' '

2 S.C.R.

SUPREME COURT REPORTS

RAI SAHIB RAM JAWAYA KAPUR

AND OTHERS

THE STATE OF PUNJAB

(AND CONNECTED PETITIONS).

[MUKHERJEA, C.J., VIVIAN BOSE, JAGANNADHADAS

VENKATARAMA AYYAR and IMAM JJ.]

Constitutio11 of India, Arts. 19(/)(g), 73 and 162-Printing, publishing and selling of text books for recognised schools in the State of Punjab taken by the State Government exclusively in their own hands-Whether any fundamental right of the private publishers who were ousted from the business, contravened-Art. 19(1)

(g) of the Constitution-Arts. 73 and 162-Whether contain any definition of executive function-Union executive or the State

executive-Whether legislation by Parliament or State Legislature

ott certain items appertaining to their respective lists, a condition p1ecedent to the Union or State execu.tive functioning in respect to them.

For a long period of time prior to 1950 the text books for recognised schools in the State of Punjab were prepared by private publishers with their own money and under their own arrangements and they were submitted for the approval of the Government; The Government approved some books on each subject as alternative

text books. leaving it to the discretion of the Head Masters of difkrl.'nt schools to select any alternative book on each subject. In May

1950books on certain subjects (like agriculture, history, social studies, etc.) were prepared and published by'the Government themelves without inviting offers from private publishers. With respect to other subjects, -0ffers were invited from "publishers and authors".

The alternative method was given up and only one text book on each subject was selected. The Government charged as royalty 5 % on the sale price of all the approved text books. In 1952 a notification was issued by the Government which omitted the word "publishers" altogether and invited only "authors and others" to submit books for approval by the G<>vemment. The "authors and others" whose books were approved, had to enter into an agreement in the form prescribed by the Government the principal term of the agreement was that tho copyright in these books would vest absolutely in Government and the 'authors and others' would get or Royalty of 5 % on the sale price of the text books. It was contended that the publishing, printing and selling of text books was thus taken by the Government exclusively into its own hands and the private publishers were altogether ousted from the business. The petitioners, who purport to carry on the business of preparing, printing, publishing and selling text hooks for recognised schools in the Punjab, pre-

April 12

1955 ferred the present petition under Art. 32 of the Constitution praying Rai Sahib Rum for writs of mandamus directing the Punjab Government to with- Jawaya Kapnr draw the notifications of 1950 and 1952 on the ground that they a11d others contravened the fundamental rights of the petitioners guaranteed v. under the Constitution. _The Stale of Punj11b

Held that the action of the Government, whether it was good or bad, does not amount to an infraction of the fundamental right guaranteed by Art. 19(l)(g) of the Constitution. Jn the present case no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government of the Punjah done by them in furtherance of their policy of nationalisation of the text books for the school students.

A mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking within the meaning of Art. 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same.

Articles 73 and 162 of the Constitution do not contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned pri marily with the distribution of executive power between the Union on the one band and the component States on the other. They do not mean that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union executive or the State executive,· as the case may be, can proceed to function in respect of them. On the other hand, the language of Art. I 62 dearly indicates that the powers of the State executhe do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Art. 73 of the Constitution.

1"hc Comrnottwealth and the Central Wool Commitee v. The Colonial Combing, Spinning and Weaving Co. Ltd. (31 C.L.R. 421), Attorney-General for Victoria v. The Commonwealth, (52 C.L.R.

533) and Motilal v. The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257), referted to.

ORIGINAL .JURISDICTION: Petitions Nos. 652 of 1954 and 71to77 and 85 of 1955.

Under Article 32 of the Constitution for the enforcement of fundamental rights.

G. S. Pathak, (P. N. Mehta and G. C. Mathur, with him) for the petitioners in Petition No. 652 of 1954.

P.N. Mehta and G. C. Mathur, for the petitioners in Petitions Nos. 71 to 77 and 85 of 1955.

S. M. Sikri, Advocate-General for the State of 1955 Punjab (Jindra Lal and P. G. Gokhafe, with him) for Rai Sahib Ram the respondent in all petitions.

Jawaya Kapur and otlters

1955. April 12.

The following Judgments were The Srar/~J Punja/> delivered.

PETITION NO. 652 OF 1954.

MuKHERJEA C. J.-This is a petition under article 32 of the Constitution, preferred by six persons, who purport to carry on the business of preparing, printing, publishing and selling text books for different classes in the schools of Punjab, particularly for the primary and middle classes, under the name and style "Uttar Chand Kapur & Sons". It is alleged that the Education Department of the Punjab Government has in pursuance of their so-called policy of nationalisation of text books, issued a series of notifications since

1950 regarding the printing, publication and sale of these books which have not only placed unwarrantable restrictions upon the rights of the petitioners to carry on their business but have practically ousted them and other fellow-traders from the business altogether. It is said that no restrictions could be imposed upon the petitioners' right to carry on the trade which is guaranteed under article 19(1)(g) of the Constitutions by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause

(6) of article 19 of the Constitution. Accordingly, the petitioners pray for writs jn the nature of mandamus directing the Punjab Government to withdraw the notifications which have affected their rights.

To appreciate the contentions that have been raised by the learned counsel who appeared for the parties before us, it will be necessary to narrate certain relevant facts. ' In the State of Punjab, all recognised schools have got to follow the course of studies approved by the Education Department of the Government and the use, by the pupils, of the text books prescribed or authorised by the Department is a condition precedent to the granting of recognition to a

1955 school. For a long period of time prior to 1950, the Rai Sahib Ram method adopted by the Government for selection and Jawaya Kapur approval of text books for recognised schools was and others

v. commonly known as the alternative method and the The Stare of P1111jah procedure followed was shortly this: Books on relevant

M11kherjea c.1. subjects, in accordance with the principles laid down by the Education Department, were prepared by the publishers with their own money and under their own arrangements and they were submitted for approval of the Government. The Education Department after proper scrutiny selected books numbering between 3 and IO or even more on each subject as alternative text books, leaving it to the discretion of the Head Masters of the different schools, to select any one cif the alternative books on a particular subject out of the approved list. The Government fixed the prices as well as the size and contents of the books and when these things were done it was left to the publishers to print, publish and sell the books to the pupils of different schools according to the choice made by their respective Head Masters. Authors, who were not publishers, could also submit books for approval and if any of their books were approved, they had to make arrangements for publishing the same and usually they used to select some one of the publishers already on the line to do the work.

This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950.

By certain resolution.s of the Government passed on or about that time, the whole of the territory of Punjab, as it remained in the Indian Union after partition, was divided into three Zones. The text books on certain subjects like agriculture, history, social studies, etc. for all the zones were prepared and published by the Government without inviting them from .the publishers. With respect to the remaining subjects, offers were still invited from "publishers and

authors" but the alternative system was given up and only one text book on each subject for each class in a particular zone was selected.

Another change introduced at this time was that the Government charged, as royalty, S % on the sale price of all the

approved text books. The result therefore was that 1955 the Government at this time practically took upon RaiSahi/J Ram themselves the monopoly of publishing the text books 1m;:,0/ftf'::' on some of the subjects and with regard to the rest v. also, they reserved for themselves a certain royalty The Start:.. of Punjab upon the sale proceeds.

MukhePJea c.J.

Changes of a far more drastic character however were introduced in the year 1952 by a notification of the Education Department issued on the 9th of August 1952 and it is against this notification that the complaints of the petitioners are mainly directed. This notification omitted the word "publishers" altogether and invited only the "authors and others" to submit books for approval by the Government. These "authors and others", whose books were selected, had to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the "authors

and others" would only get a royalty at the rate of 5 °:', on the sale of the text books at the price or prices specified in the list. Thus the publishing, printing and selling of the books were taken by the Government exclusively in their own hands and the private publishers were altogether ousted from this business.

The 5 °{, royalty, in substance, represents the price for the sale of the copyright and it is paid to an author or any other person who, not being the author, is the owner of the copyright and is hence competent in law to transfer the same to the Government. It is against these notifications of 1950 and 1952 that the present petition under article 32 of the Constitution is directed and the petitioners pray for withdrawal of these notifications on the ground that they contravene the fundamental rights of the petitioners guaranteed under the Constitution.

The contentions raised by Mr. Pathak, who appeared in support of the petitioners; are of a three-fold character. It is contended in the first place that the executive Government of a State is wholly incompetent. without any legislative sanction, to engage in any trade or business activity and that the acts of

30 8 SCT/ND, ~2

J955 the Government in carrying out their policy of estab- Roi Sahib Itnnr lishing monopoly in the business of printing and pub- 1•::;;• .~:::_:- lishi'.1g _tet ooks fo_r school sudents is wholly. wit~- v. out Junsd1ct10n and 1Hegal. His second contention 1s, Th• State of 1'unfab that assuming that the State could create a monopoly

Mukherfta C.J. in its favour in respect of a particular trade or business, that could be done not by any executive act but by means of a proper legislation which should conform to the requirements of article 19(6) of the Constitution. Lastly, it is argued that it was not open to the Government to deprive the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under article 31 of the Constitution.

The first point raised by Mr. Pathak, in substance. amounts to this, that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competition with private agencies without the sanction of the legislature. It is not argued that the functions of a modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realrri from external or intern a 1 enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community.

What Mr. Pathak says, however, is, that as our Constitution clearly recognises a division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the function of the executive cannot but be to executive the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out. The learned counsel has, in support of this contention, placed considerable reliance upon articles 73 and 162 of our Constitution and also upon certain decided authorities cif the Australian High Court to which we shall. presently refer.

