Bui Hfra Devi

and Others

"· The Official Assignee of Bt'1nbay

Gajendragadkar J.

February 20.

SUPREME COURT REPORTS [1958]

of this case, we think that the fair order as to costs of this appeal would be that the costs should abide the final result in the appeal before the High Ccurt at Bombay.

Appeal allowed.

Case remanded.

KANAIYALAL CHANDULAL MONIM v.

INDUMATI T. POTDAR AND ANOTHER

(B. P. SINHA, JAFER IMAM SUBBA RAO JJ.)

Municipal Law-Water Supply-Landlord withholding essential supply-Tenant not in enjoyment after enactment-Conviction of landlord-Legality-Bombay Rents Hotel and Lodging House Rates Control Act (Bom. LVll of 1947), s. 24.

Section 24( 1) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, provides: "No landlord either himse![ or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him." By Explanation II : "For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut off by the local authority or any other competent autliority."

The appeallant was prosecuted under s. 24 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, on J complaint by the tenant, the first respondent, on June 14, 1954, for having refused or neglected to have water connection made for the premises.

The water supply to the premises was cut off by the Municipality in 1947 due to the default in payment of the municipal taxes by the predecessor-intitle of the appellant, but the tenants, including the first -respondent, continued in occupation of the premises without having the use of municipal wator s11pply.

It was contended for the appellant that his conviction was invalid because ( 1) he was not liable for the default made by his predecessor-in-title, and (2) in any case, s. 24 was not applicable inasmuch as the supply of municipal water was not

en joyed by the first respondent when the Act came into force :

 Held: (1) that though the appellant might not have been 1958 directly responsible for the cutting off of the supply of municipal water, it was within his power to get the supply rstored by the Kanaiyalal Municipality on payment of the prescribed fee and m so far as he' Chand11lal Monim omitted to do so, such an omission was attributable to him within v.

Explanation II of s. 24 of the Act, and therefore he was with- Indumati T. Potdar holding iln essential supply within the meaning of s. 24 ( 1 ) of the and Another Act;

(2) that under s. 24 of the Act the essential supply shoui<l have been available for the use of the tenant at some time when the Act was in force, and as, in the instant case, the first respon dent was not in enjoyment of the supply of municipal water at any time after the coming into effect of Act, the appellant could not be convicted under that section.

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 65 of 1956.

Appeal by special leave from the judgment and order dated April 22, 1955, of the Bombay High Court in Criminal Revision Application No. 449 of 1955, arising out of the judgment and order dated March 24, 1955, of the Court of the Presidency Magistrate, Seventh Court, Dadar, Bombay in Case No. 215/S of 1955.

Rameshwar Nath, S. N. Andley and J. B. Dadachanji, for the appellant.

T. Satyanarayan, for respondent No. L N .. S. Bindra and R. H. Dhebar, for respondent No .. 2.

1958. February 20. The Judgment of the Court was delivered by SINHA J.-The only question for determination in this appeal, is whether an offence punishable under s. 24(1)(4) of the Bombay Rents Hotel and Lodging House Rates Control Act L VII of 1947 (hereinafter referred to as the Act), has been brought home to the appellant.

The facts of this case are short and simple. The appellant is the owner, by purchase in 1945, of certain premises situate in Vile Parle, Bombay. Under the predecessor-in-title of the appellant, was a tenant, named Thirumal Rao Potdar, in respect of a room in

Sinha J.

19ss those premises, at a monthly rent of Rs. 20 including . water rate of Rs. 2.

After the appellant's purchase,

C' Kdanla1y1 ~~ 1 • the tenant aforesaid continued to hold the tenancy ''"" "" momm h Th "d . d . v. on t ose very terms. e sat premises use to enjoy f,, dumati r. Potdar the amenity of water supply from a municipal tap.

and Anorh., As the appellant's predecessor-in-title had made default

Si11/ia J. in payment of municipal taxes, the water supply had been.cut off by the Municipality early in May, 1947.

