Odobtr 4.

SUPREME COURT REPORTS

THE MEMBER, BOARD OF REVENUE

ARTHUR PAUL BENTHALL.

(l955J

(S. R.

DAs.

AcTING

C. J.,

BHACWATI,

VENKATARAMA

AYYAR, JuER IMAM and

CHANDRASEKHARA AIYAR JJ.J

The Indian Stamp Act (II of 1899), ss. 5 and 6-Expression "disti11; t matters" in s. 5 and "description" in s. 6-I-Vhethe1 hav~

diffe1ent connotations-Instrument in question-Whether comprised distinct tnatters. ·

Held per S. R. DAs, AcTINC C. J.,

VENKATARAMA

AYYAR,

J.\FER l~:iAM and CttANDRASEKHARA

AIYAR

JJ.

(BH1\GWATI J. r'issenting) the contention that the word "matter" in s. 5 of the l ndian Stamp Act was intended to convey the sarne n1eaning as the word "description" in s. 6 is \Vithout force. In its popular sense, the expression "distinct matters" would connote something different from distinct "categories''. 'fwo transactions might be of the san1e description, but all the same, they might be distinct.

When two words of different import are used in a statute in two consecutive provisions, it cannot be maintained that they are used in the same sense and therefore the expression 'distinct matters" in s. 5 and "description" in s. 6 have different connotations.

It is settled law that when two persons 101n in executing a power of attorney, whether it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or not. Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of then1, the instrument should logically be held to comprise distinct rnatters.

Held, that the instrument in question, Exhibit A,-the power of attorney-comprised distinct matters within the meaning of s. 5 of the Indian Stamp Act in respect of several capacities of the respon* dent mentioned therein.

Per BttAGWATI J. (dissenting).-The fact that the donor of the power of attorney exe<_:utes it in different capacities is not sufficient to constitute the instrument, one comprising distinct inatters and thus requiring to be stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the mean* ing of s. 5 of the Indian Stamp Act.

The instrument in question, Exhibit A, does not <umpr.sc distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of

the donees constituting the donees his attorneys to act for him in all the capacities he enjoys.

It is within the very nature of_ the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in one instrument which is executed by him and therefore whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of s. 5 of the Indian Stamp Act.

Secretary, Board of Revenue, Madras v. Alagappa Chettiar I.L.R. [1937] Mad. 553, Ansell v. Inland Revenue Commissioners [1929] 1 K.B. 608, Reversionary Interest Society v. Commissioners of Inland Revenue [1906] 22 T.L.R. 740, Davis v. Williams [1804] 104 E.R. 358, Bowen v. Ashley [1805] 127 E.R. 467, Goodson v.

Forbes 11815] 128 E.R. 999, Freeman v. Commissioners of Inland Revenue [1870-71] L.R. 6 Exch. 101, Allen v. Morrison [1828] 108 E.R. 1152, Reference under Stamp Act, s. 46, [ 1886] l.L.R. 9 Mad. 358, Reference under Stamp Act, s. 46, f1891] l.L.R. 15 Mad. 386, Reference under Stamp Act, s. 46, [1892] 2 M.L.J. 178, and Vidya Varuthi v. Balusami, 48 I.A. 302, referred to.

C1v1L

APPELLATE JuR1smcnoN : Civil Appeal No. 159 of 1954.

Appeal hy Special Leave from the Judgment and Order dated the 27th day of June 1952 of the Calcutta High Court in Matter No. 214 of 1951-A reference under s. 57 of the Indian Stamp Act.

M. C. Setalvad, Attorney-General of India (B. Sen and P. K. Bose, with him) for the appellant.

S. Chaudhury, (S. N. Mukherjee, B. N. Ghosh and A. K. Basu, with him) for the respondent.

1955. October 4.

VENKATARAMA

AYYAR J.-This appeal raises a question under section 5 of the Indian Stamp Act II of 1899. The respondent was, at the material time, the Managing Director of Messrs Bird and Co. Ltd., and of Messrs F. \V. Heilgers and Co., Ltd., which were acting as Managing Agents of several Companies registered under the Indian Companies Act. He was also a Director of a number of other Companies, and had on occasions acted as liquidator of some Com-

The Member, Board of Revenue

Arthur Paul

Benthall

The Member, Board of Revenue

' Arthur Paul Benthall

Venkatarama

Ayyar ].

parnes, as executor or administrator of estates of deceased persons and as trustees of various estates. On 4-7-1949 he applied to the Collector of Calcutta under section 31 of the Stamp Act for adjudication of duty payable on a power of-attorney, marked as Exhibit A in the proceedings, which he proposed to execute. By that power, he empowered .Messrs Douglas Chisholm Fairbairn and John James Brims Sutherland jointly and severally to act for him in his individual capacity and also as executor, administratoi:, trustee, managing agent, liquidator and all other capaCit1es.

The Collector referred the matter under section 56(~) of the Act to the decision of the Chief Controlling Revenue Authority, who eventually referred it under section 57 to the High Court of Calcutta stating his own opinion that the stamp duty was payable on the power "for as many respective capacities as the principal executes the. power".

The reference was heard by a Bench consisting of the Chief Jmtice, Das, J. and S. R. Das Gupta, J., who differed in their opinion. The learned Chief Justice with whom Das, J. agreed, heir! that the different capacities of the executant did not constitute distinct matters for purposes of section 5 of the Act, and that the proper duty payable on the instrument was Rs.

IO under article 4S(d) of Schedule 1-A of the Stamp Act as amended by section 13 of Bengal Act III of 1922. S. R.

Das Gupta, J. was of the opinion that the different capacities of the executant were distinct matters for the purposes of section 5, and that the instrument was chargeable with the aggregate amount of duty payable if separate instruments were executed in respect of each of those capacities. In the result, the question was answered in accordance with the opinion of the majority in favour of the respondent.

Against that decision, the Board of Revenue, West Bengal has preferred this appeal by special leave, and contends that the instrument in question comprises distinct matters, and must be stamped in accordance with section 5.

The statutory provisions bearing on the question are sections 3 to 6 of the Act. Section 3 is the charging section, and it enacts that subject to certain exempt10ns, every instrument mentioned in the Schedule to the Act shall be chargeable with the duty of the amount indicated therein as the proper duty therefor. Section 4 lays down that when in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, only one of them called the principal instrument is chargeable with the duty mentioned in Schedule l, and that the other instruments are chargeable each with a duty of one rupee.

Section 5 enacts that any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the Act. Section 6, so far as is material, runs as follows:

"Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties".

The point for decision in this appeal is as to the meaning to be given to the words "distinct matters" in section 5. The contention of the respondent which found favour wich the majority of the learnrcl Judges in the court below is that the word "matters" in section 5 is synonymous with the word "description" occurring in section 6; and that they both refer to the several categories of instruments which are set out in the Schedule. The argument in support of this contention is this : Section 5 lays down that the duty payable when the instrument comprises or relates t~ distinct matters is the aggregate of what would be payable on separate instruments relating to ea(h of these matters.

An instrument would be chargeable under section 3 only if it fell within one of the categories mentioned in the Schedule.

Therefore, what is contemplated by section 5 is a combination in one document of different categories of instruments such as sale ancl mortgage, sale and lease or mortgage and lease and the like. But when the category is one

The Member, Board of Revenue v.

Arthur Paul

Benthall

V enkataraina

AyyarJ.

Tht Mtmbu, Board of Reienue

Arthur Paul Benthall

Venkatarama

4_1yar ].

and the same, then section 5 has no application, and as, in the present case, the instrument in question is a power-of-attorney, it would fall under article 48(a) in whatever capacity it was executed, and there being only one category, there are no distinct matters within section 5. . We are unable to accept the contention that the word "matter" in section 5 was intended to convey the same meaning as the word "description" in section 6.

In its popular sense, the expression "distinct matters" would connote something different from distinct "categories".

Two transactions might be of the same description, but all the same, they might be distinct. If A sells Black-acre to X and mortgages White-acre to Y, the transactions fall under different categories, and they are also distinct matters.

But if A mortgages Black-acre to X and mortgages Whiteacre to Y, the two transactions fall under the same category, but they would certainly be distinct matters.

If the intention of the legislature was that the expression 'distinct matters' in section 5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so. When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression "distinct matters" in section' 5 and "descriptions" in section 6 have different connotations.

It is urged against this conclusion that if the word "matters" in section 5 is construed as meaning anything other than "categories" or in the phraseology of section 6, "descriptions" mentioned in the Schedule, then there could be no conflict between the two sections, and the clause in section 6 that it is "subject to the provision of the last preceding section" would be meaningless and useless. We see no force in this contention. Though the topics covered by sections 5 and 6 are different, it is not difficult to conceive of instruments which might raise questions falling to be determined under both the sections. Thus, if a partnership carried on by members of a family is wound up and the deed of dissolution effects also a partition of the family properties as in Secretary, Board of Revenue v.

