...

S.C.R.

SUPREME COURT REPORTS

THE STATE OF MADRAS

"· SRIMATHl CHAMPAKAM DORAIRAJAN

and

THE STATE OF MADRAS

ti.

C. R. SRINIVASAN

[Sm1 HAlllLAL KANIA C. J. FAZL Au, PATANJALI SASTU, M&Hll. CHAND MAHAJAN, MuKHUJEA, S. R. DAS and VMAN BosE JJ.]

Constitution of India, Arts. 13, 16 (4), 29 (2), 46-Admission to educational institution1-E:cecuti11e Order fi:cint number of seius for particular communities-Invalidity-Fundamental ritht aiainst discrimination on the iround of reli1ion only-Directive principles of State policy-Value of.

With regard to admission of students tO the Engineering and • Medical Colleges of the State, the Province of Madras had issued an order (known as the Communal G. 0.) that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 scats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans, 1 to Anglo-Indians and Indian Christians and 1 to Muslims :

Held by the Full Court (Kania C. /., Fazl Ali, Pataniali Sastri, Mehr Chand Mahaian, Mukher; ea, S.

Das and . Vivian Bose 1/.)-that the Communal G. 0. constituted a violation of the fundamental right guaranteed to the citizens of India by Art. 29 (2) of the Constitution, namely, that "no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them," and was therefore void under Art. 13.

The directive principles of State policy laid down in Part IV of the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part UI. On the other hand they have to conform to and run as subsidiary to the fundamental rights laid down in Part tu .

Judgment of the Madras High Court affirmed.

C1v1L

APPELLATE JuRisDICTION.-Case Nos. 270 and 271 of 1951.

.April 9

Srimothi Ch4mMam

Dorasrajon

Appeals under Art. 132 ( 1) of the Constitution of India from the Judgment and Order dated 27th July, 1950, of the Madras High Court in certain applications under Art. 226 of the Constitution for protection of the fundamental rights of the petitioners under Art. 15 ( 1) and Art. 29 (2) of the Constitution and praying for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from enforcing, observing, maintaining or following the order of the Government known as the Communal G. 0. which laid down rules to be observed by the selection committee in the matter of admission of students to the Medical and Engineering Colleges of the State.

V. K. T. Chari, Atl11ocatt:-General, Madras (R. Ganapat/1y lyt:r, with him) for the appellant.

Al/adj Krjshnasw11mj Aiyar (Al/adj Kupuswamj Ajyar, with him) for the respondents.

1951, April 9. The Judgment of the Court was delivered by

Das].

DAs J.-This judgment covers both Case No. 270 of 1951 (State of Madras v. Srimathi Champakam Dorairaian) and Case No. 271 of 1951 (State of Madras v.

C. R. Srini11asan) which are appeals from the judgment passed by the Higl) Court of Judicature at Madras on July 27, 1950, on two separate applications under article 226 of the Constitution complaining of breach of the petitioners' fundamental right to get admission into educational institutiQns maintained by the State. ·

The State of Madras maintains four Medical Colleges and only 330. seats aie available for students in those four Colleges. Out of these 330 scats, 17 seats are reserved for students coming from outside the State and 12 seats are .reserved for discretionary allotment by the State and the balance of the scats available are apportioned between four distinct groups of districts in the State.

Likewise, the State of Madras maintains four Engineering Colleges and the total number of seats available for students in those Colleges are only 395.

Out of these, 21 seats are reserved for students coming from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between the same four distinct groups of districts.

For many years before the commencement of the Constitution, the seats in both the Medical Colleges and the Engineering Colleges so apportioned between the four distinct groups of districts used to be filled up according to certain proportions set forth in what used to be called the Communal G.O.

Thus, for

- every 14 seats to be filled by the sdection committee, candidates used to be selected strictly on the following basis:-

Non-Brahmin (Hindus) Backward Hindus Brahmins Harijans Anglo-Indians and Indian Christians Muslims

Subject to the aforesaid regional and what have been claimed to be prottct1vc prov1S1ons selection from among the applicants from a particular community from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates. In the case of the Medical Colleges, not less than 20 per cent. of the total number of seats available for students of the State were filled by women candiates separately for each region, it being open to the selection committee to admit a larger number of woman candidates in any region if qualified candidates were available in that region and if they were eligible for selection on merits vis a vis the men candidates in accordance with the general principles governing such

The State of Madras v.

Srimathi Champakam

Dorairajan

Das].

Th< Stal< of

Madras

Srimathi Chompakam

Dorairajan

Das].

admissions as laid , down in those rules. It appears that the proportion fixed in the old Communal G. 0. has been adhered to even after the commencement of the Constitution on January 26, 1950.

Indeed, G. 0.

No. 2208, dated June 16, 1950, laying down rules for the selection of candidates for admission into the Medical Colleges substantially repi; oduces the communal proportion fixed in the old Commu111l G. 0.

On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15

(1) and article 29 (2) of the Consiitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from enforcing, observing, maintaining or following or requiring the enforcement, observance, maintenance 9r following by the authorities concerned of the notification or order generally referred to as the Communal G. 0. in and by which admissions into the Madras Medical Colleges were sought or purported to be regulated in such manner as to infringe and involve the violation of her fundamental rights. From the affidavit filed in support of her petition, it does not appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the contrary, we have been told that the State had agreed to reserve a seat for her, should her application before f the High Court succeed. In the peculiar circumstances, we do not consider it necessary to pursue this matter any further. But we desire to guard ourselves against , being understood as holding that we approve of a person who has not actually applied for admission into an cduca; ional institution coming to Court complaining of infringement of any fundamental right

under article 29 (2). The High Court by its judgment delivered on July ll, 1950, allowed this application of Srimathi Champakam Dorairajan.

The State , of Madras has now come up before us on appeal which has been numbered Case No. 270 of 1951.

Sri Srinivasan who had actually applied for admission into the Government Engineering College at Guindy, filed a petition praying for a writ of mandamus or any other writ restraining the State of Madras .and all officers thereof from enforcing, observing, maintaining or following the Communal G.O. in and by which admission into the Engineering College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner under article 15 (1) and artide 29 (2) of the Constitution. In the affidavit filed in support of his petition, the petitioner has stated that he had passed the Intermediate Examination held in March, 1950, in Group 1, passing the said examination in the first class and obtaining marks set out in paragraph 1 of his affidavit.

It will appear that in the optionals which are taken into consideration in determining the academic test for admission in the Engineering College the petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High Court has by the same judgment allowed this application also and the State has filed an appeal which has been numbered 271 of 1951.

The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they. would not have been denied admission if selections had been made on merits alone.

Article 29 which occurs in Part III of the Constitution under the head "Cultural and Educational Rights" runs as follows :

"(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

Madras v.

Srimathi Champakam

Dorairqjan

Das].

The Stau ef

Madras ...

Srimathi Champakam

Dorairflian

Das].

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

It will be noticed that while clause ( 1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen.

The right to get admission into any educational institution of the kind mentioned in clause

(2) •is a right which an indivjdual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is 'denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article.

But, on the other hand, if he has the academic qualifications but is refused admission on! y on grounds of religion, race, caste, language or any of them, then there is a clear breaclt of his fundamental right.

The learned Advocate-General appearing for the State contends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article "6 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation.

It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the country and article 37 makes it obligatory on the part of the State to apply those principles in making laws.

The argu ment is that having regard to the provisions of article "6, the State is entitled to maintain the Communal

G. 0. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of article 46 override the provisions of article 29(2). We reject the above noted contentions completely. The directive principles of the State policy, which by article 37 are expressly made unenforceable by a Court, cannot -override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under article 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations . conferred on the State under different provisions of the Constitution.

