S.C.R.

SUPREME COURT REPORTS

NAR HARi SASTRI AND OTHERS

SHRI BADRINATH TEMPLE COMMITTEE.

[SAIYAD FAZL ALI J., MuKHERJEA and DAs JJ.]

Hindu law-Religious Endowments-Right to worship-Right of Pandas to accompany worshippers to temple-Bye-law of temple committee to prohibit taking of gifts within temple precincts -Validity-Badrinath Temple Act, 1939, ss. 3, 4.

The right of the Deoprayagi Pandas to enter the Badrinath Temple along with their Yajmans is not a precarious or permissive right depending for its existence on the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression, but it can be exercised only subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship.

There is nothing in the Badrinath Temple Act, 1939, which vests in the temple committee or the idol, gifts made to Pandas within the precincts of the temple.

But bye-law (8) of the Puja Bye-laws framed by the temple committee which forbids the acceptance of gifts by any person within the precincts of the temple unless he comes within the category of persons specifically authorised by the committee to receive the same is a valid bye-law, which it was quite competent for the committee to enact under the terms of clauses ( m) and ( n) of sec. 25 of the Act and in view of this bye-law the Pandas are not entitled to a declaration by the Court that they have a right to take, within the precincts of the temple, whatever they receive as gifts at the time of worship.

C1VIL

APPELLATE

JURISDICTION : Civil Appeal No. 105 of 1951.

On appeal from the judgment and decree dated the 22nd November, 1946, of the High Court of Judicature at Allahabad (Verma C.J. and Mathur J.) in First Appeal :t)To. 310 of 1941 arising out of judgment and decree dated the 4th March, 1941, of the Court of the Senior Civil Judge of Pauri, Garhwal, in Original Suit No. 1 of 1934.

K. S. Krishnaswamy Iyengar (R. C. Ghatak and N. C. Sen, with him) for the appellants. _..,.

S. K. Dar (D. D. Unival, with him) for the respondent.

May 9.

Nar Hari Sastri

and Others

v; Shri Badrinath

Temple Committee.

M uk heriea /.

1952. May 9. The Judgment of the Court was delivered by

MuKHERJEA J.-The sanctity which orthodox Hindu thought and ; Eeeling attribute to 1visiting of sacred places is nowhere better illustrated than in the vast concourse of pilgrims, who are attracted every year, from all parts of India, to the mountain shrines at Badrinath, situated, high up in the Himalayas, in the District of Garhwal.

The place to which the appellation od' 'Puri' is given, contains a number of temples but the principal temple is the one where the idol Badrinath along with some other subsidiary idols is in.tailed. This main temple is divided into three portions or apartments, and to the innermost portion which is considered to be the holiest and where the deities are located, no pilgrim is allowed access.

The pilgrims gather in the middle room; they have 'darshan' or look at the diety from this place and there also they make their offerings and perform other . rites of individual worship.

The last room is an outer apartment which is used as a sort of waiting place for the worshippers.

Outside the temple and at a short distance from it, there is a hot spring known as Tapta Kundu where the worshippers take ceremonial bath before they enter into the temple and to the Tapta Kundu they come back again after the ceremonies are over.

The temple at Badrinath is an ancient institution and is admittedly a public place of worship for the Hindus.

The chief priest or ministrant of the temple is known by the name of 'Rawal' who originally looked after both the spiritual and temporal affairs of the idol subject to certain rights of supervision and control cxercisab'.le by the Tehri Durbar which, however, were not very clearly defined.

It appears that there was a scheme for the management of the temple framed by the Commissioner of Kumaun division, within whose jurisdiction Badrinath is situated, some time in the year 1899. Under this scheme, 'Rawal' was to be the sole

trustee of the Badrinath temple and its properties, and the entire management was entrusted to him subject to his keeping accounts, which he had to submit for approval by the Tehri Durbar, and making arrangements for the disposal and safe custody of cash receipts and other non-perishable valuables. This scheme apparently did not work well and led to constant friction between the 'Rawal' on the one hand and the Tehri Durbar on the other.

This unsatisfactory state of affairs led to public agitation and demand for reforms, and in 1939, the U.P. Legislature passed the Sri Badrinath Temple Act, the object of which was to remove the chief defects in the existing system of management. The Act restricts the 'Rawal' to his priestly duties and the secular management is placed in the hands of a small committee, the members of which are partly elected and partly nominated, powers being reserved to the Government to take steps against the committee itself, if it is found guilty of mismanagement. The Act preserves the traditional control of the Tehri Durbar.

_ The appellants before us, who were the plaintiffs in the trial Court, claim to be Pandas associated with the Badrinath temple. The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all important public places of worship in India. They are not temple pr'iests in the proper sense of the expression and have nothing to do with the regular worship of the idol which is carried on by the Shebayat, the High Priest or the manager as the case may be. Their chief duty consists in acting as guides or escorts of the pilgrims, and taking them to various places of worship acquainting them at the same time with detailed informations regarding the reputed sanctity of each.

They look after the comforts of the pilgrims and make arrangements for their boarding and lodging and also act as Tirtha Purohits, in which capacity they assist the pilgrims in the performance of various acts of individual worship as distinguished from the general worship which is conducted by or on behalf of the temple authorities.

N ar H ari Sastri and Others

Shri Badrinath Temple Committee.

Mukherjea /.

N ar H ari Sastri and Others

Shri Badrinath Temple Committee.

Mukheriea /.

It 1s admitted that there are several classes of Pandas in Badrinath and the Deoprayagi Pandas to which category the plaintiffs belong get normally the charge of all the pilgrims that come from the plains, whereas the Pandas of the 'Dimn' class act as attendants on all hill people. The people coming to Badrinath from the plains generally follow the pilgrim's route from Hardwar to Badrinath and in this route, at a distance of about 58 miles from Hardwar, stands the place known as Deoprayag where all the Deoprayagi Pandas reside.

It is in the light of these few introductory facts that we propose to follow the history of this litigation and deal with the points in controversy that it has given •- rise to.

The suit was commenced by the appellants iJn the Court of the Senior Civil Judge of Garhwal on 16th April, 1934, and the only defendant in the suit, as it was filed originally, was the 'Rawal' who was at that time in entire charge of the Badrinath Institution, both as Trustee and High Priest. The suit was a representative one and purported to be brought on behalf of all the Deoprayagi Pandas and permission of the Court under Order I, rule 8, of the Civil Procedure Code was duly taken. The allegations in the plaint in substance are that the plaintiffs who are a body of Brahman Purohits residing at Deoprayag and also at Badrinath have the right, by immemorial custom, to act as Pandas and 'Tirtha Purohits' of the pilgrims at Badrinath. t is said that in performance of their duties they meet the pilgrims at Hardwar and conduct them throughout the pilgrimage to different places of sanctity and finally to Badrinath itself. Besides looking to their creature comforts, they assit the pilgrims, while they stay at Badrin.ath, in having their ceremonial ablutions in the 'Tapta Kundu' and then conduct them into the precincts of the temple and assist them in having

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'darshan' of the idols and making offerings to them.

The plaintiffs aver that because of the support that they lent to the transfer of the management of the temple from the 'Rawal' to the Tehri Durbar, the defendant 'Rawal' was displeased with them and in August 1933, wrongfully and without any just cause or excuse, obstructed and threatened to obstruct the plaintiffs from entering the precincts of the temple along with their Yajmans or clients and unlawfully restrained them from assisting the pilgrims in the usu:ll way at the time of 'darshan' and worship of the deities inside the temple. The reliefs. prayed for in the pliint after it was amended stand as follows:-

( I) That a declaration be gran~ d .nat the plaintiffs are 1the Pandas of Badrinath .cmple and that they have a right to personally go into the precincts of the Badrinath temple at all times and on all occasions without obstruction when the said temple is open for doing 'darshan', worship etc.

(2) That the plaintiffs have the right freely to go into the precincts of the said temple with their Yajmans or clients whenever it is open for assisting them in the matter of 'darshan' or worship of God Badrinarayan and other deities and in the matter of making offerings to them.

(3) That the plaintiffs have the right to take within the precincts of the said temple whatever is put into their hands as gift by their clients at the time of worship etc.

( 4) That a perpetual !IlJUnction be issued restraiBing the defendant 'Rawal' from interfering with the immemorial rights of the plaintiffs.

The defendant, in his written statement, admitted that the Pandas did sometimes accompany rich pilgrims as their guides and receive presents from them for the services they rendered. It was also admitted that the plaintiffs in their individual capacity as Hindus had the right to enter the temple of Badrinath for purposes of worship.

It was asserted, however,

6-9 S.C. India/71

Nar Hari Sastri ·

and Others

Shri Badrinath Temple Committee.

Mukheriea /.

Nar Hari Sastri

and Others

Shri Badrinath Temple Commi'ttee.

Muk_herjea /.

that it was neither necessary nor desirable that the plaintiffs should be allowed to accompany their Yajmans or clients into the temple, as the defendant h'imself made adequate arrangements for 'darshan' and worship by the pilgrims; and he, as the sole trustee and manager of the temple, had the right to regulate entry into . the temple so that over-crowding might be avoided and order maintained inside it. lt was further pleaded that the suit of the plaintiffs was barred by res judicata and the law of limitation.