Since after that, the tenants including the said Thirumal Rao, had the use of well water only from a neighbouring tenant. Thirumal Rao died in or about the year 1950, and his widow, the first respondent, continued in occupation of the premises, without having the use of municipal water supply though she continued to pay the orginal rent plus annas IO more by way of 'permitted increase'. Thus, the landlordthe appellant-went on receiving the monthly rent of Rs. 20-10-0 from the first respondent without giving her the benefit of water supply from the municipal tap. The Act came into force on February 13,

1948. The tenancy appears to have been recorded in her name some time in 1951. Nothing appears to have happened until April, 1954, when the first respondent brought it to the notice of the Municipal authorities that the supply of water from the municiapal tap had been stopped since 1947. The Municipality answered the first respondent's complaint by a letter dated May 24, 1954, saying that the water connection could be restored on payment of Rs. 11-4-0 only, being the fee for doing so, if the owners consent was produced.

Before receiving this answer from the Municipality, the tenant got a letter written to the appellant, through a pleader, asking him to refund Rs. 72 being the amount charged for water supply at Rs. 2 per month, which was included in the total rent aforesaid for three years after the tenancy had been mutated in her name. The letter also stated that the supply of water had been withheld by the landlord by allowing the Municipality to disconnect the water connection for non-payment of municipal dues. The landlord was also called upon to get the water connection restored, and if he failed to do so, prosecution under

s. 24 of the Act was threatened. As the appellant had 1958 refused or neglected to have the water connection . restored, the tenant filed petition of complaint on ch ~"';'ra;, 1 .

June 14, 1954, for the prosecution of the appe!lant a "~. onim undet s. 24 of the Act. The appellant was convicted Indumati r. Potdar after a trial by the 7th Presidency Magistrate, Dadar' and A11other by.his judgment and order dated March 24, 1955. He was sentenced to undergo one day's simple imprisonment, and to pay a fine of Rs. 150, and in default of

payment, to undergo one month's simple imprisonment. The appellant moved the High Court of Bombay in revision against the order of conviction and sentence aforesaid. The matter was heard by a judge sitting singly, who summarily rejected the application by an order dated April 22, 1955. The appellant moved the High Court for a certificate that this was a fit case for appeal to this Court, which was refused by a Division Bench on May 16,

1955. Thereafter, the appellant moved this Court for special leave which was granted on October 10,

1955. Hence, this appeal.

The learned counsel for the appellant raised a number of contentions against the conviction and sentence imposed upon the appellant, but in the view we take of the provisions of s. 24 of the Act, it is not necessary to pronounce upon all those contentions.

The most important question which we have to determine in this appeal,, is whether the constituent elements of an offence under s. 24(1), have been made out on the facts found in this case. Section 24 is in these terms :

"24.

(1) No landlord either himself or through any person acting or purporting ib act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2) A tenant in occupation of the premises may, if the landlord has contravened the provisions of ub section (1), make an application to the Court for a direction to restore such supply or service.

(3) If the Court on inquiry finds that the tenant has been in enjoyment of the essential supply or

Si11haJ.

I95s service and that it was cut off or withheld by the landlord without just or sufficient cause, the Court

K~"",;~·~ 1 . shall make an order directing the landlord to restore Chan "~

0"'"' such supply or service before a date to be specified in Indumati r. Potdar the order.

Any landlord who fails to restore the and Another supply or service before the date so specified shall for each day during which the default continues theres;11ha 1. after be liable upon a further direction by the Court to that effect to fine which may extend to one hundred rupees. ·

(4) Any landlord, who contravenes the provisions of sub-section (1) shall, on conviction, be punishaeJe with imprisonment for a term which may extend to three months or with fine or with both.

Explanation I.-In this section essential supply or service includs supply of water, electricity, lights in passages and on staircases, lifts and conservancy or sanitary service.

Explanation 11.-For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or services cut off by the local authority or any other competeht authority." The explanation II was inserted by s. 16 (2) of the Amending Act, namely, Bombay Act 61 of 1953, and the explanation I, as it now stands, was the only explanation before the amending Act was passed. It has not been.denied before us that the supply of tap water is an essential supply, and that is beyond controversy in view of explanation I. What has bee" argued, is that the supply of municipal water had been cut off by the Municipality as a result of the dafault in payment of municipal dues, by the appellant's predecessor-in-title.