Article 73 of the Constitution reliltes to the executive powers of the Union, while the corresponding

provision in regard to the executive powers of a State 1955 is contained in article 162. The provisions of these.

Rai Sahib Ram articles are analogous to those of sections 8 and 49(2) Jawaya Kapur respectively of the Government of India Act, 1935 and :.thers and laid down the rule of distribution of executive The.State of Pmuab powers between the Union and the States, following Mukhtriea c.J. the same analogy as is provided in regard to the distribution of legislative powers between them, Article 162, with which we are directly concerned in this case, lays down:

"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution 0T by any law made by Parliament upon the Union or authorities thereof".

Thus under this article the executive authority of the State is exclusive in respect to matters enu.rnerated in List II of Seventh Schedule. The authority also extends to . the Concurrent List except as provided in the. Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement.

The proviso engrafted on clause

(1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contain any Clefinition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distri-

1955 bution of the executive power between the Union on Rai Sahib Ram the one hand and the States on the other. They do Jawaya Kapur not mean, as Mr. Pathak seems to suggest, that it is aud others v. only when the Parliament or the State Leislature has The State of PunJab legislated on certain items appertaining to their res-

Muklrerfea c..r. pective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. .Pathak"s contention.

The Australian cases upon which reliance has been placed by the learned counsel do not, in our opinion, appear to be of much help either. ln the first(') of these cases, the executive Government of the Commonwealth, during the continuance of the war, entered into a number of agreements with a company which was engaged in the manufacture and sale of wool-tops.

The agreements were of different types. By one class of agreements, the Commonwealth Government gave consent to the sale of wool-tops by the company in return for a share of the profits of the transactions (called by the parties "a licence fee"). Another class provided that the business of manufacturing wool-tops should be carried on by the company as agents for the Commonwealth in consideration of the company receiving an annual sum from the Commonwealth. The rest of the agreements were a combination of these two varieties. It was held by a Full Bench of the High Court that apart from any authority conferred by an Act of Parliament or by regulations thereunder, the executive Government of the Commonwealth had no power to make or ratify any of these agreements. The decision, it may be noticed, was based substantially upon the provision of section 61 of the Australian Constitution which is worded as follows :

(1) Tlw_ C111111110111i•erif1h nnd the Cl'11fral i-v,, o/ Cm11111ii1<•(' v. Th,• Cnlnuia/ Co111hi11g. Spil111ii1g c111tf W.e111'i11g Co.Ltd., 31 C.l..R. -121.

"The executive power of the Commonwealth is 1955 vested in the Queen and is exercised by the Governor- Jr#. Sahib Ram General as the Queen's representative and extends to Ja-;;:za 0 ~":,.~' the execution and maintenance of the Constitution v. and of the laws of the Commonwealth".

The State of Punjab

In addition to this, the King could assign other functions and powers to the Governor-General under section 2 but in this particular case no assignment of any additional powers was alleged or proved.

The court held that the agreements were not directly authorised by the Parliament or under the provisions of any statute and as they were not for the execution and maintenance of the Constitution they must be held to be void. Isacs, J., in his judgment, dealt elaborately with the two types of agreements and held that the agreements, so far as they purported to bind the company to pay to the Government money, as the price of consents, amounted to the imposition of a tax and were void without the authority of Parliament. The other kind of agreements which purported to bind the Government to pay to the company a remuneration for manufacturing wool-tops was held to be an appropriation of public revenue and being without legislative authority was also void.

It will be apparent that none of the principles indicated above could have any application to the cucumstances of the present case. There is no provision in our Constitution corresponding to section 61 of the Australian Act. The Government has not imposed anything like taxation or licence fee in the present case nor have we been told that the appropriation of public revenue involved in the so-called business in text books carried on by the Government has not been sanctioned by the legislature by proper Appr.opriation Acts.

The other casc(1) is of an altogether different character and arose in th": following way. The Commonwealth Government had established a clothini! factory in Melbourne for the purpose of making nav; i and military uniforms for the defence forces and

(1) .Vid" Attorney General for Jlklqf"1 v. The Commo11weal1h, 52 C'.L.R. 533.

Mukilerjell C.J.

1955 postal employees. In times of peace the operations of Rui S'lfrib Ram the factory included the supply of uniforms for other

Ja:~~"o5::':: departments of the Commonwealth and for employees v. in various public utility services. The Governor- T/re S1ute of J'uhiab General deemed such peace-time operations of the

Mukherjea c, J. factory necessary for the efficient defence of the Commonwealth inasmuch as the maintenance intact of the trained complement of the factory wou Id assist in meeting wartime demands.

A question arose as to whether operations of the factory for such purposes-in peace-time were authorised by the Defence Act. The majority of the court answered the question in the affirmative. Starke, J. delivered a dissenting opinion upon which Mr. . Pathak mainly relied.

The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of -the Commonwealth extended to the maintenance of the Constitution and of te laws of the Commonwealth and held that there was nothing in the Constitution or any law of the Commonwealth which enabled the Commonwealth to establish and maintain clothing factories for other than Commonwealth purposes.

The opinion, whether right or wrong, turns upon the particular facts of the case and upon the provision of section 61 of the Australian Act and it cannot and does not throw any light on the question that requires decision in the present case.

A question very similar to that in the present case did arise for consideration before a Full Bench of the Allahabad High Court in Motila1 v. The Guvemment of the State of Uttar Pradesh('). The point c<invassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Government to do so.

Different views were expressed by different Judges on this question.

Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent:

(I) A.LR. 1951 Allahabad 257.

It prnst include all powers that may be needed to 19ss carry into effect the aims and objects of the Constitu- Rrsi, Sa/tib Ram tion. It must mean more than merely executing the Jal'!lldya K, af'Jur 1 A d. h Ch" f J h S 1 °11 ott1er.< aws. ccor mg to t e 1e ust1ce t. e tate ms v. a right to hold and manage its own property and The $.tare of P1111jab carry on such trade or business as a citizen has the At1fklterjea c..1. right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary to law. The running of a transport business therefore was not per se outside the ambit of the executive authority of the State. Sapru, J. held that the power to run a Government bus service was incidental to the power of acquiring property which was expressly conferred by articl~ 298 of the Constitution. Mootham and Wanchoo, JJ., who delivered a commoi1 judgment, were also of the opinion that there was no need for a specific legislative enactment to enable a State Government to run a bus service. In the opinion of these learned Judges an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public. Agarwala.

J. dissented from the majority view and held that the State Government had no power to run a bus service in the absence of an Act of the legislature authorising the State to do so. The opinion of Ag:arwala, J. undoubtedly supports the contention of Mr.

Pathak but it appears to us to be too narrow and unsupportable.

It may not be possible to frame an exhaustive definition of what executive function means and implies.

Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficicntlv difTerentiated and consequently it can very well be said that our Constitution does not contcmplrite

1955 assumption, by one organ or part of the State, of Rai Sahib Ram functions that essentially belong to another.

The Jawa.va Kqpur, executive indeed can exercise the powers of departand others v, mental or subordinate legislation when such powers The State of Pnnjah.are delegated to it by the legislature. It can also,

Mukherjeb CJ. when so empowered, exercise J'udicial functions in a limited way. The executive overnment; however. can never go against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.

The limits within which the executive Gt, vernment can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primarv responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order. the promotion of social and economic welfare. the diredion of foreign policy, in fact the carrying on or supervision of the general administration of the State.

Jn India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the execut.ive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional

head of the executive and the real executive powers 1955 are vested in the Ministers or the Cabinet. The same Roi Sa/iJ'b Ram provisions obtain in regard to the Government of Jawaa~apur States; the Governor or the Rajpramukh, as the case an

v. ers may be. occupies the position of the head of the exe- The State 01 Pun/ab cutive in the State but it is virtually the council of Mukhe, Jea CJ.

Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is. like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part". The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the .principle of collective responsibility, the most important questions of policy are all formulated by them.

Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business. Is it necessary that there must be a specific legislation legalising such trade activities before they could be em barked upon? We cannot say that such legislation is always necessary. If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise such expenditure either directly or under the provisions of a statute. What is generally done in such cases is. that the sums required for carrying on the business are entered in the annual financial statement which the Ministry has to lay before the House or Houses of Legislature in respect of every financia} year under article 202 of the Constitution. So much of the estinrntes as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduc-

31-s SCIIND.'82

1955 tion of the amount (article 203). After the grant is Rni snhib Ram sanctioned, an Appropriation Bill is introduced to

'0"~Y:rf."P!!' provide for the appropriation out of the consolidated 011

•• '"' fund of the State of all moneys required to meet the TheSror• 0! l'mriab grants thus made by the Assembly (article 204).

As M11kh-;:; a c,1. soon as the Appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorised by law under article .266(3) of the Constitution.

It may be, as Mr. Pathak contends, that the Appropriation Acts are no substitute for specific legislation and that they validate only the expenses out of the consolidated funds for the particular years for which they are passed; but nothing more than that may be necessary for carrying on of the trade or business. Under article 266(3) of the Constitution no moneys out of the consolidated funds of India or the consolidated fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution. The expression "law" here obviously includes the Appropriation Acts. It is true that the Appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves.

But so long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised. Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the Appropriation Acts would afford a complete answer.

Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carrv on their busines. a specific legislation sanctioning s~1ch course would have to be passed.