Alagappa Chettiar (1 ), the instrument can be viewed both as a deed of dissolution and a deed of partition, and under section 6, the duty payable will be the higher duty as on an instrument of partition.

But supposing by that very eed one of the members creates a charge or mortgage over the properties allotted to his share in favour of another member for moneys borrowed by him for his cwn purposes, that would be a distinct matter which would attract section 5.

Now, but for the savmg clause, a contention might be advanced that sections 5 and 6 are mutually exclusive, and as the instrument falls within section 6. the only duty payable thereon is as on an instrument of partition and no more. The purpose of the clause in section 6 is to repel any such contention.

Considerable stress was laid bv Mr. Chaudhury on the scheme of the Act as embodied in sections 3 to 6 as strongly supporting the view that 'matters' m section 5 means the same thing ds 'description m section 6.

He argued that under section 3 the duty was laid not on all instruments but Qn those which were of the descriptions mentioned in the Schedule, that section 4 enacted a special provision with reference to three of the categories mentioned in the Schedule, sale (conveyance), mortgage and settlement, that if they were completed in more than one instrument, not all of them were liable for the duty specified in the Schedule, but only one of them called the principal document, and that section 6 provided that when the instrument fell under two or more of the categories in the Schedule, the duty payable was the highest payable on any one of them, that thus the categories in the schedule were the pivot on which the entire scheme revolved, and that in construing the section in the light of that scheme, the expression "distinct matter" must in the setting be construed as distinct categories.

To construe "distinct matters" as

(I) l.L.R. [1937) Mad. 553.

The Member, Board of Revenu!

Arthur Paul

Bmtha/I

J.,.cnkatararwi

Ayyar ].

The Member, Board of Revenue

•• Arthur Paul

Benthall

Venkatarama

A;:yar J.

something different from "distinct categories" would be, it was argued, to introduce a concept foreign to

the scheme of the enactment .

The error in this argument lies in thinking that the object and scope of sections 4 to 6 are the same, which in fact they are not. Section 4 deals with a single transactjon completed in seve1al intrument,. and section 6 with a single transaction which might be viewed as falling under more than one category, whereas section 5 applies only when the instrument comprises more than one transaction, and it is in1material for this purpose whether those transactions are of the same category or of different categories.

The topics dealt with in the three sections heing thus different, no useful 1mrpose will he server! bv referring to section 4 or section 6 for determining the scope of section 5 or for construing its terms. It is not without significance that the legislature has used three different words m relation to the three sections, 'transaction' in section 4, 'matter' in section 5, :i.nd 'description' in section 6.

In support of his contention that 'distinct matters' in section 5 meant only different categories, learned counsel for the respondent relied on certain observations in Ansel] v. Inland Revenue Commissioners(').

There, the instrument under consideration was a deed of settlement which comprised certain Government secunt1es as also other investments, and under the Stamp Act, 1891, it was chargeable with a single duty ad va!orem on the value of all the properties settled.

Bv section 74, sub-section (1) of the Finance Act, 1910, voluntary dispositions were chargeable with a higher stamp duty as on a conveyance; but Government securities were exempted from the operation of the section. The question that arose for decision was whether a separate duty was payable in respect of Government stocks under the provisions of the Stamp Act, 1891 over and above what was paid under section 74, sub-section (I) of the Finance Act, 1910 on account of other investments.

Answering it m the affirmative, Rowlatt, J. observed :

(1) [19°9] 1 K.B. """·

"If two different classes of property are being transferred by the same words of assignment in the same document, and those two different classes of property in the same document are different from the point of view of the Stamp Act and taxation, it seems to me in common sense that they must be distinct matters".

The respondent wants to read these observations as meaning that where the matters are not dealt with separately for purposes of stamp duty, then they are not distinct matters. This, however, does not follow.

The case before the court was one in which the instrument dealt with properties which fell under two categories, and the decision was that they were distinct matters. There is nothing either in the decision or the observations quoted above to support the contention of the respondent that if the instrument comprises matters falling within the same description, it is not to be construed as comprising distinct matters.

Reliance was also placed on the observatio•"; in Reversionary Interest Society v. Commissioners of Inland Revenue(1), in which it was held that a statutory declaratic 11 for the purpose of carrying through a transacti0n was liable for a single stamp duty.

There, the declaration was made by husband and wife, and in view of the purpose for which it had to be used, it was construed as one declaration.

This is a dcision on the facts, and is not of much assistance.

In the view, then, that section 5 would apply even when the instrument comprises matters of the same description, the point for decision is whether the instrument proposed to be executed by the respondent is a single power-of-attorney or a combination of several of them. The contention of Mr. Chaudhury is ! 1.at when the executant of one instrument confers on the attorney a general authority to act for him in whatever matters he could act, then there is, in fact, only a single delegation, and that therefore the instrument must be construed as a single power-ofattorney liable for a single duty under article 48( d)

I [1906] 22 T.L.R. 110:

i955

The Mcmbtr, lioard of Rfvenue

Arthur Paul Bmtha/l

Vimkatarama

A_ryar ].

'[hf .\frmbtr, B1ard 11( R~1erwt

"· Arthur Pau

Bfnll, all

V 111katarama

Ay; ar ].

of the Schedule. The contention of the appellant, on the other . hanJ, is that though the instrument is executed by one person, if he fills several capacities and the authority conferred is general, there woul,\ he distinct delegations in respect of each of those capacities, and that the instrument should bear the aggregate of stamp duty payable in respect of each of sEeh capacities: The question is which of these two contentions Li correct . . We are unable to agree with the respondent that when a person executes a power-of-attorney in respect of all the matters in which he could act, it should be held, as a matter of law and without regard to the contents of the instrument, to comprise a single matter .. Whether it relates to a single matter or to distinct matters will, in our opinion. depend on a number of factors such as who are parties thereto, whic'l is t11e ; ubiect-matter on which it operates and so forth. Thus, if A executes one power authorising X to manage one estate and Y to manage another e<tate, there would really be two distinct matters, though there is onlv one instrument executed b•1 one person.

But if both X and Y are constituted attoneys tG act jointly and severally in respect of both the estates, then there is only one delegation and one matter, and that is specifically provided for in article 48( d ). Conversely, if a number of per:Sons join in executing one instrument, and there is community of interest between them in the subject-matter comprised therein, it will be chargeable with a single duty. This was held .in Davis v. Williams('), Bot1Jet1 v. Ashley('), Goodson v. Forbes(') and others cases. But if the interest• of the executants are separate, the instrument must be construed as comprising distinct matters.

Vitle Freeman v. Commissioners of Inland Revenue(').

Applying .the, same principle to powers-0f-attornev, it was held in Allen v. Morrison(' ) that when members of a mutual insurance. club executed a single power, it relat.ed to one matter, Lord Tenterdon, C. ). observmg . that "there was certain I y a community of

(I) [1804] 104 E.R. 358.

( ) [1805] 127 E.R.467, 469.

(3) [1815] 128 E.R. 999, lfl00-1001.

(4) [1870-71] L.R. 6 Exch. 101. \5) [128] 108 ll.R. 115:, 1153.

purpose actuating all the members of this club". ln Reference under Stamp Act, s. 46( 1 ) , a powcr-ofattorncy executed by thirty-six persons relation to a fund in which they were jointly mterested was held to comprise a single matter. A similar decision was given in Reference und • .,· Stamp Act, s. 46(2) where a power-of-attorney was executed by ten mirasdars empowering the collection of communal income appurtenant to their mirasi rights. On the other hand, where several donors having separate interests execute a single power-of-attorney with reference to their respective properties as, for example, when A constitutes X as attorney for management of his estate Black-acre and B constitutes the same person as attorney for the management of his estate White-acre, then the instrument must be held to comprise distinct matters. It was so decided in Reference under Stamp Act, s. 46( s ).

Thus, the question whether a power-ofattornev relates to distinct matters is one that will have t; be decided on a consideration of the terms of

the instrument and the nature and the extent of the authority conferred thereby.

It may be mentioned that questions of this character cannot now arise in England in view of the special prnvision contained in the Finance Act, 1927 (17 & 18, Geo. 5, Ch. 10), section 56 which runs as follows :

"No instrument chargeable with stamp duty under the heading 'Letter or Power of Attorney and Commission, Factory, Mandate, or other instrument in the nature thereof in the First Schedule to the Stamp Act, 1891, shall be charged with duty more than once by reason only that more persons than one are named in the instrument as donors ar donc:es (whether jointly or severally or otherwise), of the powers thereby conferred or that those powers relate to more than one matter".

hre is no provision in the statute law of this country similar to the above, and it is significant that it assumes that a power of attorney might consist of distinct matters by reason of the fact that there arc

(I) [1886] I.LR. 9 !Vad. 358.

