S.C.R.

SUPREME COURT REPORTS 1125

"provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State," is ultra vires the Indian Parliament which passed the Act.

Agent for the President of India, the State of "Bombay, the State of Madras and the State of Mysore : P. A. Mehta.

Agent for the State of Uttar Pradesh: C. P. Lal.

Agent for Capt. Deep Chand and Pt. Amarnath Bhardwaj : R. S. N arula.

Agent for the Ajmer Electric Supply Co. Ltd. : M. S. K. Sastri.

Agent for the Municipal Committee of Ajmer, the Maiden's Hotel and Runglal Nasirabad Rajinder Narain.

Agent for Shri Munshi Lal and others : Shankar Das.

ANGURBALA MULLICK

ti •

. DE BAB RAT A MULLICK.

[SA1Ym FAzL Au, MEHAR CHAND MAHAJAN,

MuKHERJEA AND CHANDRASEKHARA AIYAR JJ.]

Hindu Women's Rights to Property Act (XVIII of 1937), s. 3- <, Right to shebaitship-Whether "property"-Applicability of Act- Widow's right to joint shebaitship with son-Construction of deeds -"Heirs of A," meaning of.

The word "property" as used in s. 3 (l) of the Hindu Women's Rights to Property Act, 1937, includes shebaitship which is a recognised form of property under Hindu law, and there is nothing in any of the provisions of the said Act which excludes from the y scope and operation of the Act succession to shebaitship.

Even assuming that the word "property" in Act XVIII of 1937 is to be interpreted in a narrower sense, inasmuch as succession to shebaitship follows succession to property in its ordinary or secular sense and the Hindu Women's Rights to Property Act,

111 re The Delhi Larva A.ct, 1912,. etc.

./Jose J.

.Angurba/a Mullick•· Debabrata Mullick

Mukherjea J.

1937, fays down th~ law of. succession to property in general, the devolution of shcba1tsh1p will also be governed by the said Ate .

Umayal Achi v. Lakshmi Achi [1945] upon. Suryanarayanacharyulu v. Seshamma

103) approved.

F.C.R. I, commented

(A.LR. 1950 Mad.

A deed of dedication of properties to a deity provided that the scttlor shall during her life-time be the shebait of the said deity and that after her death, her son M shall be the shebait. It provided further that after M's death, M's wife K and after K's death, the heirs of M shall be the shebaits. If M died without any issue or without giving authority to his wife to adopt, M shall be competent to appoint a shebait by will, but in case M died without any issue, the shebaitship shall, after the death of his wife devolve upon his heirs under the Hindu law. M died in 1942 leaving a son by his first wife K, and a second wife.

In a suit by the second wife for a declaration that she was entitled to the shebaitship as sole shebait or in any event as a j"oint shcbait with her step-son :

Held, that the Hindu Women's Rights to Property Act, 1937, was applicable to the case and the plaintiff was entitled to oint shebaitship with her step-son.

Held also, on the construction of the deed, (i) that the words uheirs of the said M" occurring in the deed were not words -.>£ gift but only words regulating devolution; and (ii) that heirs oi M did not mean issue of M but his legal heirs and there was nothing in the deed to show that the son of M had i right to succeed in

preference to the widow. ,...

CIVIL

APPELLATE

JURISDICTION : Civil Appeal No. 22 of 1951.

Appeal against the Judgment and Decree dated the 19th May, 1950, of the High Court of Judicature at Calcutta (Harries C.J ..• and Sinha J.) in Appeal No. 29 of 1950 arising out of a decree dated 9th February, 1949, in Sit No. 2481 of 1947.

Bakshi Tek Chand (S. Banerji, with him) for the appellant. -

S. Bannerjee (B. Sen and S. C. Roy, with him}, for the respondent.

1951. May 3. The Judgment of Fazal Ali, Mahajan and Mukherjea JJ. was delivered by Mukhcrjca J.

Chandrasckhara Aiyar J. delivered a separate but concurring judgment.

MuKHEKJEA J.-This appeal is directe.d against an appellate judgment of the Calcutta High C.Ourt, dated the 19th May, 1950, which affirmed the judgment of a single Judge of the Original Side of at C.Ourt passed on 9th February, 1949, in Suit No. 2481 of 1947.

The plaintiff, who is the appellant before us, is the widow of one Mrityunjoy Mullick, a wealthy Hindu resident of Calcutta, while the defendant, who is still an infant, is the only son of Mrityunjoy born of his first wife Kiranbala, who died during the lifetime of her husband. The controversy between the parties centres round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as shebait of an idol named Sree Sree Nitto Gopal Jew founded by Mrityunjoy and his mother either solely or jointly with the defendant, her step-son.

To appreciate the points that have been canvassed before us in this appeal , it will be necessary to narrate a few antecedent facts about which there is no dispute between the parties.

It may be stated her$:! that neither side adduced any evidence before the trial judge during the hearing of the case and the questions

raised in the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions . of the Hindu Women's Rights to Property Act (Act XVUI of 1937 as amended by Act XI of 1938).

It appears that one Dhananjoy Mullick, who was the adoptive father of Mrityunjoy, died on 28th of August, 1907, leaving behind him, his widow Nitto

Sundari and the adopted son Mrityunjoy who was then a minor.

On February 11, 1 910, Nitto Sundari obtained letters of administration to the estate of the deceased Dhananjoy limited during the minority of the adopted son. On June 13, 1920, the widow purchased a house property in the city of Calcuttabeing premises No. 14, Syakrapara Lane-Qut of the monies belonging to the estate of her hunsoand, and on October 10, 1934, she conveyed the said property to Mrityunjoy who had by that time attained majority.

Angurbala Mullick v.

Debabrata Mullick

Mukherjea J.

19Sl

Angorbala Mullick v. .Debabrota

Mulliclc

Mukherjea I.

On the very same day that this property was conveyed to Mrityunjoy, Nitto Sundari and Mrityunjoy together executed an indenture, by which certain properties described in Schedules A and B of the document and including premises No. 14, Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that Nitto Sundari had, with the consent and concurrence of her son, established and consecrated the said idol and located it in premises No. 14 Syakrapara Lane, and that she had been performing the worship and periodical festivals of the deity according to Hindu rites. The document lays down in detail the various rites, ceremonies and festivals of the idol that are to be performed daily or at specific periods, and the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties.

A remuneration of 25 per cent. of the net income of the debutter property has also been provided for the shebait or shebaits for the time being.

After declaring the various trusts, the indenture proceeds to provide for appointment of shebaits and for devolution of shebaitship in the following manner :-

"That the said Sm. Nitto Sundari Dassi doth thereby constitute and appoint herself the shebait of the said Thakur for and during the term of her natural life and doth hereby declare that after her death her son the said Mrityunjoy Mullick shall become the shebait of the said Thakur and after his death his wife Sm. Kiranbala Dassi and after her death the heirs of the said Mrityunjoy Mullick shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits.

Provided however that in case the said Mrityunjoy Mullick . shall happen to die without any issue or without giving any authority to "' his wife him surviving, to adopt, then in such case it shall be competent for the said Mrityunjoy Mullick to appoint by will or otherwise a shebait who would act

as such after the death of his sai'd wife as aforesaid hut in case the said Mrityunjoy Mullick shall happen to die without any issue the shebaitship . of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law."

It is not disputed that Nitto Sundari acted as she. bait till her death in 1938 and that after her death Mrityunjoy become the shebait. Kiranbala, the first wife of Mrityunjoy, who is referred to in the indenture .as stated above, died on l4th January, 1942, leaving her infant son Debabrata, who is the defendant in the suit.

Soon after her death, Mrityunjoy married the plaintiff Angurbala as his second wife and within five months after this marriage Mrityunjoy died on the 4th of July, 1942. The present suit was filed in the Original Side of the Calcutta High Court on 29th August, 1947, by Angurbala and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the defendant, she being a co-heir of her stepson under the provisions of the Hindu Wowen's Rights to Property Act. There was a further prayer claiming a right of residence in premises No. 14. Syakrapara Lane.

