as a Hindu undivided family.

[651 C-F]

2(a) The liability for tax having been created by the charging section, the rule deals with the question as to who should be the person that should be assessed to tax.

This is a matter of detail to carry out the purposes of the Act and the State Government was well within its competence to inake the rule in exercise of its rule-making power.

[652 C-D]

(b) The fact thaJ.. .unlike the Income-tax Act, there is no statutory provision in the Act and the matter is dealt with by the rules, would not make any mate rial difference. The rules would lie as much binding as would be statutory provision in 1jiis respect. r652 E-F]

(c) It is well settled that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of taxation Jaws, such as slection of persons on whom the tax is to be levied, the rate at which it is to be charged in respect of different classes of goods and 'the like. r652 G-H]

Pt. Ba11arsi Das v. Stale of Madhya Pradesh [1959] S.C.R. 427, followed.

Powell v. Appollo Candle Company Limited [1885] 10 A.C. 282 and Syed Mohamed & Co. v. The Stale of Madras 3 S.T.C. 367, referred to.

C1v1L APPELLATE JuR1smcnoN : Civil Appeal'Nos. 245-251/72.

From the Judgment and Order dated 21-9-1970 of tfue Assam and Nagaland High Court in Civil Rules Nos. 105 106 and 123 to 127/ 66. ,

A. K. Sen, D. N. Mukherjee and N. R. Choudhary for the Appellant.

Purshottam Chatterjee and S. N. Choudhary for the respondents.

The Judgment of the Court was delivered by

KHANNA, J.

The short question which arises for consideration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part <;>f rule 23 9f the Assam Agricultural Incometax Rules, 1939 (heremafter referred to as the rules) framed under section 50 of the Assam Agricultural Income-tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act) :

"Where an order apportioning the liability to the tax . on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shaLi be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family."

The High Court held that the facts of this case were covered by the above quoted rule.

The High Court also repelled the challenge to the vires of the rule.

The appeals arise out of seven petitions filed under articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment.

The matter relates to assessment years 1946-47, 1947-48, 1948-49, 1949-50, 1950-51, 1951-52 and 1955-56.

Each writ petition related to one of these years.

We may set out the facts relating to the assessment year 1946-4 7 as it is the common case of the parties that the decision about the writ petition rd'.ating to that year would govern the other writ petitions also.

The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S. P. Barooah & Others.

The family was governed by Dayabhaga school of Hindu law and consisted of three members.

The family owned certain tea estates and carried on the business of tea plantation.

It was assessed under the Act in respect of its income derived from manufacture and sale of tea.

The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.

A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms of sub-section ( 1) of section 19 of the Act calling upon persons whose agricultural income exceeded

the limits of taxable income to furnish returns within the specified A time.

On March 24, 1947 the appellant addressed a letter to the Agricultural Iucome-tax Officer praying for extension of . time for submission of the return.

Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income-tax Officer stating that he was trying to expedite the submission of the return.

On February 15, 1951 the Agricultural Income-tax Officer addressed a communication to the appellant asking him to file the return by B March 14, 1951.

The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong.

In his letter dated July 21, 1951 the appellant informed the Agricultural Income-tax Officer that he would file his return as soon as some matters were settled.

On March 25, 1955 the appef.lant addressed another letter to the Agricultural Income-tax Officer stating that he had not received the relevant assessment orders made by the Incomec tax Officer (the income-tax officer under the Indian Income-tax Act,

1922) relating to the assessment years 1946-47 onwards.

On July 11, 1959 the following two notices were sent by the Agricultural Income-tax Officer to the appellant :

"I am to inform you that following the dissolution of family business of Sashi Prasad Barna and Others in the D year 1945, you are liable to furnish a Return of agricultural incomes including those from the Tea Estates under your ownership from the assessment year 1946-47.

Please also note that the Returns along with certified copies of Central Income-tax Assessment should reach this office on or before 15-8-59.

In default, you will be liable E for summary assessment."

"Whereas I have reason to believe that your total agricultural income from sources chargeable to agricultural income-tax in the year ending the 31st March, 1947 to 1959-

(a) has wholly escaped assessment;

(b) I therefore propose-

(i) to assess the said income that has escaped assessment.

I hereupon require you to deliver to me not later than 15-8-59 or within 30 days of the receipt of this notice, a

 G Return in the attached form of your total agricultural incoine during the previous year ending the 31st March, 1946 to

1958." . .