(2) [1891] l.L.R. 15 Mad. 386.

(3) [1892] 2 M.L.J. 178.

The ;\/ember, Board of Revenue

Arlhur Paul

Bent1all

V tn/.; alarama

.yar J.

il55

The .\!ember, Board n._f.Re1em1e

"· Arthur Paul

Benthall

V rnkatarama

~yyar J.

several Jonors or donees mentioned in it, or that. it relates to more than one matter.

Now, considering Exhibit A in the light of the above discussion, the point for determination is whet.her it can be said to comprise distinct matters by reason of the fact that the respondent has executed it in different; capacities. In this form, the question is bereft of authority, and falls to be decided on wellrecognised principles applicable to the nuttcr. It is, >s has been stated above, settled law that when two persons 10111 ifi executing a power-of-attorney, whether it comprises distinct matters or not will depend on whether the interests of the cxecmants in the subject-matter of the power are separate or joint.

Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise ,\istinct matters.

That will he in consonance with the generally accepted notion of what are <fotinct mattero,, and that certainly was the view which the responde; it himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his other capacities. But it is contended by Mr. Chaudhury that the fact that the respondent filled several capacities would not aifect the character of the instrument as relating to a single matter, as the delegation thereuncier extended to whatever the respondent could do, and that it woulcl be immaterial that he held some properties in his individual capacity and some others as trustee or executor, as the legal title to all of them would vest in him equally in the latter as well as in the former capacity. We are concerned, he argued, not with the source from which the title flowed but with the reservoir in which it is now contained.

This is to attach more importance to the form of the matter than to its substance. When a person is appointed trustee, the legal title to the estate does, under the English law, undoubtedly vest in him; hut then he holds it for the benefit of the cestui que trtut in whom the equitable estate vests.

Under the

Indian law, it is well established that there can be trusts and fiduciary relations in the nature of trust even without there being a vesting of the legal estate in the trmtee as in the case of mutts and temples.

Vidc Vidya Varuthi v. Balusami( 1 ).

In such cases, the legal title is vested in the institution, the mahant or shebait being the manager thereof, and any delegation of authority by him can only be on behalf of the institution which he represents. When a person possesses both a personal capacity and a representative capacity, such as trustee, and there is a delegation of power by him in both those capacities, the position in law is exactly the same as if different persons ; om m executing a power in respect of matters which are unrelated.

T:1ere being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section s: The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration.

It was finallv contended by Mr. Chaudhurv that if e\'ery capacity of the donor is to be considered as a distinct matter, we should have to hold that there are distinct matters not only with reference to the capacity of the executant as trustee, executor and so forth, but in respect of every transaction entered into by him in his personal capacity. Thus, it is argued, if he confers on his attorney authority to sell one property, to mortgage another and to lease a third, he would have acted in three different capacities as vendor, mortgagor and lessor, and the instrument will have to be stamped as relating to three distinct matters. 'Phis, he contended, would destroy the very basis of a general power-of-attorney.

The fallacv in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity.

When an executor, for example, sells one property for discharging the debts of the testator and

(!) [1921] 48 I.A. 302.

The Member, Board of Revenue

Arthur Paul Benthall

V <nkatarama

Ay; ar ].

The ,\!ember, Board of Revenue

ArlhU1' Paul Benthall

V enkalfirama

Ayyar].

mortgages another for raising funds for carrying on his business, he no doubt acts in two different transactions; but in respect of both of them, he functions only in his capacity as executor.

In our opm1on, there is no substance in this contention.

In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Exhibit A, comprises distinct matters in respect of the several capacities of the respondent mentioned therein, and that the view taken by the revenue authorities and supported by S. R. Das Gupta, J. is correct. This 3ppeal will accordingly be allowed. The respondent will pay the costs of the appellant here and in the court below.

BHAGWATI J.-I regret I am unable to agree with the conclusion reached in the Judgment just delivered.

While agreeing in the main with the construction put upon sections 4, 5 and 6 of the Act and the connotation of the words "distinct matters" used in section 5, I am of the view that the question still survives whether the instrument in question is a single power ot attorney. or a combination of several of them. The argument which has impressed my Brother Judges forming the majority of the Bench is that though die instrument is executed by one individual, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities and the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities.

With the greatest respect I am unable to accede to that argument. I agree that the question whether a power of attorney relates to distinct matters is one that will have to be decided on the consideration of the terms of the instrument and the nature and the extent of the authority conferred thereby.

The fact, however, that the donor of the power of attorney executes it in different capacities is not sufficient in my opinion to constitute the instrument, one comprising distinct matters and thus requiring to he

stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the meaning of section 5. The transaction is a single transaction whereby the donor constitutes the donees jointly and severally his attorneys for him and in his name and on his behalf to act for him in his individual capacity and a\; o in his capacity as managing director, director, managing agent, agent, secretary or liquidator of any company in which he is or may at any time thereafter be interested in any such capacity as aforesaid and also as executor, administrator, trustee or in any capacity whatsoever as occasion shall require. No doubt, different capacities enjoyed by the donor are combined herein but that does not constitute him different individuals thus bringing this instrument within the mischief of section 5. The executants of the instrument are not several individuals but is only. one individual, the donor himself, though he enjoys different capacities. These different capacities have a bearing on the nature and extent of the powers which he could exercise as such.

In his own individual capacity he could exercise all the powers as the full owner qua whatever right, title and interest he enjoys in the property, whether it be an absolute interest or a limited one; he may be the absolute owner of the property or may have a life interest therein, he may have a mortgagee's interest or a lessee's interest therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest he enjoys in that property will be the subject-matter of the power which he executes in favour of the donee. He may, apart from this individual interest which he enjoys therein, be a trustee of certain property and he may also enjoy the several interests described above in his capacity as such .trustee. It may be that in his turn .hemay be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, the trust property having vested in him, and he being therefore in a position to exercise

ThL Member, Board .of Revenue

Arthur Paul

Benthall

Bhagwati J.

The Member, Board of Revenue

Arthur Paul Benthall

Bhagwati J.

856 SUPREME t.:0URT REPORTS [1955]

all these powers in relation thereto. The same would be the position if he were an executor or an administrator of an estate, in possession of the estate of the deceased as such. The property of the deceased would vest in him though his powers of dealing with the same would be circumscribed either by the provisions of the testamentary instrument or the limitations imposed upon the same by law. All these circumstances would certainly impose limitations on his powers of dealing with the properties but that does not detract from the position that he is entitled to deal with those properties and exercise all the powers in relation thereto though with the limitations imposed upon them by reason of the capacities which he enjoys. It follows, therefore, that, though enjoying different capacities, he is the same individual who functions though in different capacities and conducts his affairs in the various capacities which he enjoys but as a single individual. He is not one individual when he is acting in his own individual capacity; he is not another individual when he is acting as a trustee of a particular estate and he is not a third individual when he is acting as an executor or administrator of a deceased person. In whatever capacity he is acting he is the same individual dealing with various affairs with which he is concerned though with the limitations imposed upon his powers of dealing with the properties by reason of the properties having vested in him in different capacities.

I am therefore of the opinion that the instrument in question does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of the donees constituting the donees his attorneys to act for him in all the capacities which he enjoys. The instrument in question cannot be split up into separate instruments each comprising or relating to a . distinct matter in so for as the different capacities of the donor are concerned.

A general power , of attorney comprises all acts which can be done by the donor himself whatever be the capacity or capacities which he enjoys and cannot be split up

into individual acts which the donor is capable of performing and which he appoints his attorney to <lo for him and in his name and on his behalf. It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him, and if that is the position, it is but logical that whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5.

I am therefore of the opinion that the conclusion reached by the majority Judges in the High Court of Judioture at Calcutta was correct and would accordingly dismiss this Appeal with costs.

BY THE CouRT.--In accordance with the opinion of the majority the Appeal is allowed with costs here and in the Court below.

JUGAL KISHORE RAMESHW ARDAS v.

MRS. GOOLBAI HORMUSJI

[BHAGWATI, VENKATARAMA AYYAR and B. P.

SINHA JJ.)

Bombay Securities Contracts Control Act, 1925 (Bombay Act Vil/ of 1925)-Ss. 3( 4) and 6-Sale and purchase of securities by appellant on behalf of resffondent-Dispute between the parties whether appellant was acting within his authority wl1en he purchased the shares-Relationship between the patties that of principal and agent and, not that of seller and purchaser-Whether falls within purview of s. 6-Contract notes sent by brokers to their constituent-Mere intimations by brnkers to constituent-That contract had been entered into -Arbitration agreement-Essentials thereof-Rules framed by Native Share and Stock Brokers' Association-Complete code by themselves- Rule 167-Whether contract notes void thereunder.