In the present case it is not disputed that the entire 1955 expenses necessary for carrying on the business of Rai Sahib R"m printing and publishing the text books for recog- '""'<lY" 1'"P"' !lnzi 11thers nised schools in Punjab were estimated and shown in v. . the annual financial statement and that the demands Tire St!lte of P1111i!lh for grants, which were made under different heads, M11kherJe11 c .. 1. were sanctioned by the State Legislature and due Appropriation Acts were passed. For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people. This power of contract is expressly vested in the Government under article 298 of the Constitution. In these circumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legislation sanctioning such course.

These discussions however are to some extent academic and are not sufficient by themselves to dispose of the petitioners' case. As we have said already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution.

The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution.

On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed.

The material question for consideration t hcrcfore is: What fundamental rights of the petitioners, if any, have been violated by the notifications

19ss and acts of the executive Government of Punjab &1 Silltib Ram undertaken by them in furtherance of their policy of Jawaya /(Jlpur nationalisation of the text books for the school and '!/.h"'s students? 1'11. State of Puf!iai

Muklierjea c;.J.

The petitioners claim fundamental right under article l 9(1)(g) of the Constitution. which guarantees, inter alia, to all persons the right to carry on any trade or business. The business which the petitioners have been carrying on is that of printing and publishing books for sale including text books used in the primary and middle classes of the schools in Punjab.

Ordinarily it is for the school authorities to prescribe the text books that are to be used by the students and if these text books are available in the market the pupils can purchase them from any book-seller they like. There is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future.. With regard to the schools which are recognised by the Government the position of the. publishers is still worse. The recognised schools receive aids of various kinds from the Government including grants for the maintenance of the institutions, for equipment, f.urniture, scholarships and other things and the pupils of the recognised sch0<9ls are admitted to the school final examinations at lower rates. of fees than those demanded from the students of non-recognised schools. Under the school code, one of the main conditions upon which recognition is granted by Government is that th~ schpol authorities must use as text books only those which are prescribed or authorised by the Government. So far therefore as the recognised schools are concerned-and we are concerned only with these schools in the present casethe choice of text books rests entirely with the Government and it is for the Government to decide in which way the selection of these text books is to be made. The procedure hitherto followed was that t_he Government used to invite publishers and authors to submit their books for examination and approval by

the Education Department and after selection was 1955 made by the Government, the size, contents as . well Rai.Sqhib R,, m as the prices of the books were fixed and it was left Ja:a /f;,"fr:' to. the publishers or authors to print and publish 11'h s v .. rp . h • e tllle o, 11111a them and off er them for sale to the pupils. So long __.:._ as this system was in vogue the only right which Mukherjea c.J. publishers, like the petitioners had, was to off er their books for inspection and approval by the Government. They had no right to insist on any of their books being accepted as text books. So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them.

A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to. him to say that it was his fundamental right to have his old customers for ever. On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or rusiness .is affeGted by it. Nobody is taking away the publishers' right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they l:'.re. concerned whether the Government .approves of text books submitted by other persons who are willing to sell their copyrights in the books to them. or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print

1955 and publish. We are unable to appreciate the argu- Rui Sahib Ram ment of Mr. Pathak that the Government while cxer- Jawayu Kapur cising their undoubted right of approval calmot attach und othrs ._, v. to it a condition which has no bearing on the purpose Tile State of Punjab for which the approval is made. We fail to see how

.uuklrjell c.J. the petitioners' position is in any way improved thereby. The action of the Government may be gLJod or bad. It may be criticised and condemned in the Houses of the Legislature or outside but this do.es not amount to an infraction of the fundamental right guaranteed by article 19(1 )(g) of the Constitution.

As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government, the petition is bound to fail on that ground. This being the position, the other two points raised by Mr.

Pathak do not require consideration at all.

As the petitioners have no fundamental right under article 19(l)(g) of the Constitution, the question whether the Government could establish a monopoly without any

lcislation under article 19(6) of the Constitution is allogclher imnrntcrial. Again a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an undertaking within the meaning of article 3112) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same. The result is that the petition is dismissed with costs.

PETITIONS NOS. 71 TO 77 AND 85 OF 1955.

MuKHERJEA C. J.-These 8 petitions under article 32 of the Constitution raise identically the same points for conside.i:ation as are involved in Petition No. 652 of 1954 just disposed of. The petitioners in these cases also purport to .be printers, publishers and . sellers of text-books for various classes in the schools. of Punjab and they complain .of infraction of their fundamental rights under article J 9(l)(g) of the Constitunon hv reason of the various notifications issued by the Sta.te of Punjab in pursuance of their policy

of nationalisation of text books. The learned counsel 1955 appearing in these cases have adopted in their entirety Rai Sahib Ram the arguments that have been advanced by Mr. Pathak Jaw4ya Kapur amt others in Petition No. 652 of 1954 and no fresh or additional v. argument has been put forward by any one of them. The SfrJJe of Punjab This beiqg the position the decision in Petition M11k;;;;;; a c..1.

No 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs.

SHIVA JUTE BALING LTD. v.

HINDLEY & CO. LTD.

[BIJAN KUMAR MuKHERJEA C.J. and SUDHI

RANJAN DAS J.].

Appeal by Special Leave under Article 136 of the Constitution- Procedure to be followed on grant of such leave-Supreme Court Rules, rules 8, 9, 12 and 13 of Order Xlll--Circumstances warranting action against an Appellant for rescinding special leave--Civil Procedure Code, Order XLV, rule 8-"Admission" of appeal to Supreme Cowt-Applicability to appeals under article 136 of Constitution-Extent of Rule 9, Order XIII, of Supreme Court Rules- Rules and Practice of High Collrts-Formal motion in High Court for "admission" of appeal when special le1we was granted under article 136-Whether necessary--Calcutta High Court (Original Side) Rules, rule 9 of Chapter 32-Scope of.

By an order dated May 25, 1~54, the Supreme Court granted the petitioners in the case special leave to appeal against the judgment and order of the High Court at Caleutta. In accordance wi:h the order, the pt'titioners furnished the security amounts directed to be deposited within the time specified in the order. The Registrar of the High Court did not iSS\le. any notice of admission of appeal to be served by the Appellant's Solicitor on the Respondents as envisaged in rule 9 of Order. XIII, S.C.R. Nor did the Appellant following the practice of the High Court, move that C.ourt for "admission" of the appeal until January U, 1955. The Respondents first mo\ed the High Co4rt complail).ing of dault on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 df Order XIII of the Supreme Court Rules. The application in the High Court was therefore kept pending.

Held: Afer the grant of $pecial leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the

RAI SAHIB RAM JAWAYA KAPUR

AND OTHERS

MUKHERJEA, C.J.

VIVIAN BOSE

JAGANNADHADAS

IMAM JJ.

Arts. 19(/)(g), 73 and 162

Art. 19(1)

Arts. 73 and 162

in the State of Punjab

April 12

1955

Art. 32

Art. 19(l)(g)

Art. 31(2)

Articles 73 and 162

Parliament

Art. 73

1"hc Comrnottwealth

Article 32

G. S. Pathak

P. N. Mehta

G. C. Mathur

P.N. Mehta

S. M. Sikri

Jindra Lal

P. G. Gokhafe

Rai Sahib Ram

Jawaya Kapur

MuKHERJEA

article 32

Uttar Chand Kapur

article 19(1)(g)

article 19

Punjab Government

Rai Sahib Ram

Jawaya Kapur

RaiSahi

MukhePJea

article 32

Pathak

Mukherfta

article 19(6)

article 31

articles 73 and 162

Australian High Court

Article 73

article 162

sections 8 and 49(2)

Mukhtriea

Article 162

Seventh Schedule

article 73

Government of India

State of PunJab

article 162

article 73

section 61

Sahib Ram General

"The executive power of the Commonwealth is 1955 vested in the Queen and is exercised by the Governor- Jr. Sahib Ram General as the Queen's representative and extends to Ja-;;:za 0 ~":,.~' the execution and maintenance of the Constitution v. and of the laws of the Commonwealth".

State of Punjab

section 2

Isacs

section 61

Melbourne

Mukilerjell

Mukilerjell C.J.

1955 postal employees.

Rui S'lfrib Ram

Starke

section 61

section 61

Allahabad High Court

Malik

S 1

Sapru

Mootham

Wanchoo

Constitution of India

Agarwala

Ag

arwala

Jawa.va Kqpur

State of Pnnjah.are

Mukherjeb

article 154

India

England

article 53(1)

article 75

Government of Jawaa~apur States

Rajpramukh

Mukhe

article 202

article 203

article 204

article 266(3)

Rai Sahib

article 298

article 32

Silltib Ram

State of Puf!iai

Muklierjea

Mukherjea

State of Punjab

.uuklrjell

article 19(1 )(g)

article 19(l)(g)

article 19(6)

article 3112

article 32

Pathak Jaw4ya Kapur

SfrJJe of Punjab

BIJAN KUMAR MuKHERJEA

SUDHI

RANJAN DAS

Article 136

article 136

Supreme Court Rules

article 136

May 25, 1~54,

Supreme Court

High Court at Caleutta

Order XIII of the Supreme Court Rules

article 136


Morch 22

SUPREME COURT REPORTS [1955]

SAHU MADHO DAS AND OTHERS

PANDIT MUKAND RAM AND ANOTHER (and connected Appeal)

(VIVIAN BOSE' B. JAGANNADHADAS and B. P. SINHA JJ.l

Compromise or family arrangement-Proof of-Assumption of antecedent title of some .sort in the parties-Re'versioner's assent to an alienation-Legal effect thereof.

A family arrangement can, as a matter of Jaw, be inferred from .a long course of dealings between the parties.