On these pleadings, two issues of a preliminary nature were framed by the Civil Judge, one of them being, whether the plaintiffs' suit was barred by res judicata. This issue was decided against the plaintiff and the Civil Judge dismissed the suit on 18-9-1934 holding that the suit was barred by the rule of res judicata, as an earlier suit brought by five of the Deoprayagi Pandas and claiming identical reliefs against the 'Rawal' was dismissed by the Commissioner of the Kumaun Division in the year

1896. Against this order of dismissa~, an appeal was taken by the plaintiffs to the High Court of Allahabad and a Division Bench of the High Court, by its judgment dated 23rd May, 1938, reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits.

The case then went back before the Civil Judge and while it was still pending, the .Sri Badrinath Temple Act was passed. A temple committee being formed in accordance with the provisions of this Act the said committee through its Secretary, was impleaded as Defendant No. 2 in the suit. The committee filed a fresh written sratement in which certain additional grounds were taken.

It was contended primarily that the suit as framed, was not maintainable by reason ·. of the provisions of : Sri Badrinath Temple Act of 1939, whic\l abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee.

It was asserted, further, that all gifts made within the precincts of the temple would vest in the temple

....J.

commi.ittee under section 3(b) of the Act and that the 1952 committee had the absolute right to regulate entry of Nar Hari Sastri. persons inside the temple. and Others

A number of issues were framed after this written statement was filed, and on hearing the evidence adduced by the parties, the Civil Judge disposed of the suit by his judgment dated 4th March, 1941.

The suit was decreed in part and the plaintiffs were 'given a declaration in their favour on one of the points in an attenuated and restricted form. Besides certain pleas in bar which were raised by the defendants in their written statements and in regard to which the trial judge's decision was in favour of the plaintiffs, the substantial controversy between the parties centred round the two following points :

(1) Whether the Deoprayagi Pandas could accompany their Y ajmans or clients inside the temple and assst them in the 'd'.arsihan' and worship of the deities?

(2) Whether the Pandas would have the right to accept within. the precincts of the temple whatever was paid by the pilgrims as gifts or presents to them and not to the temple?

As regards the first point, the learned Civil Judge reviewed the entire evidence relating to the practice of admitting the Pandas along with their Yajmans inside the temple, as it obtained from very early times down to the date of the institution of the suit. It appears that

in 1892 certain rules were framed by the then 'Rawal' for regulation •of pilgrims in the Badrinath temple, and to these rules the Commisioner of Kumaun Division accorded bis sanction on 4th July, 1892. One of these rules, namely Rule (3), expressly laid down that "at the time of 'darshan' by the pilgrims, no other persons and Pandas shall be allowed to go inside the temple along with the pilgrims". On 22nd October, 1894, an application was filed before the Commissioner of Kumaun Division by some residents of Deoprayag complaining

of unjust prohi; bition from entering the temple by the new manager and it was prayed that directions might

Shri Badrinath.

Temple Committee.

Mukheriea f.

Nar Hari Sastri

and Others

Shri Badrinath Temple Committee.

Mukherjea /.

be given to the said Manager to desist from encroaching upon the time-l1onoured rights of the Pandas. On 28th October, 1894, the Commissioner ordered that a copy of the petition might be sent to the Manager for report and in the body of the order he recorded his

opinion that "the duty of the Pandas consists normally in escorting the pilgrims to the temple precincts.

Their entering the temple can be permitted when they did so as pilgrims." The petiti:On was eventually rejected, and on 19th August, 1895, five Deoprayagi Pandas filed a suit in the Court of the Deputy Collector, Garhwal, who was invested with the powers of a Civil Court, praying for a declaration of their right to go inside the temple with their Yajmans which the 'Rawal' was not willing to allow unless he gave special permission. The trial cqurt allowed the plaintiffs' prayer but, on appeal, the judgment was reversed and the suit was dismissed. This order of dismissal was affirmed on Second Appeal by the Commissfoner of Kumaun Division who had the powers of a High Court in regard to this area, by his order dated 9th March,

1896. This is the earli1er decision on the strength of which the plea of res judicata was taken by the defendant._. in the present suit. According to the learned

C1vil Judge, after the.rules as mentioned above were framed in 1892 and the judgment of the Commis--

sioner, Kumaun Division, in the Civil Suit was given in 1896, it was the 'Rawa:.1' who decided whether or not he would give permission to any particular Panda to go inside the temple as an escon of his Yajmans and practice was almost uniform on th.is point down to the year 1903. The same practice prevailed, according to the learned Judge, from 1903 to 1920. From 1921, however, the practice became lax to a great extent and from the evidence of respectable witnesses examined on . 'behalf of the plaintiffs, the learned Judge was of opinion that in many cases the Pandas were able to go inside the temple without any let ' or hindrance and without seeking any express. permission from the 'Rawal'~ A definite challenge to the rights of the Pandas occurred agin in. 1933 which led

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.\.....

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to the institution of the present suit.

After reviewing this eviidence, the learned Civil Judge discussed the provisions of the Shri Badrinath Temple Act bearing on this point and summed up his conclusions as follows:-

"In my view under the scheme of the Shri Badrinath Act, the Pandas or pilgrims have no absofote right to go inside the temple, regardless of the conditions imposed by the Committee about entry into the temple, but ordinarily if the entry of the pilgrims or Pandas is in accordance with the rules or bye-laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas, who are entitled as devout Hindus to go inside the temple, and perform worship there, and can assist their Yajmans also. In other words, there is no right of the plaintiffs which has to be recognised, and can be recognised, on the grounds of custom, usage, or otherwise, that they can without any let or hindrance and regardless of the conditions imposed by the Committee, enter the temple with the pilgrims whenever they like. Like other pilgrims, and persons who are all subject to the control of the conditions that may be imposed by the Committee, the Deoprayagi Pandas can also enter the temple, perform worship there, and even help their Yajmans wh01 happen to be inside the temple. To lay down an absolute prohibition against them would not be in accordance wth the provisions of Shri Badrinath Temple Act, and similarly to recognise. that they have an absolute right to enter the temple with the pilgrims, would also nullify a number of prov1s10ns in the Shri Badrinath Temple Act. Issue No. 2 rs decided accordingly in the negative, but subject to . recognition of the conditional right of the plaintiffs to accompany tlieir pilgrims and help them in the 'darshan', as mentioned above subject to the control of the Committee."

. In spite of this finding, which is certainly not very definite the Court dismissed in toto - the plaintiffs' prayer No. 2 in the plaint, the reason given being tliat .

Nar Hari Sastri

and Others ...

Shri Badrinath

Temple

Committe~.

Mukherjea /.

N ar H ari Sastri and Others v.

Shri Badrinath Temple Committee.

Mukherjea /.

no absolute right as was claimed by the plaintiffs was established on the footing of a custom or otherwise.

As regards the other point, the learned Judge was of opinion that although a Panda had no absolute right to go inside the temple along with his clients, yet if the committee or the temple authorities allowed him to do so, there was nothing in law or custom which could preven, t him from accepting a gift which any pilgrim might desire to make in his favour. The result was that the learned Judge gave the plaintiffs a declaration in the following terms :-

"The plaintiffs' suit is decreed for a declaration that they have a right to accept within the precincts of the temple whatever was put into their hands as gifts (Dan or Dakshina or Shankalp) by the pilgrims, for the benefit of the plaintiffs and not the temple, and to retain such gifts for their personal benefit. This right is however subject to the administrative control of the temple committee so far as the maintenance of order and decency and the enforcement of proper behaviour within the temple are concerned. The exercise of this right will further be restricted by any special or general ,, condit10ns imposed by the Committee of management under any bye-law' framedd by hit in a 1 ccordance with . the provisions of Shri Ba rinat Temp e Act or any other special law that may hereafter be applicable to the temple."

The rest of the plaintiffs' claim was di, smissed.

Against this judgment, the plaintiffs took an appeal to the High Court of Allahabad. The defendants also ~- preferred cross-objections challenging the propriety of that part of the trial Court's decree which was in favour of the plaintiffs. The appeal was heard by a Division Bench consisting of. Varma

C. J. and Mathur J. and, by their judgment dated 22nd November, 1946, the learned Judges dismissed the plaintiffs' appeal and allowed the cross objections filed by the defendants. Thus, the decision resulted in a total "'-'""- dismissal of the plaintiffs' suit. It is from this judgment that the present appeal has come before us.

- Ji,

It was held by the High Court that the plaintiffs failed miserably to esta81ish that there was any immemorial usage in existence under which they were entitled to accompany the pilgrims, as of right, inside the precincts of the temple.

It was held also that even if any such usage existed, that must be deemed to have been abrogated by the provisions of Shri Badrinath Temple Act, and reference was made in this connection to section 25 (1) (m) of the Act, which empowers the temple committee tc; frame bye-laws not inconsistent with the provision~ of the: Act for the "maintenance of order inside the temple and regulating the entry of persons therein."

It is to be noted that after the judgment of the trial court was delivered and the appeal came up for hearing before the High Court, the Badrinath Temple Committee passed a resolution which was approved of by the Governor of the U.P. State, and was to the following effect:-

"Subject to the provision of bye-laws and any direction given by the committee, the Pandas can accompany their Yajmans within the temple."

This resolution was communicated to the plaintiffs by the 2nd defendant by a letter dated 29th May, 1942, and undoubtedly after passing of this resolution, tht: grievance of the plaintiffs in regard to temple entry disappeared to a large extent. The H1gh Court however, refused to give the plaintiffs a declaration of their right in this respect even in a limited form as, jn its opinion, the plaintiffs could not claim such declaration as a matter of right. The view taken by the High Court seems to be that it is entirely for the committee to decide, whether the Pandas should be allowed to enter the temple at all, and if so, to what extent and under what conditions.