The written statement that was filed on behalf of the defendant denied the plaintiff's claim of shebaiti right, either exclusively in herself or jointly with the defendant, and asserted that the defendant was the sole shebait under the terms of the deed of endowment as well as under law. The defendant also . contended that the plaintiff was not entitled to any, right of resi4ence in the premises mentioned above.

The learned trial Judge by his judgment dated 9th of February, 1949, held that the plaintiff was neither the sole shebait of the deity nor was she entitled to claim shebaiti rights jointly with the defendant and that the Hindu Women's Rights to Property Act was inapplicable to devaluation of shebaiti, rights at all. It was held further that as the plaintiff was not in law the natural guardian of the defendant, she could not

A.ng11rbalo Mullick v.

Debabrata

Mullick

Mukherjea J.

Angur/Jala

Mullick

Debab11t1ta

Mullick

Mukherjea I.

claim to exercise the rights of a shebait on behalf of the defendant as his natural guardian so long as the defendent remained a minor.

The learned Judge held, however, that the plaintiff's claim to a right of residence in premises No. 14, Syakrapara Lane, was wellfounded and she was held entitled to relief in that respect.

The result was that save and except givmg the plaintiff a declaration of her right of residence in premises No. 14, Syakrapara Lane, all the other prayers of the plaintiff were dismissed.

Against this decision the plaintiff preferred an appeal which came up for hearing before an appeal Bench of the Calcutta High Court consisting of Sir Trevor Harries C.J. and Sinha J.

The learned counsel appearing in support of the appeal did not seriously challenge that part of the decision of the trial Judge which negatived the plaintiff's claim to act as a sole shebait either under the terms of the indenture of endowment. or as a guardian of the defendant during the period of his minority.

The only question pressed was whether the plaintiff was entitled to be a joint shebait with the defendant.

The learned Judges rejected this contention of the appellant primarily on the ground that the identical point was raised and considered by the Federal Court in Umayal Ac!zi v. Lakshmi Achi(1) and it was held there that succession to shebaitship was not in any way altered or affected by the provisions of the Hindu \Vomen's Rights to Property Act. The appeal was thus dismissed and the plaintiff having obtained a certificate under article 133(1)(c) of the Constitution has now come up in appeal to this Court.

The substantial contention raisc; d by Mr. Tek Chand, who appeared on behalf of the plaintiff-appellant, is that under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death it is to vest in the heirs of. Mrityunjoy. As Kiranbala died during the life-time of Mrityunjoy, the grant of the shebaiti right in her favour lapsed and the heirs of Mrityunjoy arc, therefore, entitled to come in as the

(I) [1945] F, C.R.1.

next shebaits after Mrityunjoys death.

Who these heirs are has. got to be determined according to the law in force at the time when the succession opened and under the Hindu Women's Rights to Property Act, which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased; It is said that as shebaitship is property, it wouW devolve under section 3 of the Hindu Women's Rights to Property Act upon both the plaintiff and the defeadant jointly.

Assuming, however, for argument's sake, that the expression "property", as used in the Hindu Women's Rights to Property Act, tloes not include shebaiti right, it is argued by the learned counsel that it is a well-established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu women'.s Rights to Property Act has amended the general law of inheritance in certain matters, the same, alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. Tek Chand-though it was not pressed seriously...:...that the language of the indenture would go to suggest that in the matter of succession to . shebaitship the wife of Mrityunjoy would have priority over other heirs.

i.~ true that the document spe3ks only of Kiranbala, the wife of Mrityunjoy who is to. come as shebait after . his death; . but it is argued that the . word "Kiranbala" is merely descriptive of the word "Wife'' and whoever would happen to be the wife of Mrityunjoy at the date of his death, would be entitled to succeed to his shebaiti rights.

Mr. Shankar Banerjee appearing for the respondent stated at the outset that he would not dispute as a proposition of law that shebaitship is property of

~ some kind the devolution of which is governed, in the absence of any direction to the contrary given by the founder, by the ordinary rule of succession under the Hindu law.

He contended however, that the Hindu 26-3 S.C.India/68

t9Sl

A!fgurbala

Mullick v.

Debabrata

Mullick

Mukhetjea J.

Mullick v.

Dbabrata

Mullick

MiJcher}ttl I.

Women's Rights to Property Act, which is a piece of special legislation enacted for a special purpose, does not use the expression "property" in a wide and unlimited sense; and it would appear clear from the provisions of the different sections of the Act that it could not have had in contemplation, and does not purport to affect, the rules of succession relating to the special and somewhat anomalous type of property which shebaitship admittedly is.

The learned counsel referred in this connection to the provisions of sections 3 and 5 of the Act as well as to the preamble which sets out its object, and considerable stress was laid upon the pronouncement of the Federal Court in Umayal Achi v. Lakshmi Achi('). The other contention put forward by the learned counsel turns upon the construction of the relevant clause in the indenture referred to above which lay down the mode of devolution of the shebaitship, and his argument was that reading the clauses as a whole, it would be clear that the intention of the executants of the deed was that the "issue" of Mrityunjoy would succeed to him as shebaits in the first instance and that no other heir of Mrityunjoy basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of Mrityunjoy was alive. A further question relating to the construction of the deed, raised by Mr. Banerjee, was that the words "heirs of the said Mrityun; oy" occurring in the deed arc to be construed not as words of devolution but of direct gift to the heirs under the deed and consequently the expression "heirs" must mean those who could legally claim :is heirs at the time when the grant was made : and any subsequent change in the law could not affect the position.

We will first advert to and examine the prov1s1on• of the Hindu Women's Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is.

The exact legal position of a shebait may not be capable of precise definition but its implications are

(I) [194.5) F.C.R. 1.

fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v.

Bal usami (1) that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the diety or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter pro- . perty.

As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage.

Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary

right;.

Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.

This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji(2 ) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v.

Lal Behary(8) and again in Bhabatarii v. Ashalata(4 ), The effect of the first two decisions, as the Privy Couru:il pointed out in the last case, was to emphasize

(I) 48 I.A. 302.

(3) 63 I. A. 448.

(2) I.L.R. 60 CaL 4S2.

27-3 S.C.lndia/68

(4) 70 I.A. 57.

Ang_urb11la Mullick v.

Debabrata Mullick ·

Mukher}ea J.

Mu//ickv. Dehahrata Mullick

Mukhtrj.a J.

the proprietary element in the shehaiti right, and to show that though in some respects anomalous, it was ( an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejjee v.

Rumanlolljee Gossamee('), 'when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the !- founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any. particular manner-and this right of disposition is inherent in the founder-or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of r inheritance from the founder.

Turning now to the Hindu Women's Rights to Property Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down :-

"Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate."

Section 3( 1) then provides :- "When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school

of Hindu law ...... dies intestate leaving separate pro- perty, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section ( 3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:

Provided that the widow of a predeceased son shall --. inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in

(I) 161.A. 137.

like manner as a son's son if there is surviving a son or son's son of such predeceased son;

Provided further that the same provts1on shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son."

\ Sub-sections (2) and ( 4) of section 3 ate not material

for our present purpose. Sub-section (3) lays down :- .

"Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate .......... "

Section 4 lays down. that the •Act is . not to operate retrospectively.

The only other section in the Act which has been referred to in the course of arguments is .section 5 which runs as follows :-

"For the purposes of this Act a person shall be. deemed to die intestate in respect of all property ot which he has not made a testamentary disposition which is capable of taking effect."

It will be seen that section 3(1) abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husband's property only in default of male issue and she is now entitled to the . same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached . to section 3 ( 1) to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3(1) speaks of "any property". The expression prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of "property" in law.

Of course, the property must be heritable pre>- perty in respect to which alone. the question of succession may legitimately arise.

Reliance has been placed f:iy Mr. Banerjee, first of all, upon the object or purpose for which the statute was passed.

The object, as set out in the preamble, is to give better rights to women in respect to property; in other words, the object of the legislation is to confer

Angurbala

Mullick

V.· Debabrata

Mullick

Mukherjea i.

Mul/itlt

Debabrata

MuJ//clt

Muk/rerfea J.

1136 SUPREME COURT Rfil'ORTS [1951!

larger rights upon women in comparison to what they enjoyed under the ordinary Hindu law.