In the next place, it will be noticed that article 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that .no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State

also_ includes a specific clause iii the following terms :-

" ( 4) Nothing in this article shall prevent the State from ma!cing any provision for the reservation of appointments of posts in favour of any backward class

Madras

Srimathi Champa/cam

Dorairajan

Das].

The State of Madras ...

Srimathi Ckampakam

Dorairojan

Das]

of citizens which, in the opinion of the adequately represented in the services State."

[1951]

.State, is not under the

If the arguments founded on article 416 were sound then clause ( 4) of article 16 would have been wholly unnecessary and redundant.

Seeing, however, that clause ( 4) was inserted in artick 16, the omission of such an express provision from article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters _of admission into any educational institution maintained by the State or receiving aid out of State funds.

The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes. may under those circumstances be understood, That consideration, however, was not obviously considered pccessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause ( 4) of article 16.

Take the case of the petitioner Srinivasan.

It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non- Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them.

What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the scats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities.

Such denial of admission cannot but be regarded as made on ground only of his caste.

It is argued that the petitioners arc not denied admission only because they arc Brahmins but for a

variety of reasons, e.g., (a) they are Brahmins, (ho) 8rahmins have an allotment of only two scats out of l4 and ( c) the two scats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the 8rahmins arc concerned but this line of argument can have no force when we come to consider .the scats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made.

The classification in the Communal G. 0. proceeds on the basis of religion, race and caste.

In our view, the classification made in the Communal G. 0. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under article 29 (2). In this view of the matter, we do not find it necessary to consider the effect of articles 14 or 15 on the specific articles discussed above.

For the reasons stated above, we arc of opinion that the Communal G. 0. being inconsistent with the provisions of article 29 (2) in Part III of the Constitution is void under article 13. The result, therefore, is that these appeals stand dismissed with costs.

Appeals dismissed.

Agent for the appellant: P. A; MehttZ.

Agent for the respondents : M. S. K. StZStri.

19.51

Th4 Stale of

MadrtU

.Y.

Srimathl Champakam

Dorairajan

D'"J

SRIMATHl CHAMPAKAM DORAIRAJAN

and

THE STATE OF MADRAS

C. R. SRINIVASAN

Sm1 HAlllLAL KANIA

Hll. CHAND MAHAJAN

S. R. DAS

VMAN BosE JJ.

Constitution of India

Arts. 13, 16

Madras

Fazl Ali

Pataniali Sastri

Mehr Chand Mahaian

Mukher

S.

Das

Vivian Bose

India

Art. 29

Art. 13

Madras High Court

Srimothi

Art. 132

Constitution of India

Art. 226

Art. 15

Art. 29

State of Madras

V. K. T. Chari

R. Ganapat/1y

article 226

Srimathi Chompakam

June 7, 1950

Srimathi Champakam Dorairajan

High Court of Judicature at Madras

article 226

article 15

article 29

Madras Medical Colleges

article 29

July ll, 1950

Srimathi Champakam Dorairajan

State , of Madras

Srinivasan

article 15

Srinivasan

Article 29

Srimathi Champakam

article 37

article 46

article 29(2)

article 37

article 32

article 16

State of Madras

article 416

article 16

article 29

article 29

article 16

article 29

articles 14

article 29

article 13

P. A; MehttZ.

M. S. K.

Srimathl Champakam


May2

1951 Mayl,

SUPREME COURT REPORTS

SUKHDEV SINGH

II.

MAHARAJA BAHADUR OF GIDHAUR

[ SA1Ym FAzL ALI, MuKHEERJEA and

CHANDRASEKHARA AIYAR JJ.J

[1951]

Ghatwali tenures-Nature and incidents-Gova-nment ghatwalis and Zemindary ghatwalis-Difference-Zemindar' s right to sub-soil minerals-District Gazetteers-Evidentiary value.

Though there are several instances in which Government ghat4 walis were included in the zemindary of other persons, yet wh.cro no clear evidence is forthcoming as to the true character of a ghat4 wali, the fact that the tenure is included within a zamindary and is covered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is dependent upon the zemindary.

The mere fact that the ghatwali was shown to be under the Collector cannot alter the character of the ghatwali, i.e., if it Was a zemindary ghatwali, it could not become a Government ghanvali merely because it was stated to be under the Collector.

A zemindar is presumed to be the owner of underground rights in the tenancies created by him in the absence of evidence that he ever parted with them.

A statement in the District Gazetteer is not necessarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experienced officials with great care after obtaining the facts from official records,

(History and incidents of ghatwali tenures discussed).

C1VIL APPELLATE Juruso1CTI0N. Civu. Appeal No. 29 of 1950.

Appeal against the Judgment and Decree dated the 10th October, 1945, of the High Court of Judicature at Patna (Manohar Lal and Das JJ.) in Appeal No. 64 of 1942 arising out of decree dated the 28th February, 1942, of the Subordinate Judge at Monghyr in Suit No. 10 of 1941.

Amarendra Nath Sinha (Samarendra Nath Mukherjee, with him) for the appellants.

Lal Narain Sinha (R. C. Prasad, with him) for the respondent.

1951 May 2. The judgment of the Court was delivered by

FAZL Au J.-This is an appeal from a judgment and decree of the High Court of Judicature at Patna, affirming a judgment and decree of the Subordinate Judge of Monghyr in a title suit brought by the plaintiff-respondent.

The plaintiff, the Maharaja of Gidhaur, who has succeeded in both the courts below, is the proprietor of an impartible estate known as Gidhaur raj in the district of Monghyr.

The ancestors of the defendants 1st party originally held a 4 annas share in a ghatwali tenure known as Mahal Dumri Nisf Katauna T. No. 325, and subsequently by private partition they were allotted mouza Dumri with its 47 tolas which are detailed in schedule I of the plaint. In execution of a mortgage decree obtained by one Chethru Rai against the ancestors of defendants 1st party, their interest, to which reference has been made, was purchased by the Maharaja of Gidhaur in the name of one of his employees, and the latter took delivery of possession of the property on the 19th April, 1904.

On the 13th August, 1903, the ancestors of the defendants 1st party filed an application for setting aside the sale which was dismissed by the executing court and the appeal from the order of the executing court was dismissed by the High Court as well as by the Privy . Council. After certain disputes in the criminal courts, the defendants second party alleging themselves to be the lessees of the defendants first party, obtained a mining license in 1937 from the sub-divisional officer of Jamui, and the District Magistrate apprehending a breach of the peace, started proceedings under section 144 of the Criminal Procedure Code, which ended in favour of the defendants first and second parties and against the plaintiff.

The plaintiff's case is that, emboldened by the order in the proceedings under section 144, the defendants started working mines in the tolas mentioned in schedule II of the plaint and extracted a considerable

1951)

<Jukhdev Singh

Mahara}a

Bahadurof

Gidhaur

Faz/ A/IT.

Sll/ohdev Singh

Malrarqja Bahadurof

Gidhaur.

Faz/ A.Ii J,

9uatity of mica and hence he was compelled to mst1tute the present suit.

In this suit, after reciting the facts to which reference has been made he prayed for a declaration of the sub-soil rights with regard to the entire Mahal Durnri and for recovery of possession of the mortgage lands situated in the tolas specified in schedule II of the plaint.

He also prayed for mesne profits and a permanent injunction restraining the defendants first and second parties from extracting mica or other underground minerals from the lands mentioned in schedule II of the plaint. The grounds on which these reliefs were claimed are summarized in paragraph 12 of the plaint in these words :-

"That the plaintiff submits that he being the 16 annas proprietor of Durnri Nisf Katauna has got an indefeasible right and title to all the underground minerals including mica situate within the said talukas.