It is well settled that a compromise or family arrangement i3 based on the assumption tha! there is an antecedent title of some sort in the parties and the agteement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains. why no conveyance is required in thcsi..: cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving th~ property under th-: arrangement had always res!ded in him or her so far as the property

alHng to his or her share is concerned and therefore no coriveyance ts necessary.

But in view of the fact that the Courts lean strongly in favour of family arrangements that bring about harmony in a family and do .justice to its various members and avoid, in znticioation, future disputes which might ruin them all the Supreme C0urt, carrying the principle further, upheld an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a Conveyance for consideration when consideration is present.

The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties ~, Y and Z; and thereafter B, C •nd D would hold their respective titles under the title derived from A.

But in that event, the formalities of law about the passing of title

I ••

...,

by transfer would have to be obser\'ed, and unde1> the present state of law either registration or twelve year's' adverse possession woilld be necessary. But in the present case the arrangement was made in 1875 when the Transfer of Property Act was not in force and no writing was required; and as there is no writing, the Registration Act does not apply either.

Therefore; the oral arrangement of 1875 would be sufficient to pass title in this way and that is what happened.

Once a reversioner has given his assent to an alienation,. whether at the time, or as a part of the transaction, or later as a. distinct and separate a'ct, he is bound though others may not be, and having given his assent he cannot go back on it to the detriment of other persons; all the more so when he himself receives a benefit.

It is settled law that an aHenation by a widow in excess of her powers is not altogether void but only voidable by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or bindinfi.

The principle applicable to the present case is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, . from going back on that and a\'oiding it at a later tag,~. Having made his election he is bound by it.

Held, that in the present cas" the plaintiff who is in titulo now that the succession has opened out, had unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit qnder it, so he is now precluded from avoiding it, and any attempts he made to go behi.nd that assent when 'it suited his purpose cannot render the assent once given nugatory even though it

W8S given when he was not in titulo and e\'en though the assent was to a series of gifts.

Mst., Hardei v. Blwgwan Szngh, (A.LR. 1919 P.C. 27); Clifton v. Cockburn ((18341 3 My. & K. 76;; William v. William ((1866] LR. 2 Ch. 294); Rani Mewa Kuwar v. Rani Hulas Kuwar ([1874] LR. 1 I.A. 157); Khunni Lal v. Pobind Krishna ((1911] LR. 38 LA. 87): Ramsumran Prasad v. Shyam Kuma.ri ((1922.] LR. 49 I.A. 348J; Raja Modhu Sudhan Singh v. Rooke ([ 1897] L.R. 24 LA. 164J; Bl]oy Gopal v. Sm. Krishna ((1906] L.R. 34 I.A. 87); Ram.ouda Annaxowda v: Bhaµsaheb ([1927] LR. 54 I.A. 396); Dhiyan Singh v. Jugal Kishore 1[1952] S.C.R. 478 at 488); Rangaywami Gounden v. Nar.hiappa Gounden ((1918] LR. 46 I.A. 72 at 86 &. 87 J, rekrrd to.

C1v11 APl'U I.AT! .It RISU!Cl 10~: Civil Appeals Nus. n and 1J4 uf 1950.

Sahu Madho Das

and others v.

Pandit Mukand Ram and another

1955 -- Sahu Madho Das

and' others v.

Pandit Mukand Ram and another

Appeals from the Judgments and Decrees dated the 20th March 1942 of the Allahabad High Court in First Appeal Nos. 154 and 152 of 1934 arising out of the Judgments and decrees dated the 25th Augµst 1932 of the Court of First Additional Subordinate Judge, and First Additional Civil Judge, 'Moradabad in Original Suit Nos. 90 and 87 of 1931 respectively.

N. C. Chatterji, (S. S. Shukla with him) for the Appellants.

Gopi Nath Kunzru, (B. P. Maheshwari with him) for Respondent No. 1.

P. C. Agarwala, for Respondent No. 2 in Civil Appeal No. 94 of 1950.

1955. March 22. The Judgment of the Court was delivered by

BOSE J.-These appeals arise out of two suits which were heard together along with two other suits with which we are not now concerned. All four raised the same set of questions except for a few subsidiary matters. They were tried together and by common consent the documents and evidence in the various cases were treated as common to an. They were all governed by one common judgment, both in the first Court and on appeal. The defendants appeal here.

The plaintiff, Mukand Ram, is common to all four cases. He sues in each suit as the reversioner to one Pandit Nanak Chand who was his maternal grandfather. The family tree is as below :

...

.,.

Nanak Chand d. 23-7-56 'V: l\Ist. Pa to .. d. Jan. 1875

,-. -7---·---:-------;-.-i---- --- 1\Ist. l\Iaha Devi l\Ist. Durga Devi d. 1912 I d. 1888 H: Nathmal Das H: Jwala Prasad •

I l\Ist. Har Devi . d .. 10-!J-19 H: Bhawani Shanker l\IsL Ram Pyare

: I I

. . I .

I I!

Banwari Lal Sita! Prasad Shyam Lal Pyare Lal Bhukhan Saran (dead) (dead) (dead) (Deft. 5) . .

I Brij Lal

(deii)

I .

Kanhaiya Lal (Dead)

I l\Iukand Ram

(Plff. No. I)

~.,, ~

~ t:l §" . ... . ...

!J' "· ....... ,~

~1~~:<S:~ "-. § t 0 • c (Ii t::r ;; ; t ti ~ 11o ..

t,:) 00 9 ~

00 ~ t.'rj .... ,... t.'rj .a g

~ ~

~ ~

Sahu fl, fadho Das

and others v.

Pa1uiit Muka11d Rani and another

BoseJ.

SUPRFME COURT REPORTS [1955]

The plaintiff's case is. that the properties in the four suits belonged to Nanak Chand who died on 23-7-1856 leaving a widow Mst. Pato and three daughters, Maha Devi, Durga Devi and Har Devi. On his death, his widow Mst: Pato succeeded. She died in January 1875 and the estate then went to the three daughters. Of them, Durga Devi died in 1888, Maha Devi in 1912 and Har Devi in 1919. The plaintiff's rights as reversioner accrued on Har Devi's death on

10-9-1919.

But before this came certain alienations which the plaintiff challenges in the present suits. The suits were filed on 8-9-1931.

ln Civil. Appeal No. 92 of 1950, the challenge is tu a mortgage effectt; d by Durga Devi on 3-3-1887 in favour of Sahu Bitthal Das. The mortgagee sued on his mortgage, .obtained a decree and in execution purchased the properties himself. The plaintiff's case is that Durga Devi only had a life estate and, as there was no necessity, the mortgage and the subsequent auctinn purchase do not bind him.

In Civil Appeal No. 94 of 1950, there are two alienations, 1both sales. The first, dated 23-9-1918, was by Pyare Lal (son of Durga Devi) in favour of Shyam Lal, son of M ulchand.. (This is ncit the Sh yam Lal who was Pyare Lal's brother). The vendee later sold the properties to the first and second defendants on 5-3-1927. One of the vendees, the first defendant, is yet another Shyam Lal: Shyam Lal son of Harbilas.

The other sale was by Brij Lal's guardian on behalf of Brij Lal, "Brij Lal then being a minor. It was on 25-11-1919 in favour of Chheda Lal. The first and second defendants. pre-empted this sale after a fight in Court and took possession under the decree which they obtained.

Tlie plaintiff's case is that Har Devi was alive at the date of the first sale and as the reversion had not opened out Pyare Lal had no power to sell. In the case of the second sale, the reversion had opened out but Brijlal heing more remote than the plaintiff got no title, so that sale is also bad.

The defendants' case b that the properties in these

two suits (as also in the other two suits with which we are no longer concerned) did not belong to Nanak Chand and formed no part of his estate; they belonged exclusively to Mst. Pato as part of her personal estate.

On 22-1-1864 Mst. Pato executed a doeument which she called a deed of agreement but which, if it is anything at all, is a will. There are no other parties to it and she purports thereby to dispose of her properties after her death. The defendants in Civil Appeal No. 92 of 1950 have called it a will. After sayit1g that she wiTl remain in possession and occupatidn as long as she lives, Pato says that after her death her three daughters will be the owners and will either remain 'in joint possession or will divide the estate in equal shares and, in that event, will take possession of their respective shares and will be the "owners" of them.

But before she died Pato made another disposition of her estate during her life time .in the year 1875 which, of course, abrogated the will. This was done orally. The defendants say that this was a family arrangement in which each of the three daughters was given certain properties absolutely so that each became the absolute owner of whatever fell to her share.

Pato also gave properties to each of her four grandsons who were then Uving, _namely Kanhaiya Lal, Mukand Ram, Banwari Lal and Sital Prasad. The defendants asserted that they also took separate and absolute estates _immediately and said that each has been holding and dealing with the properties. so divided, separately and as absolute owners, ever since.

Tolms, at the dates of the transfers now challenged, each alienor had an absolute title to the properties alienated and the plaintiff has none.

The trial Court he4l that though most of the properties in Pato's hands came from her husband Nanak Chand, the plaintiff had not shown that the properties with which his_foar suits were concerned formed part of Nanak Chand's estate.

An issue was also tramed about the family settlement and one about estoppeJ. On both those points .

Sahu Madho Da

a11d others

Pandit M11ka11d Ram tmd anothe

Bo.<e .T.

Sah1l Madho Da.~

and others

Pandit Mukand Ram aQl1 another

B1HeJ.

the learned Judge found against the plaintiff. result was that all four suits were dismissed.