In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not include within its ambit rights and interest of a shebait.

Mr. Banerjee' next invokes in support of his conten tion the provisions of sub.section (3) of section 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the "Hindu women's estate''.

It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular pre>- perty, but this distinction is unmeaning when applied to shebaiti right, for the nature of the interest enjoyed by a. male or a female shebait is exactly the same.

This argument does not appear to us to be at all convincing. Precise! y the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect oi the shebaiti would be restricted in the same manner as they would have been if the successor was the son.

This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, then: is yet a distinction between them as regards the other limitation or characteristic of a Hindu women's estate.

When a Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death.

The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shblliti right would not pass to her stridhana heirs but would

go to heirs of the last shebait(1). Sub-section (3) of section 3, therefore, is of no assistance to Mr. Banerjee's client.

Mr. Banerjee then contends that section . 5 of the Hindu Woman's Rights to Property Act affords a clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible.

This section, it may be noted was added by the amending Act XI of 1938 and the object apparently was to explain what is meant by "dying intestate". It says that for the purposes of the Act -a person shall be deemed to die intestate in respect of all property of which he has not made a festamentary disposition which is capable of taking effect.

Mr. Banerjee would read the section as qualifying the meaning of the word "property" as used in section 3(1) or rather as engrafting a limitation upon it. What he says is, that the language of the section would be wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shebaitship, no testamentary disposition is possible.

This argument, in our opinion, cannot be accepted as sound.

Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will dispos.- 'ing of his properties.

A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate.

If the property is "non-testamentable", as:

(I} Anurtlgi kuer v. Part1111a111md. t\ .. I. R. 1939 Pat. 1.

A._ngurbala

Mullicki v.

Debabrata1 Mullick ·

Mukherjea 1.

Mullick

Debabrata

Mul/ic/o

Mukherjea I.

Mr. Banerjee puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property.

Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression "property" as used in section 3( l) has a limited or restricted interpretation and is not applicable to shebaitship, which is recognised as property in Hindu law.

Reference may now be made to the decision of the Federal Court in Umayal Achi v. Llkshmi Achi('), upon which the learned appellate Judges of the High Court practically based their decision.

The facts of ) that case stripped of unnecessary details are that one Arunachalam Chettiar who was a resident of Madras and owned considerable properties, moveable and immoveable, both within and outside British India, died leaving behind him two widows and the widow of a predeceased son.

The deceased had left a will but the legacies given by the same exhausted only a small portion of his estate so that with regard to the r rest which was of considerable value he died intestate.

The deceased was in possession of several trust properties in regard to which there were certain religious and charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs.

The son's widow instituted a suit in the Court of the Subordinate Judge at Devakottai for administration of the estate and for partition and ,_ separate possession of a half share of the same, basing her claim upon the Hindu Women's Rights to Property Act. The suit was resisted by the two widows as well as by the executqrs appointed under the will of the deceased and it was pleaded, intra alia, that the Hindu Women's Rights to Property Act was ultra vi res the legislature and that in any event it was not applicable as the propositus did not die intestate.

The trial court held first that the Act was not ultra vires and was operative on all properties with the exception of

(I} [1945J F. C.R. I. ' . '

agricultural lands and this finding was affirmed by the High Court on appeal and also on further appeal to the Federal Court by the majority of the Judges of the Court.

The second finding of the trial Judge was that the deceased died intestate with regard to a considerable amount of property and consequently the plaintiff was entitled to a half share thereof. The High Court affirmed this finding with this variation that her claim to moveable situated outside British India was not allowed but the Federal Court reversed the decision of the High Court on this point and restored that of the trial Judge. The other point and that is the point with which we are concerned in the present case, related to the devolution of the trust estates which were held by the testator. Both the courts

~ below concurred in holding that these trusts should go

 to the heirs of the deceased under the ordinary Hindu law and that the provisions of the Hindu Women's Rights to Property Act were not attracted to the trusts.

This decision was upheld by the majority of the Judges in the Federal Court and the point was actually dealt with by Varadachariar J. in his judgment.

The view expressed by the learned Judge is that the Hindu Women's Rights to Property Act was intended to apply only to properties beneficially owned by the propositus and it was not applicable to rights in the nature of trusteeship. It seems to us that, properly construed, this decision does not stand in the way of the appellant.

In the first place, we do not know at all what the nature of these trusts was. The 'ilearned Judge observed himself in his judgment . that there was little or no evidence as to the terms of the foundations in respect of any of the trusts "managed" by the deceased.

This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere

manger of the trusts and in respect of some of them

~ at least he was. the manager jointly with other persons.

In the High Court, Sir Lionel Leach C. J. expressly held that in no sense could the trust properties be regarded as the separate property of the testator and

Angurbala Mullick v.

Debabrata Mullick

Mukherjea J.

Mu/liclo

Debahrata

Mullick

Mulcherjea J.

consequentfy Act XVIII of 1937 could not apply to such a case. V aradachariar J. observed with reference to the documents relied upon by the . learned counsel for the appellant that they only provided for "management by his heirs." At any rate, we have no materials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties. the indications, on the other hand, are clearly in the opposite direction. In these circumstances, no question arises in the present case of controverting the proposition of law that V aradachariar J. purported to lay down, namely, that the Hindu Women's Rights to Property Act could not govern succession to property in respect to which the propositus had no beneficial enjoyment.

It is not possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act.

There are indeed one or two observations of the learned Judge in his judgment, not very definitely expressed, from which it is not impossible to draw an inference in favour of the respondent, but we think that they should be construed in the light of the facts and the actual decision in the case.

The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be noted that not only the word "shebaitship" has not been used by the learned Judge but he does not even confine his remarks even to religious trusts.

Morever, .;. trusteeship is not certainly equivalent to shebaitship.

On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property.

The object of the Act as stated above, is to give better rights to women in respect of "- property. If a trusteeship, evc;_n if it is regarded as P.roP<:rty, carries with it no emoluments or any beneficial interest for the trustee and consists of nothing else

but a bundle of obligations and duties, it might possibly be said that the giving of a share iDsuch rights to a Hindu widow would not in any way improve her position. But the position would be obviously differen.t if there is a beneficial interest of a substantial kind inseparably connected with the duties of a particular office. Then again, the learned Judge possibly used the expression "private property" in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own.· The reference to section 3(3) of the Hindu Women's Rights to Property Ast is, as we have indicated already, not much helpful for the purpose of construing the Act.

After all, we must take the decision as it stands and it is not right to call into aid a particulaI1 reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to. lay down.

We think that a very proper view of the effect of this decision of the Federal Court has been taken by a Division Bench of the Madras High Court in P. Suryanarayanacharyulu v. P. Seshamma(1).

There the question arose in connection with the rights associated with the office of archakatavam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the Federal Court in Umayal Achi v. Lakshmi Achi(2) has no application to a case relating to the office of archak_atvan.

It is pointed out by the Madras High Court that though the observations of the learned Judge in the Federal Court are wide, the decision proceeded only . on the main ground that the Act governs succession to property beneficially owned by the propositus.

In our opinion, the same reasons apply to the case of a hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait or shebaits for the time being as their remunration.

Our conclusion, therefore, • is that there is nothing in

1(1) A.I .. 9SOMad. 103.

(2) [1945] F.C.R. I.

Angurbala Mullick v.

Debabrata

Mullick

Mukherjea J.

19Sl

Mui/kl<

Debabrata

Mullick

Mukherjea I.

any of the provisions of the Hindu Women's Rights to Property Act which excludes from the. sope a_nd operation of the Act succession to shebaitship which is a recognized form of property in Hindu law.

Assuming that the word "property" in Act XVIII of 1937 is to be interpreted to mean property in its common and ordinarily accepted sense and is not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. Tek Chand is perfectly sound.

Succession to shebaitship, even though there is an ingredient of office in it, follows succession to ordinary or secular property.

It is the general law of succession that governs succession to shebaitship as well.

While the general law has now been changed hy reason of Act XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of shebaitship.

The last contention of Mr. Tek Chand that under the indenture itself the wife of Mrityunjoy and not Kiranbala particularly has been given rights of succession to shebaitship prior to any issue of Mrityunjoy is manifestly untenable and as the learned counsel was not at all serious in pressing this point, we consider it unnecessary to discuss it any further.