The appellant-a share-broker carrying on business in the City of Bombay ar.d a member of the Native Share and Stock Brokers' 17-84 S. C. lndia/59

The MrmbeT, Board of Revenue

Arthur Paul

Bwthall

Bhagwati ].

Octobtr 4.

THE MEMBER, BOARD OF REVENUE

ARTHUR PAUL BENTHALL

DAs

JuER IMAM

CHANDRASEKHARA AIYAR JJ

Indian Stamp Act

ss. 5 and 6

s. 5

s. 6

s. 5

s. 6

s. 5

s. 6

s. 5

Indian Stamp Act

BttAGWATI

s. 5

Indian Stamp Act

s. 5

Indian Stamp Act

Reference under Stamp Act

s. 46

Reference under Stamp Act

s. 46

Reference under Stamp Act

s. 46

s. 57

Indian Stamp Act

M. C. Setalvad

B. Sen

P. K. Bose

S. Chaudhury

S. N. Mukherjee

B. N. Ghosh

A. K. Basu

section 5

Stamp Act II of 1899

Calcutta

section 31

Douglas Chisholm Fairbairn

John James Brims Sutherland

section 56(~)

section 57

High Court of Calcutta

Das

S. R. Das Gupta

section 5

article 4S(d)

Schedule 1

section 13

Bengal Act III of 1922

S. R.

Das Gupta

section 5

Board of Revenue, West Bengal

section 5

sections 3 to 6

Section 3

Section 4

Section 5

Section 6

Schedule I

section 5

section 5

section 6

Section 5

section 3

section 5

Arthur Paul Benthall

section 5

article 48(a)

section 5

section 5

section 6

section 5

section 6

section 5

section 6

section 6

sections 5 and 6

section 6

section 5

sections 5 and 6

section 6

section 6

Chaudhury

sections 3 to 6

section 5

section 6

section 3

section 4

section 6

sections 4 to 6

Section 4

section 6

section 5

section 4

section 6

section 5

section 4

section 5

section 6

section 5

Stamp Act, 1891

section 74

Finance Act, 1910

section 74

Finance Act, 1910

Rowlatt

section 5

article 48( d)

article 48( d )

Tenterdon

Reference under Stamp Act

s. 46( 1 )

s. 46(2)

s. 46( s )

section 56

First Schedule to the Stamp Act, 1891

;\/ember, Board of Revenue

Arlhur Paul

Chaudhurv

nkatarama

BHAGWATI

sections 4, 5 and 6

section 5

section 5

section 5

Arthur Paul

Benthall

Bhagwati

Arthur Paul Benthall

section 5

High Court of Judioture at Calcutta

VENKATARAMA AYYAR

B. P.

SINHA

Ss. 3( 4) and 6

s. 6

Bombay

Native Share and Stock Brokers


2 S.C.R.

SUPREME COURT REPORTS 857

into individual acts which the donor is capable of performing and which he appoints his attorney to <lo for him and in his name and on his behalf. It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him, and if that is the position, it is but logical that whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5.

I am therefore of the opinion that the conclusion reached by the majority Judges in the High Court of Judioture at Calcutta was correct and would accordingly dismiss this Appeal with costs.

BY THE CouRT.--In accordance with the opinion of the majority the Appeal is allowed with costs here and in the Court below.

JUGAL KISHORE RAMESHW ARDAS v.

MRS. GOOLBAI HORMUSJI

[BHAGWATI, VENKATARAMA AYYAR and B. P.

SINHA JJ.)

Bombay Securities Contracts Control Act, 1925 (Bombay Act Vil/ of 1925)-Ss. 3( 4) and 6-Sale and purchase of securities by appellant on behalf of resffondent-Dispute between the parties whether appellant was acting within his authority wl1en he purchased the shares-Relationship between the patties that of principal and agent and, not that of seller and purchaser-Whether falls within purview of s. 6-Contract notes sent by brokers to their constituent-Mere intimations by brnkers to constituent-That contract had been entered into -Arbitration agreement-Essentials thereof-Rules framed by Native Share and Stock Brokers' Association-Complete code by themselves- Rule 167-Whether contract notes void thereunder.

The appellant-a share-broker carrying on business in the City of Bombay ar.d a member of the Native Share and Stock Brokers' 17-84 S. C. lndia/59

The MrmbeT, Board of Revenue

Arthur Paul

Bwthall

Bhagwati ].

Octobtr 4.

Jugal Kishore Rameshwardas v. lt.1rs. Golbai

Hormusji

SUPREME COURT REP9RTS [1955]

Association-was employed by the respondent for effecting sales and purchases of shares on her behalf.

The appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the same number of shares standing in her name and sent the relative contract notes therefor to her. She repudiated the contracts on the grqund that the appellant had not been authorised to close the transactions on the date mentioned by him and asked him to square them at a later date.

The appellant maintained that the transactions had been closed in accordance with her instructions.

The appellant referred the dispute for arbitration to the Native Share and Stock Brokers' Association in pursuance of an arbitration clause in the contract notes.

The respondent refused to submit to arbitration of the association on the ground that the contract notes were void and therefore no arbitration proceedings could be taken thereunder. The arbitrators made an award in favour of the appellant in the absence of the respondent who declined to take part in the proceedings .. 'fhe respondent filed an application for setting aside the award. T.he Bombay High Court held that the con tracts in question were not ready delivery contracts as defined in s. 3( 4) of the Bombay Securities Contracts Control Act VIII of 1925 and that they were accordingly void under s. 6 of the Act and there fore the arbitration clause and the proceeding taken thereunder cul n1inating in the a\vard were also void.

Held that apart from the question whether the contracts in question were for ready delivery or not, they were outside he pur

view of s. 6 of Bombay Act Vlll of 1925 because they were not contracts for sale and purchase of securities.

The dispute between the parties was as to whether the appellant was acting \vithin the scope of his authority when he purchased the shares.

If he was .acting within his authority, the respondent was liable to him.

If those purchases were unauthorised~ the appellant was liable to the respondent for damages. In either case the dispute was one which arose out of the contract of employment of the appellant by the respondent as a broker and not out of any contract of sale or pur chase of securities.

The relationship between the respondent a.nd the appellant was that of principal and agent, and not that of seller and purchaser.

The contract notes sent by brokers to their constituents arc not themselves contracts for sale or purchase of securities within s. 6 of the Bombay Act VIII of 1925 but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.

It is settled law that to constitute an arbitration agreement ill writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the .agreement of the parties thereto is establishe~.

The Rules framed by the Native Shares and Stock Brokers' Association, Bombay form a code complete in itself and any question

arising with reference to those Rules must be determined on their construction and it would be a mistake to read into them the statutory provisions enacted in the Bombay Act VIII of 1925 and therefore the contract notes cannot be held to be void under Rule 167.

G1v1L

APPELLATE JumsmcTION : Civil Appeal No. 95 of 1953.

On appeal from the Judgment and decree dated the 29th day of June 1951 of the Bombay High Court in Appeal No. 93 of 1949 arising out of the order dated the 16th September 1949 of the Court of Bombay City Civil Court at Bombay in Award No. 45 of 1949.

M. C. Setalvad, Attorney-General of India (H. /.

Umrigar, Sri Narain Andley, Rameshwar Nath and Rajinder Narain, with him), for the appellant.

H. R. Mehervaid and R. N. Sachthey, for the respondent. 1955.

October 4.

The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-The appellant is a share broker carrying on business in the City of Bombay, and a member of the Native Share and Stock Brokers' Association, Bombay. The respondent, Mrs. Goolbai Hormusji, employed him for effecting sales and purchases of shares on her behalf, and on 6-8-1947 there was due from her to the appellant on account of these dealings a sum of Rs. 6,321-12-0.

On that date, the respondent had outstanding for the next clearance, sales of 25 shares of Tata Deferred and 350

shares of Swadesh Mills. On 11-8-1947, the appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the respondent, and sent the relative contract notes therefor Nos. 2438 and 2439 (Exhibit A) to her. She sent a reply repudiating the contracts on the ground that the appellant had not been authorised to close the transactions on 11-8-1947, and instructed him to square them on 14-8-1947.

The appellant, however, declined to do so, maintammg that t lie: tra11sactions had bem closed on 11--8-1947 under he

Jugal Kishore Rameshwardar

Mrs. Goolhai

1/ormusji

Jug al K ishore Rameshwardas v.

Mrs. CnJolbai

Hormusji

Venkatarama

Ayyar J.

instructions of the respondent.

After some correspondence which it is needless to refer to, the appellant applied on 21-8-1947 to the Native Share and Stock Brokers' Association, Bombay for arbitration in pursuance of a clause in the contract notes, which runs as follows :

"In event of any dispute arising between you and me/us of this transaction the matter shall be referred to arbitration as provided by the Rules and Regulations of the Native Share and Stock Brokers' Association".