It may be that the appellant was not to blame for the default in payiµent of municipal dues, but it was open to him to pay Rs. 11-4-0 and have the water connection restored.

He may not have been directly responsible for the cutting off of the supply of municipal water, but it was within his power to get the supply restored by the Municipality on payment of the prescribed fee. Hence,

S.C.R.

SUPREME <; OURT REPORTS 1399

in so far as the appellant omitted to do so, such an 1958 omission is attributable to him within the meaning of explanation II which was inserted into the Act in h !niatt1t .

1953. There can, therefore, be no doubt that the c a u a Momm appellant was continuing to withhold an essential IndumativT. Potda supply within the meaning of s. 24, as it stood in and Anotlter 1953.

But that is not the only essential ingredient of the Sinha J. offence created by s. 24. In order to attract the provisions of that -section, it is also necessary that the second ingredient of the offence, should be there, namely, that that essential supply-tap water supply by the Municipality-should have been enjoyed by the tenant. Is it enough that this essential supply should have been "enjoyed" by the tenant at any past time, however remote, or that it should have been "enjoyed" at any time after the coming into effect of the Act ?

We are assuming for the purposes of this decision that the first respondent was the tenant at all material times.

In our opinion, the section makes it essential that the particular essential supply should have been available for the use of the tenant at some time when the Act was in force.

If, on the other hand, the section were construed in the sense that the supply should have been "enjoyed" at some time in the remote past, that is, before the Act was enforced, the act of the landlord, when it was committed, may .not have been penal; but the same act would become penal on the coming into effect of the Act. In that sense, it would amount to ex post facto legislation, and we cnnot accede to the argument that such was the intention of the Legislature-an intention which would cme within the prohibition of Art. 20(1) of the Constitution.

But it has been said that the expression "enjoyed by the tenant" in s. 24, does not necessarily mean that the tenant should have physically made use of the essential supply, and that the requirements of the section are satisfied if the tenant had the right vested in him to call for such a supply. In other words, the argument is that the word "enjoyed" does not import physical use of the amenity in question, but

t958 the juridical aspect of it in the sense that the supply . of the water, was one of the rights vested in the tenant.

ch!:t"~'f"}; 1 . On this construction, if the tenant had, as in this case • ~. omm the first respondent had, the right to enjoy the supply

ln4urruzti T. Potdar of water, that would amount to her having "enjoyed"

an4 Another the supply, and, thus, both the requirements of s. 24

Sinha J. would be fulfilled. In our opinion, it would be straining the language of the ection to say that "enjoyed" should mean "had the right to enjoy". If that was the intention of the Legislature, those words would have been different. That this was not the intention of the Legislature, becomes clear on an examination of the terms of sub-s. (3) of that section. It speaks of "the tenant has been in enjoyment of the essential supply or service and that it was cut off or withheld by the landlord" which imports recent "enjoyment" until the supply was cut off, /and not "enjoyment" in the remote past. If the intention was that "enjoyment" should have been at any time in the past, irrespective of the consideration when the Act came into force, the Legislature would have used some other words to indicate that intention, even assuming that the Legislature could have done so. But it was suggested that sub-s. (1) of s. 24, was self-contained, and that it was not necessary to construe its terms in the light of the provisions of sub-ss. (2) and (3) which go together.

Bl!lt it is clear from the terms of sub-s. (2) that it cannot come into operation without the landlord having contravened the provisions of sub-s. (1). Therefore, the provisions Qf s. 24 have to be construed as a whole, in order to find out the true•intention of the Legislature.

It may also be pointed out that it is doubtful whether, before the second explanation was inserted into the section, as aforesaid, in 1953, the cutting off of the water supply by the Municipality, or the omission of the landlord to take steps to have the connection restored, would have come within the mischief of the penal section. Supposing the second explanation was not there, could the prosecution attribute the cutting off of the connection oy the Municipality, and the subsequent refusal of the landlord

to get the connection restored, as an act or omis- 1958 sion of the landlord within the meaning of&. 24(1) ? .