On the 1other question irdating to ', the right of the plaintiffs to accept gifts made in their favour by the pilgrims within the precincts of the temple, it was held by the High Court that under section 3(b) of the Shri Badrinath Temple Act, such gifts would become part of the endownment, and the donees would be

Nar Hari Sastri

and Others v.

Shri Badrinath Temple Committee.

Mukherjea /.

1952 Nar Hari SOstri

and Others

Shri Badrinath Temple Com111; ttcc;

Muk_herjea /.

incapable of laying any claim to the same. It was, further, held that bye-law (8) of the Puja Bye-laws , framed by the temple committee which prevents a person other. than those whose rights have been spec\- fically recognised by the Committee, from receiving

any gifts within the precincts of the temple, was quite a legitimate provision the making of which was within the rule-making authority of the committee of management. It was held, therefore, that in view of this rule, the plaintiffs' , claim, in regard to -receiving of gifts within the temple was not maintainable in law.

Mr. Iyengar, appearing in support of the appeal before us, has assailed the propriety of the High Court's decision on both these points.

The first point that requires consideration is whether the plaintiffs can, on the facts admitted and found in this case, claim a declaration of their right to accompany the Y ajmans or clients inside the Badrinath temple and assist them in having 'darshan' of the deities and in performing such ceremonies as individual worshippers may perform. Mr. Dar, who appears on behalf of the respondents, draws our attention to the fact that this right has practically been conceded by the temple cammitJtee in their resolution passed in March, 1942, referred to , already.

The learned counsel has very fairly stated to us that he would have no objection if the plaintiffs are given a declaration of their rights in this respect in some suitable form as might safeguard their interest, without in any way trenching upon the rights of temple committee and thereby obviate all disputes in the future.

It seems to us that the approach of the court below

o -~ ~SfPect; of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan' or worship is a right

...

which flows from the nature of the institution itself, and for the acquisition of such righ~, no custom or immemorial usage need be asserted or proved.

As the Panda as well as his client are both Hindu worshippers, there can be nothing wrong in the one's accompanying the other inside the temple and subject to what we will s.tate presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of 'darshan' or worship of the deities or that the Panda gets remuneration from his client for the services he renders, does. not in any way affect the legal rights of either of them.

In law, it makes no difference whether one performs the act of worship himself or i, s aided or guided by another in the performance of them. If the Pandas daim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.

This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the 'Holy of Holies' where the deity is actually located. Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and present overcrowding in a temple.

Good conduct or orderly behaviour .is always an obligatory condition of admission into a temple(1), and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye-laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it(2).

(') Vide Kalidas fivram v. Gor Pa1jaram, I.L.R. 15 Born. p. 309; Thackersay v. Harbhum, I.L.R. 8 Born. p. 432.

(2) Vide Section 25 (1) (rn).

N ar H ari Sastri

and Others

Shri Badrinath Temple Committee.

Mukheriea f.

N ar H ari Sastri and Others

Shri Badrinath Temple Committee.

Muk,_herjea /.

The true position, therefore, is that the plaintiffs' right of entering the temple along with their Yajmans. is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the

temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for" ensuring proper performance of customary worship.

In our opinion, the plaintiffs are entitled to a declaration in this form.

We now come to the other point which is the real bone of contention between the parties to this appeal,. and the question for consideration is whether the plaint-·

iffs are entitled to a declaration that they have a right to take, within the precincts of the temple, whatever is put into their hands as gifts by their clients at the time of workship. The trial court,. as pointed out above, gave the plaintiffs a qualified declaration on this point, though the High Court rejected this claim altogether. Mr.

Iyengar has vehemently assailed the propriety of the grounds upon which the decisioi; i of the High Court rests, whereas Mr. Dar has contended inter alia that the claim of the plaintiffs under this head is wholly untenable in view of the provision of bye-law (8) of the Puja Bye-laws framed by the temple committee. ·

It may be stated at the outset that as the gift, if any, which a pilgrim might choose to make within the temple precincts is entirely a voluntary act on his part and as he could not be compelled to make a gift either in favour of the Pandas or anybody else, there could, strictly speaking, be no legal right in the plaintiffs t0< receive any gift from his client which can be declared by a court of law.

The plaintiffs do accept the position that the pilgrims are not bound to give anything to the Pandas by way of Daks hiina or sacrificial fee at the conclusion of the ceremonies in the temple ; but what they say is this that if the pilgrims choose tO< make any gift to them, the temple committee could:

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not, in law, prevent the latter from accepting the same and treat such gifts as part of the temple property. It is argued that bye-law (8) of the Puja Bye-laws is illegal and ultra vires and cannot take away the legal right of the donee to the gifted property under the ordinary law which has not been and cannot be affected in any way by the provisioµs of the Sri Badrinath Temple Act.

A number of respectable witnesses examined on behalf of the plaintiffs do say that when they went on pilgrimage to Badrinath they made gifts to their Pandas inside the temple at the close of the ceremony of darshan and worship. But the evidence taken, even at its face value, does not establish that the practice of making gifts to Pandas within the temple is a general one or that the pilgrims regard it as an indi&- pensable part of the ceremony of worship; many .of the witnesses plainily admit that they do not remember to have made any gifts at a11 within the temple precincts and others say that they paid dakshina or sacrifieial fees to all the Brahmans who were found inside the temple at that time and not exclusively to their Pandas. It is also stated that suphal or final blessing is obtained from the Pandas by the pilgrims . after making presents to them at the place called Tapta Kundu where the hot spring Lies which is outside the temple.

Mr. Iyengar has drawn our attention to certain texts from the Kedar Kanda of Skanda Purana which describe the glory of the deity Badrinath, to show that it is a religious duty enjoined by the Hindu scriptures that a worshipper who goes to Badrikasram should make gifts to Brahmans after the diarshan of the idol is obtained and offerings are made to it. An English rendering of the passages relied upon by the learned counsel would read thus:-

"After having bathed in the Ganges, in the Narada Hrada (Kund) and others (Hradas), one (worshipper) shall bathe in the Vahni Tirth (Tapta Kunda) after performing the obligatory duties and with his mind

Nar Hari Sastriand Others v.

Shri Badrinatk

Temple Committee.

Muk_herjea I~

Nar Hari Sastri and Others

v. .Shri Badrinath Temple Committee.

Mukherjea /.

kept under control, he shall go into the temple of Badrinath with his mind concentrated on Shri Hari.

He shall make ofl'erings to the . best of his capacity and with utmost devotion.

Then he shall look at the All Pervading N arayana from crown to foot, and HERE make gifts tp Brahmans to the best of his capacity.

Thereafter, he shall do

PRADAKSHINA (go-round) with the utni.ost devotion.

Then he shall come back to the Tirthas (Vahni Tirtha etc.) and make gifts according to his , means"(').

It cannot and is not disputed that according to orthodox Hindu ideas, gift to Brahmans is considered as a meritorious act and there are texts, to some of which Mr. Iyengar drew our attention, which extol the merits of such gifts when made at a sacred place or within a temple or on the banks of a holy river. It may be as Mr. Iyengar suggests that the idea of making gifts within the temple had its origin in the religious texts to which the learned counsel drew our attention.

But, the point that requires consideration in the present case is a difl'erent and much narrower one. The question is whether under the powers of making bye-laws which are conferred by the Sri Badrinath Temple Act upon the managing committee, the latter could niake a rule as they have done, by which all persons other than those whose rights are specifically recognised are disabled from receiving gifts. within the precincts of the temple.

It is perfectly 'true that under the general law, nobody can be prevented froin accepting a gift which another person may be inclined to make in his favour, and it is immaterial in such cases at what i:Jlace the gift is actually made.

One has to enquire, therefore, on what grounds the committee can interdict the taking' of any gifts within the temple precincts. The High Court seems to be of opinion-and this view is sought to be supported on behalf of the respondents before us-that the Sri Badrinath Temple Act itself has in express

(!) Skanda Purana, Kedar Khand, Badri Mahatma, Chapter VI, Verses 46-49.

1952 terms abrogated the rights of the donee in regard to a gift made to him within the temple and as such gifts come within the definition of "endowment" as given in Na; n1Ja; j1l:::"

the Act the temple committee gets a controlling hand over them and can make any regulations in relation thereto. Reliance lis placed in this connection upon section 3 (b) of the Sri Badrinath Temple Act which lays down that the expression "endowment" in relation

Shri Badrinath Temple Committee.

Mukheriea /. to the Act "means all property moveable or immoveable belonging to or given or endowed for the maintenance or improvement of, or additions to, or worship in the temple, or for the performance of any service or charity connected therewith and includes the idols installed therein, the premises of the said temple and gifts of property made to anyone within the precincts of the temple." The definition is undoubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property, a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience, comfort or benefit of the pilgrims.

It is conceded by Mr. Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is a quite in accordance with the existing principles of Hindu law.

He contends, however, that such gifts could not vest in the donee, as well, in accordance with the definition of "endowment" given in section 3 (b) of the Sri Badrinath Temple Act.

In other words, according to the interpretation which he would like to plit upon section 3 (b) of the Act, such gifts should be regarded as totally void after the passing of the Act and consequently title to the thing given would still remain in the donor even after the gift is made. This does not seem to us to be a sound view to take. If a legislation wants to take away the propnetary right which a person acquires under the ordinary law, it must express its intention in clear and unambiguous terms. We are unable to spell a)ly such intention out of the language used in section 3(b) of the Sri

Nar Hari Sastri

and Others

Shri Badrinath

Temple Committee.