It remains for us now to advert to and consider the other contentions raised by Mr. B; merjee wi}ich depend upon the construction of the refevant clauses in the indenture.

It may be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words "heirs of the said Mrityunjoy" occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language and the whole tenor of the document.

It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the diety and was looking after its worship and service since it was installed. It was in the fitness of things therefore that

Mrityunjoy should request his mother to become the }' fi'rst shebait and this is exactly what is recited in the indenture.

After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebaii: and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the r founder. There is no indication of any intention to treat the heirs as the objects of an independent gift.

It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi(1) with regard to the devolution of trust estates.

The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift and not of devolution.

On the question of construction Mr.

Bnerjee's main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it. will be manifest that the executants of the deed intended that the issue of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in . so long as an issue remained alive.

The relevant portion of the document has been set out already and it provides in the first place that after the death of Nitto Sundari, her son the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, and after her death, the heirs of the said Mrityunjoy Mullick shall be and act as shebaits.

Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die witheut any issue or without giving any authority to his wife; him surviving, to adopt, then in such case it shall be competent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs undet

(1) [1945] F.C.R. 1.

~19Sl

Angurbala Mu/lick v.

Debahrata

Mullick

Mukherjea I.

19SI

Angurhala Mullick

Debabrata Mullick

Mukherjea J.

Hindu law.

Mr. Banerjee lays stress upon the proviso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can come in as shebaits.

In order that the proviso may be reconciled with the clause that precedes it, Mr. Banerjee invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of Mrityunjoy.

We do not think that the interpretation suggested by the learned consel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance.

So far as the main pr<>- vision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense.

Mr.

Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted.

In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule.

What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any' authority to his wife to .adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exerised by Mrityunjoy even if he has a daughter living.

The proviso thus qualifies the main provision to this extent that if the particular contingency . that is mentioned here is fulfilled, Mrityunjoy

would be entitled to appoint a shebait, although no such power can be deduced from the general clause.

In case the contingency does happen l:iut the wife is not given any power of adoption and no appointment is also made by Mrityunjoy, the consequence woul_d certainly be that the other heirs of Mrityunjoy woul(l succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of Mrity- unjoy. As Mrityunjoy actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it.

We think, therefore, that this contention of Mr. Banerjee also must fail.

The result, therefore, is that, in our opinion, the appeal succeeds. The judgment and decree of both the courts below are set aside except the declaration of the right of residence of the plaintiff which was given by the trial court and not disturbed in appeal.

In addition to that, it will be decalred _that the plaintiff is entitled to joint shebaitship with the defendant in respect of the debutter created by the indenture of October 10, 1934.

We direct the taxed c0st.S of both the parties in all the courts to be paid out of the debuttar estate.

CHANDRASEKHARA A1YAR J.-1 agree with the conclusion reached by my thi:ee learned brothers in the judgment just now pronounced, but I would like to add a few words on two points on which I do not sec eye to eye with them fully.

In support of his contention that the word "property" in the Hindu Women's Rights to Property Act cannot be construed so comprehensively as to include a shebai~ right, Mr. Bannerjee referred to sub-clause (3) of secnon 3, which speaks of "any interest devolving on a Hindu widow under the provisions of this section

Mullick

Debabrata

Mullick

Mukher}ea J.

Angurbala Mullick ...

Dehabrata Mullick

Chandrasekhara

Ai'yar J.

shall be the limited interest known as a Hindu woman's estate"; and he urged that the conception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention.

In dealing with it, we are not thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteristics as constituting a religious endowment.

We have in mind the shebaitship itself as a species of property.

Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a "Hindu women's estate" as contrasted with a full or absolute estate taken by a male heir? Does a male heir get higher rights than a Hindu widow? and if so, what are they? So far as a shebaitship is concerned, the office does not enure beyond the lifetime of the holder, whether male or female, and is generally inalienable.

It is res extra commercium.

A male heir cannot alienate it any more than a female heir.

What limitations exist or are imposed on alienability arises out of the nature of the property and not out of the nature of the estate taken by the heir.

In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in Umayal Achi v. Lakshmi Achi(') by Sir Varadachariar, where, referring to sub-clause (3) of section 3, he observes :-

"This provision will be appropriate enough in relation to private property where the woman's estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office the law makes no difference between the interest taken by a male heir and the interest taken by a female heir."

But it does not decisively outweigh the several considerations set forth in the judgment just now delivered

.. '

by my learned brother Mukherjea J. for construing the "'c word "property" in a wider serue so as to include the shebaiti right also. If there is no legal objection to a

(1) [1945] F.C.R. !.

woman being a shebait under Hindu law, there is no particular reason why she should be excl?de~ from succeeding to the same under an Act which llllposes no restriction or prohibition either in express terms, or by necessary implication.

The next point relates to the construction of the deed of indenture executed by Nittamony Dasi and Mrityunjoy.

I am of the opinion that the technica~ rules of interpretation of provisos and exceptions, witfi reference to their scope and legal effect, adopted in construing statutes should. not ordinarily be imported in interpreting deeds and documents executed by laymen.

In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main clause or provision; and we must look not merely at the form of the language but its substarn; e, the governing idea or purpose of the deed, the context and the surrounding circumstances together the real meaning or intention of the executant. Judged in thislight and adopting a broad construction, it appes to ine that what Mrityunjoy had in mind when he executed the indenture was, as made clear in the proviso, that his issue (born of his loins) or any person whom his wife may adopt on his authority, .should succeed to the shebaiti in the lint instance; and secondly, in default-of such contingency, the shebaitship should go to any person who may be nominated in this behalf by his will; and thirdly in default of issue (born or adopted) and in default of nomination by will (which is necessarily implied), the right was to devolve . upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preceding clause.

In this view, the respondent will succeed to the office in preference to the_ appellant.

But the construction placed on the indenture by my learned brothers is also a possible one and I do not desire to express any dissent from the result, they have reached.

Appeal. al.lowed.

Agent for appellant : Ganpat Rai.

Agent for respondent : P. K. Bose.

Mullick

y,; .

Debabrata Mullick

Chandrasekhara

A.; yar I.

P. A. Mehta

C. P. Lal

Deep Chand

Amarnath Bhardwaj

R. S. N arula

M. S. K. Sastri

Shankar Das

ANGURBALA MULLICK

DE BAB RAT A MULLICK

MEHAR CHAND MAHAJAN

MuKHERJEA

CHANDRASEKHARA AIYAR JJ.

Rights to Property Act

s. 3

s. 3

Rights to Property Act, 1937

Rights to Property Act

Debabrata Mullick

Mukherjea

Rights to Property Act, 1937

High Court of Judicature at Calcutta

Harries

Sinha

Bakshi Tek Chand

S. Banerji

S. Bannerjee

B. Sen

S. C. Roy

Fazal Ali

Mahajan

Mukhcrjca

Chandrasckhara Aiyar

MuKHEKJEA

9th February, 1949

Mrityunjoy Mullick

Calcutta

Kiranbala

Sree Sree Nitto Gopal

Rights to Property Act

Dhananjoy Mullick

28th of August, 1907

Nitto

Sundari

February 11, 1 910

Nitto Sundari

Dhananjoy

June 13, 1920

October 10, 1934

Nitto Sundari

Nitto Gopal Jew

Nitto Sundari Dassi

Kiranbala Dassi

Debabrata

Angurbala

Calcutta High Court

29th August, 1947

Angurbala

Rights to Property Act

9th of February, 1949

Rights to Property Act

Sir Trevor Harries

Rights to Property Act

article 133(1)(c)

Tek Chand

Mrityunjoys

Rights to Property Act

section 3

Rights to Property Act

Rights to Property Act

Rights to Property Act

Shankar Banerjee

Mukhetjea

Rights to Property Act

sections 3 and 5

Banerjee

Hobhouse

Rights to Property Act

Section 2

section 3

Section 3( 1)

section 3

Section 4

section 5

section 3(1)

section 3

Section 3(1)

section 3

section 3

section 3(1)