It has got to be remembered that the provisior.s of Ch ~nal.~>;~~ 1 .. 24 b dd. . l h anuu"' monm. s. are ment to .e an a 1_hona guarantee tC? t e v. tenant, of his contmued enjoyment of the rights Jndumati r. Potdar created in his favour by the contract of tenancy apart a; d Another from his rights under the general law. The landlord could not only be penalized for having interrupted the enj e>yment of any one of these essential rights, the tenant could approach the court under sub-ss. (2) and

(3) of the section, to issue a mandate to the landlord to restore the supply or the service before a specified date, the infringement of wh'ich would entail the liability to recurring fines until the mandate had been carried out by the landlord. These are provisions of an exceptional character, meant to be in force for a specified period during which the Legislature thought it advisable and expedient to provide for such extraordinary remedies. Such remedies which are inroads upon the landlord's freedom of action, have to be construed strictly in accordance with . the words actually used by the Legislature, and they cannot be given an extended meaning.

In view of these considerations, it must be held that the complainant-the first respondent-has not shown. that she had enjoyed the amenity of the supply of tap water from the Municipality at any time after the Act came into force, and as that is one of the two essential conditions for the application of the section, it must be held that the offence under s. 24(1) of the Act, has not been brought home to the appellant. The appeal is, accordingly, allowed, and the conviction and sentence are set aside ..

Appeal allowed.

M2SC61 X-4

Bui Hfra Devi

High Ccurt at Bombay

KANAIYALAL CHANDULAL MONIM

INDUMATI T. POTDAR AND ANOTHER

B. P. SINHA

JAFER IMAM SUBBA RAO JJ.

s. 24

Section 24( 1)

s. 24

June 14, 1954

s. 24

Kanaiyalal Municipality

Chand11lal Monim

s. 24

Indumati T. Potdar

s. 24

s. 24

Rameshwar Nath

S. N. Andley

J. B. Dadachanji

T. Satyanarayan

S. Bindra

R. H. Dhebar

SINHA

s. 24(1)(4)

Bombay

Thirumal Rao Potdar

Sinha

Thirumal Rao

February 13,

1948

May 24, 1954

s. 24

s. 24

Indumati r. Potdar

7th Presidency Magistrate, Dadar

High Court of Bombay

April 22, 1955

May 16,

1955

October 10,

1955

s. 24

s. 24(1)

Section 24

s. 16

s. 24

s. 24

Art. 20(1)

s. 24

s. 24

s. 24

s. 24

s. 24(1)


Febr11ary 25•

SUPREME COURT REPORTS

SHREEMATI KASH! BAI v.

SUDHA RANI GROSE AND OTHERS

[1958]

(BHAGWA T, L. KAPUR and GAJENDRAGADKAR JJ.)

Adverse possession-Coal mine-Trespass and intermittent working-Whether can constitute adverse possession.

The appellants and the respondents were lessees of coal mining rights in adjoining areas.

In 1917, the predecessors in interest of .the appellants trespassed into a portion of the lands leased to the predecessors in interest of the respondents, sank two inclines and two airshafts and dug out coal therefrom.

There were no mining operations till 1923 when they were restarted and continued till 1926, and were re-commenced in 1931 and carried on till 1933. In 1939 the mine was worked for a short time. lu 1944 the operations were recommenced by the appellants. In 1945 the respondents brought a suit for fixation of the intermediate boundary, for possession of the area trespassed upon and for compensation for coal illegally removed by the appellants. The

appellants contended, inter alia, that they had been in sole, ex, elusive, uninterrupted possession of the area in dispute openly to the knowledge of the respondents and had acquired title by adverse possession:

Held, that the intermittent working of the _mine in the manner and for the period carried out by the appellants or their predecessors in interest was wholly insufficient to establish possession which could constitute adverse possession.

During the period when there were no mining operations no kind of possession of the appella.'lts was proved and the presumption that during such periods possession reverted to the true owner was not rebutted.

Nageshwar Bux Roy v. Bengal Coal Co., [1930] L.R. 58 I.A. 29 and Secretary of State for India v. Debendra Lal Khan, [1933] L.R. 61 I.A. 78, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 118-119 of 1956.