Mukherjea /.

Badrinath Temple Act. It may be that the wording of this sub-section is defective and that there is an apparent conflict between the provision of this sub-section and that of section 4 of the Act. It is an arguable point whether the expression "gifts of property made to any one" should not be construed to mean gifts made to any one for the benefit of the temple or for other purposes as are specified in section 4. But it is not necessary for our purpose to express any opinion on that point in the present case. All that we desire to say is tl.!at there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him.

But, even if the gifts made within the temple and 'intended for the benefit of the donee personally cannot vest in the temple under section 4 of the Sri Badrinath Temple Act, the question still remains whether the committee in exercise of their powers to make bye-laws, can frame a rule that no such gifts should be allowed to be made within the temple and whatever gifts the pilgrims might choose to make in favour of any person which is unconnected w'ith offerings to the deity must be made outside the temple precincts.

Section 25 of the Act empowers the committee to make bye-laws not inconsistent with the Act or the rules made thereunder or any other law for a variety of purposes which are enumerated in the different clauses of the section; and clauses ( m) and ( n) run as follows :

(m) The maintenance of order within the temple or inside the temple and regulating the entry of persons therein; and

(n) The performance of duties prescribed in section 23.

Section 23 lays down the duties of. the committee and sub-section (9) prescribes it to be duty of the committee to do all such things as may be incidental and conducive to the efficient management of the .._, temple and endowments and the convenience of the

pilgrims. In our opinion, bye-law

(8) of the Puja Bye-laws referred to above, which forbids the acceptance of the gifts by any person within the temple, unless he comes within the category of person specifically authorised by the committee to receive the same, is a perfectly legitimate bye-law which it was quite competent for the committee to enact under the terms of clauses (m) and (n) of section 25 referred to above.

It will be remembered that the religious duty to make gifts within the temple or at sacred places which is enjoined on Hindu worshippers by the texts relied upon by Mr. Iyengar has no particular reference to the Pandas who accompany the worshipper. The injunction is to make gifts in favour of Brahmans generally and the Pandas, because they are Brahmans and happen to be available at the spot, naturally become recipients of such gifts.

It is a thing too well known to require mention that in many of the Hindu temples of renown in India, the pilgrims after their worship is finished, or even before that, are literally beseiged by an army of mendicants including many Sadhus or ascetics, the begging Brahmans who abound in all sacred places, and even people who are associated with various duties in the temple itself.

The presence of a large number of such persons who certainly do not come inside the temple as worshippers is positively detrimental to the maintenance of good order, decency and solemnity in the temple and not unoften it is a source of very great annoyance and discomfort to the pilgrims themselves.

It seems to us that one of the objects which the temple committee had in view in framing these byelaws was to prevent this religious mendicancy showing itself in an unseemly manner witftin the precincts of the temple itself. Bye-law 8 of the Puja Bye-laws referred to above, which prevents taking of a gift by any person within the temple, lays down, further, that the permanent employees of the temple shall not receive or solicit for any remuneration, reward or Dakshina in any form from the pilgrims. , This prohibition is not confined to the temple but extends also

Nar Hari Sastri and Others

Shri Badrinath

Temple Committee.

Muk_herjea /.

Nar Hari Sastri

and Others

Shri Badrinath

Temple Committee.

Mukherjca /.

to places outside it. Then again, bye-law i5 specifically provides that no Sadhu or beggar shall beg or sit for begging for alms within the temple. We think, therefore, that for the purpose of preventing overcrowding within the temple and to ensure order, decency and worshipful behaviour on the part of those who enter into it, the committee was quite justified in framing this bye-law which lays down in substance that whatever gifts a pligrim might be desirous of making and which is unconnected with the offerings to the deity shall be made outside the temple precincts and not inside it. In our opinion, the Pandas do not stand to lose anything by reason of this regulation and their grievance is more or less a sentimental one.

As we have said already, the gift intended for the Pandas can under no circumstances vest in the temple, but a regulation of this character could certainly be deemed to be necessary as conducive to efficient management of the temple and endowments, the convenience of the pilgrims and the maintenance of order and decent behaviour within the temple precincts.

We do not see how such bye-law can be said to be, in any way, inconsisteno w1i.th the provisions of the Act.

It is certainly confined to the circumstances COiiltemplated by the Statute itself and is not repugnant to the general principles of Hindu law which we have referred to already. It does not, in our opinion, tiake away the proprietary right of any person which it recognised under ordinary law. Thus, although we cannot agree with the High Court of Allahabad regarding the interpretation that it has put upon sections 3 (b) and 4 of the Act, we think that bye-law 8 of the Puja Bye-laws is perfectly valid and is within the ambit of the powers conferred upon the committee by section 25 of the Act.

The appeal is thus allowed only in part. The ' plaintiffs shall have a declaration that they are entitled to. accompany their Yajmans inside the temple >-- subject tc any bye-law or rule made by the committee in proper.; exercise of their powers under section 25 of

I !

1952 the Sri Badrinath Temple Act. The other prayer of the plaintiffs is rejected.

As the appeal succeeds in part and as it raised questions of general importance with regard to which there were longstanding disputes between the parties, we ... think that the proper order should be to direct each party to bear his own costs in all the Courts.

The costs of the defendant shall come out of the temple funds.

Nar Hari Sastri and Others

r '

Appeal allowed zn part.

Agent for the appellants : . C. P. Lal.

Agent for the respondent : S. S. Sukla.

GUR NARAIN DAS AND ANOTHER

GUR TAHAL DAS AND OTHERS

[ SAIYID F AZL Au and VIVIAN Bos.F. JJ.]

Hindu law-Illegitimate son of Sudra-Right to demand partition of separate pr'Jperty of father.

Under Hindu law, though an illegimate son of . a Sudm cannot enforce partition during his father's lifetime, he can enforce partition after his father's death if the father was sepante from hirs collaterals and has ~ft separate property and legitimate sons.

CIVIL

APPELLATE JuRISDICTION : Civil Appeal No. 104 of 1950.

Appeal from a judgment and decree dated the 9th April, 1947, of the High Court of Judicature at Patna (Manohar Lal and Mukherjee JJ.) in First Appeal No. 68 of 1944 arising out of judgment and decree dated the 23rd December, 1943, of the Court of the First Additional Subordinate Judge, Gaya, in Suit No. 4 of 1941.

Gurbachan Singh (Manohar Lal Sachdev, with him) for the appellants.

S. B. Jathar .for the legal representative of respondent No. 4. 7-9 S.C. India/71

Shri Badrinath

Temple Committee.

Muberjea 7.

May 16.

NAR HARi SASTRI AND OTHERS

BADRINATH TEMPLE COMMITTEE

SAIYAD FAZL ALI J.

MuKHERJEA

DAs JJ.

ss. 3, 4

sec. 25

Verma C.J.

Mathur

K. S. Krishnaswamy Iyengar

R. C. Ghatak

N. C. Sen

S. K. Dar

D. D. Unival

Nar Hari Sastri

Badrinath

India

Badrinath

Garhwal

Badrinath

Rawal

Rawal

Durbar

Shebayat

N ar H ari Sastri

Hardwar

Senior Civil Judge of Garhwal

16th April, 1934

Badrinath Institution

Deoprayag

Badrin.ath

Rawal

Tehri Durbar

God Badrinarayan

Deoprayagi Pandas

High Court of Allahabad

23rd May, 1938

Sri Badrinath Temple Act

Sri Badrinath Temple Act

section 3(b)

Nar Hari Sastri

4th March, 1941

4th July, 1892

22nd October, 1894

28th October, 1894

19th August, 1895

Court of the Deputy Collector, Garhwal

9th March,

1896

Shri Ba rinat Temp e Act

Varma

22nd November, 1946

Shri Badrinath Temple Act

section 25

Badrinath Temple Committee

U.P. State

29th May, 1942

section 3(b)

Iyengar

Dar

section 25

Section 25

Skanda Purana

Badrikasram

Hari

section 3

section 4

section 3

section 3

section 3(b)

Badrinath Temple Act

section 4

section 4

section 4

Section 25

section 23

Section 23

section 25

Brahmans

Nar Hari Sastri

sections 3

section 25

section 25

C. P. Lal

S. S. Sukla

GUR NARAIN DAS

GUR TAHAL DAS

SAIYID F AZL Au

VIVIAN Bos

High Court of Judicature at Patna

Manohar Lal

Mukherjee

23rd December, 1943

Gurbachan Singh

Manohar Lal Sachdev

S. B. Jathar


S.C.R.

SUPREME COURT REPORTS 869

1952 the Sri Badrinath Temple Act. The other prayer of the plaintiffs is rejected.

As the appeal succeeds in part and as it raised questions of general importance with regard to which there were longstanding disputes between the parties, we ... think that the proper order should be to direct each party to bear his own costs in all the Courts.

The costs of the defendant shall come out of the temple funds.

Nar Hari Sastri and Others

r '

Appeal allowed zn part.

Agent for the appellants : . C. P. Lal.

Agent for the respondent : S. S. Sukla.

GUR NARAIN DAS AND ANOTHER

GUR TAHAL DAS AND OTHERS

[ SAIYID F AZL Au and VIVIAN Bos.F. JJ.]