[1955]

The

The High Court reversed these findings on appeal an.d held that all the properties, including the ones in smt, formed part of Nanak Chand's estate.

The learned Judges also held that though there was a family arrangement, it was a purely voluntary settlement made by Pa to and was not made .as the result of any dispute and that in any case it did not bind the plaintiff who was not a par.ty to it and who does not claim through any of those who were. They also held that there was no estoppel. Accordingly, the plaintiff's claim was decreed in each of the four suits.

Appeals were filed here in all four suits by the various defendants but Civil Appeals Nos. 91 and 93 of 1950 were dismissed for want of prosecution, therefore the decree of the High Court in the two cases out of which those appeals arose will stand. We are now only concerned with Civil Appeals Nos. 92 and 94 of 1950.

In the lower Courts much of the effort was concentrated on finding out which items out of a large mass of property belonged to Nanak Chand and which did not. We do not intend to look into that because it it is unnecessary on the view we take. We will therefore assume, without deciding, that all the properties in dispute were part of Nanak Chand's estate.

We will deal first with the family arrangement.

The learned counsel for the plaintiff argued that the defendants never set up a family arrangement though they have used the words "family settlement".

He contended that what they really pleaded was a gift out and out by Pato. It was pointed out that the defendants never suggested a dispute. neither did they suggest that any one ever questioned or doubted Pato's absol11tc title to the property. Therefore, it was argued the present case, which is based on the assumption that the property was not Pato's and that she was laying wrongful claim to it, cannot be allowed because it flies in the face of the defendants' pleadings.

There is not much in this objection. The defen-· dants did plead a family arrangement and the matter was put in issue and fought' out. The defendants' case was that all the property was Pato's. The plaintiff's case was that. it was all Nanak Chand's. The issues were-

" 4. Whether Mst. Pa to gave properties separately to each of her three daughters and to daughter's sons and put them in proprietary possessior1 and they remained absolute owners of their properties and what is its effect on the case?.

5. Whether the arrangement mentioned in issue No. 4 was by way nf family settlement and what is its effect on the case?"

These issues are broad enough to cover the present point. If the properties really belonged to Nanak Chand, as the plaintiff cla.ims, then the case for a family settlement becomes all the stronger, for it is clear that Pato laid clain1 to them as her own properties of which she could dispose by will, for that is what the document of 1864 really is.

If, on the other hand. they were her properties. as the defendants say, then she had the right either to gift them outright or to settle them as the defendants say she did by way of a family arrangement.

Jn either case. the matter was fully fought out and neither side was misled.

The real question we have to decide is, has the family arrangement been proved?

We think it has.

The direct evidence on this point is that of Shyam Lal (D.W. I in C.A. 94 '50) and the first defendant there. He tells us that he had money lending transactions with Har Devi. Kanhaiya Lal, Shyam Lal and Pyare Lal on unregistered bonds from 1902 till 1910 and from 1910 on registered mortgage bonds. He says that-

"They" (tlrat is to say. Har Devi', Mukand Ram.

Kanhaiya Lal. Shyam Lal and Pyare Lal) "showed one copy of a deed of will and said that Mst. Pato had given the proper.ty to her daughters and grandsons ......... I am illiterate and Kanhaiya Lal brother of Mukand Ram had the deed of will read over to me at

5-8 SCT/ND/82

Sahu Madho Das and others v.

Pandit M11k1111d Ram and 01101/wr

Bo., e J.

1955 the time of mortgaging property in 1909 or 1910. It

S:i/111 Madlm Das was by means of that paper that I came to know

and arhers that Mst. Pato had made her daughters and grand-

Pandir vMnkand sons absolute owners and I know of the property flam and another 'which was mortgaged to me".

Bose}, Now it is true that the so-called will of 1864 does not make provision for the grandsons, nor does it expressly confer an absolute estate on the legatees, but the witness is illiterate and had to depend on what he was told about the contents and meaning of the document, and what we have to test is. the truth of his assertion that the plaintiff Mukand Ram and Kanhaiya Lal, and other members of the family, told him that Mst. Pato had given the property to her daughters and grandsons. If they told him this, as he says they did, then it operates as an admission against Mukand Ram and shifts the burden of proof to him because he was 011e of the persons who made the statement. The statements made by the others are not relevant except in so far as they prove the conduct of the family.

The plaintiff IP.W. 11 in C.A. 91I50) admits that Mst. Pato divided the estate but says. that it was only for convenience of management and that neither she nor her daughters had. or pretended to have. anything more than a lifo estate.

He denies that there was any gift or family arrangement. But he had to. admit that the grandsons also got properties at the same time. His explanation is that it was for the purposes of "shradh" and pilgrimage to Ga ya and he says that though they ere given possession they were not the "owners".

We now have to choose between these two witnesses and see which is telling the truth.

But before .doing that we will advert to another member of the family, Pyare Lal, who wa's examined as a witness (0.W. 17) in C.A. 92/50. He admits a series of sales made 6y him but says that he had no will of his own and that he did just what Mukand Ram told him.

Now to go back to the year' 1864 when Mst. Pato rpade the so-called will of 1864. This document was

construed by the Privy Council in Mst. Hard:'i v.

Bhagwan SinghC) and their Lordships said-

'' In the events which happened this document did not become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property".

Mukand Ram was not a party to that litigation and the. decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree. She says there that the property "belongs exclusively to me without the participation of anyone else". That assertion, coupled with the fact that she purported to dispose of the property after her death (which she could not have done as a limited owner). and taken in conjunction with the subsequent conduct of. the daughters and that of the grandsons, imports admissions by them that that was her claim and leaves us in little doubt about what she meant. We therefore reach the same conclusion as the Judicial Committee and hold that Mst. Pato claimed an absolute estate in 1864.

We will now examine the conduct of the family after Pato's death and the claims put forward by them from time to time. First. we have the statement of Mukand Ram in the witness box (P.W. 11 in C.A. 91/ 50) that on Pa to 's death her daughters took separate possession of the properties in the following villages and towns:

Har Devi

Durga Devi.

(I) A.LR. JYIY 1'.C. 27.

Qutabpur Amawti.

Shakerpore.

Lalpur.

Bagh Alam Sarai.

Houses, Shops. etc. in Bazaar Kot,

Sambhal.

Keshopur Bhindi.

Tatarpor<'. Ghosi.

Half Bilalpat.

Qumharwala Bagh.

JY55

Sa/111 Madho Das

and other.<

Pandit Makand Ram and tuwthrr

BoseJ.

J.955

Sahu .hfadlio Das

and others

' P1111dit Mukand &nn a11d u11otlter

Bos11, J.

Maha Devi.

Shehzadi Serai.

Houses, shops, etc. in Sherkhan Serai, Sam b ha l.

Guretha.

Behrampur Half Bilalpat.

Mahmud Khan Serai.

Houses. etc. in Kot.

Grove "in Alam Serai

The plaintiff also admits that the grandsons got some properties but does not give details. All he says is that they were given properties "for purposes of performance of 'shradh' and pilgrimage to Gaya".

Next, we have a Jong series of alienations by different members of the family with claims to absolute ownership which could only have sprung from titles derived either from a gift from. Pato or from a family settlement.. We say "family settlemeJ1t" because we know now that the bulk of the property (and according to the High Court the whole of it) was Nanak Chand's. We also know that some of it was purchased by Pato after Nanak Chand's death from the income of the estate. Pato .had the right to purchase properties for herself if she wanted instead of adding them to her husband's estate and we know she claimed title to the whole as an absokite owner in

1864. This claim may have been due to a mistaken view of Hindu Jaw that in the absence of sons the widow gets an absolute estate, or it may have been due to other reasons. but that she made the claim is clear, and the subsequent conduct and statements of the family show that they either ad"mitted the correctness of he.r claim and accepted the properties as gifts from her or they agreed to and acted on a family settlement to avoid disputes on the basis that each got an absolute title to whatever properties fell to his or her share at the time of the division:

The grandsons were minors at the time and were not parties to this arrangelncnt, whatever its origin, and of course the widow and daughters could not enlarge their limited estates so as to bind the grandsons

~; ;

---~· ------· 2 s.c.R.

SUPREME COURT REPORTS . 33

\I ' however much they agreed among themselves.· But for the moment we are notconsideringthelegal effect of whatever the arrangement was but whether the conduct of the family gives rise to an inference that there was an arrangement in fact.

A family arrangement can, as a matter of law, be implied from a long course of dealings between the parties: Clifton v.

Cockburn(') and William v.

William('); and we have such a course of dealing here.

First, there is a lo.ng series of alienations by Har Devi stretching from 1877 down to 1916. \Ve tabulate them below with the recitals she made .!I bout her title.

17-1-77 Jiiortgage - Q17tabpur Amawti "owned by fil0"c--Ex~ LL-1 (C.A. 94) 11-1-78 do do Owner: "devolved on me from my Ex. 2Jl (C.A. m) mother". 20-3-81 do do Owner: "right of Ex. 2Hl (C, A. 91) do do inheritance from my father". 7-9-83 Sale.