Appeal from the judgment and decrees dated September 27, 1951, of the Patna High Court in Appeal from Original Decrees Nos. 252 and 254 of 1948, arising out of the judgment and decrees dated May 11, 1948, of the Court of Subordinate Judge, Dhanbad in Title Suits Nos. 16 and 50 of 1945 respectively.

1958 . . M. C. Setalvad, Attorney-General for India, K.shitindra Nath Bhattacharya, S. N. Andley, J.B. Dadachan.ifi and Rameshwar Nath, for the appellant.

Shreematl Kami Bal N. C. Chatterjee, S. C; Bannerjee and P. R. Chatterjee, v. for respondents Nos. 7 to 1.3.

Sudha Rani Ghose and Others.· P. K. Chatterjee, for respondents Nos. 2-4 and 6 (Minors).

Gauri Dayal, for respondent No. 5.

1958. February 25.' The following Judgment of the Court was delivered by

KAPUR J.-In these two appeals brought by leave of the Patna High Court against a judgment and two decrees of that court a common and the sole question for decision is one of adverse possession. two cross suits were brought in the Court of the Subordinate Judge, Dhanbad, raising common questions of fact and law. The appellant and respondent Manilal Becharlal Sengvi were defendants in one (Suit No. 16 of 1945) and plaintiffs in the other (Suit No. 50 of 1945). Respondents Nos. 1-3 were the plaintiffs in the former suit and defendants in the latter. The other respondents were defendants in the latter suit and were added as plaintiffs i:tt the appellate stage under O. l, r.10, CodeofCivilProcedurein the appeal taken against the decision in the former suit. Both the suits were decreed against the appellant and respondent Manilal. Becharlal Sengvi who took two appeals to the High Court at Patna. Both these appeals were dismissed by one judgment dated September 27, 1951, but two decrees were drawn up. Against this judgment and these decrees the appellant , has brought two appeals to this Court which were consolidated and will be disposed of by this judgment.

The facts necessary for the decision of these two appeals are that on November 26, 1894 Ganga Narayan

Singh, a zamindar and proprietor of pargana Katras granted to Ram Dayal Mazumdar a lease of "the coal and coal mining rights" in two plots of land, one.in moua Katras and the other in mouza Bhupatdih. On November 6, 1894 he granted a similar lease in plots

KapurJ.

1958 contiguous to the plots in the lease mentioned above to Bhudar Nath Roy. In Suit No. 32of1896 boundas~,·~~;;. ries between these two sets of plots were fixed and "'v'.

0 ' this was shown in. a map which was incorporated in sudlra Rani Gho,. the decree passed m that suit. On the death of Ram . and Others Dayal, his sons Prafulla, Kumud, Sarat, Sirish and Girish inherited the leasehold rights which they on Kapur J.

October 19, 1918, granted by means of a registered patta and kabulliat to Lalit Mohan Bose for a term of 999 years. One Bennett who along with one Bellwood had obtained a coal mining lease from Raja Sakti

Narayan Singh of Katrasgarh on September 5, 1917, trespassed on the northern portion of the land within the area leased to Lalit Mohan Bose and sank two inclines and two airshafts and dug out coal from this area.

This gave rise to a dispute between the parties which was amicably settled and the area trespassed was returned to the possession of Lalit Mohan Bose. This fact was denied by the appellant and Manila! Becharlal Sengvi respondent in their written statement and in their plaint. Lalit Mohan Bose died in 1933 leaving a will of which the executors were his widow, Radha Rani and his brother Nagendra Nath Bose. They leased out 17 bighas of land in possession of Lalit Mohan Bose to Keshabji Lalji in 1933. The remaining portion of the area leased to Lalit Mohan Bose was given on lease on March 15, 1938, to Brojendra Nath Ghose and Vishwa Nath Prasad respondents and to Ram Chand Dubey but the possession thereof had been given to them in July 1938 and they (the above two respondents) and Ram Chandra Dubey carried on colliery business in the name and style of West Katras Colliery. On the death of Ram Chandra Dubey his estate was inherited by his sons and widow who on June, 25, 1944, sold their right, title and interest to Nagendra Nath Bose. These three, i.e., Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose were the plaintiffs in Suit No. 16 of 1945.