Hindu law-Illegitimate son of Sudra-Right to demand partition of separate pr'Jperty of father.

Under Hindu law, though an illegimate son of . a Sudm cannot enforce partition during his father's lifetime, he can enforce partition after his father's death if the father was sepante from hirs collaterals and has ~ft separate property and legitimate sons.

CIVIL

APPELLATE JuRISDICTION : Civil Appeal No. 104 of 1950.

Appeal from a judgment and decree dated the 9th April, 1947, of the High Court of Judicature at Patna (Manohar Lal and Mukherjee JJ.) in First Appeal No. 68 of 1944 arising out of judgment and decree dated the 23rd December, 1943, of the Court of the First Additional Subordinate Judge, Gaya, in Suit No. 4 of 1941.

Gurbachan Singh (Manohar Lal Sachdev, with him) for the appellants.

S. B. Jathar .for the legal representative of respondent No. 4. 7-9 S.C. India/71

Shri Badrinath

Temple Committee.

Muberjea 7.

May 16.

Gur Narain Das

and Another v.

Gur Taha/ Das

Qnd Others.

Fazl Ali J.

1952. May 16. The Judgment of the Court was delivered by

FAZL ALI J .-This appeal arises out of a suit for partition which was dismissed by the trial court but was decreed by the High Court of Patna on appeal.

The material facts of the case are briefly as follows :-

One Rambilas Das had 2 sons, Budparkash Das and Nandkishore Das. Nandkishore Das had several sons, the plaintiffs, Gurtahl Das being one of his illegitimate sons. The present suit was brought by Gurtahl Das against 4 persons, namely, Gurnarayan Das and Jai Narayan Das, sons of Nandkishore Das, Shibtahl Das who was alleged to be one of the illegitimate sons of Nandkishore Das, and Mst. Rambholi Kuer, wife of Nanaksharan Das, one of the sons of Nandkishore Das.

Another person, Kuldip Das, who was the daughter's son of Nandkishore's brother, Budparkash Das, intervened in the suit after its institution and was impleaded as the fifth defendant. After the death of the second defendant, Jai Narayan Das, his wife, Surat Kuer, was brought on record.

The plaintilf's case was that Budparkash Das and Nandkishore Das formed a joint Hindu family, and that Budparkash Das died without any male issue in a state of jointness with llis brother, Nandkishore, with the result that the entire joint family property devolved on him. Subsequently, disputes arose regarding the management and enjoyment of the properties among the plaintiff and the defendants, which compelled the plaintiff to institute the present suit for partition. The plaintiff alleged that the parties were Sudras and belonged to the Nanak Shai sect of Fakirs, and that he and the third defendant, Shibtahl Das, were dasiputras of Nandkishore Das by a concubine, and J ai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.

The suit was contested mainly by the first defendant Gu.rnarayan Das and Mst. Surat Kuer,. on the following pleas :-firstly, that the suit was not maintainable as a suit for partition, because the plaintiff was never

in possession of the properties of which he claimed partition, secondly that the family of the defendants were not Sudras but Dwijas and an illegitimate son could not sue for partition, thirdly that the defendants did not form a jont Hindu family with the plaintiff and Shibtahf Das, fourthly that Mst. Rambholi Kuer was not the widow of Nanaksharan Das, and fifthly that the plaintiff and Shibtahl Das were not sons of Nandkishore Das. The case of Mst. Rambholi Kuer was that the parties were Dwijas and not Sudras, and defendant No. 5, Kuldip Das, pleaded to the same effect and further alleged that Budparkash Das was separate from Nandkishore Das, that although they did not divide the properties by metes and bounds, they used to divide the produce half and half, and that he was in possession of his share of the properties as the daughter's son of Budparkash Das and they could not be made the subject of partition.

Shibtahl Das supported the claim of the plaintiff.

The trial court dismssed the suit, holding, among other things, (1) that the plaintiff not being in joint possession of any of the properties, the suit for partition was not maintainable, (2) that the parties were Sudras, (3) that Budparkash Das and Nandkishore Das were joint and not separate, ( 4)' that the plaintiff had no cause of action, and (5) that Shibtahl Das had not proved that he was the son of Nandkishore, Against the decision of the trial court, the plaintiff preferred an appeal to the High Court at Patna, and Kuldip Das filed a cross-objection contesting the finding that Budparkash was joint with hi:s brother, Nandlcishore.

The High Court reversed the deci§jon of the trial court and held (1) that the parli.es were Sudras and not Dwijas, (2} that Eudpark.ash died in a state of separation from his brother, Nandkishore, and (3) that no suit for declaration of title was necessary and the plainti'ff•s failure to• pay sufficient court-fee should not stand in the way of suitable relief being granted to ""· him. B0th the High C0urt and the tial court found that defendants Nos. 1 and1 Z, Gumarayan Das and

Gur Narain D11s

and Anot.,, t!f"

G#f' Tahal Du

and Othf'I.

Fazl Ali J.

Gur Narain Das and Another

.v.

Gur Tahal Dti.f

and Others,

.Fazl Ali/.

Jai Narayan Das, were the legitimate 1; ons of Nandkishore Das. On the above findings, the High Court passed a preliminary decree directing that separate allotments of the properties should be made to the plaintiff and the defendants excepting Shibtahl Das.

It was contended before us on behal.f of the first appellant that the finding of the courts below that the parties were Sudras was not correct and should be set aside.

This contention must however fail, since we find no good reason for departing from the welle$iablished !practice of this court of not disturbing concurrent finding of the trial court and the first appellate court.

In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not overlooked 1he tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the Sudra community.

The next question which was very seriously debated before us was whether Budparkash Dai; and Nandkishore Das were joint or separate. On this question, the two courts below have expressed conflicting views, but on a careful consideration of the evidence before us, we are inclined to agree with the learned Judges of the High Court, who . after reviewing the entire evidence have come to the conclusion that Budparkash Das died in a state of separation from Nandkishore.

It will be material to quote here the fol:'.owing extract from the_ judgment of the trial judge in which he sums up the evidence on this. question :-

"From the oral evidence on the record,· this much is quite clear that Budparkash lived in a separate house and used to get crops. This defendant (defendant No. 5 Kuldip Das) has also filed Exhibii: B (2) chaukidari receipt for 1936 (Register No. 283) and Exhibit C 1 (copy of Assessment Register showing: No. 284 in the name of Budparkash) which may go to show that possibly Budparkash was paying separate . chowkidari tax. The defendant No. S has also filed some

. 1952 letters marked A-1, A-5, A-4,

A-6, A-10 and

A-12, which not only show that this defendant is related to Gur Narain Das the defendants' family, but also that grains and . and Another . money were offered to him from time to time. But . v. none of these documents clearly show that there Gur Tahal Das . had been partition between Budparkash and Nand- , .and Others. kishme or that the defendant No. 5 ever came in possession over any property, as being the heir of Budparkash. Of course there is some oral evidence to support him. But I do not think, on considering and weighing the evidence that separation. of Budparkash from Nandkishore has been proved.

The learned pleader for the defendant No. 5 has urged that the circumstances considered in the light of the ruling reported in Behar Report, Vol. 4 (1937-38) Privy Council at p. 302, would support the defendant's case as there was defined . share of Budparkash and Nandkishore in the Khatyan (exts. Gl and

G2).

I am not prepared to agree with the learned pleader on thi:s point, as there is not a scrap of paper to show that Budparkash or even after him Kuldip Das separately appropriated the usufruct of any property, or ever Budparkash showed any intention of separation, I expect that if Budparkash had separated, at least ori his death the defendant No. 5 would have maintained an account book of his income from the properties in dispute, specially as he lived at a distant place. :He does not appear to have ever cared to look after the property or demand accounts from his alleged

co-sharers."

This summary of the evidence shows firstly, that the two brothers lived in separate houses, secondly, that they paid separate chaukidari taxes, and thirdly, that Budparkash used to get grains and money from N andkishore from time to time. The trial judge has also observed that the khatyans, exhibits G 1 arid G 2 record the defined shares of the two brothers, but the printed record shows that exhibits G 1 and G 2 are mere rent-receipts.

As the khatyan was not printed, we sent for the original record and found that the entries in the khatyan, which are exhibits F 1 and

. Fazl Ali/.

Gur Narain Das

and Another.

Gur Taha! Oas

•nd Others.

Faz! Ali/.

F 2, have been correctly not:cd in the judgment of the trial court.

It seems to us therefore that the findings which we have set out give greater support to the oral evidence adduced on behalf of defendant No. 5 than to the evidence adduced by the other parties, and that being so, we think that the finding of the High Court must be upheld.

We were greatly impressed by several letters of exhibit-A series, which have been found to be genuine by both the courts below.

The genuineness of the letters was attacked before us, but we find no good reason for reversing the find•

ings of the trial judge and the High Court.

In one of these letters exhibit A-10, Nandkishore Das wntmg to Kuldip on the 12th June, 1934, states that he was sending 25 maunds of rice, 7 maunds of khesari and rupees seventy-five and then adds: "I have got with me all the accounts written, which will be explained when you will come and you will render a just account of your share when you come", In an(1ther :letter, exhibit A-12, which was written by Nandkishore to Kuldip on the 15th October, 1936, the former states : "I wrote to you several times to adjust account of your share, but you did not do so up till now. I write to you to come and examine the account of your share.

I have not got money now. If you have got time, then come for a day and have the account adjusted and take what may be found due to you".