La1pur Owner: ""right of

inheritance"~ - :; Ex. 2Gl (C.A. 91) 23-8-87 ]Iortgage - Qutabpur Amawti No recital Ex.L

(C.A. 92) 15-7-05 do do Absolute owner with Ka.nhaiya Lal and ?iiukand

Ex. BB-1 (C.A. 94)

Ram; .. 19-11-08 do do No recital Ex. M-1(C.A.94)

14-11-U do do do Ex.V

(C.A. 9_•) 23-3-15 do do Owner: with Ex.X

(C.A. 92) liiukand Ram 17-2-16 do do . \Vi th Mukand Ex. N-1 (C.A. 9.1) Ram. No recital 28-3-16 do do 0\\-"ller: with -1.Iukand Ram and hiS son RamGopal

Ex. MMl (C.A. 9')

22-1-18 do Behrampur Owner: with Ex. DDD-1(C.A.91) Buzurg !IIukand Ram and Bhukan Saran 23-3-18 do do Owner: with Ex. Ml (C.A. 91) liiukand Ram and Pyare Lal It will be observed that Har Devi sometimes claimed to be absolute owner by.right of inheritance from her father and at others from her mother in respect of the same village, but whichever way it was,

(1) [1834] 3 My. & K. 76. (2)·[1866] L.R. 2 Ch. 294.

Sahu Aiadho Das

and others v.

Pandit Aiukattd Rani and another

B.oseJ.

Sahu Mad/to Das

and others V, Pandit M11kaud Ram and another

Bose J.

the claim to absolute. ownership was consistent throughout. This could only be referable to a family settlement where the origin of the property was in doubt but which was settled by bestowing, or purporting to bestow, an absolute estate on the daughters.

It will also be noticed that in later years Har Devi joined with Mukand Ram but still claimed an absolute .estate along with him. This was for the following reason: Soon after Mukand Ram attained majority, the mother and sons quarrelled. On 11-2-1890 they referred their dispute to arbitration, Ex. RR-1 (C.A. 94).

Mukand Ram became a major in 1890 and Kaqhaiya Lal in 1884. t appears from their agreement of 11-2-1890 that Har Devi claimed an absolute title while her sons said she was only a limited owner.

But the sons agreed to accept a decision to the effect that she had an absolute estate in the whole of the property in dispute between them should the arbitrator so decide.

The properties were-

Qutabpur Amawti, Shakerpore; Houses, shops, etc. in Mohalla Kot in Sa111bhal.

Another significant thing is that in this document both mother and sons agreed that all of Nanak Chand's grandsons then in being were in separate possession and absolutely entitled to certain other properties which they expressly agreed were not to form the subject-matter of the arbitration. Here again, these titles could only be referable to a family arrangement, for the grandsons could not have got an absolute estate in any other way; nor could Har Devi. Mukand Ram tells us as P.W. 11 (C.A. 91) that he and his brother Kanhaiya Lal got Shakerpore and some shops in Bazar Kot, Sambhal, as a result' of this arbitration, but does not say what happened to Qutabpur Amawti.

But it i~ significant that Har Devi's dealings with Qutabpur Amawti after this date were all jointly with Kanhaiya Lal and f\:'lu~nd Ram. It may be that the arbitrator awarded 1t imntly or they agreed to hold it on that basis. We do not know. All we know is that they mortgaged it jointly.

Behrampur fell to Mukand Ram's share and in the mortgage or the property in 1918 Har Devi joined with M nkand Ram and Murari Lal's son Bhukan Saran in one case and with Pyare Lal in the other.

But except for the last two mortgages of J 918 the conduct of Har Devi and her sons for 39 years from 1877 to 1916 as disclosed in these deeds is only consistent with the family arrangement which the defendants allege. for on no other hypothesis could either the mother or the sons have laid claim to an absolute estate.

We will next turn to Durga Devi. She died in 1888 but before she died she mortgaged Keshopur Bhindi which had fallen to her share on 3-3-1887 bv Ex.U-1

IC.A. 93) and claimed to he the owner. -

Then there is Maha Devi. The only direct evidence we have of her conduct is a written statement that she filed in O.S. 177 /97, Ex. 2BI (C.A. 91). She asserted there on 5-1-1898 that she had been in proprietary possession and occupation of her dividd share of the property obtained by her from lier mother ut1der a deed of will. The circumstances in which she made this statement are to be found in the judgment in that suit, Ex. GI IC.A. 91).

The suit was by Har Devi against her sister and a transferee who claimed title through the other sister Durga Devi. Har Devi's allegation was that Durga Devi had mortgaged Keshopur Bhindi and Tatarpore Ghosi on 3-3-87. The mortgagee sued on his deed and obtained a decree for sale. In execution of the decree he purchased the properties himself.

Durga Devi died in 1888 and Har Devi claimed that Durga Devi had only a limited estate and that Maha Devi and herself were entitled to the properties by survivorship.

Maha Devi refused to support her sister and took up the position that each sister, or at any rate that she, Maha Devi, got an absolute estate in the property that came to her and of which she was placed in separate possession. from Pata. On 16-12-10 Maha Devi mortgaged Behrampur Buzurg and claimed that it belonged to her. being property left to her by her mothe.r in which no one ele had any rights. The deed

Salm Madho Das

and otbers

Pandit Mukand Ram and another

BoseJ.

Sahu Madho Das and others

Pandit M11ka11d Ran1 and a1101 !ter

BoseJ.

is Ex. BB-I (C.A. 9JJ. On 2-7-11 she sold Bilalpat and claimed to be its exclusive propretor, Ex. R-1 <C.A. 93).

We now come to two statements made tw Har Devi a11d Maha Devi as witnesses in that suit. Strong exception was taken to their admissibility because the plaintiff was not a party to the earlier litigation.

It is a moot .Point whether they would be admissible under section 32(3) of the Evidence Act, but we need not decide that because we do not intend to 11sc them as proof of the truth of the facts stated in them.

But they are, in our view, admissible to show the conduct of these two ladies. The conduct of the various members of the family is relevant to show that their actings, viewed as a whole, suggest the existence of the family arrangement on which the defendants rely.

At this distance of time gaps in evidence that would otherwise be available have to be filled in from inferences that would normallv have little but corroborative value. But circumstanced as we are, inferences from the conduct of the family is all that can reasonably be expected in proof of an arrangement said tu have been made in I ~75. The statements that Har Devi and Maha Devi made as witnesses are" therefore as relevant as recitals made by them in deeds and statements made by them in pleadings. They do not in themselves prove the fact in issue, namely the family arrangement, because, in the absence of section 32< 3), they are not admissible for that purpose. but as their conduct is relevant these statements are admissible as evidence of that conduct.

Maha Devi's statement is Ex. 2-A I IC.A. 911 and Har Devi's Ex.

2-F I IC.A. 91 ).

Both speak of an arrangement effected by Pato in her life time and say .that they entered into separate possession of the properties by reason of that arrangement. Har Devi says in. addition that the grandsons were included in the arrangement and given properties too. Therefore. we know that this is the title under which each claimed to hold in O.S. No. 177197. It is proof of their a'-5crtion of this title at that early date and though it is no proof of the truth of those assertions it is proof of the

fact that the assertions were made and that is all we need at the moment.

We turn next to the conduct of the grandsons, and first we will consider the plaintiff Mukand Ram and his brother Kanhaiya Lal. The plaintiff attained majority in 1890 and from that date down to 1921 we have a series of assertions of a title that can only spring from the family arrangement.

First, we have the deed of 11-2-90. Ex. RR-I (C.A. 94) which we have alreadv considered in connection with Har Devi.

This is the agreement between his brother and himself on the one hand and Har Devi on the other to refer their dispute to arbitration. We have already commented on the fact that the two brothers asserted an absolute title to propertie5 that were in their possession and acknowledged the absolute title of Pyare Lal and Shyam Lal to the properties of which they were possessed. The only dispute they were prepared to submit to arbitration was about the properties in Har Devi's possession and there, they were prepared to accept a decision upholding Har Devi's claim to an absolute estate.

After this came the following dealings:

20-11-91 Sle Shahzadi Sarai

28-7-93 S1lc Dugawar

2-7-96 Mortg:ige Qntabpur

30-1-00 Sale

An1awn

Bazar Mahmud Khan Sarai. Samrhal

15-7-05 Mortgage QJabpJr ·

Amawfi

r,. -RSCl./ND.182

Proprietary pos- Ex. 2 Kl (C.A. 91) session "devolved on us by right of

inheriance from Pato"

Proprietary pos- Ex. 2 El (C.A. 91) session "by right of inheritance".

"anc9stral and Ex.KK-1 (C.A. 94) purchased by us". "POS(}essed by us ..... without tlte part icipar ion of anybody else".

"Proprietary pos- Ex. U (C.A. 92) session "by "right of inheritance": "without the participation of anyone else".

o.vners:wi'h Har Ex. BB-I (C.A. 94) Dev; "without the part; cipat ion of any one else".

Sahu Madho Das and others

•• Pandit Mukand Ram and anotha

BoseJ.

Sahu Madho Dtlf\

and other.\'

Pandir Mukand Ra111 and a11nr/1er

nose J.

Kanhaiya Lal died about this time and thereafter Mukand Ram continued to make transfers claiming to do so in his own right.

He made the following along with Har Devi. We have already analysed them.

They were-·

19-11-08 14-11-14 23-3- 15 17-2- 16 28-3- 16 22-1- 18 2:>-3- 18

Ex.MI Ex.V Ex.X Ex.N-l Ex.MM I Ex.DODI Ex.Ml

(C.A.94)

!C.A.92)

(C.A.92)

(C.A.94)

(C.A.94)

\C.A.91)

1C.A.91)

But in addition to these he made the following transfers on his own : 18-i-l 6 &\le Lc\shkarpur Absolu!c owner.