Section 2

section 3

section 5

section 30

Indian Succession Act

Mullick

section 3( l)

Arunachalam Chettiar

Madras

British India

Rights to Property Act

Rights to Property Act

India

Rights to Property Act

Varadachariar

Rights to Property Act

Lionel Leach

Mulcherjea

V aradachariar

Rights to Property Act

section 3(3)

Madras High Court

Rights to Property Act

Bnerjee

[1945] F.C.R. 1

Debabrata Mullick

Mrity- unjoy

CHANDRASEKHARA A1YAR

Rights to Property Act

Bannerjee

Mullick

Debabrata

Mullick

Mukher}ea

Angurbala Mullick

Dehabrata Mullick

Chandrasekhara

Ai'yar

Varadachariar

section 3

Nittamony Dasi

Ganpat Rai

P. K. Bose


RAMJILAL

INCOME-TAX OFFICER, MOHINDARGARH

[SHR1 HARILAL KANIA C.J., SAIYID FAzL. Au,

PATANJALI SASTRI, MuKHERJEA and DAs JJ.J

Constitution of India, Arts. 14, 31 (1), 32, 265-Patiala and East Puniab States Union General Provisions (Administration) Ordinance (XVI of 2005)-Union of States-Law relating to Income-tax-Uniform law introduced in all States from August 20, 1948-Provision that pending proceedings shall be governed by existing law-Assessment at different rates in different States- Equality of law-Infringement of fundamental right-Assessment

t>f income which accrued before August 20, 1948-Legality- Fundamental right not to be deprived of property save under authority of law-Whether applies to taxation-Scope of Arts. 31 (1) and 265-Application under Art. 32 for protection against tax laws-Maintainability.

Section 3 (1) of the Patiala and East Punjab States Union General Provsions (Administration) Ordinance (No. XVI of 2005) which came into force on February 2, 1949, and re-enacted s. 3 of an earlier Ordinance which was in force from August 20, 1948, provided that as from the appointed day (i.e., August 2Q, 1948) all laws in force in the Patiala State shall apply mutatis mutandis to the territories of the said Union, provided that all proceedings pending before courts and other authorities of any of the Covenanting States shall be disposed of in accordance with the laws governing such proceedings in force in such Covenanting State immediately before August 20, 1948.

In one of the Covenanting States, viz., Kapurthala, there was a law of income-tax in force on the said date, the rate of tax payable under which was lower than that payable under the Patiala Income-tax Act, and in another Covenanting State, Nabha, there was no law of income-tax at all.

For the accounting year ending April 12, 1948, assessees of Kapurthala State were assessed at the lower rates fixed by the Kapurthala Income-tax Act, in accordance with the proviso in s. 3 of the Ordinance .relating to pending proceedings, and the asse9sccs of Nabha were assessed at the higher rates fixed by the Patiala Act as there was no income-tax law in Nabha on August

Jan. 12

Jncamt•tax

Officer, Mohit'lt!argarh.

20, 1948, and no income-tax proceedings were therefore pending in Nabha.

The petitioner who was an asscssee residing in Nabha and who was assessed under the Patiala Act applied under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari quashing the assessment on the ground (i) that he hlld been denied the fundamental right of equality before the law and equal protection of the laws guaranteed by Art. 14 of the Constitution inasmuch as he was assessed at a higher rato than that at which asscssces of Kapurthala were assessed, (ii) that, as the Ordinance bringing the Patiala Income-tax Act into force in Nabha was enacted only on August 20, 1948, it cannot operate retrospectively and authorise the levy of tax on income which had accrued in the year ending April 12, 1948, and therefore he was threatened with infringement of the fundamental right guaranteed by Art. 31 (1) of the Constitution that no one shall be deprived of his property save under autt.>rity of law :

Held, (i) that the discrimination, if any, between the assessecs of Kapurthala and Nabha was not brought about by the Ordinance but by the circumst'Ulcc that there was no incomcta.X law in Nab ha and consequently there was no case of assessment pending against any Nabha assessces; and in any case the provision that pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced, was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause;

(ii) that, as there is a special provision in Art. 265 of the Constitution that no tax shall be levied or collected except by authority of law, cl. (1) of Art. 31 must, be regarded as conocrned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Art. 265 is not a right conferred by Part III of the Constitution, it could not be cnforoed under Art. 32.

ORIGINAL JUlllso1cnoN: Petition No. 135 of 1950.

Application under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition.

Dr. Tek Chand (Hardayal Hardy and findra Lal, with him) for the petitioner.

M. C. SetalvaJ, Attorney-General for India

(S. M.

Sikri, with him) for the respondent.

1951. January 12. The Judgment of the Court was delivered by

DAs J.-This is an application under article 32 of the Constitution for appropriate orders for the protection of what the petitioner claims to be his fundamental rights guaranteed by articles 14 and 31. This is said to be a test case, for on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner.

There is no serious controversy as to the facts material for the purposes of this application. They are shortly as follows : On May 5, 1948, the then Rulers of eight Punjab States including Patiala and Nabha with the concurrence and guarantee of the Government of India entered into a convenant agreeing to unite and integrate their territories in one State with a commori executive, legislature and judiciary by the name of Patiala and East Punjab States Union hereinafter competidiously referred to as the Pepsu.

By article III (6) of the covenant the then Ruler of Patiala became the first President or Raj Pramukh of the Council of Rulers and he is to hold the office during his lifetime. Article VI of the covenant is as follows :-

" (1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon,

(a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Government of the Convenanting State shall vest in

v. /ncome•tax

Officer, Mohindargarh • .

Das]

RaJJ!iilal v.

Income.tu

Officer, Mohindargarh.

Das].

the Union and shall thereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder ;

(b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it ; ( c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union, and ( d) the military forces, if any, of the Covenanting State shall become the military forces of the Union."

Article X provides for the formation of a Constituent Assembly to frame a constitution of a unitary type for the Union within the framework of the Covenant and the Constitution of India.

This Constituent Assembly was also to function as the interim Legislature of the Union until an elected legislature came into being. The proviso to clause (2) of that Article runs as follows :-

"Provided that until a Constitution framed by the Constituent Assembly comes into operation after receiving the assent of the Raj Pramukh, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordinances so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by the Constituent Assembly ; but any such Ordinance may be controlled or superseded by any such Act"

This Union was inaugurated on July 15, 1948, and the Raj Pramukh thereafter took over the administration of the different Covenanting States.

The Administration of Nabha State was taken over by the Raj Pramukh on August 20, 1948.

On the same day the Raj Pramukh, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union (Administration)

Ordinance, 2005.

The following provisions of this Ordinance are relevant for our purpose :

"1. (2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh.

3. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifications, Hidayats and Hirmans-i-Shahi having fore of law in Patiala State on • the date of commencement of this Ordinance shall apply mutatis

mutandis to the territories of the said State and with effect from that date all laws in force in such covenanting State immediately before that dat~ shall be repealed : Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws

Governing such proceedings in force for the time being in any such Covenanting State."

Section 6 provides for the adaptation of the laws etc. enforced under section 3 and, amongst other things, any reference in these laws, etc., to the Patia!a State and the like was to be construed as a reference to the State of the Union.

A notification (No. 35, dated 27-5-05/11-9-1948) was issued over the signature of the Revenue Secretary notifying that the Patiala Income-tax Act of 2001 and the Rules thereunder had come into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except :&s to pending proceedings. It may be mentioned here that prior to that date there was no law in the Nabha State imposing income-tax on the subjects of that State. On November 14, 1948, the Commissioner of In.-ome-tax issued a Notification (No. 4, dated

v, lncom•-IOJ<

Ojfieer, Mohindargarh,

Das:J.

!951

Ramjilal v.

Jncoffle-tax

Officer, Mohindargarh.

Das],

29-7-2005) intimating that persons belonging to the Covenanting States of Nabha and Nalagarh would be assessed to income-tax under the Patiala Income Tax Act, 2001. It was mentioned that persons of those States whose income reached the taxable limit "should

henceforward keep regular and proper accounts for purposes of audit by the Income Tax Department."

On February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promulgated by the Raj Pramukh and called the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2006.