The Association gave notice of arbitration to the respondent, and called upon her to nominate her arbitrator, to which she replied that the contract notes were void, and that in conseguence, no arbitration proceedings could be taken thereunder.

The arbitrators, however, fixed a day for the hearing of the dispute, and gave notice thereof to her, but she declined to take any part in the proceedings. On 10-10-1947 they made an award in which, on the basis of the purchases made by the appellant on 11-8-1947 which were accepted by them, they gave credit to the respondent for Rs. 1,847, and directed her to pay him the balance of Rs. 4,474-12-0.

The respondent then filed the application out of which the present appeal arises, for setting aside the award on the ground, inter alia, that the contracts in question were forward contracts which were void under section 6 of the Bombay Securities Contracts Control Act VIII of 1925, that consequently the arbitration clause was also void and inoperative, and that the proceedings before the arbitrators were accordingly without jurisdiction and the award a nullity.

Section 6 of the Act is as follows :

"Every contract for the purchase or sale of securities, othr than a ready delivery contract, entered • ruo after a date to be notified in this behalf by the Provincial Government shall be void, unless the same is made subject to and in accordance with the rules duly sanctioned under section 5 and every such contract shall be void unless the same is made between members or through a member of a recognised stockexchange; and no claim shall be allowed in any Civil Court for the recovery of any commission, brokerage, fee or reward in respect of any such contract".

Section 3(1) defines 'securities' as including shares, and therefore, contracts for the sale or purchase of shares would be void under section 6, unless they were made in accordance with the rules sanctioned by the Provincial Government under section 5. The appellant sought to avoid the application of section 6 on the ground that the contracts in question were 'ready delivery contracts', and fell outside the operation of that section.

Section 3( 4) of Act VIII of 1925 defines 'ready delivery contract' as meaning "a contract for the purchase or sale of securities for performance of which no time is specified and which is to be performed immediately or within a reasonable time", and there is an Explanation that "the question what ts a reasonable time is in each particular case a question of fact".

The contention of the appellant was that contracts Nos. 2438 and 2439 were ready delivery contracts as defined in section 3(4), as no time was specified therein for performance.

The learned City Civil Judge, who heard the application agreed with this contention, and holding that the contracts were not void under section 6 of Act VIII of 1925, dismissed the application.

The respondent took the matter in appeal to the High Court of Bombay, and that was heard by Chagla, C.J. and Tendolkar, J. They were of the opinion that the contracts in question were not ready delivery contracts as defined in section 3( 4) of the Act, because though no time for performance was specified therein, they had to be performed within the period specified in the Rules and Regulations of the Association, which were incorporated therein by reference, and not "immediately or within a reasonable time" as provided in section 3( 4), that they were accordingly void under section 6, and that consequently, the arbitration clause and the proceedings taken thereunder culminating in the award were also void. They accordingly set aside the award as invalid and without jurisdiction. Against tl'ri.<i jutigment, the appellant has preferred this appeal

Jug al K ishore Rameshwardas

Mrs. Goolbai

Horncusji

V enkatarama

Ayyar J.

Jugal Kishore Rameshwardas v.

Mrs. Gvolbai Hormusji

V tnkatarama

A.var J,

on a certificate under article 133 ( 1) ( c).

It was argued by the learned Attorney-General in support of the appeal that even apart from the question whether the contracts in question were for ready delivery or not, they would be outside the purview of section 6, because they were not contracts for sale and purchase of securities. This contention was not raised in the courts below, and learned counsel for the respondent objects to . its being entertained for the first time in this Court, as that would involve investigation of facts, which has not been made. But in view of the terms of the contract notes and the admission of tbe respondent in ber petition, we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on that point.

The dispute between the parties is as to whether the appellant was acting within the scope of his authority when he purchased 25 shares of Tata Deferred and 350 shares of Swadeshi Mills on 11-8-1947. If he was acting within his authority, then the respondent was entitled only to a credit of Rs. 1,847 on the basis of the said purchases.

But if these purchases were unauthorised, the appellant was liable to the respondent in damages. In either case, the dispute was one which arose out of the contract of employment of the appellant by the respondent as broker and not out of any contract of sale or purchase of secunt1es.

The question of ; ale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant.

But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser. The contract of employment is no doubt connected; and intimately, With sales and purchases of securities; but it is not itself a contract of-sale or purchase. It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.

Vide the decision of this Court in Kishati Lal and another v Bhantoat Lal('). The legis-

(•l) [J955Jl s.a.R. 439,

lature might, of course, enact that not merely the contract of sale or purchase but even contracts collateral thereto shall be void, in which case the contracts of employment witf, t reference to those contracts would also be void. But that is not what Act VIII of 1925 has done.

Section 6 expressly provides that no claim shall be maintained in a civil court for the recovery of any comm1ss1on, brokerage, fee or reward in respect of any contract for the purchase or sale of securities. That is to say, the bar is to the broker claiming remuneration in any form for having brought about the contract.

But the contract of employment is not itself declared void, and a claim for indemnity will not be within the prohibition. The question whether contract notes sent by brokers to their constituents are contrar:ts for the sale and purchase of securities within section 6 of Act VIII of 1925, came up for consideration before the Bombay High Court in Promatha Nath v. Batliwalla & Karani(1) and it was held therein that they were not themselves contracts for sale or purchase but only intimations by the broker to the constituent that such contracts had been entered into on his behalf. We agree with this decision.

It may be argued that if the contract note is only intimation of a sale or purchase on behalf of the constituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act. But it is settied law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the partie~ thereto is established.

Though the respondent alleged in her petition that she had not accepted the contract notes, Exhibit A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Exhibit A constituted the sole repository of the contracts. and as they were void, there was no arbi-

(1) I.LR. [19.J.2] Hom. 655; A.I.R.194! Dom. 2:'4.

Jugal Kis/wre Ramuhwardas

Mrs. (; oo/hai

Hormwji

Venkatarama

.4y)llT ).

Jugal Kis!wr1 Rameshwardas

Mrs. Goolbai

Hmnusji

V e11katarama ·

Ayyar ].

tration clause in force between the parties. We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of section 6 of Act VIII of 1925, that the arbitration proceedings are accordingly competent, and that the award made therein is not open to objection on the ground that Exhibit A is void.

It was next contended for the respondent that the contract notes were void under Rule 167 of the Native Share and Stock Brokers' Association, and that on that ground also, the arbitration proceedings and the award were void. Rule 167 so far as it is material is as follows:

"167. (a) Members shall render contract notes to non-Members in respect of every bargain made for such non-Member's account, stating the price at which the bargain has been made.

Such contract notes shall contain a charge for brokerage at ratts not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of rules 168 and 170(b ). Such contract notes shall show brokerage separately and shall be irr Form A prescribed in Appendix H annexed to these Rules.

( c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.

(g) A contract note referred to in this rule or anv other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".

Form A in Appendix H referred to in Rule 167(a) contains two columns, one showing the rate at which the securities are purchased or sold and the othc:r, the brokerage. The contract notes sent to the respondent are not in this form. They are in accordance with Form A in Appendix A, and show the r:ites at which the securities are sold or purchased, the brokerage not being seoarately shown. At the foot of the document, there is the following note :

"This is net contract.

Brokerage is included in 1955 the price".

The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under Rule 167(c). Now, Rule 167 applies only to forward contracts, and the basis of the contention of the responde; t is that inasmuch as the contract notes, Exhibit A, have been held by the learned Judges of the High Court not to be ready delivery contracts but forward contracts, they would be void under Rule 167(c), even if they were not hit by section 6 of Act VIII of 1925.

The assumption underlying this argument is that what is not a ready delivery contract under the defmition in section 3 ( 4) of Act VIII of 1925 must necessarily be a forward contract for purposes of Rule 167.

But that is not correct. The definition of a ready delivery contract in section 3( 4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under section 6 of that Act. But when the question is whether the contract is void under Rule 167, what has to be seen is whether it is a forward contract as defi-ned or contemplated by the Rule5. The definition in section 3(4) of Act VIII of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of Rule 167, the decision of which question must depend entirely on the construction of the Rub.

The relevant Rub are Nos. 359 to 363. Rule 359 provides that "contract5 other than ready delivery contract5 shall not be made or transacted within or without the ring". Rule 361 confers on the Board power to specifv which securities shall be settled by the system of Clearance Sheets and which, by the

proces of Tickets.

Rules 362 and 363 prescribe the mod us a, erandi to be followed in effecting the settlement. It was with reference to these rules which under the contract notes were to be read as part of the contract. that the learned Judgts held that the contract: were not ready delivery contracts as defined in sec-

Jugal Kishore Rameshwardas

Mrs, Goolbai

Hormusji

Vmkatarama

, foar ].