Accompanying the two notices sent by the Agricultural Income-tax Officer was also a notice under section 19 (2) and section 30 of the Act.

The appellant failed to submit a return or to furnish certified H copies of the Central assessment orders.

The Agricultural Incoine~ tax Officer as per order dated June 22, 1961 assessed the total agricultural income of the appellant for the year 1946-47 to be

. D

Rs. 1,45,994. An amount of Rs. 19,321.44 was held to be recoverable from the appellant.

The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962.

Revision filed by the appellant was dismissed by the Commissioner of Taxes as per order dated September 28, 1964. Certificate of public demand showing an amount of Rs. 3,74,087,89 as due from the appellant for the seven years in question was then issued by the Agricultural Income-tax Officer.

Proclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant.

The appellant thereupon filed, as mentioned earlier, seven writ petitions.

Prayer made in tlle writ petitions was to quash the impugned assessment orders dated June 22, 1961, the notices of demand dated July 4, 1961 and the proclamation of sale dated December 31, 1964.

Form one of the notices addressed by the taxation authorities to the appellant as well as from the return filed on their behalf, it would appear that the taxation authorities were not averse in the event of partition among the members of the Hindu undivided family, to assess the appellant in his individual capacity in respect of the agricultural income arising from those tea estates which had fallen to his share.

Such a course, it seems, was also not acceptable to the appellant.

His stand at the same time was that no assessment could be made in the name of Hindu undivided family as according to him the same had been disrupted as a result of partition.

The appellant thus wanted a complete imunity from payment of agricultural income-tax during the years in question even though agricultural income had arisen from tea estates.

Although a number of grounds were taken in the writ petitions, at the hearing before the High Court only two grounds were pressed on behalf of the appellant.

The first ground was that after the dissolution of the Hindu undivided family, no assessment order could be made under the Act in respect of such disrupted Hindu undivided family.

The second submission advanced on behalf of the appellant was that in case it be held that the matter was covered by rule 23 reproduced above, in that event the said rule was ultra vires the powers of the State Government to frame rules under the Act.

The High Court, as already mentioned, decided on both the points in favour of the revenue and against the appellant.

In appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945. It is urged. as was done before the High Court, that after the disruption of that family, it could not be assessed under the Act.

Rule 23 reproduced above. according to the learned counsel, is not attracted in the present case.

Jn case, however, it be held that the said rule applies to the present case, the State Government, Mr. Sen submits, had no power to make such a rule.

The above contentions have been controverted by Mr. Chatterjee on behalf of the respondents.

The learned counsel has also emphasised the fact that in none of the communications sent by the appellant

mentioned above, there was any reference to partition or the Hindu undivided family.

After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well founded.

It is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax Officer. ·

It may be apposite at this stage to refer to the material provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam.

According to the dei}nition of "person" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family.

Section 3 is the charging section.

According to this section. agricultural income-tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of this Act on the total agricultural income of the previous year of every individual, Hindu undivided or joint family, company, firm and other association of individuals.

Section 19 of the Act deals with the .return of income and reads as under :

"19. (1 ) The Agricultural Income-tax Officer shall; on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every

person whose agricultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year :

Provided that the Agricultural Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or :c1ass of persons;

(2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial yeai the Agricultural Income-tax Officer may serve in that financial year a notice in the prescribed form upon him requiring him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year. .

(3) If any person has not furnished a return within the time allowed by or under sub-section ( 1), or sub-section

(2) or, having furnished a return under either of those subsections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made, and any return so made shall be deemed to be made in due time under this section."

Section 20 provides for the making of an assessment order.

Section 30 deals with income escaping assessment, and its material part reads as under:

"If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income-tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 19, and may proceed to :mess or reassess such income, and the provisions of this Act shall, so far as may be, apply ;; ccordingly as if the notice were a notice issued i.; ndcr that sub-section : "

Section 50 empr.vers the State Government to make rules.

The material part of that section reads as under:-

"50. ( 1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be scified.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may- (a) (b) (c) (d)

- (e) (f) (g) (h)

(i)

(j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the property of such

' ,,,_

- family has been effected after the date of such A

(k)

(I)

(m)

assessment;

We have set out above the relevant part of rule 23.

The rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family .shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.