Ex. PP-I

<C.A. 94) 24-4-22 Sale Houc:s, etc. do Ex. Y

(C.A. 92) jn San1bhal 23-11-22 Sale Qu!abpur An1aw1 i do Ex.Q

(C.A. 92)

Next, we come to Shyam Lal. His alienations were as follows: 19-6-97 Mortgage. 9-11-07 do 17-9-09 do

Shops in Sambhal. Owner.

Ex. W-1 House in Sambhal. No rcci1al Ex. TT-J Bila/pat. do Ex. UU-1

(C.A. 94)

(C.A. 94)

(C.A. 94)

In addition, he made the following transfers jointly with his brother Pyare Lal:

18-1-06 Mortgage.

Bilalpat & shops No rlcitals. Ex. fEE-1

(C.A. 94) in San1bhal. 21-2-10 do Bilalpat & Sabz do Ex. AA-1

IC.A. 94)

Pyare Lal also made two transfers on his own--

23-9-18 Sale llilalpat. "Devolved on Ex. 15

(C.A.94) me" from Nanak. Chand by righ'. of inheritance 2.1.20 do do do Ex. 18.

(C.A. 91)

Lastly, there is Bhukhan Saran, who is Maha Devi's daughter's son. He transferred as follows:

26-3-18 Sale Houscs,.c:c. in Absolute and S'ln1bhal. exclusive Ex. MM-I

(C.A. 92) owner. 9-1-21 RclinQuishmcnt.

Hilalpa! do Ex. DD-1

(C.A. 93)

These documents disclose a long line of conduct on the part of the various members of the family and show that from 1877 down to 1922 each dealt with the properties in his or her possession as absolute

owner and set up exclusive proprietary title to the properties transferred.

It is true the source of title was not consistently stated, sometimes it was said to be Pato and at others Nanak Chand. but the assertion to a separate, exclusive and absolute tit!(! in each is common all through.

There is only one way in which they could have got these exclusive titles and that is by a family arrangement, for whether the proparty was Nanak Chand's or whether it was Pato's in neither event could any one of the these persons have obtained an absolute estate on the dates with which we are concerned : the grandsons, because the reversion had not opened out; the daughters because, either way, they would only be limited owners under the Hindu law. But if there was a family arrangement assented to by the daughters and later accepted and acted on by the sons when they attained majority, their claim to separate and independent absolute titles is understandable.

It does not matter whether the claims were well founded in law because what we are considering at the moment is not the legal effect of the arrangement but whether there was one in fact.

Now, in spite of all these dealings, the conduct of Har Devi and Mukand Ram and Kanhaiya Lal was not always consistent.

They were greedy and while insisting that they be allowed to hold on to what they had got, they wanted to snatch more if and when they could. The ball started rolling in 1890 as soon as Mukand Ram attained majority. There was the reference to arbitration in that year to settle their dispute with their mother Har Devi. But even there. there was the inconsistency regarding their own properties to which we have already referred.

Mukand Ram's later explanation in the witness box that they got those properties for :,/1radh purposes and for a pilgrimage to Gaya cannot be believed. ·

Next, ther.e was the suit by Mukand Ram and Kanhaiya Lal against their aunt Maha Devi in 1895: S. No. 21I1895. Ex. 31 fC. A. 91). That was occasioned by two sales by Maha Devi on 19-2-83 and 20-5-85.

She stoutly maintained tli<t she had an absolute title.

Sahu Madho Du>

<111d others ' v.

Pu11di1 M11ku11d Ram and wrother

BoscJ.

1955 The litigation had a chequered career and ultimately Sahu Madho Das the suit was dismissed as barred by time.

and fl/hers

V, Pundit Mukand Ra1n and another

Bose J.

Next came suit No. 177 of 1897, Ex. GI (C.A. 91), in which Har Devi sued Maha Devi and a transferee.

This time it was to set aside an alienation by Durga Devi, Durga Devi then being dead. Her Devi clainied that the property was Nanak Chand 's and that the daughters were limited owners.

But again Maha Devi stood by the family arrangement and asserted an absolute title in all the daughters; Ex. 2B I (C.A. 91).

We have seen that Har Devi entered the box and admitted the arrangement: Ex. 2F-l IC.A. 91J.

The suit very naturally failed, but the result of the litigation is nor relevant because the plaintiff was not a party.

What we are examining is the conduct of Har Devi.

In 1913 Har Devi tried again after Maha Devi's death, this time against alienees from Maha Devi.

This is the suit that went up to the Privy Council.

Mst. Hardei v. Bhagwan Singh ('). She failed again.

Having failed against Maha Devi in the 1897 litigation, Har Devi next tried her luck against Maha Devi's grandson (daughter's son) Bhukhan Saran, after Maha Devi's death. The suit is O.S. 52/ 14, Ex.

78 (C.A. 94).

This time she succeeded with respect to some items and failed as regards the rest.

But again the result is irrelevant : Exs. 6 and 8 (C.A. 94).

Now what we are examining at the moment is whether Shyam Lal, D.W. I in C.A. 94, is to be believed when he says that Mukand Ram, among others. told him about the family arrangement under which Pato had divided all her property between h .. r daughters and their sons. It is evident from what we have said above that Mukand Ram had been consistently asserting such a title for 3 J years from J 891 to J 922 despite his aberrations in 1890 and 1895.

In particular he did this whene.,.er he wanted to borrow money or to sell property: and he makes a si!!niflcant admission in the witness box as P.W. 11 in C.A. 91 that- -

(I) A.T.R. 1919 P.C. 27.

"In the mortgage or sale of the property over which Mst. Har Devi was in possession none of her sisters or sisters' sons joined. Similarly, in the sale or transfer of the property that came to Durga Devi, none of her sisters or other sisters' sons joined".

He also admits that there was a division and separate possession from 1876. He says that it was for convenience of management and says that it was after Pato's death, but in view of the mass of evidence that we have just analysed, we think it far more likely that he told Shyam Lal just what Shyam Lal says he did. After all, he was borrowing money from Shyam Lal on each of these occasions; so there is every reasons to believe that he would have told Shyam Lal what he had so repeatedly asserted to his other transferees. We accordingly believe Shyam Lal.

That at once shifts the burden of proof to the plaintiff, and what is his explanation.? First, a division of the estate for convenience of management (but that does not explain the long chain of unchallenged transfers bar Har Devi's efforts in four cases); and second, that the grandsons got property absolutely for the purposes of shradh and pilgrimage: (n explanation which we disbelieve). We are therefore left with the plaintiff's admission to Shyam Lal and that admission, coupled with the conduct and actings of the family, firmly establishes the family arrangement. We accordingly hold that, whether the property belonged to Pato or to Nanak Chand, Pato claimed an absolute right which the daughters acknowledged, and in return they and their sons were given separate and absolute estates in separate portions of the property immediately.

This arrangement bound the daughters because they were parties to it and received good consideration. But so far as the sons are concerned, they were minors at that time and were not parties to this arrangement, for no one suggests that they were represented guardians who entered into it on their

;:.1 behalf.

Therefore. the properties they received were so fnr as they arc c1)11cerned, gifts pure and simple

Salm Madho Das

and otlrcr.1

Pandit M11k and Ram and another

BoseJ.

Sah11 Madho Das

and. ot/u:n;

Pa11di1 Muka11d Ra111 and Cl11other

Bose J.

(rom Palo with the assent or her daughters. It dot:s not matter whether the properties were Palo's exclusive properties or whether they came to her from her husband because, either way, the title to the properties resided in her and she was the only person competent to pass it on to another. If her title was absolute. the sons got absolute estates. If it was the limited title of a Hindu widow. they obtained a limited title good during her life, and. as the daughters consented to the gifts and obtained properties for themselves as a result of the arrangement that resulted in these liifts, thf'y would not be permitted to question the gifts; and the Privy Council so held in Har Devi's suit against the aliences from Maha Devi: fl.1st. Hardei v.

Bhagwan Si11gh (').

But so far as the grandsons are concerned, !he' mere fact that each received a separ<1te gift from Pato at a time when they were not competent to assent or to dissent would not i11 itself bind them. To achieve that result, there would have to be something more; and it is to that something more that we will now direct our attention.

But before doing that, we will pause to distinguish Rani Mewa Kuwar v. Rani Hulas Kuwar ('); Klwnni Lal v. Gohind Krish11a Narain ('), and Ramsumra11 Prasad v. Shyam Kumari('). It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person recefving it under the family arrangement. It is assumed that the title claimed by the person rece1v111g the property under the arrangement hijd always_ resided in him or her so far as the property falling to his .or her share is concerned and therefore no conveyance is

(I) A.LR. 1919P.C. 27.

(2) [1874111.A.157. 166.

(3) [1911) 38 I.A. 87, 102.

(4) [1922.149 J.A. 3-!2, 348.

necessary.

But, in our opinon. the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all. that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members d1andons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number <provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.

The legal position .in such a case would he this.

The arrangement or compnimise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next. it would effect a transfer hy A to B, C and D (the other members to the arrangement) of properties X. Y and Z; and thereafter B. C and D would hold their respective titles under the title derived from A.

But in that event. the formalities of law about the passing of title by transfer would have to be observed. and how either registration or twelve years adverse possession would be necessary. But in the present case. we are dealing with an arrangement made in 1875 at a time when the Transfer of Property Act was not in force and no writing was required; and, as there is no writing, the Registration Act does not apply either. Therefore. the oral arrangement of 1875 would be sufficient to pass title in this way and that, in our opinion. is what happened.

But these rules only apply to the parties to the settlement and to those who claim through or under them. They cannot be applied to the minor sons who were not parties either personally or through their guardians and who do not claim title either through

/955

Sa/111 Madho Das

and others

Pandit Mukand Ram and a11<>1/wr

nose .f.