The plaintiff further submits that all the titles and interest in the said 4 annas mokrari shares of the ancestors of the defendant 1st party having been acquired by plaintiff's ancestor by auction purchase in 1903, the defendant 1st party have no sort of right and interests in the mica and other underground minerals nor the defendant 2nd party have derived any lawful right under leases alleged to have been granted in their favour by defendant 1st party, the plaintiff in law is entitled to get a declaration of his title and possession with respect to all the underground . h . 1 d. . " rig t me u mg rmca ........... .

The suit was contested by ~$fendants Nos. I to 11 (defendants 1st party), but, as the trial judge has pointed out, the real defendant was defendant No. l, father of the appellant. The case of this defendant was that . the four annas interest in village Dumri was a ghatwali tenure granted to the ancestors of the defendants first party by Muhammadan rulers to guard the hill passes in the taluka, and the grant under which they held was affirmed subsequently by Captain Browne, a representative of the East India Company.

The defendant No. 1 further contended that the mineral

and subsoil rights were vested in him as the holder of the ghatwali tenure, and that the plaintiff had acquired no right by his auction-purchase in 1903 inasmuch as the property in suit being Government ghatwali tenure was inalienable and consequently the auction-purchased was invalid. Lastly, it was contended that this defendant and his ancestors had been exercising rights of possession over the mines and minerals for more than 12 years prior to the suit in assertion of their ghatwali right and to the knowledge of the plaintiff and his ancestors and had thus acquired an indefeasible right by adverse possession to the mines and minerals in suit, especially those in the lands specified in schedule II of the plaint.

The Subordinate Judge decreed the suit, holding among other things that the disputed tenure was a zamindary ghatwali tenure, that it was not inalienable, that the plaintiff had been in possession of the property since he purchased it in 1903 until the order of the District Magistrate made in 1938, that the plaintiff as the proprietor of the Mahal was entitled to the mineral and subsoil rights and that under the mortgage-sale only the surface right had passed to the plaintiff. The findings of the Subordinate Judge were substantially upheld on appeal by the High Court, with this modification that, while agreeing with the Subordinate Judge that the subsoil rights remained with the proprietor, the High Court also held that even if the defendant No. 1 was assumed to have had the subsoil rights, those rights passed at the mortgagesale of 1903 and therefore in any event the plaintiff was the real owner of the subsoil.

On the plea of adverse possession raised in defence, the finding of the High Court was that there was no clear evidence that any mine was worked on behalf of the lessees of defendant No. 1 and that at the utmost the evidence adduced in the case showed that there had been some isolated acts of possession during recent years, probably since 1935 onwards, and therefore the plea could not be upheld.

The two main points urged on behalf of the appellant in this appeal are :-

Sukhdev Singh v.

Maharaia Baliadurof

Gid/iaur.

Fazl Ali J,

19SI

Sukhdev Singh v.

Mahara}a Bahadurof 'Gidhaur.

Faz/ All J.

( 1) that the finding of the courts below that the ghatwali tenure held by the defendants first party was a zamindary ghatwali and not a Government ghatwali, could not be sustained and that in fact it was a Government ghatwali and therefore the property was inalienable and no title passed to the plaintiff ; and

(2) that in any event, the plaintiff's suit was barred by limitation under articles 142 and 144 of the Limitation Act.

The first point does not appear to us to be free from difficulty, and since its determination depends upon the proper construction of several old documents, we heard the parties at considerable length, notwithstanding the fact that the courts below have concurrently found that the tenure in question is not a government ghatwali. Before .dealing with the merits of the controversy between the parties, it is necessary to understand what is meant by a "ghatwal" and what is a ghatwali tenure, and for the purpose of correctly apprehending what these expressions stand for, it is sufficient in our opinion to quote the following passage from the decision of the Patna High Court in Rani Sonabati Kumari v.

Raja Kirtyanand Singh('), in which the subject of ghatwali tenures has been very elaborately discussed :-

"Literally a ghatwal means a guard of the passes and the term 'ghatwali tenure' was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredatioqs of lawless hill tribes.

These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur, and the Santai Parganas.

The ghatwals varied in rank and the incidents of their tenure varied in different places.

In some cases they were owners of large estates, some of these estates being more or less of the nature of semi-military colonies .......... In some cases the

ghatwalis were created directly by the ruling power, while in other cases they were created by the landlords or zamindars for the purpose of protecting their zamindary and tenantry and to enable them to have a small force at their command and to discharge the obligations they owed to the ruling power.

Sometimes the owners of large ghatwali estates subdivided and re-granted the lands to other tenants 'who besides paying small rents held their lands on condition of rendering certain quasi police and military services and providing a specified number of armed men to fulfil the requirements of the Government or of the zamindar as the case might be."

A Government ghatwali is thus a tenure created by the ruling power in favour of a person who is required to render ghatwali services to it, whereas a zamindary ghatwali is a tenure created by a zamindar for ghatwali services to be rendered to him. It is quite plain that the reason why the appellant is anxious to establish that the tenancy is a Government ghatwali is that a Government ghatwali has been uniformly held to be inalienable.

On the other hand, a zamindary ghatwali may be alienated with the consent of the zamindar, and, where local custom permits, even without his consent.

From the reports of cases relating to zamindary ghatwalis, it appears that by the passage of time the consent of the zamindar has ceased to be a matter of much significance, and is generally . presumed when it is found that the alienation has been made without any objection from the zamindar.

As to the extent of the power of alienation, the following observations of the Privy Council in Kali Prasad v. Ananda Rai (1) are pertinent :-

"When once it is established that the ghatwal had the power of alienation, as before stated, that power forms an integral portion of his right and interest in the ghatwali, and there is no evidence whatever to limit it to an alienation for his own life and no longer."

(1) lSI.A.18

Sukhdev Singh

Maharaia

Bahadurof

Gidhaur.

Fazl Ali .T.

Sukhdev Singh v.

Maharaj a Bahadurof Gidhaur.

Faz/ Ali J.

In order to determine the true character of a ghatwali tenure, it is usually necessary to refer to the grant by which the tenure was created. In the present cas_e, the appellant relies upon exhibit C (1), which is a ghatwali sanad granted in 1776 to the ancestors of the appellant and which runs as follows : -

"Know ye the Chaudhuris, kanungoes, zamindars and mutasaddis of mauza Dumri Ghat (illegible) pargana Gidhaur, Sarkar Monghyr comprised in the province of Bihar.

The perquisites of ghatwari in all the rahdaris in mauza aforesaid, have now been granted to Kunji Singh, Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the said mauza, in accordance with what has been in vogue from old time, with effect from the commencement of 1184 fasli.

It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris according to old customs. It will be the duty of the said ghatwars to be ever ready in discharging the duties of the post and guarding the ghats and chaukis of their elaqa by making rounds day and night.

If murder, mischief, theft, highway robbery and sudden night attack be committed in their elaqa, they will be held liable therefor and will be dismissed from their post. Treat this as peremptory and act according to what is written.

Dated the 5 Ziqada of the 18th year of the August reign corresponding to 1184 Fasli.'

This sanad was granted by Captain Browne, who was deputed by the East India Company to restore order in a tract known as Jungle Terai, a vast waste and hilly country as its name signifies, lying to the south of Bhagalpur and west of Rajarnahal Hills. This document was construed by a Bench of the Patna High Court in Fulhati Kumari v. Maheshwari Prasad('), and as has been pointed out by Dawson Miller C.J. in that case,-

" It is not a grant of land but an authority to the persons named to collect as formerly ghatwari or

ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect."

When W(! compare this sanad with other ghatwali sanads granted by Captain Browne, some of which are found discussed in reported cases, the contrast becomes very marked. In some of the other documents-for example in the document which was the subject of the decision of the Privy Council in Narayan Singh v.

Niranjan Chak._ravarti(1), and of the Patna High Court in Rani Sonabati Kumari v.