Section 3 (1) runs as follows:

"3. (I) As from the appointed day, all laws and rules, regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutaJis matandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect;

Provided that all suits, appeals, revisions, applications, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the Courts and before authorities of any Covenanting States shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immediately before the appointed day."

By section (2) (a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948. There was a section providing for adaptation similar to section 6 of the Ordinance 1 of

2005. There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promulgated on April 13, 1949, which came into force on that very date. Section 5 of that Ordinance introduced several amendments to the Patiala Income Tax Act, 2001. It recast

sections 3 and 34 of that Act and introduced a new section as section 23B.

Section 6 of that Ordinance runs thus :

"6. For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005,-

(a) income-tax shall be charged at the rates specified in Part I of the , Second Schedule to this Ordinance, and

(b) rates of super tax shall, for the purposes of section 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance."

It is in this setting that the facts leading to the present petition have to be considered.

The petitioner is a resident of Ateli in the district of Mohindargarh now in Pepsu but which formerly formed part of the Nabha State. The petitioner has been carrying on his business at Ateli for a number of years under the name and style of Raghunath Rai Ram Parshad.

He never paid any income-tax as no such tax was imposed by any law in the Nabha State.

On October 20, 1949, the petitioner was served with a notice under sections 22(2) and 38 of the Patiala Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 (13-4-1949 to 12-4-1950) disclosing his income during the previous year (13-4-1948 to 12-4-1949).

The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income-tax. On May 23, 1950, the petitioner received a notice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13-4-1948 to 12-4-1949.

In this return he had to specify his income of the previous year, namely, 2004 (i.e., 13-4-1947 to 12-4-1948).

It appears that the petitioner along with other assessees of Ateli and Kanina submitted a petition before the Income Tax Officer on July 9, 1950, asking him not to

<J Income-tait

Ojfieer, Mohintlargark.

Das J.

)951

Roniiilal

v lntom1-taJt

Offien, .Mohindargarh.

Das J.

proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to

the best of his judgment under section 34 ( 4) read with section 22 ( 4) of the Income Tax Act. The petitioner along with other assessees similarly situated moved the Income Tax Commissioner and the Central Board of Revenue, New Delhi, but without any success. No formal appeal under the Patiala Income Tax Act appears to have been filed by the petitioner against assessments for either of the two years 2005 and 2006.

On August IO, 1950, the petitioner filec"I his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioner's income accrued in the years 2004 and 2005 and other ancillary reliefs.

During the pendency of this petition the income-tax authorities have issued a notice under section 46 intimating that penalty will be imposed if the tax was not paid up.

The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaranteed to him by article 14 of the Constitution.

His grievances are formulated in paragraphs IO and 11 of his petition It is said that while the people of Kapurthala which is included in Pepsu have been asked to pay income-tax for the period prior to August 20,

1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than die rate fixed by the

Patiala Income Tax Act, 2001, the people of Nabha who had not to pay any income-tax prior to August 20, 1948, at all have been made liable to pay at the higher Patiala rate and that such discrimination offends against the provisions of article 14.

This charge is refuted by paragraph 10 of the affidavit of Sardar Gurbax Singh, the Additional Director of Inspection (Income Tax), New Delhi, who was.formerly the Commissioner of Income Tax, Punjab and Pepsu, which ha' been filed in opposition to the present petition. It is there stated that for the assessment year 2005, in Kapurthala the asessees whose cases were pending on

August 20, 1948, were assesssed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assessment year 2006 the provisions of the Patiala Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the Pepsu, including Kapurthala. This allegation which is not denied in the affidavit filed by the petitioner in reply must be taken as correct. The assessment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance. No. 1 of 2005, which was reproduced in the proviso to section 3(1) of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be completed according to the law applicable to those proceedings when they were initiated. No case of assessment was pending as against any bha assessee on August 20, 1948, for there was no Income Tax Act in Nabha prior to that date and, therefore, there could be no occasion for completing any pending proceedings against any of such assessees.

In the premises, there can be no grievance by them on the score of discrimination.

The discrimination, if any, was not brought about by the two Ordinances, but by the circumstance that there was no Income Tax Act in Nabha and consequently there was no case of assessment pending against any Nabha assessees. In any case the provisions that pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities 'accrued and the proceeding commenced is a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause and to which no exception can be taken.

In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well-founded at all.

Dr. Tek . Chand appearing in support of the petition next contends that the administration of Nabha State having be.en taken over by the Raj Pramukh onty on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought

Blllnjilal

v. l111:om1-l1U1

O.ffic11 Mo4illtlar1111ll,

D111:J.

J95J

R"Jlfii/ol

v. lncomtt0%

Offien, Mdintlargarb.

Dru].

into operation on and from August 20, 1948, the assessment of the tax on the petitioner's income which accrued prior to August 20, 1948, was wholly illegal and not authorised by the said Ordinances and the State by insisting on collecting the tax so illegally assessed was threatening to invade the petitioner's fundamental right to property guaranteed by article 31 (1) of the the Constitution.

Article 31 (1) runs as follows:

"(1) No person shall be deprived of his property save by authority of law."

It will be noticed that clause (1) reproduces subsection ( 1) of section 299 of the Government of India Act, 1935, without the words "in British India".

Reference has next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance".

That article provides that no tax shall be levied or collected except by authority of law.

There was no similar provision in the corresponding chapter of the Government of Indian Act, 1935.

If collection of taxes amounts to deprivation of property within the meaning of article 31 (1), then there was no point in making a separate provision again as has been made in article 265.

It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise arttcle 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain.

Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made inde pendent provision giving protection against taxation save by authority of law. When Dr. Tek Chand was asked if that was not the correct position, he did not advance any cogent or convincing answer to refute the conclusion put to him. In our opinion, the protection against imposition and collection of taxes save by authority of law directly comes from article 265, and is not secured by clause (1) of article 31. Article 265,

' <

__,,

not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32.

It is not our purpose to say that the right secured by article 265 may not be enforced.

It may certainly be enforced by adopting proper proceedings.

All that we wish to state is that this application in so far as it purports to be foundc::d on article 32 read with article 31 (1) to this Court is misconceived and must fail.

The whole of Dr. Tek Chand's argument was founded on the basis that protection against iposition and collection of taxes save by authority of law was guaranteed by article 31 (1) and his endeavour was to establish that the Pepsu Ordinances could not, in law, and did not, on a correct interpretation of them. impose any income-tax retrospectively, that the Jn. come Tax Officer on an erroneous view of the law had wrongly assessed the tax on income accruea prior . to August 20, 1948, and that consequently the petitioner was being threatend with deprivation of property otherwise than by authority of law. In the view we have taken, namely, that the protection against imposition or collection of taxes save by authority of law is secured by article 265 and not by article 31 (1), the questions urged by Dr. Tek Chand do not really arise and it is not necessary to express any opinion on them on this application. Those questions can only arise in appropriate proceedings and not on .an application under article 32. In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under article 14 or under article 31 (1) and we accordingly dismiss the petition with costs.

Petition dismissed.

Agent for the appellant: Naunit Lal.

Agent for the respondent : P. A. Mehta. ·

Ramjilal v. /a<ome-taJt

Ojfieer, Mohindargarj.

Das].

RAMJILAL

INCOME-TAX OFFICER, MOHINDARGARH

SHR1 HARILAL KANIA C.J.