It seems to us that if the parties were really joint in the legal sense of the term, there was no question of examining the accounts and adjusting them and there would have been no reference to the share of Kuldip in the produce or the money collected.

The prOiper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares Several witnesses were examined on behalf of defendant No. 5, who have stated from their personal knowledge that the two brothers lived in separate houses, were separate in mess and the produce

was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the two brothers must be upheld.

Gur Narain Du

1md Anotl11:r The third contention urged on behalf of the appel- T. 1 1 h . h th th l . 'ff Gur Tahal Da; ants re ates to t e questlon w e er e p amu and Others is entitled only to maintenance or to a share in the properties left by Nandkishore Das.

The rights of an Fal Ali /. illegitimate son of a Sudra are considered in Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudra's estate".

This text was fully considered by the Privy Council in Vellaiyappa v. Natarajan(1) and the conclusions derived therefrom were summarized as follows:-

"Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he 1s a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property."

This statement of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime; secondly, that on his father's death, the illegitimate son succeeds as a copatcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) ; and thi:rdly, that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he: was; a legitimate son.

(I) A.LR. 1931 P.C. 294.

Gu, r Narai~ Dai

and Another v •.

Gur Tahal Das ·

and Others •.

Fazz'Ali /.

It seems to us that the second proposition enunciated . above follows from the following passage in the Mitakshara text:-

"But after the demise of the father, if there be sons of a wedded wife, kt these brothers allow the son of the female slave to participate for half a share."

If therefore the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son.

There can be no doubt that though the illegitimate son cannot enforce partition during the father's lifetime and though he is not entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his L, collaterals, he can enforce partition in a case like the present, where the father was . separate from his collaterals and has left separate property and legitimate sons ..

The last point put forward on behaif of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit, he cannot .maintain a suit for partition. This contention cannot prevail, because the plaintiff is undoubtedly a cosharer in the properties and unless exclusion and ouster .are pleaded an.cl proved, which is not the case here, is enti.tled to partition.

. Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified.

To appreciate this, reference will have to be made to the following statements made by defendant. No. 5 in paragraphs 8 and 11 of his

wrfrten statement :

 "8. That this defendant holds moiety share in jagir and bsht lands. Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Das, : the . · sniafiest house divided into 2 havelis.

I -'

11. That this defendant has nothing to do with the eight annas interest in the properties given in schedule under than C and D relating to jagir and kasht lands, which rightfully belonged to Nandkishore . Das and has no concern with the properties noted in those schedules."

Paragraph 11 is rather ambiguously worded, but it was conceded before us by the counsel for defendant No. 5 that the latter had no claim to any interest in the properties set out in schedules other than schedules C and D.

Such being the purport of paragraphs 8 . and 11, the decree should provide that defendant -No. 5 will be entided only to a share in the properties

set out in schedules C and D and will have no . share in the properties set out in the other schedules.

 Subject to this modification, the decree of the High Court is affirmed, and this appeal is dismissed. There ·:will be no order as to costs.

Appeal. dismissed.

Agent for the appellants: Naunit Lal.

Agent for the legal representative of 4th respondent: _ R. N. Sachthey.

THE STATE OF BOMBAY

ti.

VIRKUMAR GULABCHAND SHAH

[SAIYID FAzL Au and VIVIAN BosE JJ.]

Essential Supplies (Temporary Powers) Act (XX/V of 1946), . ss. 2(a), 17(2)-Spices (Forward Contracts Prohibition) Order, 1946, els. 2, 3-Turmeric, whether "foodstuff"-Meaning of "foodstuff".

~ The term "foodstuff" is ambiguous.

In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would • excl?de condiments and spices such as yeast, salt, pepper, bakmg powder and turmeric. In a wider sense it includes every- . thing that goes into the preparation of food proper (as under- stood in the narrow sense) to make it more palatable and digestible.

Whether the term is used in a particular statute in i its wider or narrower sense cannot be answered in the abstract

Gur Narain Das

and Anothdv.

Gur Tahal Das

and Others.

Fazl Ali/.

1952.

May, 27.

C. P. Lal

S. S. Sukla

GUR NARAIN DAS AND ANOTHER

GUR TAHAL DAS AND OTHERS

Gurbachan Singh

Manohar Lal Sachdev

S. B. Jathar

Badrinath

Gur Narain Das

Gur Taha/ Das

Fazl Ali

FAZL ALI

Rambilas Das

Budparkash Das

Nandkishore Das

Nandkishore Das

Gurtahl Das

Gurtahl Das

Gurnarayan Das

Jai Narayan Das

Shibtahl Das

Rambholi Kuer

Nanaksharan Das

Kuldip Das

Nandkishore

Jai Narayan Das

Surat Kuer

Shibtahl Das

J ai Narayan Das

Gu.rnarayan Das

Surat Kuer

Shibtahf Das

Kuldip Das

Budparkash

High Court at Patna

Nandlcishore

Eudpark.ash

Gumarayan Das

Gur Tahal Dti.f

Budparkash Dai

Nandkishore

Gur Narain Das

Gur Tahal Das

Nand-

Behar

Gur Taha! Oas

Faz! Ali/.

Kuldip

12th June, 1934

15th October, 1936

Gur Narain Du

Fal Ali

Mitakshara

S. 12

Gu

Gur Tahal Das

Fazz'Ali

Mahanth Budh Parkash Das

Nandkishore . Das

Naunit Lal

R. N. Sachthey

STATE OF BOMBAY

VIRKUMAR GULABCHAND SHAH

SAIYID FAzL Au

VIVIAN BosE

ss. 2(a), 17(2)

Fazl Ali/.


I -'

:S.C.R.

SUPREME COURT REPORTS 877

11. That this defendant has nothing to do with the eight annas interest in the properties given in schedule under than C and D relating to jagir and kasht lands, which rightfully belonged to Nandkishore . Das and has no concern with the properties noted in those schedules."

Paragraph 11 is rather ambiguously worded, but it was conceded before us by the counsel for defendant No. 5 that the latter had no claim to any interest in the properties set out in schedules other than schedules C and D.

Such being the purport of paragraphs 8 . and 11, the decree should provide that defendant -No. 5 will be entided only to a share in the properties

set out in schedules C and D and will have no . share in the properties set out in the other schedules.

 Subject to this modification, the decree of the High Court is affirmed, and this appeal is dismissed. There ·:will be no order as to costs.

Appeal. dismissed.

Agent for the appellants: Naunit Lal.

Agent for the legal representative of 4th respondent: _ R. N. Sachthey.

THE STATE OF BOMBAY

ti.

VIRKUMAR GULABCHAND SHAH

[SAIYID FAzL Au and VIVIAN BosE JJ.]

Essential Supplies (Temporary Powers) Act (XX/V of 1946), . ss. 2(a), 17(2)-Spices (Forward Contracts Prohibition) Order, 1946, els. 2, 3-Turmeric, whether "foodstuff"-Meaning of "foodstuff".

~ The term "foodstuff" is ambiguous.

In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would • excl?de condiments and spices such as yeast, salt, pepper, bakmg powder and turmeric. In a wider sense it includes every- . thing that goes into the preparation of food proper (as under- stood in the narrow sense) to make it more palatable and digestible.

Whether the term is used in a particular statute in i its wider or narrower sense cannot be answered in the abstract

Gur Narain Das

and Anothdv.

Gur Tahal Das

and Others.

Fazl Ali/.

1952.

May, 27.

1952

'The Stat< of

'Bom'bay

v. 'Virkumar Gulabchaml Shah.

SUW'REME COURT XE.PORTS [1952]

but must .be answered with due r<; garil to the .backgromnd and context.

''; furmeric :is a "food-stuff" within the meaning ofcl. (3) .of the Spices tForward Contract P.rohibition) Order of 1944, .read with s. 2 (a) of .the Essential Supplies (Temporary Powers) Act (XXIV of 1946). The said order of 1944 falls within the purview of s. 5 of Ordinance No. XVIII of 1946, which was later re-enacted as Act XXIV of 1946, and it is equally saved by s. 17(2) of the Act.

James v. Jones [1894] I Q. B. 304, Hinde v. Allmond (87 L.J.

K.B. 893), Sainsbury v, Saunders (88 L.J.K.B. 441) roferred to.

CRIMINAL

APPELLATE JuRiso1cr10N : Criminal Appeal No. 26 of 1950.

On appeal by special leave from the judgment and' order dated the 13th November, 1950, of .the High Court of Judicature at Bonibay (Bavdeknr and' Dixit JJ.) in Criminal Appeal No. 712 of 1950, arising out of judgment dated the 14th August, 1950, of the Court of the Sessions Judge, South Satara, Sangli, in Criminal Appeal No. 35 of 1950 and Criminal Case No. 614 of 1950.

C. K.

Daphtary, Solicitor-General of India

( G~ N. Joshi, with him) for the appeHant.

Somayya (B. K. V. Naidu, with him) for the respondent.

1952. May 27. Faz! Ali and Bose JJ. delivered' Judgment as follows :

FAzL ALI J.-I agree that the acquittal of the respondent should not be disturbed, and I also agree generally .with the reasoning of my brQl:her, Bose.

The question whether 'turmeric is 'foodstrtff' is not entirely free from difficulty. fo one sense, everything which .emer.s into the composition of llood so .as to make it :palatable may 'be described as 'foodstuff', but .that word is .commonly used with reference only to those .articles which .are eaten for .their nutritive value and which :form .the principal , ingredients of cooked or uncooketl •meal, such as wheat, 'rice, meat, fish, milk,. .,.._ 'bread, 'butter, etc.