Raja Kirtyanand Singh(2) the grant was in respect of a very extensive area of land and there were also words used to indicate that the services were to be rendered directly to the ruling power. The mere fact, therefore, that the sanad in this case was granted by Captain Browne cannot be held to be decisive of the nature of the tenure, because it seems to have been part of the duties assigned to him to confirm and recognise old titles. As was pointed out by Dawson Miller C.J., the sanad should be read along with the record of certain proceedings before the Dewani Adalat of Ramgarh, which show that a tenancy comprising 8 annas in mauza Dumri was granted by the zamindar of Gidhaur to 2 persons, one of whom was the ghatwal mentioned in Captain Browne's sanad, with the sanction of Captain Browne.

In the present case, a document of 1798, which was the proceeding of the original court and which was before the learned judges who decided Fulbati's case(3) has not been produced, but we have before us a judgment dated the 18th March, 1799, of the appellate court in the same proceeding.

This judgment recites that the case of the ghatwals was that they had been for 3 generations in possession of half of village Dumri, but in the year 1187 fasli (1780 A.D.) the zaminar of Gidhaur wanted to raise "revenue" or rent but they refused to accept a new patta or kabuliyat at an enhanced rent.

Subsequently, the court ordered the zamindar to grant a patta, but the zamindar did not do so and forcibly dispossessed the ghatwals. They thereupon prayed that

( 1 ) 51 I.A. 37

Sukhdev Singh v.

Maharafa Bahadurof Gidhaur.

Faz/ .A.// J,

Sukhdev Singh

V; Mahara}a Bahathlrof

Gidhaur.

Fa2l Ali J.

the zamindar may be ordered to gran't them a patta and receive the kabuliyat at the old rent.

The appellate court, to which the zamindar had appealed, upheld the decree of the first court ordering the patta to be granted. This document shows firstly that the ghat wali tenure in respect of half of Dumri had been in existence for 3 generations prior to 1789, i.e., it must have come into existence long before Captain Browne's sanad, and secondly that it was held under the zamindar ; otherwise, it was not necessary that the zamindar should grant a patta and the ghatwal should execute a kabuliyat in his favour.

We have also before us a document (exhibit 1) which is a report of one Khadim Muhammad Ataullah, an employee of the East India Company, incorporating certain statements made by the then zamindars of Gidhaur showing that they had been in possession of the zamindary for nearly 700 years and that "the milkiat zamindary, Chaudhri and Kanungoi of the pargana .......... had all along been in their possession." This document shows that Gidhaur was an ancient zamin- <lary and the zamindar also performed the functions cf chaudhri and kanungoi.

The last mentioned point is of some significance, because the sanad of Captain Browne was addressed to chaudhris, kanungos, etc.

In the case of Fulbati Kumari('), to which reference has been made, there was an extract quoted from the Bengal District Gazetteer, volume XVII, at page 168, which runs as follows :-

"About 1774 the lawless state of this tract led the British to place it in charge of Captain James ' Browne, who settled the estates with the ghatwals with two exceptions. These two exceptions were Dumri and Mahesri which were settled directly with the proprietors, the story being that the ghatwal tenure holders fled at the approach of Captain Browne their reputation as dacoits and brigands being too strong for them to face a Government officer without fear of the consequences.

In the case of Dumri however, the

ghatwals finding that in their absence a settlement had been made of their tenure, returned and obtained a sanad settling it with them under the Raja of Gidhaur.

Of the estates settled with ghatwals only two or now held by their descendants, viz., Tilwa and

Kewal. The others qavc passed into the hands of the Maharaja of Gidhaur, Chetru Rai, Akleswar Prasad and others of Rohini."

The statement in the District Gazetteer is not necessarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experienced officials with great care after obtaining the facts from official records. As Dawson Miller C.J. has pointed out in Fulbati's case(1), there are a few inaccuracies in the latter pan of the statement quoted above, but so far as the earlier part of it is concerned, it seems to derive considerable suppon from the documents to which reference has been made.

The counsel for the appellant greatly relied on the fact that Dumri ghatwali is . mentioned in Captain Browne's "India Tracts" as one of the ghatwalis placed under. the Collector of Jungle Terrai districts.

It appears that this point was not raised before any of the courts below, nor was Captain Browne's treatise placed before them. There is thus considerable force in the objection raised on behalf of the respondent that he has not had sufficient opportunity to study the matter and place relevant materials before this coun to enable it to determine what meaning and value 6hould be attached to Captain Browne's statement.

But apart from this objection, it seems to us on the evidence as it stands, that the inference sought to be drawn from Captain Browne's statement is not fully justified for the following reasons :-

1. The mere fact that the ghatwali was shown to be under the Collector cannot alter the character of the ghatwali, i.e., if it was a zamindary ghatwali, it could not become a Government ghatwali merely because it was stated to be under the Collector.

(1) A.I.R.1923 Patna4S3

Sukhdev Singh v.

Maharaja Bahadurof Gidhaur.

Faz/ Ali J,

Sukhdev Singh v.

MaharQ/a Bahadurof Gidhaur.

Fazl Ali J.

As Collector of Jungle Terrai districts, Captain Browne appears to have had control not only over the ghatwals but also over the zamindars within the area administered by him.

3. The observations made by Captain Browne with regard to the Jungle Terrai ghatwals and their relation to the zamindar hardly support the view urged on behalf of the appellant.

Referring to the Jungle Terrai ghatwalis, Captain Browne states in his book as follows :-

"All the Jungle Terry gautwalls were formerly subject to the several Rajahs, to whose territories their Gautwallies belonged; they paid a slight tribute in token of feodal obedience, and were bound to oppose all invasions (principally from the south) to attend their Rajahs when summoned, with all their followers in arms, and to be responsible for every violence and irregularity committed in their respective boundaries ;- their followers are still bound by the same feodal ties to them, and have lands for feodal services ; nothing can be conceived more absolute than the authority of these chiefs over their vassals ; the fear of death even, when seized on in war, is not sufficient to force from them the discovery of any secret respecting their chief, his family, or property."

Again, Captain Browne's description of the zamindar of Gidhaur is to the following effect :-

"The Raja of Guidore was formerly of great extent, but the conquests made from it by the Rajah of Bierboom and Comgar Cawn, and the independency which these wars gave the Gautwalls an opportunity of assuming, have reduced the present Rajahs Gopal Singh, and Durrup Singh, to follow an ebb, that they can scarcely recover sufficient consequence to be of any political weight whatever."

On the whole, it appears that the ghatwals of Dumri were hardly men of such consequence as to break off from the zamindar and set themselves up as independent chiefs.

There are two other items of evidence which seem to have an important bearing on the question. In the first place, the appellant's tenure was included within the Gidhaur zamindary in the Permanent Settlement, and secondly, it is shown in the Record of Rights as istemrari mokrari tenure under the zemindar of Gidhaur. In the case of Raja Lelanund Singh Bahadr, or

v. The Bengal Government(1) where the Government set up a claim to resume the ghatwali in the zamindary of Khuruckpore for the purpose of revenue assessment, the claim was negatived by the Privy Council, and one of the grounds upon which the decision was based was that the ghatwali lands were part of the zamindary and were included in the Permanent Settlement of the zamindar and were covered by the jama assessed on that zamindary. There can be no doubt that prima facie the fact that the tenure was included in the Permanent Settlement of the zamindar and under that Settlement the ghatwal had to pay rent to the zamindar raises a presumption that the ghatwali was in some way connected with the zamindar, but it must be recognized that the permanent settlement of the land "would not affect the nature of the tenancy upon which the lands were held, nor can it convert the services which were public into private services under the zamindar": [vide Raja Nilmoni Singh v. Bakranath Singh(2) ]. There are several reported cases which furnish instances in which the properties of persons who were Government ghatwals were included in the zamindary of other persons, but where no clear evidence is forthcoming as to the true character of the ghatwali, the fact that the tenure is included within a zamindary and is covered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is dependent upon the zamindary. In this case, the presumption arising under the Permanent Settlement is reinforced by the entry in the record of Rights which shows that the tenure in question 1s istemrari mokrari held under the Zamindar.