PATANJALI SASTRI

MuKHERJEA

DAs JJ

Constitution of India

Arts. 14, 31

Arts. 31

Art. 32

Section 3

February 2, 1949

s. 3

August 20, 1948

August 2Q, 1948

Patiala

Kapurthala

Income-tax Act

Nabha

April 12, 1948

s. 3

Art. 32

Art. 14

Income-tax Act

Art. 31

Art. 265

Art. 31

Art. 265

Art. 32

Art. 32

Tek Chand

Hardayal Hardy

findra Lal

M. C. SetalvaJ

S. M.

Sikri

article 32

articles 14 and 31

May 5, 1948

Nabha

Government of India

East Punjab States Union

20th of August, 1948

Constitution of India

July 15, 1948

Nabha State

Section 6

section 3

Income-tax Act

November 14, 1948

Section 3

section 6

April 13, 1949

Section 5

sections 3 and 34

section 23B

Section 6

Second Schedule to this Ordinance

section 55

Patiala Income Tax Act, 2001

Ateli

Mohindargarh

Pepsu

Raghunath Rai Ram Parshad

October 20, 1949

sections 22(2) and 38

Patiala Income Tax Act, 2001

December 4, 1949

May 23, 1950

section 34

Ateli

Kanina

Das

Roniiilal

section 34

section 22

August IO, 1950

article 32

section 46

article 14

August 20,

1948

article 14

Sardar Gurbax Singh

New Delhi

section 3

section 3(1)

Income Tax Act

Income Tax Act

Article 14

Tek . Chand

article 31

Article 31

section 299

Government of India Act, 1935

article 265

article 31

article 265

article 31

United States of America

Tek Chand

article 265

article 31

Article 265

article 32

article 265

article 32

article 31

article 31

article 265

article 31

article 32

article 14

article 31

Naunit Lal

P. A. Mehta


Jan.12

SUPREME COURT REPORTS [1951]

RAMNANDAN PRASAD NARAYAN SINGH

MAHANTH KAPILDEO RAM JEE AND

ANOTHER (and 3 other appeals)

[SHiil H.un.u. KANIA C.J., PATANJALI SASTIU

and CHANDRASJ!XHARA AIYAR JJ.]

Bihar Money.lenders (Regulation of Transactions) Aa (Vil of 1939), s. 7-Ereculion of fresh document for amount remaining due on loan under eariler document-Suit on later document-Interest before date of suit-Mazimum amount that could be decreed-

W hether to be calct1!ated on basis of earlier or later doctm1ent- "A1"ount of loan mentioned in, or evidenced by, such document'' meaning of.

Where a fresh document is executed for the amount remaining due on account of principal and interest under a loan advanced on a prior document, aud a suit is brought for recovery of the amount due under the 1atcr document with interest due thereunder, "the amount of loan mentioned in, or evidenced by, such document" for the purpmcs of s. 7 of the Bihar Money-Lenders

(Regulation of Transactions) Act, 1939, is the amount mentioned or evidenced by the later document and not that mentioned in the original document which was renewed and the court can pass a decree for an amount of interest for the period prc..:::::ding the institution of the suit, \vhich together with any amount realise as interest after the date of the later document, is not greater than the amount of loan mentioned in the later document.

The maximum amount that can be: so dccrccd is not the amount \vhich together with the interest realised from the date of the original loan docs not exceed the original loan.

Singheswar Singh and Others v. Nadni Prasad Singh and Others (A.I.R. 1940 Pat. 65). UJl Singh v. Ramnarain Ram and Others (A.LR. 1942 Pat. 138), Madho Prasad Singh v. Mu/cutdheri Singh and Others {193 I. C. 661), Deo Nandan Prasad v. Ram Prasad (I.L.R. 23 Pat. 618), Ram Nandan Prasad Narain Singh v. K11lpati Shri Mahanth Goswami Madhwanand Ramp ((1940] F.C.R. 1).

Surendra Prasad Narain Singh v. Sri Gajadhar Prasad Saht1 Trust Estate and Others ( [ 1940) F.C.R. 39) referred to •

.APPELLATE JU!USDICTION : Civil Appeals Nos. 98, 99, 100 and 101 of 1950.

Appeals from the orders of the High Court of Judicature at Patna (Manohar Lall and Imam JJ.) in Miscellaneous Appeals Nos. 108 to 111 of 1948.

Shambhu Barmeswar Prasad and Ramanugrah Prasad for the appellants.

H. /. Umrigar for the respondents.

1951. January 12.

The Judgment of the Court was delivered by

CHANDRASEKHARA AIYAR J.-The decision of these four appeals, which are connected with each other and which have arisen out of orders made by the High Court of Patna in four Miscellaneous Appeals, depends on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939.

The facts which have led to the appeals are found briefly stated in the petition filed by the Present appellants in the 3td Court of Sub-Judge, Patna, and

may be re-stated here for convenient reference :-

"The father of the petitioners borrowed Rs. 40,000 from the guru (ancestor) of the decree-holder under mortgage bond, dated 11-1-1893.

Out of Rs. 40,370-7-6 interest and compound interest up to 4-1-1910, Rs. 32,370-7-6 was paid in cash and for the balance Rs. 8,000 interest and Rs. 40,000 principal, i.e., for Rs. 48,000 a Mortgage Suit No. 14 of 1910 was filed in 1st Court of the Sub-Judge, Patna, and in lieu of the claim and cost of the said suit two fresh mortagage bonds were executed on 11-7-1910, viz., one for Rs. 40,000 and the other for Rs. 9,488 and the lattei: bond was satisfied by payment of Rs. 15,835 in cash.

With respect to the above bond of Rs. 40,000 dated 11-7-1910 the petitioners paid Rs. 38,530-13-6.

Mortgage Suit No. 110 of 1927 was brought in the 3rd Court> of the Sub-Judge, Patna, and a decree for Rs. 58,012-2-0 was passed on 9-7-1929.

Out of this Rs. 5,000 was paid in cash and for the balance of Rs. 53,012-12-0 one mortgage bond dated 6-10-1931 was executed for Rs. 42,000 and on the same date two 2-1 S. C. Tndia/68

R4mnaadan Prasad NarayaR

Singh

Malumtft Kapild<o Ram ]It and Anothlf.

Chandrasekhar11

Aiya1J.

Singh

Mahantil Kapil.Uo Ram Jet and Another. -- Chantltasehara

A(rar J.

hand-notes were executed, viz., rme for Rs. 5,000 and one for Rs. 6,012-Ul.

One Suit No. 14 of 1933 for both the hand-notes was brought in 3rd Court of the Sub-Judge and a decree for Rs. 15,008-2-0 was passed on 28-2-1935.

T.his decree is under execution."

When the decree-holder sought to execute the money decree by attachment and sale of the judgmentdebtors' properties stating that they were subject to a mortgage lien of Rs. 62,272-13-0 under the mortgage bond dated 6-10-1931, the two judgment-debtors, who are brothers, filed objections under sections 11 and 16 of the earlier Bihar Money-lenders Act III of 1938 and section 47 of the Civil Procedure Code.

The petitions (two by each of them) were filed separately by the brothers.

They urged that on a proper calculation under section 11 no lien was subsisting onthe properties owing to payments made towards the mortgage debt amounting to Rs. 92,394-2-0. The Subordinate Judge held that this plea of the judgment-debtors could not be entertained in the Miscellaneous case before him relating to the execution and all that could be done was to notify the mortgage incumbrance without deciding anything as to the correctness of the amount claimed to be due under it ; and this conclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void.

Appeals taken to the High Court were dismissed.

The judgment-debtors thereupon preferred an appeal to the Federal Court, contending that section 7 and 13 of the new Act ( corresponding to sections 7 and 11 of the old Act) were applicable and that it was the duty of the court to estimate the value of the property after making the

necssary calculations under section 7 with reference to the lien. The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another v.

Kulpati Shri Mahanth Goshwami Madhwanand Ramji('). The case was remitted back to the High

(!) [1940] F.C.R. I.

Court, giving liberty to the appellants to file an application under section 13.

In answer to a fresh application for execution dated 2-7-1942, the two brothers filed the same objections as before. Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money-lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1942 related to the objections under section 47 of the Code of; Civil Procedure.

The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond.

He determined the market value of the several properties given as security, adopting 16 times the net income as the basis.

Appeals to the High Court were numbered .as M. A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ. They modified the order of the lower Court in certain respects.

Even accoriling to them the amount of the loan was what was mentioned in the mortgage bond of 6-10-1931, but as a sum of Rs. 11,855-3-0 had been repaid expressly towards the principal amount after the date of the bond, . that amount became reduced to Rs. 28,150.

Adding an equal sum by way of interest which according to them was the maximum amount, permitted to be allowed under section 7 of the Act, the total liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount. They also directed that the valuation of the property should be fixed at twenty times the net income and not sixteen times. It is from this order that the present appeals have been preferred.