It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition is passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be _ deemed for the purp.ose of the Act to continue to be a Hindu undivided family.

Admittedly no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the Karta.

As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family.

We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in . those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order.

Such cases, in our view, are covered by other part of rule 23.

We are, however, not concerned with that part.

So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous.

The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed -for the purposes of the Act to continue to be a Hindu undivided family.

As regards the second contention, Mr. Sen submits that the power which has been conferred byclause (j) of sub-section (2) of section 50 of the Act is to make rules prescribing the manner in which the tax shall be payable when the assessment is made on agricuhural income of a_ Hindu undivided or joint family and a partition of the property of such family has been effected after the date of such assessment.

It is urged that apart from that, the State Government has no power to make a rule for assessment of a Hindu undivided family after a partition takes place in such family.

This contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub-section (1) of section 50: According to that sub-section, the State Government may subject to previous publication make rules for carrying out the purposes of this Act.

It has not been disputed before us that there was previous publication of the rules in question.

The question is whether the

/)-

part of rule 23 reproduced above can be said to have been made for carrying out the purpose~ of the Act.

The answer to this question, in our opinion, should be in the affirmative.

What the rule contemplates is that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed . for the purposes of the Act to continue to be Hindu undivided family.

The rule thus relates to the working of the Act.

Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons.

Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which Hindu undivided family was assessed hitherto.

The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family.

This is a matter of detail to carry out the purposes of the Act and the State Government in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section ( 1) of section 50 of the Act.

There is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis o~ the partition is made by the taxing authorities.

Sub-· section (1) of section 171 of the Income-tax Act 1961 provides that a Hindu undivided "family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family.

The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference.

The rules would be as much binding as would be the statutory provision in this respect.

The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act.

So far as this aspect is concerned,. we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule.

The proposition is well settled that it is not unconstitutional for the legislature to leave it to the executive to detennine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like [see Pt. Banarsi Das

v. State of Madhya Pradesh(')].

In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947.

The said Act provided for exemption from taxation in res-

(1) [1959] S.C.R. 427.

pect. of the supply of certain material.

Power was also conferred upon the State Government to amend such exemption by notification.

This Court upheld the validity of that notification.

We may also refer to the case of Powell v. Appollo Candle Company Limited(') which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales.

That section conferred a power on the Governor to impose tax on certain articles of import.

While repelling the challenge to the constitutional validity of that provision, the Privy Council observed :

"It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it.

But the duties levied under the Order-in-Council arc really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.

In these circumstances, their Lordships are of opinion that ,. the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature."

In Syed Mohamed & Co. v. The State of Madras(2), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.

Section 5 (vi) of that Act had left it to the rnlemaking authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules wa~ attacked on the ground that it was only the legislature that was competent to decide who shall be taxed and that the determination of that question by the rule-making authorities was ultra vir.es. The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority

under section 5 (vi) was within permissible constitutional limits.

Powell's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt. Banarsi Das.

The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above .

We, therefore, uphold the judgment of the High Court and dismiss the appeals with costs.

One set of fee.

P.B.R.

(I) fl 885]

10 A.C. 282,

(2) J s:r.c. 367.

Appeal;; dismissed.

. G

SASHI PRASAD BAROOAH

January 19, 1977

H. R. KHANNA

R. S. SARKARIA, JJ.

Income Tax Rules

Art. 226

Income-tax Act

A. K. Sen

D. N. Mukherjee

N. R. Choudhary

Purshottam Chatterjee

S. N. Choudhary

KHANNA

section 50

Income-tax Act

articles 226 and 227

Constitution of India

Sashi Prasad Barooah

January 1, 1945

April 3, 1946

section 19

March 24, 1947

May 10, 1947

February 15, 1951

March 16, 1951

Shillong

July 21, 1951

March 25, 1955

Indian Income-tax Act

July 11, 1959

Sashi Prasad Barna

section 19

section 30

December 27, 1962

Sen

Chatterjee

Assam

section 2(m)

Section 3

Assam Finance Act

section 6

Section 19

Agricultural Income-tax Officer

1st April, 1939

section 6

Section 20

Section 30

section 19

Section 50

section 50

section 50

Section 3

section 50

section 171

Income-tax Act 1961

Income-tax Act

section 133

Supreme Court

section 133

Section 5

Madras High Court

section 5

Powell

Syed Mohamed

Banarsi Das