Sa/111 Madho Do.~

and otht•rJ

Pandit M11ka11d Ra111 and a1101hrr

Bose.I.

Pata or her daughters. So far as they are concerned. what they received were gifts pure and simple and the only assent that could be inferred from mere acceptance of the gift and nothing more would be asset _to that particular gift and not assent to the gifts s11111larly made to others; and for this reason.

When Mukand Ram attained majority he had two titles to choose from. One from Pata as a limited owner coupled with the assent of the daughters to her gift to him.

In that case, he would hold a limited estate till the reversion opened out. The gift would be good during Palo's life time because she had that title to convey, and thereafter, till the three daughters died, because they assented to it and obtained considerable benefit for themselves from the transaction out of which it arose.

The other title would be an absolute one on the basis that Pata ws the absolute owner of the properties.

That title could only be referable to the family arrangement, and if Mukand Ram, knowing the facts, assented to the arrangement ex post facto, he will be precluded from challenging it for reasons which we shall now explain.

If the properties were Nan.ak Chand's, which is the assumption on which we are deciding this case, then Pata was a limited owner under the Hindu law, but as such she represented the estate and any title she conveyed, whether by gift or otherwise, would not be void; it would cinly be voidable. It would be good as against all the world except the reversioner who succeeded when the reversion opened out and he is the only person who would have the right to avoid it; and it would continue to be good until he chose to avoid it. Therefore, if he does not avoid it, or is precluded from doing so, either because of the law of limitation or by his own conduct, or for any other rl'!ason, then no one else can challenge it; and the law is that once a reversioner has given his assent to an alienation, whether at the time, or as a par.t of the transaction, or later as a distinct and separate act, he is bound though others may not be, and having given his assent he cannot go back on it to the detriment of other persons; all the more so when he himself receives a

2 S.C.R.

SUPRE'\1£ COURT REPORTS 45

benefit: see Raia /14odll// S11d1111 Singh v. Rook.('('); Bi joy 001111/ v. I\. rish110(). ; rnd Rmngo11da A 1111ago11da

v. Bhausahehc'). Lcird Sinha. delivering the judgment of the Privy Council in the l11st of these three cases, said at page 402: -·-

''It is sett.led law that an alienation by a widow i11 excess of her powers is not altogether void but only voidable by the reversioners. who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or hy acts

which treat it as rnlid or hinding".

This was followed in Dlii_ram Singh v. fugal Kishore(')

though the ground of that decision was estoppel. \Ve are now founding on another principle which is not grounded on estoppel and which. indeed. is not peculiar to Hindu law.

Estoppel is rule of' evidence which prevents a party from alleging and proving the truth. Here the plaintiff is not shut out from asserting anything. We are assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement. .The principle we ar€? applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it. from going back on that and avoiding it at later stage. Having made his election he is hound by it.

So far as the Hindu Law is concerned, Lord Dunedin explained in Rangaswami Gounden v. NacMappa Goundenfl. a case in which a widow gifted properties to her nephew, that thouh the reversioner is not called upon to exercise his right to avoid until the reversion falls in and so on assent can be inferred from mere inaction prior to the death or deaths of the limited owner or owners. he is not bound to wait and "of course something might be done even before

(I) [1891] 24 I.A. 164. 169.

<2) [1906] 34 I.A. 87.

(!!) [19271 54 LA. 396..

(4) 1952 S.C.R. 478, 488.

(5) [1918) 46 T. A. 72, 86, R7. 7-8 SCI/ND/Si

Salm Madho Das and others v.

Pandit MukanN Ram and another

Bose J.

/955

Sahu Madho Das

and others

Pandit Mukcuul Ra111 and another

Ho.e J.

46 SUPREf\IF COURT REPORTS [ l 955]

that time which amounted tn an actual election to hold the deed gpod --..

Ramgouda case I') is an illustration of what that something can be, for there the assent was given by the ultimate reversioner heforc he became in tiru/o to alienations by a widow. one of which was a gift.

The present case is another illustration. For the reasons we have given and which we shall now further examine, we hold that the plaintiff. who is in rirulo now that the succession has opened out. unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit under it. therefore. he is now precluded from avoiding it and any attempts he made to go behind that assent when it suited his purpose cannot render the assent once given nugatory even though it was given when he was not i11 1it11lo and even though the assent was to a series of gifts.

The reai question is whether the plaintiff assented to the family arrangement. and as the plaintiff was not a party to the arrangement his assent to the arrangement itself, and not to something else. :nust be clearly established. and also his knowled!.!e of the facts. But we think they have been.

Jn the first place. there was the express assent in 1 ~NO to the gifts made to the other grandsons on the basis that each grandson got an absolute estate.

Next. there was the long course ofdealings by Kanhaiva Lal and Mukhand Ram in which they asserted absolute titles. Mukand Ram tells us in the witness box a<; P. W. 11 IC.A. 91) that Kanhaiya Lal was the karta of the joint family to which Mukand Ram belonged. therefore Kanhaiya Lal's dealings with the properties which he and his brother held under a joint and undivided title are also relevant as thev will bind Mukand Ram. And lastly, there is Mukad Ram's representation to Shyam Lal 10.W. 1 iii C.A. 94) which leaves us in no doubt about his knowledge. The cumulative effect of this course of conduct leads to a rnasonable inference that Kanhaiya Lal and Mukhand Ram were holding. not on the basis of a separate Rnd individual gift made by a life owner with the assent of the next set of life

(I) [ 1927] 54 I A 396. 402.

owners, but on the basis of the family arran, sement 1955 which was one composite whole in which the several Salm Madho Das dispositions formed parts of the same transaction and others under 'which Mukand Ram himself acquired a part of Pandit M11ka11d the estate: see Ramgouda v. Bhausaheb(').

We are Ram and another therefore satisfied that the plaintiff's assent was to BoseJ. this very arrangement; and that concludes both cases.

Jn C.A. 94/ 50 there is, in addition, a direct personal estoppel aginst the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made hy fll'o of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees hut to the llrst defendant who obtained title to the rroperties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the rerresentation to the first defendant was made in 1910 before the first defendant's purchases.

It was made by Kanhaiya Lal and Mukand Ram as well as by other members of the famtly. We have already referred to the first defendant's evidence. This case would therefore be governed by Dhiyan Singh v . .fugal Kishor<'i') in any event. But we need not elaborate this further because of the other principle which, in our opinion. is sufficient to dispose of both the present cases.

, The result is that both appeals are allowed. The decrees of the High Court are set aside and those of the first Court dismissing the plaintiff's claims in those suits out of which Civil Appeals 92 and 94 of 1950 arise_ are restored. Costs here and in the High Court will be paid by the rlaintiff-respondent but there will be only one set of costs and they will he divided half and half between the two sets of appellants.

(I 1 [ 19271 54 IA W6, 402.

(2J 195~ S.C.R. 478.

Appeals allowed.

SAHU MADHO DAS AND OTHERS

PANDIT MUKAND RAM AND ANOTHER

VIVIAN BOSE' B. JAGANNADHADAS

B. P. SINHA JJ

Transfer of Property Act

Registration Act

LR. 1 I.A. 157

LR. 49 I.A. 348

L.R. 34 I.A. 87

LR. 54 I.A. 396

LR. 46 I.A. 72

Cl 10

Sahu Madho Das

Pandit Mukand Ram

N. C. Chatterji

S. S. Shukla

Gopi Nath Kunzru

B. P. Maheshwari

P. C. Agarwala

BOSE

Mukand Ram

Pandit Nanak Chand

Nanak Chand

Kanhaiya Lal

Pa1uiit Muka11d Rani

Nanak Chand

Maha Devi

Durga Devi

Har Devi

Sahu Bitthal Das

Pyare Lal

Shyam Lal

M ulchand

Sh yam Lal

Harbilas

Brij Lal

Chheda Lal

Brijlal

Pato

Kanhaiya Lal

Pato also gave properties to each of her four grandsons who were then Uving, namely Kanhaiya Lal, Mukand Ram, Banwari Lal and Sital Prasad.

Mukand Ram

Banwari Lal

Sital Prasad

Sahu Madho Da

Pandit M11ka11d Ram

Shyam Lal

Pandit M11k1111d Ram

Kanhaiya Lal

Pyare Lal

Mukand Ram

Qutabpur Amawti

Maha Devi

Shehzadi Serai

Mahmud Khan Serai

Gaya

Bhukan Saran

Sahu Aiadho Das

Pandit Aiukattd Rani

Pandit M11kaud Ram

Bose

Kaqhaiya Lal

Sambhal

Qutabpur Amawti

Behrampur

M nkand Ram

Murari Lal

S. 177

Keshopur Bhindi

Tatarpore Ghosi

Pata

Salm Madho Das

Sahu Madho Das

section 32(3)

Har Devi

Maha Devi

section 32

anotha

BoseJ.

Sahu Madho Dtlf\

Pandir Mukand Ra111

nose

Pyare Lal

Bhukhan Saran

Sahu Madho

Sahu Madho Das

Pundit Mukand Ra1n

Har Devi

Bhukhan Saran

S. 52

Pato

Madho Das

Pandit M11k

Ram

Palo

Transfer of Property Act

Registration Act

Pandit M11ka11d

Pata

Nan.ak Chand

Lcird Sinha

Dunedin

Salm Madho Das

Pandit MukanN Ram

Pandit Mukcuul Ra111

Kanhaiva Lal

Mukhand Ram

Mukad Ram

Ram