It .seems to me desirable that the Act should be amended so as to expressly irrClu&:

\ \

~-)

within the definition of the somewhat elastic expression "foodstuff'', turmeric and such other condiments as the Legislature intends to be treated as such for achieving the objects in its: view.

BosE J.-The question in this case is whether turmeric is a "foodstuff" within the meaning of clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, read with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946, (Act XXIV of 1946).

The respondent was charged with having contravened clause 3 of the Order of 1944 because he entered into a forward contract in turmeric at Sangli on the 18th of March, 1950, in contravention of clause 3 of the Order. He was convicted by the trial Court and sentenced to three months' simple imprisonment together with a fine of Rs. 1,000 and in default, a further three months. But he was acquitted on appeal by the Sessions Court. An appeal to the High Court against the acquittal failed.

The State of Bombay appeals here but makes 1t plain that it does not want to take any further steps against the respondent in this matter but merely wants to have the question of law decided as a test case as the judgment of the Bombay High Court will have far-reaching effects in the State of Bombay.

It will be necessary to trace the history of this legislation. In the year 1944 the then Central Government of India promulgated the Spices (Forward Contracts Prohibition) Order, 1944, under Rule 81(2) of the Defence of India Rules. Clauses 2 and 3 read together prohibited forward contracts in any of the "spices" specified in the first cdlumn of the schedule to that Order. Among the artides listed in the schedule was turmeric.

The conviction is under that Order and it is admitted that if that Order is still valid the conviction would be good.

The Defence of India Act was due to expire on the 30th of September, 1946, and with it the Spices Order

of 1944.

But before it expired an Ordinance called

T /11: State of

BOflfb11y

Virk_umar Gulabclm•I

S1'tr1'.

Bose /.

'The State of.

Bombay v.

Virkumar Gulabchand Shah.

. Bose/.

the Essential Supplies (Temporary Powers) Ordinance of 1946 was issued.

This was Ordinance No. XVII of

1946. The object of the Ordinance, as set out in the preamble, was to provide for the control of what it called "essential commodities".

It defined this to mean, among other things, "foodstuffs", and by a further definition "foodstuffs" was defined to include edible oilseeds and oils.

Neither spices m general nor turmeric in particular were mentioned.

Section 5 of this Ordinance embodied a •aving clause which saved , ertain Orders which would other .. wise have expired along with the Defence of India v .

Rules. The section ran as follows: "Any order ...... made ...... under rule 81(2) of the .. _ ..

Defence of India Rules, in respect of any matters specified in section 3, which was in force immediately before the commencement of this Ordinance, shaH, not- ' - withstanding the expiration of the said Rules continue in force so far as consistent with this Ordinance and be deemed to be an order made under section 3."

The Ordinance was later replaced by the Act with which we are now concerned, the Essential Supplies (Temporary Powers) Act, 1946, (Act XXIV of 1946).

The Act merely reproduces the language of the Ordi, nance in all material particulars and it is conceded that if the matter falls under the Ordinance it will also fall under the Act.

The appellant's contention is that turmeric is a foodstuff, therefore the Order of 1944 is saved. The respondent's contention is that turmeric is not a foodstuff. He contends that the Order of 1944 was limited to spices and that turmeric was included in the term by reason of a special definition which specifically included it ; and as the Act of 1946 and the Ordinance are limited to "foodstuffs" the Order of 1944 dealing with turmeric was not saved.

The question therefore is, is turmeric a "foodstuff"?_

Much learned judicial thought has been expended upon this problem-what is and what is not food and what is and what is not a foodstuff; and the only con- Clusion I can draw from a careful consideration of all

•-..t -. -

l -

the available material is that the t'erm "foodstuff" is ambiguous. In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, backing powder and turmeric. In a wider sense, it includes everything that goes into the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible. In my opinion, the problem posed cannot be answered in the abstract and must be viewed in relation to its background and context. But before I dilate on this, I will exa1nine the dictionary meaning of the words.

The Oxford English Dictionary defines "foodstuff" as follows:

"that which is taken into the system to maintain life and growth and to supply waste of tissue."

In Webster's International Dictionary "food" is defined as:

"nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital processes."

Then follows this explanation :

"Animals differ greatly from plants in their nutritive processes and require in addition to certain inorganic substances (water, salts etc.) and organic substances of unknown composition (vitamins) not ordinarily classed as foods (though absolutely indispensable to life and contained in greater or less quantities in the substances eaten) complex organic substances which fall into three principal groups, Proteins, Carbohydrates and Fats."

Ne.xt is given a special definition for legal purposes, namely-

" As used in laws prohibiting adulteration etc., 'food' is generally held to mean any article used as food or drink by man, whether simple, mixed or compound, including adjuncts such as condiments etc., and often excluding drugs and natural water."

Shah.

Bose f.

The State of Bombay v.

Virkumar Gulabchand Shah.

Bose /.

The definition given of "foodstuff" is-

"1. Anything used as food.

[1952]

2. Any substance of food value as protein, fat etc. entering into the composition of a food."

It will be seen from these definitions that "food stuff" has no special meaning of its own.

It merely carries us back to the definition of "food" because "foodstuff" is anything which is used as "food".

So far as "food" is concerned, it can be used in a wlde as well a narrow sense and, ,1n my opm10n, much must depend upon the context and background.

Even in a popular sense, when one asks another, "Have you had your food?", one means the composite preparations which normally go to constitute a meal-curry and rice, sweetmeats, pudding, cooked vegetables and so forth.

One does not usually think separately of the different preparaticms which enter into their making, of the various condiments and spices and vitamins, any mme than one woukl think of separating in his mind the purely nutritive elements of what is eaten from their non-nutritive adjuncts.

So also, looked at from another point of view, the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive, can hardly be separated from the purely nutritive elements if the effect of their absence would' be to render the particular commodity i:n its finished state unsavoury and indigestible to a whole class of persons whose stomachs are accustomed to a more spicely prepared product.

The proof of the pudding is, as it were, in the eating, and if the effect of eating what would otherwise be palatable and digestible and therefore nutrhive is to bring on indigestion to a stomach unaccustomed to to such unspiced fare, the answer must, I think, be that however nutritive a product may be in one form it can scarcely be classed as nutiitive if the only result of eating it is to produce the opposite effect; and if the essense of the definition is the nutritive element, then the commodity in. question. must cease

I -

.... _, r

- -

~ . .\.

to be food, within the strict meaning of the definition, to that particular class of persons, without the addition of the spices which make it nutritive. Put more colloquially, "one man's food is another man's poison." I refer to this not for the sake of splitting hairs but to show the undesirability of such a mode of approach.

The problem must, I think, be solved in a commonsense way.

I will now refer to the cases which were cited before us. In The Sun Jose, Cometa and Salerno(1) sausage skins-the envelope in which sausage meat is usually contained-were held to be foodstuffs. But this was a case of conditional contraband captured during the war in pursuance of a war-time measure, and the decision was given in accordance with international law.

This does not appear from the judgment but is plain from an earlier judgment of the same learned President on which . his later decision was based. The earlier judgment is reported in The Kim(2). He explains there at page 27 that the law of contraband is based on "the right of a belligerent to prevent certain goods from reaching the country of the enemy for his military use," and he states, also at page 27, that-

"International law, in order to be adequate as well as just, must have regard to the circumstances of the times, including the circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it."

One of the changing circumstances he felt he had to take into consideration is set out at page 29:

"The ren for drawing a distinction between foodstuffs intended for the civil population and those for the armed forces or enemy Government disappears

~ when the distinction between the civil population and the armed forces itself disappears .... Experience shows that the power to requisition will be used to the fullest extent in order to make s.ure that the wants of the military are supplied, and however much goods may

.... , be imported for civil use it is by the military that

(1) 33 T.L.R. 12.

(2) 32 T.L.R. 10.

T lie Stt1te crf

Bomb•y

Virkumar Gulabchand

Shah.

Bose].

Shah.

Bose /.

they will be consumed if military exigencies require it, especially now that the German Government have • taken control of all the foodstuffs in the country."

It is understandable that viewed against a background like that, the word "foodstuffs" would be construed in its wider sense fill order to give full effect to the object behind the law, namely the safety and preservation of the State.

It is also perhaps relevant to note that the term which was under consideration in those cases occurred in a war-time measure, namely a Proclamation promulgated on the 4th of August, 1914, the day on which the first world war started. There is authority for the view that war-time measures, which often have to be

enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake, should be construed more liberally in favour of the Crown or the State than peace-time legislation. The only assistance I can derive from this case is that the term "foodstuffs" is wide enough to cover matter which would not normally fall within the definition of what I have called food proper. I do not think it is helpful in deciding whether the wider or the narrower definition should be employed here because the circumstances and background are so different. .

The next case to which I will refer is James v ..

Jones('). That was a case of baking powder and it was held that baking powder is an article of food within the meaning of the English Sale of Food and Drugs Act, 1875.

Now it has to be observed here that the object of that Act was to prevent the adulteration of food with ingredients which are injurious to health. It is evident that the definition would have to be wide so as to indude not only foodstuffs strictly so called but also ingredients which ultimately enter into its preparation,. otherwise the purpose of the legislation, which was to conserve the health of the British people, would

have been defeated. ·

(!) [1894] 1 Q.B. 304.