Jugal Kishore Rames/iwartJrjs

Mrs. Goolbai

Hormusji

Ve11kaltJTama

A""'].

tion 3 ( 4) of Act VIU of 1925.

But reading the above Rules with Rule 359, there can be no doubt that the contract notes, Exhibit A, would for the purpose of the Rules be ready delivery contracts. Indeed, the form of the contract note>:, Exhibit A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts. Thus, contracts which are regulated by Rules 359 to 363 cannot be forward contracts contemplated by Rule 167, and they cannot be held to be void under that Rule. The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other. The rules framed by the Association form a code complete in itself, and any question arising with reference to those rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act VIII of 1925.

In this view, the contract notes; Exhibit A, cannot be held to be void under rule 167. In the result, we must hold, differing from the learned Judges of the court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.

The respondent contested the validity of the award on several other grounds. They were rejected hy the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under section 6 of Act VIII of 1925, they did not deal with them. Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.

We accordingly set aside the order of the court below, and direct that the appeal he .reheard .in the light of the observations contained herein.

As the appeal succeeds on a point not taken in the courts below, the parties will bear their own costs throughout.

The costs of the further hearing after remand will be dealt with by the High C9urt.

section 5

High Court of Judioture at Calcutta

JUGAL KISHORE RAMESHW ARDAS

MRS. GOOLBAI HORMUSJI

BHAGWATI

SINHA JJ.

Ss. 3( 4) and 6

s. 6

Bombay

Swadeshi Mills

Bombay High Court

s. 3( 4)

Control Act VIII of 1925

s. 6

s. 6

s. 6

Bombay Act VIII of 1925

Bombay Act VIII of 1925

M. C. Setalvad

Narain Andley

Rameshwar Nath

Rajinder Narain

H. R. Mehervaid

R. N. Sachthey

Goolbai Hormusji

Swadesh Mills

Jugal Kishore Rameshwardar

Goolhai

CnJolbai

Hormusji

Venkatarama

Ayyar

section 6

Control Act VIII of 1925

Section 6

section 5

Section 3(1)

section 6

section 5

section 6

Section 3( 4)

section 3(4)

section 6

High Court of Bombay

Chagla

Tendolkar

section 3( 4)

section 3( 4)

section 6

Jug al K ishore Rameshwardas

Goolbai

Horncusji

A.var

article 133

section 6

Section 6

section 6

Jugal Kis/wre Ramuhwardas

Goolbai

Hmnusji

section 6

section 6

section 3

section 3( 4)

section 6

section 3(4)

Goolbai

Hormusji

section 6


2 S.C.R.

SUPREME COURT REPORTS 867

THE STATE OF BOMBAY

ti.

ALI GULSHAN.

Is. R.

DAS,

ACTING

C.J.,

BHAGWATI,

VENKATARAMA

AYYAR, JAFER IMAM and CHANDRASEKHARA

AIYAR JJ.]

Lu11; titutiun of India-Article 31-Public purpose-Bombay Land Requisition Act, 1948 (Bombay Act XXXlll of 1948), s. 6( 4) (a )-Requisition for a public purpose of certain prrmises by the State of Bombay--For 'housing a member of the rtaff of a foreign consulate' -Whether the requisition was made for a 'public purpose' within the meaning of the Act.

Held, that the Government of Bombay was entitled, under clause (a) of sub-section ( 4) of s. 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for a public purpose, certain premises for 'housing a member of the staff of a foreign consulate'.

The purpose for which the requisition was made was a "public purpose" within the meaning of the Act; and the requisition was made in this case more as a State purpose than as a Union purpose.

In any eYent "other publiC purpose", is a category distinct from "Union purpose" and "State purpose" and the acquisition or requisitioning of property by the State except for rhe purpose of the Union, is within its competence under item 36 of the State List.

An undertaking may have three different fucets or aspects and may serve the purpose of a State; the purpose of the Union and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a consulate as one appertaining to a Union purpose, it does not necesfarily cease to be a State purpose or a general public purpose. Therefore on this view also, the requisition in the present case must be held to have been validly made.

Courts should lean against a construction which would render words. in a statute mere surplusage.

CIVIL

APPELLATE

JURISDICTION : No. 229 of 1953.

Civil Appeal

Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 16th December 1952 of the Bombay High Court in Appeal No. 110 of 1952.

M; c. st'alvad; Attoriuy-General of lndi,, (PMttS

Ottoher 4 •.

The State of

Bombay

Ali Gulshan

A. Mehta and R. H. Dhebar, with him) for the appcl- !ant.

Rajinder Narain for the respondent.

1955. October 4.

The judgment of the Court was delivered by

CHANDRASEKHARA AtYAR J.-Was the Government of Bombay entitled, under clause (a) of sub-section ( 4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act. XXXIII of 1948), to requisition, as for a public purpose , certain pr<miscs for "housing a member of the staff of a foreign consulate"?, is the question we have to consider in this appeal, which has arisen out of a writ petition filed under article 226 of the Constitution by the respon- . dent in the Bombay High Court to restrain the State

of Bombay from taking such action.

On the hearing of the petition before Tendolkar, J., the State succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within the meaning of the Act.

But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, as 1 he public purpose must be either a purpose of the Union, or a purpose of the State and in thi• particular case tbc accommodation being required for housing a member of a foceign Consular staff was a Union purpose, which was outside the scope of the powers of the State. Clause (a) of sub-section (4) of section 6, omitting portions unnecessary for our present purposes, runs in these terms:-

"The State Government may, by order in writing, requisition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as

may' appear to it to be expedient".

The. validity of the Act is not questioned as unconstitutional or as beyond the scope of the legislative competence of the State.

As the premises were required for housing a member of the staff of a Consulate, there can be no doubt that it was wanted for a public purpose.

The ultimate source of authority to requisition or acquire property is be found in article 31 of the Constitution. The requisition or acquisition must :., e for a public purpose and there must be compensat10n.

This article applies with equal force to Union legislation and State legislation. Items 33 and 36 of List I & List II 'of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legislatures to enact laws with respect to them.

The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this. There can be no public purpose, which is not a purpose of the Union or a purpose of the State. There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the

State". The provision of accommodation for a member of the foreign consulate staff is a "purpose of the Union" and not a "purpose of the State".

We are unable to uphold this view as regards both the standpoints.

Item 33 in the Union Legislative List (List I) refers to "acquisition or requisitioning of property for the purposes of the Union". Hem 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of ihe Union, subject to the provisions of entry 42 of List III". Item 42 of the Concurrent Legislativ.:: List (List III) speaks of the "the purpose of the Union or of a State or for any other public purpose". Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose.

Though every State purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquisition or requisition is neither the one nor the other but a public purpose.

Acquisition of sites for the bulding of hospitals or educational institutions by private benefactors will be a public purpose,

The State of

Bombay v.

Ali Gulshan

Chandrasekhara

AiJ!ar J.

The State of Bombay v.

Ali Gulshan

Chandrasekhara

Aiyar J.

though it will not strictly be a State or Union purpose. When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or a section of the public. Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at heart, will fall within the third category abovementioned.

With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" are restricted to a public purpose which is also a purpose of the State, has ; carcely any application.

Apart from the .fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distiµct genus, which must comprise more than one species, before the rule can be applied. If the words "any other public purpose" in the Statute in question . have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.

Even . if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.

Item 11 in the Union list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution,• the executive power of the Union shall extend to all such matters.

It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate. .It was conceded by Mr.

Rajinder Narain, Counsel for

the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of . a Consul in modem times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, p:rivileges and immunities are not analogous to those of an ambassador. The trade and commerce of the State which appoints him with the State in which he is located are his primary concern. The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.

We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.

In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, .as the acquisition or requisitioning of property except ·· for the purposes of the Union, is within its competence under item 36 of the State List.

There is another way of looking at the question involved.

An undertaking may have three different facets or aspects, and niay serve the purpose of a State.

the purpose of the Union and. a general public purpose. ·. Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose.

In this view also, the requisition in this case must be held to have been validly made.

For the reasons given above, the appeal is allowed and the order of Tendolkar J. is restored with costs . payable to the appellant by the respondent throughout. ·

The State of Bombay v.

Ali Gulshan

Chandrasekhar a

Aryar ].

867

THE STATE OF BOMBAY

ALI GULSHAN

DAS

BHAGWATI

JAFER IMAM

AIYAR JJ.