( 1) 6 Moore's I.A. IOI

( 1) 9 I. A. 104

Sukhadev Singh

Maharaja Bahadurof Gidhaur.

Faz/ Ali J.

Sukhdev Singh

Maharaja Bahadurof Gidhaur.

Faz/ Ali, J.

The learned counsel for !he appellant relied upon exhibits N and N-1 and certain rent receipts granted by the zamindar to show !he appellant's independent title, but, in our opinion, lhese documents do not help him much. Exhibit N is a notice issued to an ancestor of !he appellant in 1859 by an official whose signature on !he document is not legible. Jt refers to a report of the sub-inspector of thana Chakai stating !hat "the sautars (bad characters) are in their places of residence and no riots or disturbances are taking place", and directs the ghatwali to prepare a list of the sautars of his ilaqa and file it before the officer-in-charge of the lhana. Exhibit N-1 is a similar notice, but it is incomplete and bears no indication as to who issued it.

It recites a report of a police sub-inspector stating !hat owing to failure of crops there were burglaries and !hefts and recommends that the zamindars of the ilaqa should be directed to "look after !he occurrences and keep eyes over the bad characters and mischief makers sci that occurrences may be stopped".

These documents do not necessarily show that !he appellant is a Government .gatwal.

It Was not unusual in old days to issue notices like those referred to, to the zantjndars of !he ilaqa, as exhibit

N-1 itself shows, and the mere fact that. the person to whom the notice was issued was described as a ghatwal docs not show that he was addressed in the capacity of a Government ghatwal and not as a zamindari ghatwal.

The next item of evidence upon which the appellant tried to rely consists of certain rent receipts and road cess receipts, but these also do not help him, seeing that they contain, among other things, a statement that the tenure with regard. to which the receipts were granted, appertained to the proprietary zamindary of Gidhaur.

This brief review of the evidence is sufficient to show that the appellant has not been able b~ clea~ .and conclusive evidence to rebut the presumptton ansmg from the Record of Rights and the record of the Permanent Settlement, and he has failed to establish his claim that the tenure in question is Government ghatwali. It

may be incidentally mentioned that in the mortgage suit which preceded this litigation, there was no allegation J?y way of defence that the ghatwali was not alienable, and though the point was raised in the execution proceedings it was decided against the appellant by the court of first instance and was abandoned on appeal.

In these circumstances, we see no reason to disturb tlie concurrent finding of the courts below which have dealt with the piatter with great care.

Passing now to the second point raised in this appeal, we find that tllere are concurrent findings of both the courts below against the defendants on the plea of adverse possession. In arriving at this findings, the courts below have fully discussed the evidence and given cogent reasons in support of their conclusions.

This coilr~ iit usually reluctant to reinvestigate matters which have beetr fully investigated by the courts below and on which there are cop, rent findings. In the present case, the appellant has failed to show to us any exceptional circwnstinces to induce us to depart from the sound and well established practice; -and in this view the findings of the court below must be accepted.

It was however contended that in any event the plaintiff's suit is barred under article 142 of the Limitation Act inasmuch as it was incumbCnt on the plaintiff to prove that he had been in possession of the disputed lands, especially those mentioned in schedule II of the plaint, within 12 years of the suit, but he had failed to do so.

In our opinion, this plea must be negatived.

The trial judge in his judgment came to a very clear finding in these words :-

"The story of possession and dispossession as put forth in the plaint must be believed, because, as I have

already said there is overwhelming evidence in this case to prove the possession of the plaintiff over the surface as well as the subsoil."

The finding of the Subordinate Judge does not appear to have been -challenged before the_ High Court, and though no less than 16 reasons have been givc; n in

2-10 S. C. Indial67

Slfkhd<> Slqh

Maharaj a Bahadur of

Gidhaur

Faz/ All J.

Slll6tle• Si gh v.

Ma/roraja Bah•dur of

Gi4/raur

Fazl All J.

the statement of case filed in this court on behalf of the appellant, it has not been stated that there is no evidence to show that the plaintiff was in possession of the disputed land or the land mentioned in schedule U within 12 years of the suit.

Thus both the points urged in this appeal fail. There can be no doubt that the entire tenure has passed to the plaintiff by the sale, but, apart from this fact, it is well-settled that a zamindar is presumed to be the owner of the underground rights in the tenancies created by him in the absence of evidence that he ever parted with them: [See Hari Narayan Singh v.

Sriram Chak_ravarthi(1) and Durga Prasad Singh v.

Braja Nath Bose(')].

The result is that this appeal fails, and it is dismissed with costs.

Appeal dismissed.

Agent for the appellant : R. R. Biswas.

Agent for the respondent : R. C. Prasad.

BISHUNDEO NARAIN AND ANOTHER

SEOGENI RAI AND JAGERNATH

[Smu liAB.ILAL

KANIA

C. J., PATANJALI SAsTRI,

- MEHAR CHAND MAHAJAN, S. R. DAs and

VIVIAN BOSE JJ.]

Civil Procedure Code (Act V of 1908), 0. 32, r. 7-Suit for partilion to which minor is party-Compromise by guardian-Sanction of Court not obtained before entering into agreement-Validity of decree-Suit by minor to set aside decree-Mere unfairness of divinon, effect of.

Where a Court has sanctioned an agrccm.cnt or compromise in a suit to which a minor is a party after satisfying itself that it is for the minor's benefit, the decree based on the agreement or compromise cannot be held to be invalid or not binding on the minor merely because the sanction of the Court was not obtained by the next friend or guardian before he began to negotiate for the agrccmC11t or compromise.

(I) 37 I.A. 136

(2) 39 I.A. 133

SUKHDEV SINGH

MAHARAJA BAHADUR OF GIDHAUR

SA1Ym FAzL ALI

CHANDRASEKHARA AIYAR JJ

High Court of Judicature at Patna

Manohar Lal

Das

Amarendra Nath Sinha

Samarendra Nath Mukherjee

Lal Narain Sinha

R. C. Prasad

FAZL Au

Subordinate Judge of Monghyr

Monghyr

Chethru Rai

Gidhaur

19th April, 1904

13th August, 1903

Jamui

section 144

section 144

Jukhdev Singh

Durnri Nisf Katauna

Dumri

Browne

East India Company

Sukhdev Singh

Maharaia Baliadurof

articles 142 and 144

Limitation Act

Patna High Court

Bengal

Kharagdiha

Birbhum

Kharagpur

Bhagalpur

Ali

Kunji Singh

Jangal Singh

Ragho Singh

Manorath Singh

Rajarnahal Hills

Dawson Miller

Captain Browne

Ramgarh

Gidhaur

Fulbati

18th March, 1799

Maharafa Bahadurof Gidhaur

Mahara}a Bahathlrof

Gidhaur

Khadim Muhammad Ataullah

Chaudhri

Kanungoi

James ' Browne

Dumri

Tilwa

Kewal

Chetru Rai

Akleswar Prasad

Rohini

Dumri ghatwali

A.I.R.1923 Patna4S3

Fazl Ali

Guidore

Bierboom

Comgar Cawn

Gopal Singh

Durrup Singh

Bengal Government(1)

Khuruckpore

Sukhadev Singh

Maharaja Bahadurof Gidhaur

Faz/ Ali

Sukhdev Singh

Maharaja Bahadurof Gidhaur

article 142

Limitation Act

R. R. Biswas

BISHUNDEO NARAIN

BISHUNDEO NARAIN AND ANOTHER

SEOGENI RAI AND JAGERNATH

[Smu liAB.ILAL

KANIA

C. J., PATANJALI SAsTRI,
MEHAR CHAND MAHAJAN, S. R. DAs and

VIVIAN BOSE JJ.]