I I

l..

...

Next comes a case relating to tea in which a narrower view was taken : Hinde v. Allmond(1). The question there was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food, namely the Food Hoarding Order of 1917. The learned Judges held it was not. But here it is necessary to note the background and at any rate some of the reasons given for the decision.

The prosecution there was directed against an ordinary housewife who had in her posses.sion a quantity of tea which exceeded the quantity required for ordinary used and consumption in her household. The Food Hoanling Order <lid not specify tea or indeed any other article.

It merely prohibited generally the hoarding of any "article of food" by requiring that no person should have in his possession or under his control at any one time more than the quantity required for use and consumption in his household or establishment. Shearman J. said that he rested his judgment on the "commonsense interpretation of the word 'food' in the Order, apart from its meaning in any other statute" and said :-

"I agree with my brother Darling that if it had been intended to include tea as food, it ought to have been expressly so provided in the Order."

Darling J. explained what he meant in this case in a later decision, Sainsbury v.

Saunders(2), and said that there was nothing to prevent the Food Controller from saying that a person should not have, for example, so much wine in his possession, provided he did not simply call it "food" and provided also that he let a person who was to be punished know what it was that he was not to do.

I think it is clear that the learned Judges were influenced in their judgment by the fact that the Order in the earlier case was one which affected the ordinary run of householders and housewives who would not have lawyers at their elbows to advise them regarding their day to day marketing. In the circumstances, they decided that the word should be given

(1) 87 L. J. K. B. 893. 8-9 S.c. India/71

(2) 88 L. J. K. B. 441.

The State of Bombay v.

Virkumar Gulabchand Shah.

Bose/.

The State of Bombay v.

Virkumar G:<labchand

Shah.

llose f.

its o.rdinary and popular meaning, otherwise many mnocent householders), who had no intention of breaking the law, would be trapped; and this seems to be the ratio decidendi in the decision of the Bombay High Court in Hub/al Kamtaprasad v.

Goel Bros. & Co. Ltd. (Appeal No. 14 of 1950) which is the decision virtually, though not directly, under appeal here, though the learned Judges also take into consideration two further facts, namely that the law should be construed in favour of the freedom of contracts and a penal enactment in favour of the subject.

The English decision about tea just cited is to be contrasted with another decision, also about tea, given a few months later in same year: Sainsbury v.

Saunders('). Two of the Judges, Darling and Avary, JJ. were parties to the earlier decision; Salter J.

was not. He held that though tea 'had been held in the earlier case not to be a "food" for the purpose of the Food Hoarding Order of 1917, it was a "food" within the meaning of the expressions used in certain Defence of the Realm Regulations read with the New Ministries and Secretaries Act of 1916 which empowered the Food Controller to regulate "the food supply of the country" and the "supply and consumption and production of food." Avary J. also considered that tea was an article of food for the purposes of rhese laws though Darling J. preferred to adhere to his earlier view. All three Judges also held that the provisions were wide enough to enable the Food Controller to hit at articles which were not food at all, such as sacks and tin containers (Darling J.) so long as he was able by these means even indirectly to regulate the supply of "food", but that portion of the decision does not concern us hen; because the laws they were interpreting were more widely phrased.

Now the comparison of one Act with another is dangerous, especially when the Act used for comparison is an English Act and a war-time measure, and I have no intention of falling into that error. I am concerned here with the Act before me and must

(!) 88 L. J. K. B. 441.

interpret its provisions uninfluenced by expressions, however similar, used in other Acts. I have referred to the cases discussed above, not for purposes of comparison but to show that the terms "food" and "foodtuffs" can be used in both a wide and a narrow sense and that the circumstanct:l\ and background can alone determine which is proper in any given case.

Turning to the Act with which we are concerned, it will be necessary again to advert to its history. Rule 81 (2) was wide and all embracing and the Order of 1944 clearly fell within its ambit.

It is also relevant to note that one of the purposes of the Order, as dis;. closed in its preamble, was to "maintain supplies essential to the life of the community." As turmeric was specifically included with certain other spices, it is clear that turmeric was then considered tCJ be a commodity essential to the life of the community, that is to say, it wa& considered an essential commodity and not merely a luxury which at a time of austerity could be dispensed with.

Then, when we turn to the Ordinance and the Act of 1946, we find from the preamble that the legislature considered that it was still necessary- "to provide for the continuance . ....... of powersto control the production, supply and distribution of, and trade and commerce in, foodstuffs . ... "

Section 3(1) of the Act continues this theme:

"The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein."

The Ordinance is in the same terms.

Now I have no doubt that had the Central Government re-promulgated the Order of 1944 in 1946 after the passing of either the Ordinance of the Act of 1946, the Order would have been good. As we have seen, turmeric falls within the wider definition of "food"

The State of

Born bay v.

Virkumar Gula be hand Shah.

Bose f.

Th< Stat< of Bombay

V.

Virkumal" Gula be hand

Shah.

Bou/.

and "foodstuffs" given in a dictionary of international standing as well as in several English decisions. It is, I think, as much a "foodstuff'', in its wider meaning, as sausage, skins and baking powder and tea.

In the face of all that I would find it difficult to hold that, an article like turmeric cannot fall within the wider meaning of the term "foodstuffs". Had the Order of 1944 not specified turmeric and had it merely prohibited forward oontracts in "foddstuffs" I would have held, in line with the earlier tea case, that that is not a proper way of penalising a man for trading in an article which would. not ordinarily be considered as a foodstuff. But in the face of the order of 1944, which specifically includes turmeric, no one can oomplain that his attention was not drawn to the prohibition of trading in this particular commodity and if, in spite of that, he chooses to disregard the Order and test its validity in a court of law, he can hardly complain that he was •trapped or taken unawares; whatever he may have thought he was at any rate placed on his guard. As I see it, the test here is whether the Order of 1944 would have been a good order had it been repromulgated after the Ordinance of

1946. In my opinion, it would, and from that it follows that it is saved by the saving clauses of the Ordinance and the Act.

I have already set out section 5 of the Ordinance.

In my opinion, the Order of 1944 falls within its purview, and if it is saved by thait, i!t is equally saved by section 17 (2) of the Act.

The section is in these terms:

"Any order . . . . . . . . . . deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act."

In my opinion, the conviction was good and the High Court was wrong in setting it aside, but though the matter has no relevance here because of the undertaking given by the learned Solicitor-General not to '- proceed against the respondent any further in this matter, I think it right to ob; erve that the attitude of

'r -

the learned English Judges in the first tea case would not be without relevance on the question of sentence in many cases of this kind. There can, I think, be no doubt that businessmen who are not lawyers might well be misled into thinking that the Ordinance and the Act did not intend to keep the Order of 1944 alive because the Order related to certain specified spices while the Ordinance and the Act changed the .nomenclature and limited themsleves to "foodstuffs", a term which, on a narrow view, would not include condiments and spices.

However, these observations are not relevant here because we are not asked to restore either the conviction or the sentence. In view of that, there will be no further order and the acquittal will be left as it stands.

. \ Order accordingly.

Agent for the appellant: P. A. Mehta.

Agent for the respondent : M. S. K. Sastri.

THE STATE OF BIHAR

fl. '

MAHARAJADHIRAJA SIR KAMESHW AR SINGH

OF DARBHANGA AND OTHERS

(CASES Nos. 305 TO 348 OF 1951 AND PETITION No. 612 OF 1951)

[PATANJALI SASTRI c. J., MEHR CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA AIYAR JJ.]

Bihar Land Reforms Act (XXX of 1950)-Law for abolition of zamindaries-Validity-Necessity to provide for compensation and of public purpose-Jurisdiction of Court to enquire into validity- Delegation of legislative powers-Fraud on the Constitution-Constitution of India, 1950-Constitution (First Amendment) Act, 1951- Arts. 31, 31-A, 31-B, 362, 363-Sch. VII, List II, entries 18, 36 and List Ill, entry 42-Construction-Spirit of the Constitution- Right of eminent domain-"Law", "Legislature", "Public purpose", meanings of-Convent of merger-Compulsory acquisition of private property of Ruler-Acquisition of arrears of rent payinl 50%-Deduction for cost of works-Legality.

Shah.

Bose /.

May 2, 5.

Nandkishore

Naunit Lal

R. N. Sachthey

THE STATE OF BOMBAY

VIRKUMAR GULABCHAND SHAH

VIVIAN BosE JJ.

ss. 2(a), 17(2)

Gur Narain Das

Gur Tahal Das

Virkumar Gulabchaml Shah

s. 2

s. 5

s. 17(2)

High Court of Judicature at Bonibay

Bavdeknr

Dixit

K.

Daphtary

G~ N. Joshi

B. K. V. Naidu

Faz! Ali

Bose

FAzL ALI

clause 3

section 2(a)

clause 3

Sangli

18th of March, 1950

clause 3

State of Bombay

Bombay High Court

Central Government of India

Section 5

Defence of India Rules

section 3

section 3

Virkumar Gulabchand

German Government

4th of August, 1914

Shearman

Darling

Darling

Avary

Salter

Section 3(1)

Central Government

Virkumal" Gula

section 5

section 17

P. A. Mehta

M. S. K. Sastri

STATE OF BIHAR

PATANJALI SASTRI

MEHR CHAND MAHAJAN

MuKHERJEA

CHANDRASEKHARA AIYAR

Bihar Land Reforms Act

Constitution of India

Arts. 31, 31