Article 31

s. 6( 4)

s. 6

Bombay Land Requisition Act, 1948

Bombay Act XXXIII of 1948

Article 132(1)

Constitution of India

State of

Bombay

A. Mehta

R. H. Dhebar

Rajinder Narain

CHANDRASEKHARA AtYAR

Government of Bombay

section 6

Bombay Land Requisition Act, 1948

article 226

Bombay High Court

State

of Bombay

Tendolkar

section 6

article 31

Seventh Schedule

Parliament

AiJ!ar

Aiyar

article 73

State of Bombay


October 11

SUPREME COURT REPORTS

DAJISAHEB MANE AND OTHERS

ti.

SHANKAR RAO VITHAL RAO MANE

AND ANOTHER.

[1955]

[S. R. DAS,

DAS, fAFER

AcTING C. J.,

VIVIAN BosE, iMAM and

CHANDRASEKHARA

fACANNADHA

AIYAR JJ.]

Constitution of India-Arts. 133 and 135-Decree of lower court in respect of properties of the value of more than Rs. 10,000 but below Rs. 20,000--Reversed by the High Court on 8-11-1949-High Court g•anted 'leave to appeal on 1-10-1951-Appeal to the Supreme Court -Whether competent-Word "exercisable" in Art. 135-Construction of.

This appeal to the Supreme Court_ was from a reversing decree of the Bombay High Court in a suit for possession of certain im movable properties.

The suit was dismissed by the trial court on 20-12-1946, the value of properties being found to be over Rs. 10,000.

The decree of the High Court allowing the plaintiff's claim was passed on the 8th November 1949.

The defendants applied to the High Court for leave to appeal to the Federal Court on 6-1-1950 which was granted on 1-10-1951.

One of the questions for determination was whether Art. 133 of the Constitution applied to the case and the appeal was competent to the Supreme Court.

Held, that Art. 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India''.

Held further that on the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court as the properties were of the requisite value and on 6-1-1950 a certificate of leave to appeal was bound to be granted.

Held also that the appeal was competent to the Suprerae Court by virtue of the provisions of Art. 135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law. inasmuch as the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court's decree as regards properties of the value of more than Rs. 10,000.

The construction contended for by the respondent that the jurisdiction was exercisable under Art. 135 by the Federal Court only if the matter was actually pending before the Federa~ Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is

too narrow and does not give full and proper scope to the meaning of the word 'exercisable' in the Article.

CIVIL

APPELLATE

JURISDICTION: Civil Appeal No. 92 of 1953.

Appeal under section 110 of the Civil Procedure Code from the Judgment and Decree dated the 8th November 1949 of the Bombay High Court in Appeal from Original Decree No. 195 of 1947 arising out of the Judgment and Decree dated 20th December 1946 of the Court of Civil Judge, Senior Division, Sholapur

in Special Suit No. 78 of 1945.

C. K. Daphtary, Solicitor-General of India (R. A.

Govind, with him) for the appelbnts.

J B. Dadachanji, Sri Narain Andley and Rajinder Narain, for respondents.

1955. October 11.

The Judgment of the Court was. delivered by

CttANDRASEKH.~RA ArYAR J.-This appeal is from a reversing decree of the Bombay High Court in a suit for the possession of certain immovable proper-· ties which w<ts dismissed hv the Civil Judge, Senior Division, Sholapur. The value of the properties has been found to be over Rs. 10,000.

The Original decree was on 20-12-1946. The decree of the High Court allowing the plaintiff's claim was on 8-11-1949.

The defendants applied for leave to appeal to the Federal Court on 6-1-1950.

The High Court directed the trial court to find the value of the property which was the subject-matter of the suit at the time of the rnit and on the date of the passing of the decree in appeal. On 22-1-1951 the lower court ascertained the value as stated above.

The High Court the:cafter granted leave to appeal on 1-10-1951, overrn1ing the objections raised by the plaintiff to the grant of such lt:a-:e.

The maintainability of this appeal has been questionc.I before us hy Mr. Dadachanji, learned counsel for the respondents. in a somewhat lengthv argument.

His main contention was tht article LB of the

in--14 S.C. fndia/59

Dajisa!1Cb. Mav

and others v.

ShtJ11kar Rao Vithal RQ() Mane

and another

DaJisaheb Man~

and othtrs

Shanhir Rao V ithal Rao Mane

and arwther

Chant/rasekharo

Aryar ].

Constitution applies to the case, and as the value is below Rs. 20,0lJO, no appeal can be entertained. It is the correctness of this argument that we have to consider.

On the date of the decree of the High Court, the defendants had a .vested right of appeal to the Federal Court, as the properties were of the requisite value, and on 6-1-1950 they sought a certificate of leave to appeal, which was bound to be granted.

The Constitution establishing the Supreme Court as the final appeilate authority for India came into force on 26-1-195().

Did the vested right become extinguished with the abolition of the Federal Court? If the coun to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes no doubt.

We have therefore rp examine whether the Constitution which rought the Supreme Court into being makes any p.:ovision for an appeal from a reversing decree of the High Court prior to the date of the Constitution respecting properties of the value of Rs. 10,000 and more being

enertained and heard by the Supreme Court.

Article 135 is in these terms:-

"Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing la\Vn.

Article 133 runs as follows:-

"(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies- ( a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is. not le5s than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or ( c) that the case is a fit one for appeal to the Superme Court; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in ;:ny case other than a case referred to in sub-clause ( c), if the High Court further certifies that the appeal involves some substantial question of law ............ "

It is reasonably clear that article 133 does not apply to this "matter".

The language is prospective, and the judgment, decree or final order from which the appeal is to be taken is that of a High Court in the territory of India-that is a High Court established under the Constitution.

The territory of India comprises the territory of the States.

Aricle 214 says that there shall be a High Court for each State, and clause (2) thereof provides that "the High Court ,:xerc; s:ng jurisdicion in relation to any Province immediately bdore the commencement of this Constitution shall be deemed to be the High Court for the corresponding St1te". \Ve can compendiously speak of the High Court prior to the Constitution and the

I-Ii?h Court after the Constitution as the P;-ovincial Higi1 Court and the State High Court. A High Court in the territory of India means a State High Court, and J..rticle 133 provides for appeals against any judgment. decree or final order in a civil proceeding of such High Court.

Though article 133 does not apply, we have still to see whether it is a matter as regar<ls which jurisdiction a'!d powers were exercisable by the Federal Court immediately before the commencement of the Constitution.

It is unnecessary to refer in detail to the earlier enactments defining the jurisdiction of the Privy Council, and the Government of India Act, 1935 establishing the Federal Court and conferring a lim; tcd jurisdiction on the same.

It is sufficient to pohr out that as the law then stood, the Federal Court had jurisdiction to entertain and hear appeals

1955'

Dajisal.eb Mane and ot.\ers

Shankar Rao V iti; al Rao Mmie

and another

Chandrasek.\ara

A!>'ar J.

Dajisa'uh Mane

and ot'; ers

Shankar Rao Vithal Rao Mane

and anot, ler

r: ;; andrasekhara

Aryar J.

from a decree of a High Court which reverse<l the lower court's <lecree as re.!,!ards properties of the value of more than Rs. 10,000.

The aggrieved p.rtv had a right to go before it, without any special leave l:eing granted. It was a matter over which jurisdiction was "exercisable" by the Federal Court.

The construction that it was "exercisable" only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XL V of the Civil Procedure Code is too narrow, and doc; 110t give full and prooer scope to the meanin!;( of the word "exercisable" in the. article.

Pending: matten are dealt with under article 374(2), and we must give some meaning to the provisions of article 135.

As soon as the decree of the High Court came into existence, the jurisdiction of the F c<leral Court to hear an appeal from that decree became exercisable. provided certain conditions as to security and deposir were complied with, which are not material for 0111 present purpose.

Reference may be made here to paragraph 20 of thc- Adaptation of Laws Order, 1950, as amended in 195], which provides:

"Nothing in this Order shall affect the previnm ·• operation of, or anvthing duly done or suffered under, any existing law, or anv right, privilege, obligation or liability already acquired, accrued or incurred under any such law ....... .

By this Order section 110, Civil Procedure Code was adapted to the new situation but the requirement "' to value was raised from 10,0UO to 20,000.

What 1s provided is that this adaptation will not affect the right of appeal already accrued.

If we accede to the argument urged by the respon dents, we shall be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court befor~ the Con::titution and which we must hold was taken a'"°"'i from them for no fault of their own, merely bec; use the Supreme Court came into existence in

phce of the Federal Court.

An interpretation or

~~ ii

construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable. The Full Bench decision of the Madras High Court in G1111dapuneedi Tleeranna and three others v. Gundapuneedi China Tl enkanna and seven

others( 1 ) was a case where the decree of the High Court

md the application for leave to appeal were both after the Constitution came into force. Whether in all matters where there was a right of appeal under section 110 of the Civil Procedure Code it continues in respect of all suits filed • prior to the Constitution is a question that does not arise for decision now.