SEOGENI RAI

JAGERNATH

PATANJALI SAsTRI

MEHAR CHAND MAHAJAN

S. R. DAs

VIVIAN BOSE

Civil Procedure Code


Slll6tle• Si gh v.

Ma/roraja Bah•dur of

Gi4/raur

Fazl All J.

SUPREME COURT REPORTS [1951]

the statement of case filed in this court on behalf of the appellant, it has not been stated that there is no evidence to show that the plaintiff was in possession of the disputed land or the land mentioned in schedule U within 12 years of the suit.

Thus both the points urged in this appeal fail. There can be no doubt that the entire tenure has passed to the plaintiff by the sale, but, apart from this fact, it is well-settled that a zamindar is presumed to be the owner of the underground rights in the tenancies created by him in the absence of evidence that he ever parted with them: [See Hari Narayan Singh v.

Sriram Chak_ravarthi(1) and Durga Prasad Singh v.

Braja Nath Bose(')].

The result is that this appeal fails, and it is dismissed with costs.

Appeal dismissed.

Agent for the appellant : R. R. Biswas.

Agent for the respondent : R. C. Prasad.

BISHUNDEO NARAIN AND ANOTHER

SEOGENI RAI AND JAGERNATH

[Smu liAB.ILAL

KANIA

C. J., PATANJALI SAsTRI,

- MEHAR CHAND MAHAJAN, S. R. DAs and

VIVIAN BOSE JJ.]

Civil Procedure Code (Act V of 1908), 0. 32, r. 7-Suit for partilion to which minor is party-Compromise by guardian-Sanction of Court not obtained before entering into agreement-Validity of decree-Suit by minor to set aside decree-Mere unfairness of divinon, effect of.

Where a Court has sanctioned an agrccm.cnt or compromise in a suit to which a minor is a party after satisfying itself that it is for the minor's benefit, the decree based on the agreement or compromise cannot be held to be invalid or not binding on the minor merely because the sanction of the Court was not obtained by the next friend or guardian before he began to negotiate for the agrccmC11t or compromise.

(I) 37 I.A. 136

(2) 39 I.A. 133

Awadesh Prasad Missir v. Widow of Tribeni Prasad Missir (I.L.R. 19 Pat. 343) disapproved. ·

The rule that in the case of partition between. members of a joint Hindu family one of whom is a minor, if the minor, on obtaining majority, is able to show that the division was unfair and . unjust, the court will set it aside, does not apply to decrees in partition suits in which the minor was properly represented before the court. The 'decree is as binding on him as on the adult parties unless the minor can show fraud or negligence on the part of. his friend or guardian ad litem.

CIVIL

APPELLATE

}UIUSDICTION.

Civil Appeal No. 78 of 1950.

Appeal against the Judgment and decree dated the 1st December, 1942, of the High Court of Judicature at Patna (Manohar Lal and Shearer JJ.) in F. A. No. 188 of 1939 arising out of a Decree dated the 23rd December, 1937, of the Subordinate Judge at Saron, Chapra, in Suit No. 48 of 1936.

H. /. Umrigar for the Appellant.

S. P. Sinha (S. N. Mukherjee, with him) for the Respondent No. 1.

1951. May 4. The Judgment of the Court was delivered by '

BosE J.-This is a plaintiffs' appeal from a judgment and decree of the. High Court of Judicature at Patna. Their Lordships of the Privy Council had granted special leave and the matter has been transferred to this Court.

The suit out of which the appeal arises was for a declaration tliat a compromise decree, made in a previous suit for partition, does not bind the plaintiffs.

The learned counsel for the plaintiffs-appellants also contends that he asked for partition in the present case.

But that is a matter of . doubt.

The facts in brief are as follows :

The parties are members of a family whose cc>mmon ancestor was one 1Moti Rai. A long genealoiPcal tree was attached to the plaint but it is not necessary to reproduce more than the following : .

Narain and Another

'!/.

Seogeni Rai and lagernath •

Moti Rai

Bha, an Rai HuariRai

Ghuahull, Rai r- FirangiJ Rai

J .

Seogcni Rai / Deft. No. I I

Charichan Rai

I Bikram I Rai

sons

sons Defts 3, 4 & s.

~-~-----, Bisundeo Rai Gaurisbankar Ra Plff. No. I PUf. No. 2 Defis II & 12

B1'shundeo

Nara; n and Another

Seogen/ Rai and Jagernath

Moti Rai had two sons, Bhanjan Rai and Hazari Rai. The defendants are descended from the former and the plaintiffs from the latter. The contesting defendant is Seogeni Rai, son of Firangi Rai. The plaintiffs did not disclose that Mo ti Rai' s two sons were by different wives, as that was not their case, but that has now been found to be the fact and was not disputed here.

The plaintiffs' case is that the family was joint at all material times until their father Ghughuli Rai was forced into a partition in the year 1924. They state that this partition does not bind them for a variety of reasons which, so far as they affect the present appeal, will be detailed later.

According to the plaintiffs, the circumstances of that partition were as follows.

The plaintiffs' father Ghughuli Rai and the first plaintiff instituted partition suit No. 51 of 1924 against Firangi Rai and his brothers and their descendants, that is to say, against all the members of Bhanjan Rai's branch who were then in existence. The second plaintiff was not then born and the first plaintiff was a minor.· There were also minors among the defendants. Firangi Rai, who was the karta of the family, through the exercise of undue influence,

and by coercion, forced the plaintiffs' father to compromise.

The compromise was grossly unfair and unequal but. nevertheless a decree for partition followed.

This is the decree which the plaintiffs seek to challenge here. •

) •

It is admitted on both sides that that decree left certain properties undivided.

The extent of those properties is in dispute but the fact that some properties were left undivided is amitted.

In the year 1936 the first defendant instituted partition suit No. 29 of 1936 for partition by metes and bounds of that portion of the estate which was not divided in 1924. The plaintiff's case is that the previous partition does not bind them and so the whole of the family estate must be brought into hotch-pot and divided and not merely the properties which were left undivided in 1924; also .that their share in these properties is greater than the share allotted to their father under the compromise decree. The plaintiffs state that so long as the compromise decree in partition suit No. 51 of 1924 stands, such a defence is not open to them in suit No. 29 of 1936. Accordingly, they have brought the present suit.

The first defendant alone contested and as we are not concerned with any of the others except indirectly, it will be convenient to refer to him thrQ.Ughout as the defendant. He stands by the compromise and denies that the partition effected by it was either unequal or unfair. On the contrary,· he asserts that the plaintiffs got much more than they were entitled to.

He also denies the allegation about undue influence and coercion.

The defendant's case about the compromise is this.

He admits that the family was once joint but says that there was a separation long ago in the lifetime of Moti Rai himself. Moti Rai's two wives could not pull on, so the defendant's grandfather Bhanjan Rai separated from his father Moti Rai and his step-brother Hazari Rai.

This was some twenty years before the suit. Ever since the two branches have had nothing in common.

The defendant states that there were further partitions among the defendant's branch and that from time to time members of the defendant's branch, as also those on the plaintiffs' side, have been acquiring

Bi&hundeo

Narain a•d Another v.

Seogeni Ral ti•d lagernatft.

Boie/, -

B/$hundeo

Nraln and An'1ther v.

Seogenl Rdl and Jageaath

Bose I.

property for themselves with which the others have no concern.

Thus, at the date of the plaintiffs' suit (No. 51 of 1924) a number of properties stood in the separate names of various members of the family and were the separate properties. The plaintiffs thus had no right of suit at all. But in order to avoid a long litigation and to settle this family dispute amicably, the defendant's father Firangi Rai agreed to give the plaintiffs a four annas share in many of the properties acquired by the defendant's branch after th~ first partition in Moti Rai's lifetime to which the plaintiffs' branch had no claim at all. The defendant claims that this is a family arrangement which binds all sides.