As stated above Raja Sakti Narayan Singh leased an area of 256 bighas to Bennett and Bellwood on September 5, 1917, and they assigned their rights to

the New Katras Coal Company Limited. This Com- 1958 pany worked the coal mine for some time but went into liquidation and in Execution Case No. 293 of 'i!;~";'; 1922 the right, title and interest of the company were ,, v . a sold and purchased by Nanji Khengarji father-in-law sudha &,,1 Ghose of Shrimati Kashi Bai appellant and by one Lira and Others Raja. In August 1923 Nanji Khengarji and Lira Raja effected a partition, the western portion of the leased 'Kapur J. coal field fell to the share of Nanji Khengarji and the eastern portion to Lira Raja. The former carried on the business in the name and style of Khengarji Trikoo & Co. and the Colliery came to be known as Katras New Colliery. On the death of Nanji Khengarji in 1928 his son Ratilal Nanji inherited the estate and on his death in September 1933 the estate passed to the appellant Sreemati Kashi Bai, widow of Ratilal.

In December 1944 she (Sreemati Kashi Bai) entered into a partnership with Manilal Becharlal Sengvi respondent.

On March 24, 1945 Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose respondnts Nos. 1-3 as plaintiffs Nos. 1-3 brought a suit (Suit No. 16 of 1945) against Sreemati Kashi Bai, defendant No. 1, now appellant and against Manilal Becharlal Sengvi defendant No. 2 now respondent No. 10 for fixation of the intermediate boundary and for possession of the area trespassed upon by the defendants and for compensation for coal illegally removed by the latter and also for an injunction. They alleged that the defendants had wrongfully taken possession of the area in dispute shown in the map attached to the plaint and had illegally removed coal from their mine. The defendants in their written statement of June 29, 1945, denied the allegaticns made by the plaintiffs. They pleaded that the area in dispute was acquired by Nanji Khengarji and Lira Raja and had been worked by them and they had been in sole, exclusive, uninterrupted and undisturbed possession of the area openly to the knowledge of the plaintiffs in that suit and had therefore acquired title by adverse possession. The claim of ownership which they had set up as a result

Slzree111ati

Kashi Bai v.

Sudha Rani Ghose

and Others

Kapur J.

of acquisition from Bennett and Bellwood was negatived by the courts below and is no longer in dispute before us, the sole point that survives being one of adverse possession.

The cross suit No. 50 of 1945 was brought by the defendants in Suit No. 16 of 1945, i.e., Shrimati Kashi Bai (appellant) and Manila! Becharlal Sengvi

(respondent) against the three plaintiffs of Suit No. 16 of 1945 (respondents Nos. 1 to 3) and against heirs of Lalit Mohan Bose and against Purnendu Narayan

Singh son of the original grantor Raja Sakti Narayan Singh. The allegations by the plaintiff in this suit (No. 50 of 1945) were the same as their pleas as defendants in Suit No. 16 ofl945. The two suits were tried together with common issues. The learned Subordinate Judge decreed Suit No. 16 of 1945 and dismissed Suit No. 50 of 1945 which were thus both decided in favour of respondents Nos.

I to 3. He held that the land in suit was included in the area leased to respondents Nos. 1 to 3, i.e., Brojendra Nath, Vishwa Nath Prasad and Nagendra Nath Bose and therefore the area in which two inclines of seam No. 9 were situate formed part of the area leased to them and that encroachment by the appellant and Manila!

Becharlal Sengvi respondent on the land in dispute was proved. As to adverse possession he held that the two inclines and airshafts had been sunk in 1917 by Bennett in seam No. 9; that there had been no continuous working of the seam by Khengarji Trikoo & Co., except from the year 1923 to 1926 and from 1931 to 1933, working was again begun in 1939 but how long it was continued had not been proved and that the working of this seam had restarted in 1944.

He also found that the disputed area was confined to seam No. 9. From these facts he was of the opinion that there was no dispossession .of the respondents Nos.

I to 3 and no adverse possession had been established as against them. He further held that the working of a part of seam (No. 9) would not give to the trespasser the right to the entire seam even if continuous possession was proved. In regard to

compensation the learned Subordinate Judge held that

respondents Nos. 1 to 3 were entitled to it as from 19ss December 1944 and the amount would be determined by the appointment of a Commissioner in a subsequent Sllret'!'IJ''. proceeding.