On the merits, the appeal is unassailable. The family whose genealogical tree is given in the opening portion of the judgment of the trial Judge owned what may be compendiously described as Sangam properties and Peta Velapur Mahal properties, and all of them were of the nature of watan. The Sangam Jar., Js were held by the eldest branch represented by Yeshwant Rao (son of Panduranga Rao) bv right of lineal pnmogeniture. When Yeshwant Rao and hi~ widow Tarabai died in November 1924, these properties went to the plaintiff Shankar Rao's branch as the next senior in line. The Peta Velapur Mahal properties were held in three shares by Narsinga R:io, Vithal Rao and Krishna Rao, the fourth brother Shyama Rao having no right as he was insane. Defendants 1. 2 and 3 represent Krishna Rao's br:mch.

After Yeshwant Rao's death, Lakshman Rao, the grandfather of defendants 1 and 2, filed a suit No.

1064 of 1925 for a declaration that he was the nearest heir to the Sangam properties, the Peta Velapur Mahal properties and the cash income appertaining to the inamdar's right in Sangam. He got a declaratory decree that he was the nearest heir of th~ dee.eased Yeshwant Rao, and had a right in such capacity to take possession of all the propLrtie~, excluding the inam income and the Sangam laPLls specified in Schedule B of the decree and a small item of prooertv 5ituated in the same vi, llage and specified in Schedule G. As regards the excluded items, Shankar

(1) I.L.R.(r953] Mad. I07J.

Dajisa'ieb Mmu

and ot1; m v.

Sfignkar Rao Vitf, al Rao M1J11t

and anothc

Chand1aukhara

A&ar J.

DaJisaUb Ma•

and ot'.ers

Shar.kar Ran Vit'ial Rao Mane

and anothtt

Chanttrastkhara

Ao/ar J.

Rao, the first defendant, (plaintiff in the present suit) was held to be the heir. On appeal to the High Court, the decree of the Subordinate Judge was confirmed, except as regards the cash allowance of three villages Nevare, Tambure and Limbagaon, which was also decbed to belong to Shankar Rao.

As the decree was only a declaratory decree, a fresh suit had to be filed by Narayana Rao, son of Lakshman Rao, to recover possession of the Peta V elapur Mahal properties at Mahalung, Lavang and Wafegaon. This was Civil Suit No. 2148 of 1936.

Recovery was also sought of some cash and the value of some ornaments and clothes, etc. The claim was resisted by Shankar Rao, and his main plea was tbat in lieu of the properties claimed, a large number of lands at Sangam had originally been given to the plaintiff's branch, and that unless those properties were given back, the plaintiff could not claim to recover the V elapur Mahal properties. The suit ended in a compromise decree. Shankar Rao was to deliver actual possession of the lands to the plaintiff as owner together with costs and meme profits and the plain-· tiff was to abandon the rest of the claim. The decree states, "The defendant has given up all the contentions in his written statement".

After possession was taken of the V elapur Mahal properties under the decree, the plaintiff, Shankar Rao, brought this suit to recover from defendants 1 and 2 the Sangam lands to which he referred in his earlier written statement alleging that they were gi\cn to their grandfather in lieu of maintenance. The defendants have made the answer that the items of Sangam lands claimed by the plaintiff were given to their ancestor, Krishna Rao absolutely under the deed of 1867, and that since then they had been in the enjoyment as owners thereof. The Civil Judge dismissed the plaintiff's suit finding that the case of the plaintiff to the effect that the lands were given to Krishna Rao for maintenance under the deed of 1867 was unfounded. But on appeal by Shankar Rao (the pbin~ tiff), the High Court reversed this decree construing the deed of 1867 as a deed under which absolute ownership was not transferred to Krishna Rao and that the specified items of Sangam lands were given to hiw provisionally and conditionally till Krishna Rao obtained possession of the Peta V elapur Mahal lands which were then under a mortgage.

V/e have examined the deed closely and do not find any warrant for the view taken by the learned Judges on appeal. The deed is Exhibit No. 35, and it i~; printed at page 63 of the Paper Book. The correctness of the translation is admitted.

It was executed by Narsinga Rao of the first branch in favour of Krishna Rao of the last branch, predecessor-in-title of defendants 1 to 3.

After reciting that Krishna Rao was entitled to a one-third share in the income appertaining to the Deshmuki rent of the family at Peta Vclapur Mahal, it proceeds to say,

" ........ In lieu of the land of that Mahal and in respect of the cash aliowance of the Haqdari rights we have given to you for a 1/3 share of land of this Mahal the following lands from the village of Sangam which is continued with us by Vadilki right (the right of Primogeniture)".

The deed proceeds to set out the items by areas, assessment, and boundaries, and then goes on :

"In all 6 numbers have been given by us to you in lieu of your entire income from the said Mahal. Now, five and half Pavs out of the said land are in your 'Vahiwat' at present and the remaining land was to have been given over to your vahiwat, but we having formerly mortgaged the said village to Ramch:mdra Pandurang Deshpande, 5 'Pavs' of land is not in your Vahiwat this day. Hence on the expiry of 6 years, the period of the mortgage, you may carry on the entire Vahiwat of the land passed in your favour in writing as aforesaid without any hindrance. We have no claim of inheritance left on the aforesaid land".

The 'deed concludes with a provision made for the residence of the donee in an open space in the same village. It further states :

" ...... There are four shops and a wada at the; Kasha of Velapur, and a one-third share thereof has beeo allotted to your share over which we have no

Dajisa.\eb Mane and others

Sho.nkar Rao V it/; aE Rao Man;

and anotlzer

Chandrasekhara

Ai)'ar ].

DajisaMJJ Mane

ondo hers

SJrankar Rtw V it Ital Rao M, ne

and anot .. er

claim of inheritance left".

It is obvious from this document that the one-third share of Krishna Rao's branch in the Peta Velapm Mahal properties was retained by Narasinga Rao and that in lieu thereof Krishna Rao was given six items of the Sangam properties, the whole of which could not then and there be given over into his possession and management as there was a usufructuary mortgage over a portion of the lands which was to expire after the lapse of six years from that date. The lands referred to as mortgaged are the Sangam lands and not the Peta V elapur Mahal lands as wroPgly assumed by the High Court. There is absolutely nothing said about the properties being given for maintenance to Krishna Rao. On the other hand, in two places we find that any right to inheritance was given up. In fact, this case of the plaintiff was given up before the trial Judge. It is true that there was an exchange of properties, but there is nothing to warrant the view of the learned Judges. that it was provisional or conditional, and that the Sangam lands were to be returned when the Velapur Mahal properties went into the posse:ssion and management of Krishna Rao's branch.

To say such an arrangement was implied is to ignore the plain terms of the deed.

 The properties now in dispute are the items covered by the deed. They did not form the subject-matter of the two previous litigations. Since 1867, the date of Exhibit No. 35 they have always been in the possession of the defendants' branch as owners. 1t must also be remembered that the earlier suits of 1925 and 1936 proceeded on the basis that the defendants' branch was the heir to the properties left by the deceased, Y eshwant Rao.

There is no other question which arises for discussion or decision. It follows that the trial Judge was right in hok!ing that the plaintiff's claim to recover possession of the suit properties covered by the deed of 1867 was entirely baseless. The decree of the High Court is reversed and that of the trial Judge is restored with costs throughout payable by the plaintiff In the defendants.

DAJISAHEB MANE AND OTHERS

SHANKAR RAO VITHAL RAO MANE

AND ANOTHER

S. R. DAS

VIVIAN BosE

iMAM

AIYAR JJ.

Constitution of India

Arts. 133 and 135

Supreme Court

Art. 135

Bombay High Court

8th November 1949

Art. 133

Art. 133

Suprerae Court

Art. 135

Art. 135

section 110

C. K. Daphtary

R. A.

Govind

J B. Dadachanji

Narain Andley

Rajinder Narain

CttANDRASEKH.~RA ArYAR

Civil Judge, Senior Division, Sholapur

Dadachanji

Dajisa!1Cb. Mav

Rao Vithal RQ() Mane

India

Article 135

Parliament

article 133

article 134

Article 133

article 133

article 133

Government of India Act, 1935

Dajisal.eb Mane

Chandrasek.\ara

Dajisa'uh Mane

andrasekhara

Aryar

article 374(2)

article 135

section 110

Civil Procedure Code

Madras High Court

section 110

Yeshwant Rao

Panduranga Rao

Tarabai

Shankar Rao

Narsinga R

Vithal Rao

Krishna Rao

Shyama Rao

Lakshman Rao

Sangam

Shankar

Sfignkar Rao Vitf

Narayana Rao

Lavang

Wafegaon

Shankar Rao

Narsinga Rao

Ramch:mdra Pandurang Deshpande

Velapur

Chandrasekhara

Narasinga Rao

Peta V elapur Mahal

Y eshwant Rao