The first Court decided in the plaintiffs' favour and decreed their claim not only for a declaration but also for partition. It is a matter of doubt whether the plaintiffs ever claimed partition, but there is no doubt that the properties which the learned trial judge has directed to be partitioned were not admitted by the defendant to be subject to partition even on the. assumption that the plaintiffs are right in all their other allegations.

Thus, the defendant stated that some of the properties were non-existent, others self-acquired and so forth.

But the learned Judge, without trying any of these issues (the dispute is covered by Issue No. 9) and without any evidence being led on the point, directed that they be partitioned. That, of course, cannot be upheld on any view of the case.

The defendant appealed to the High Court and succeeded.

The learned High Court Judges reversed the decree of the trial Court and dismissed . the plaintiff's claim.

The appeal here lies .in a very narrow compass and can be disposed of quite simply.

In substance only five points were raised before us. The first concerns Order 32, rule 7, of the Code of Civil Procedure. As minors were parties on both sides in the previous suit, the sanction of the Court was necessary for the compromise. On 17th November, 1924, the trial Court made the following entry in its order sheet :-

"Selenama filed with petitions on behalf of minor defendant for permission to compromise. Put up on the date fixed for order."

On the following day, viz., 18th November, 1924, we have this-

"Petition of compromise put up. The proposed guardian of minor plaintiff and defendants have filed petitions for permission to compromise.

Permission granted as the compromise was for the minor's benefit."

It is contended that this is insufficient to show that the learned Judge applied his mind to the matter and satisfied himself that the compromise was for the minor's benefit.

We do not think the Allahabad decision helps the certificate which the Court is required to record need be made. It is evident that the Judge had the provisions of Order 32, rule 7, in view. He adjourned the case on 17th November, 1924. He realised that he had to give permission and he realised that the compromise had to be for the benefit of the minors. The portion of the order reproduced above shows that he did give . permission and that he was satisfied about the mlnor's benefit. In our opinion, there was not only a technical but also a clear compliance with the law. This objection fails.

The next point also concerns Order 32, rule 7. The argument here is based on a ruling of the Patna High Court and a full Bench decision of the Allahabad High Court. It is to this effect.

Unless the next friend or guardian ad /item obtains the sanction of tht; Court before beginning to negotiate with the other side, and certainly before committing himself to any agreement, any subsequent sanction is invalid and the agreement and the decree, if any, following on it is without force.

We do not think the Allahabad decision helps the appellants. It is reported in Hariam Bibi v. Amna Bibi'(1). The question there was about arbitration.

A suit had been filed in which a minor was involved. The guardian ad !item of the minor agreed to• refer the (I) I.L.R.1937 All.317.

19S1

BiJhundeo

Narai11 and A.nother

v, Seogeni Ral and Jagernath.

bo3e J.

B/Jhundeo

Narain a•d Another

Seogenl Rai a"d Jagernath.

IJ01e /.

dispute to arbitration. He did not seek the penmss1on of the Court to enter into the agreement but did place the matter before the Court in another way. He said that the parties had agreed to refer the dispute to arbitration and asked the Court to sanction the reference. The Court did so, an award followed, and a decree was passed in terms of the award.

Now it will be seen that the learned Judge, who sanctioned the reference, never applied his mind to the question whether a reference to arbitration would be for the minor's benefit under the circumstances of the: case.

His whole attitude was that as the parties had agreed, that was enough.

This did not comply with the provisions of Order 32, rule 7. The learned Judge did not even certify that the compromise was for the minor's benefit. The Full Bench held that Order 32, rule 7, had not been complied with and that in a case of that kind the permission of the Court to enter into an agreement for reference must precede the reference.

But they also held that the omission to obtain the necessary sanction would not make the reference and the award and the decree nullities. It mily made them voidable at the minor's option. That, in our opinion, is no authority for the contention urged on behalf of the appellants before us.

The Patna case reported in Awadhesh Prasad Missir

v. Widow of Tribeni Prasad Missir(') is.more in point.

There, the parties compromised in the High Court without obtaining the sanction of the Court. They then placed the concluded agreement ( concludeq, that is to say, so far as they were concerned) before the Court, apparently for its approval, and the Court made the following order :-

"We are satisfied that the terms settled between the parties are for the benefit of the minor defendantsrespondents concerned."

The Court then passed a decree in terms of the compromise.

When the minors attained majority, they sued for a declaration that the decree did not bind them

(1) 1.L.R.19 Pat. 343 at 348.

on the ground that there was no proper compliance with the provisions of Order 32, rule 7. The learned Judges of the Patna High Court upheld the. contention and decided that unless the guardian ad litem obtained permission to enter into an agreement or compromise before reaching agreement with the other side, any subsequent sanction of the Court to a completed compromise (completed, that is to say, so far as the parties were concerned) was not binding on the minors and the proceedings which follow consequent on that sanction were therefore of no avail. They accordingly granted the minors the declaration they sought.

In our opinion, Order 32, rule 7, must be read as a ' whole. Sub-rule (2) contemplates a position where the mandatory provisions of sub-rule ( 1) have been ignored.

In such a case, the resultant agreement or compromise is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it.

It follows that a decree or order based on the agreement is also. good unless the minor ch005.? to challenge it.

That is the position where there is no sanction of the Court. Reading the two provisions together, the rule merely means this. No next friend or guardian for the suit can enter into an agreement or compromise which will bind the minor unless the court sanctions it. If the Patna decision is meant to convey that before the guardian even begins negotiations for compromise with the other side, he must obtain the sanction of the Court, we are unable to agree with that view.

The next point was put in the form of a question.

Can a minor have a compromise which effects a partition set aside on the single ground of unfairness to him?

It was argued that he can, and reliance was placed on Balkishen Das v. Ram Narain Sahu(1) and on Mulla's Hindu Law, 10th Edition, page 394, section 308(2) •

• The rule laid down in Mulla's book is expressly stated to be in cases where the partition is not effected by a decree of a competent Court. In our opinion, that is correct. It does not matter whether the decree was by

(1) 30 I.A.139 at ISO.

Narain and Another v.

Seogent Ra} and Jogernath.

BoJe J,

Bi, hundeo Narain and Another

Seogeni Roi and Jagernath

Bo" J.

consent or otherwise, for a decree, unless and until it is set .aside or avoided in one or other of the ways in which alone a decree may be attacked, holds its force and binds all concerned.

It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partitin between members of a joint family when one of the members is a minor.

In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. The rule, however, does not apply to decrees if the minor is properly represented before the Court and the decree is as binding on him as on the adult parties, unless the minor can show fraud or negligence on the part of his next friend or guardian ad /item. This contention also therefore fails.

We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they arc separate and separable categories in law and must be separately pleaded.

It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particular as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an avcrment of fraud of which any court ought to take notice however strong the language in which they arc couched may be, and the same applies to undue influence and coercion. See Order 6, rule 4, Civil Procedure Code.

The allegations in the plaint regarding this part of the case are as follows. In paragraph 13 the plaintiffs say-'-

"That the said Firangi Rai being infuriated by the filing of the said suit, put such a pressure upon the father of the plaintiffs that the father of the plaintiffs under fear of his threatend death filed a compromise in the said suit before any written statement was filed by Firangi Rai and other defendants."

In paragraph 15 they say-

''That the said compromise was nothing but a dictated mandate of Firangi Rai which the father of plaintiffs, out of sheer fear of Firangi Rai submitted against his own free will and signed under compulsion and coercion and undue influence of the said Firangi Rai".