Two points were urged on behalf of the appellants, namely

(a) that the decree-holder was barred by constructive res-judicata from contending that the construction placed upon section 7 by the judgmentdebtors was wrong ; and (b) that in applying section 7, we must consider the original amount of loan of Rs. 40,000 given in the year 1893 and allow the claim

Singh

Mahanth Kapjldto Ram ]It and Anoth<T,

Chandrasekhar a Aiyar ].

Ramnarztfan Prasad Narayan

Singh

Mnhaoth Kapildeo Ram Jee and Anothtr

Chandrasekhar

A(yar J

of interest only for that maximum sum, after taking into account all sums paid by the appellants and their predecessors towards interest since 1893.

The first point is entirely without substance.

When the decree-holder contended that section 11 of the Bihar Money-lenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which corresponded to section 11 was also inapplicable, the judgment-debtors pleaded that they were entitled to the benefit of section 7 of the new Act.

The Federal Court held in Ramnandan Prasad Narain Singh and Another v. Kulpathi Shri Mah'anth Goshwami Madhwanand Ramji(') that the judgment-debtors (present appellants) were entitled to claim the benefit of the provisions of the new Act when the executing court proceeded under section 13 to determine the value of the properties to be sold. The correct interpretation of section 7 was not in question between the parties.

To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely different from the contention that the interpretation sought to be put by them on section 7 was the right one.

The Federal Court was not dealing with any question of interpretation at all.

It is impossible to see where the doctrine of constructive res-judicata comes in, so as to be of help to the appellants.

The second question raised on their behalf relates to the true meaning of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act VII of 1939, which is in these terms :-

"7. Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out oE such suit, pass a decree for an amount of interest for the period preceding the institution of the suit,

(1) [1940] F.C.R. I.

which together with any amount already realised as interest through the court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by, such document."

In the present case, the original loan of Rs. 40,000 was advanced as early as 11-1-1893.

The appellants contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest.

On the other hand, the decree-holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mortgage bond dated 6-10-1931, namely Rs. 42,000.

Whichever method of calculation is adopted, it must be remembered that it has . to be . made not for the purposes of passing any decree on the mortgage loan, but for estimating under section 13 of the Act the value of the properties to be brought. to sale in execution of the money decree against the appellants.

As pointed out by Sir Maurice Gwyer C.J. in Surendra Prasad Narain . Singh v.

Sri Gajadhar Prasad Sahu Trust Estate and Others(1), "Section 7 of the Act of 1937 is no doubt extremely obscure and illdrawn." The true intention . of the framers of the Act is somewhat difficult to gather. But the Patna High Court has been consistently placing . upon the section an interpretation which is opposed to the · contention of the appellant in these proceedings.

The point came up expressly for decision in Singheshwp Sibgh and Others v. Madni Prasad Singh and Others(2) where a mortgage bond was executed on 31-8-1922 for a sum of Rs. 2,000 which was the balance of the priQcipal and interest due under a mottgage bond of the 11th of October, 1912, for

(1) [19.fOJ F.c.R. 39.:

(2) A.I.R. 1940 Pat. 65. 19 . .

&mnaadim PrtJJad Narayan

Singh v.

Mahanth l(apj/deo Ram Jae and A not ha.

CluznartJJekhora

Aiyar ].

J95J

Ranmandax Prasad

Narr.yan Singh v.

Afahanth f(apilr/to

R.arr Jee and

Another,

Chandrasekhara

Abar J.

Rs. 1,391.

The judgment-debtors raised the plea that the court should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs. 1,391.

The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000, as the loan and they held that the plaintiffs were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh v. Ramnarain Ram and Others(') and the plaintiffs were warded a decree on the basis that the loan was to be taken as Rs. 2,909-8-0 which was the amount for which the hand-note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand-note of the year 1924.

The case reported in Madho Prasad Singh

v. Mukutdhari Singh and Others(') lays down the same position.

The Full Bench decision in Deo Nandan Prasad v. R'am Prasad(') reiterates the same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we can go to the original loan in spite of a later document under section 7, the loan must relate to the document on which the suit is based, that is, the final document and not the original one. In each ne of these cases, the question of the true meaning of section 7 was pointedly considered. This construction no dciubt enables a creditor to circumvent the beneficient provisions of the Act by taking a document for the interest due anil adding it to the principal amount. Gwayer C. J. points out this difficulty at p_age 59 in the case Surendra Prasad Narain Singh v. Sri Gaiadhar Prasad Sahu Trust Estate and Others('). If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But far from doing so, it has

(I) A.I.R. 1942 Pat. 138, 139.

(2) (1941) 193 I.C. 661.

(3) I.L.R. 23 Patna 618.

(4) [1940] F.C.R. 39.

acquiesced, during all these years in the construction which the Patna High Court has been placing upon the section from the very next year after the enactment of the statute.

Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature.

The appeals fail and are dismissed with costs, only one set in all of them together.

Appeals dismissed Agent for the appellants: Tarachand Brij Mohanlal.

Agent for the respondent : R. C. Prasad.

RAI BRIJ RAJ KRISHNA AND ANOTHER

S. K. SHAW AND BROTHERS.

(SAIYID FAZL ALI, MEHER CHAND MAHAJAN,

MuKHERJEA and CHANDRASEKHARA ArYAR JJ.J

Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill of 1947), s., 11-0rder of Controller for eviction on the ground of non-payment of rent- Suit to set aside order-Jurisdiction of civil cour:-Q11estion rtihc:her there was non-payment-Finai1ty of Controller' 1 tleeision.

Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is nor.-payment of rent, to order eviction of a tenant. Therefore, even if a Controller has wrongly decided the question whether there has been non-payment of rent, his order for eviction on the ground that there has been non-payment of rent cannot be questioned in a civil court.

Queen v. Comm_iuroners for Special Purposes of IncomeTo1t (21 Q.B, D. 313) and Colonial Bank of Australasia v.

W1'llah (L.R.

S P.C. 417) relied on.

Ramananitan Prasal

Narayan Singh

V• Mahanth Kapildeo RamJeeaud Another

Chandrasekhara.

Aiyar J.

i95I

Feb. 2.

Jan.12

RAMNANDAN PRASAD NARAYAN SINGH

MAHANTH KAPILDEO RAM JEE AND

ANOTHER (and 3 other appeals)

[SHiil H.un.u.

RAMNANDAN PRASAD NARAYAN SINGH

MAHANTH KAPILDEO RAM JEE AND

ANOTHER

SHiil H.un.u. KANIA C.J.

CHANDRASJ!XHARA AIYAR JJ.

s. 7

s. 7

(1940] F.C.R. 1

1940) F.C.R. 39

Manohar Lall

Imam

Shambhu Barmeswar Prasad

Ramanugrah Prasad

Umrigar

CHANDRASEKHARA AIYAR

High Court of Patna

section 7

3td Court of Sub-Judge, Patna

1st Court of the Sub-Judge, Patna

3rd Court> of the Sub-Judge, Patna

R4mnaadan Prasad NarayaR

Singh

Mahantil Kapil

sections 11 and 16

Bihar Money-lenders Act

section 47

section 11

section 16

section 7 and 13

sections 7 and 11

section 7

High

(!) [1940] F.C.R. I.

Court

section 13

sections 7 and 13

section 47

section 7

section 7

section 7

Chandrasekhar

Ramnarztfan Prasad Narayan

Mnhaoth Kapildeo Ram Jee

Anothtr

Chandrasekhar

section 11

Bihar Money-lenders Act, 1938

section 7

section 11

section 7

section 13

section 7

section 7

section 7

section 7

section 13

Sir Maurice Gwyer

Section 7

Patna High Court

Singh

Mahanth

Ranmandax Prasad

Afahanth

sections 7 and 8

section 8

section 7

section 7

Gwayer

[1940] F.C.R. 39

Tarachand Brij Mohanlal

R. C. Prasad

RAI BRIJ RAJ KRISHNA

S. K. SHAW

SAIYID FAZL ALI

MEHER CHAND MAHAJAN

MuKHERJEA

CHANDRASEKHARA ArYAR

Section 11

Control Act, 1947

Ramananitan Prasal

Mahanth Kapildeo RamJeeaud

Aiyar