Xaahi Bai The High Court on appeal confirmed the findings of su& J:ini Ghose the trial Court and held that the land in dispute was and Others part of the land leased to. respondents Nos. 1 to 3; that the appellant and Manilal Becharlal Sengvi Kapur J. respondent had encroached upon the land in dispute; that the working of the seam had not been continuotls and it had only been worked for the periods mentioned above. The High Court also held that even if there was continuous possession and working of the mine no title by _adverse possessi@n could be acquired to the whole of the mine.. In the High Court the validity of the lease in favour of the respondents Nos. 1 to 3 was raised because of s. 107 of the Transfer of Property Act but as the question had not been raised or agitated in the trial Court, the High Court allowed defendants 4 to 10 of Suit No. 50 of 1945 to be added in the appeal arising out of Suit No. 16of1945 "for complete adjudication of the issues and to avoid multiplicity of proceedings." This question is also no. longer in dispute before us. The appellant has brought two appeals against the judgment and two decrees of the High Court of Patna. As the question of ownership of the land in dispute has been decided in favour -of the respondents by both the courts below, that question has not been raised before us and the controversy between the parties is confined solely to the question of adverse possession. On behalf of the appellant the learned Attorney- General submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years, her possession had matured into ownership by adverse possession. In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of

1958 hostile title for the prescribed period of 12 years necessary to constitute adverse Pf>SSession. It was

re,:~; 1 ; contended that for the purpose of adverse possession

as~. a in regard to a coal mine it was not necessary that it sudha Rani Ghose should have been worked for 12 years continuously

and Others and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with Kapur J. long stoppages as in the instant case. But we are unable to accept this contention. Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.

Nageshwar Bux Roy v. Bengal Coal Co. (') which was relied upon by the learned Attorney-General does not support his contention. In that case the company claiming adverse possession had placed facts which were consistent with the assertion of rights to minerals in the whole village to which the company claimed adverse possession. They openly sank pits at three different places, two of them being l /2 mile distant from the 3rd. The company selected the places where they were to dig up the pits at their own discretion,

(I) [1930] L.R. 58 I.A. 29.

" ' ' /

brought their plant or machinery on the ground 1958 and erected bungalows for their employees. There was no concealment on the part of the company and s;;;;; m;~: they behaved openly as persons in possession of not v. one pit but all. mineral fields underlying the whole Sudha Rani Ghose village and . they throughout claimed to be entitled to and Others sink pits any where in the village they chose. The company was under a bona fide belief that under their Kapur 1 lease they were entitled to work the minerals any where in the area. In these circumstances the P_rivy Council held the suit to be barred by Art: 144 of the Limitation Act as the company had been in adverse possession of the minerals under the whole village for more than 12 years. It was pointed out by Lord Macmillan at p. 35, "possession is a question of fact and the extent of possession may be an inference of fact". And at p. 37 it was observed :

"Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of whtch actual possession has been enjoyed. But the application of this general rule must depend upon the facts of the particular case."

The finding in favour of adverse possession in that case must be confined to the facts of that partiCular case.

Another case relied upon by the learned Attorney- General was Secretary of State for India v. Debendra Lal Khan (1). There a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown. If was held that possession may be adequate in continuity so as to be adverse even though the proved acts of possession do not cover every moment of the period. That was a case dealing with fisheries. It is true that to establish adverse possession nature of possession may vary. In the instant case no such possession has been proved which taking into consideration the nature of possession and the nature of the object possessed would lead to the only inference that the. appellant had perfected her

(1) [1933] LR. 61 J.A. 78.

1958 title y averse possession. Intermittent working of

Silmmatl the Illlfi:e m the m!lnner nd for the period described K"'"' Bat abve is wholly u.1suffic1ent to establish possession v. which would constitute adverse possession or would sodila Rani Ghos• lead to an inference of adverse possession and we are

and 011wr.r in agreement with the view expressed by the High

Kap11r J.

March 10 ..

Court and would therefore dismiss these appeals with costs. . One set of costs between the two appeals except as to Court-fees.