Then, in paragraph 17 and 18 the plaintiffs state-

"17~ That plaintiffs' father being a man of weak intellect and finding no help and succour from the people of residential village or neighbourhood and being also unaware of the details of properties of the family could not but submit meekly and quitely to the dictates of Firangi Rai who taking advantage of his fearful supremacy wanted to have everything according to his own sweet wish.

"18. That even after the compromise plaintiffs' father could not get any income of the family properties and Firangi Rai remained the sole master of the family appropriating every pice to himself."

We will deal with the case of coercion first It will be seen that the plaintiffs case regarding that is grounded on the single allegation that their father was threatened with death.

When all the verbiage is cleared away, that remains as the only foundation.

The rest, and in particular the facts set out in paragraphs 8 to 12 about the ferocious appearance of Firangi Rai and his allegedly high-handed and criminal activities and his character, are only there

Narain and Anothe

Seogeni Rai and Jogemath.

Bose J.

B/lhundeo

Narain and Another v.

Seogeni Rai .and Jagernath•

Bose J.

to lend colour to the genuineness of the belief said to have been engendered in Ghughuli Rai's mind that the threat of death administered to him was real and imminent.

But as regards the threat itself, there is not a single particular. We do not know the nature of the threat. We do not know the date, time and place in which it was administered. We do not know the circumstances. We do not even know who did the threatening. Now, when a court is asked to find that a person was threatened with death, it is necessary to know these particulars, otherwise it is impossible to each a proper conclusion.

It was argued that it is not necessary for a plaintiff to give particulars and if the other side is not satisfied, there are provisions in the Code which entitle him to ask for them. That is a grave misapprehension.

But all that apart, what is the evidence here ?

There are only three witnesses who need be considered as the others had no personal knowledge. They are, No. 6 Sheokumar Dube, No. 9 Bodhu Rai and No. IO Sheonandan Prasad.

Of these, only Bodhu Rai suggests that Firangi ever made any threat. He is not supported by the other two and we cannot believe him.

All that the others say is that Ghughuli Rai said his life would be in danger without however explaining how or why.

That is insufficient to sustain pleas of undue influence and coercion, particularly when we have the following facts which negative these pleas:

(1) Two pleaders were engaged by Ghughuli Rai; (2) the first draft was torn up by one of the pleaders as it was unfavourable to his client and the draft e111bodying the compromise ultimately accepted was substituted; (3) Ghughuli Rai refused to sign this second draft until it was read out to him; ( 4) this draft was read over by the pleader who had disapproved of the first and was signed by him after Ghughuli Rai had signed; (5) Ghughuli Rai relied on the compromise on several occasions and filed suits to enforce its terms ; ( 6) he twice sued Firangi Rai himself; (7) though he lived eleven years after the compromise and filed several suits to enforce it. he never suggested that it

had been brought about by coercion or undue influence;

(~) he took no steps to set it aside or question it even after Firangi Rai's death which was two and a half

years before this suit; and (9) he did not join as a plaintiff in this suit though he was the real person who knew the truth. There is nothing in the evidence to indicate when the undue influence ceased and we find it impossible to believe that it could have lasted eleven years and even two and a half years after Firangi Rai's death.

There is also another point. The basis of the claim is the inequality of the partition. Under the compromise, the first plaintiff and his father got those properties which stood in their names and a four annas share in certain other properties. No evidence has been adduced to show the values of these various properties in

1924. For all we know, their value and the four annas share in the other properties may have been equal to eight annas of the entire joint properties. We agree with the learned High Court Judges that coercion is not proved.

The case of widue influence suffers the same fate.

It was not separately pleaded and the evidence is the same.

The last contention is that even if the plaintiffs fail in all else, their case cannot be wholly dismissed because, admittedly, certain properties are still undivided and the plaintiffs are entitled to have them partitioned and to be given separate possession of their share.

As we remarked at the outset, it is a matter of some doubt whether the plaintiffs sought partition in this suit or whether they merely wanted a declaration here that the compromise decree in the suit of 1924 does not bind them and consequently is no bar to their demanding partition of the whole estate in the first defendant's suit No. 29 of 1936.

we need not consider whether the present suit is for partition and separate possession or not, because there is pending a previously instituted suit between

l9S1

Bishundeo

Narain and Another

Seogeni Rai and lagernath

.Bose J.

Bi•hun4eo

Narain and Another v.

Seogenl Bal and Jagernath.

Bose.J.

Ma14

the same parties for the same relief. It will be more convenient and proper to have these matters decided there. Accordingly, we dismiss the plaintills' suit with costs throughout, but make it plain that in doing so we do not adjudicate upon their right to seek partition of such properties as they contend are omitted to be partitioned under the compromise decree in the pending suit.

Appeal di1mi11ed.

Agent for the appellants : R. C. Prasad.

Agent for respondent No. 1 : P. K. Chatteriee.

KARNANI INDUSTRIAL BANK, LIMITED

"· THE PROVINCE OF BENGAL AND OlHERS

[SAIYID FAzL Au, MuKHE!lJEA and

CliANDIUSEKHAl\A AlYAR JI.)

Transfer of Property Act (IV of 1882), ss. 106, 116-Lease for a term-Acceptance of rent for further period before expiry of term-New tenancy--Necessity of notice ta quit-Lessee's property becoming property of lessor by failure to remove within time-In junction against removal-Whether can be granted.

The context in which the provision for acceptance of rent finds a place in s. 116 of the Transfer of Property &t shows that what is contemplated is that the payment of rent should be made at such time and in such manner as to. be equivalent to the land lord assenting to the lessee continuing in possession.

Where payment is made at a time when there was no question of the lessor assenting to the lessee's continuing in possession and neither party treated the payment as importing such assent the case does not fall within s. 116.

A lease deed was executed on the 17th February, 1928, in respect of a land for a period of ten years from 24th February, 1928 the annual rent of Rs. 6,000 being payable in advance every year.

In April, 1937, a cheque for Rs. 6,000, being the rent from 1st April, 1937, to 31st March, 1938, was sent by the lessee and accepted by the lessor : Held, that as the rent was paid before expiry of the lease and neither party treated the payment of rent as importing assent on the part of the lessor to allow the lessee

Braja Nath Bose

R. R. Biswas

R. C. Prasad

BISHUNDEO NARAIN AND ANOTHER

SEOGENI RAI AND JAGERNATH

KANIA

PATANJALI SAsTRI

MEHAR CHAND MAHAJAN

S. R. DAs

Civil Procedure Code

Manohar Lal

Shearer

Umrigar

S. P. Sinha

S. N. Mukherjee

High Court of Judicature at Patna

Jagernath

Moti Rai

Bhanjan Rai

Hazari Rai

Seogeni Rai

Firangi Rai

Mo ti Rai

Ghughuli Rai

Firangi Rai

thrQ.Ughout

Order 32, rule 7

the Code of Civil Procedure

17th November, 1924

18th November, 1924

Allahabad

Order 32, rule 7

Order 32, rule 7

Patna High Court

Allahabad High Court

BiJhundeo

Seogeni Ral

Jagernath

Seogenl Rai

Order 32, rule 7

Order 32, rule 7

Patna

Order 32, rule 7

Order 32, rule 7

Mulla

section 308(2)

Narain

Jogernath

BoJe

Seogeni Roi

Jagernath

Order 6, rule 4

Civil Procedure Code

Narain

Anothe

Seogeni Rai

Jogemath

Bose

Jagernath•

Sheokumar Dube

Bodhu Rai

Sheonandan Prasad

Bodhu Rai

Firangi

Bishundeo

lagernath

.Bose

Jagernath

P. K. Chatteriee

KARNANI INDUSTRIAL BANK

PROVINCE OF BENGAL

SAIYID FAzL Au

CliANDIUSEKHAl\A AlYAR

Transfer of Property Act

ss. 106, 116

s. 116

s. 116

17th February, 1928

24th February, 1928

1st April, 1937

31st March, 1938