Appeals dismissed .

EARNEST JOHN WHITE v.

MRS. KATHLEEN OLIVE WHITE AND OTHERS

(BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.)

Divorce-Adultery-Standard of proof-Principle-Direct evidence if imperative-Finding of fact when can be interferred with-Divorce Act (IV of 1869), u. 14 and 1.

The appellant sued his wife for dissolution of marriage on the ground of adultery. ·

On the evidence the trial coun found that it wa5 not possible to bold that adultery had been committed, though it found that one of the letters contained "a large substratum of truth". The High Coun in appeal concurred with the decision.

On appeal to the Supreme Coun it was contended for the appellant that the finding of the courts below was vitiated because certain pieces of evidence had been Misread, and some others ignored. As a matter of legitimate and proper inference the Coun should not have arrived at any other conclusion, but that the wife was guilty of adultery with respondent No. 2. The evidence showed that the wife went to Patna and stayed in a hotel with respondent No. 2 under an assumed name, that they occupied the same room in the hotel, that the conduct of the respondent indicated a guilty inclination, and that so far as the wife was concerned, her conduct wa! entirely consistent with her guilt:

Held, that, the nature of the evidence adduced was such a.s would satisfy the requirements of s. 14 of the Divorce Act, and that the finding of the Couns below that an inference of adultery

could not be drawn therefrom must. be set aside.

Although it is not usual for the Supreme Coun to interfere

REPORTS

SHREEMATI KASH! BAI

SUDHA RANI GROSE AND OTHERS

L. KAPUR

GAJENDRAGADKAR JJ.

L.R. 58 I.A. 29

L.R. 61 I.A. 78

CIVIL APPELLATE JURISDICTION

M. C. Setalvad

K.shitindra Nath Bhattacharya

S. N. Andley

J.B. Dadachan.ifi and

Rameshwar Nath

Shreematl Kami Bal N. C. Chatterjee

S. C; Bannerjee

P. R. Chatterjee

Sudha Rani Ghose

P. K. Chatterjee

Gauri Dayal

KAPUR

Manilal Becharlal Sengvi

Manilal. Becharlal Sengvi

September 27, 1951

November 26, 1894

Ganga Narayan

Singh

Ram Dayal Mazumdar

November 6, 1894

Bhudar Nath Roy

Ram

Dayal

Prafulla

Kumud

Sarat

Sirish

Girish

Kapur

October 19, 1918

Lalit Mohan Bose

Bennett

Bellwood

Raja Sakti

Narayan Singh

Katrasgarh

September 5, 1917

Becharlal Sengvi

Radha Rani

Nagendra Nath Bose

Keshabji Lalji

March 15, 1938

Brojendra Nath Ghose

Vishwa Nath Prasad

Ram Chand Dubey

Ram Chandra Dubey

West Katras Colliery

June, 25, 1944

Vishwa Nath Prasad

Raja Sakti Narayan Singh

New Katras Coal Company Limited

Nanji Khengarji

Shrimati Kashi Bai

Lira

Raja

Lira Raja

Khengarji Trikoo & Co.

Ratilal Nanji

Sreemati Kashi Bai

Sreemati Kashi Bai

March 24, 1945

Brojendra Nath Ghose

Vishwa Nath Prasad

Nagendra Nath Bose

Sreemati Kashi Bai

June 29, 1945

Shrimati Kashi Bai

Manila! Becharlal Sengvi

Purnendu Narayan

Singh

Brojendra Nath

Manila

Becharlal Sengvi

Xaahi Bai

ini Ghose

Manilal Becharlal Sengvi Kapur

s. 107

Transfer of Property Act

High Court of Patna

Kapur

L.R. 58 I.A. 29

Limitation Act

Macmillan

BHAGWATI

Divorce Act

Supreme Coun

Patna

s. 14

Divorce Act


SUPREME COURT REPORTS [1958)

1958 title y averse possession. Intermittent working of

Silmmatl the Illlfi:e m the m!lnner nd for the period described K"'"' Bat abve is wholly u.1suffic1ent to establish possession v. which would constitute adverse possession or would sodila Rani Ghos• lead to an inference of adverse possession and we are

and 011wr.r in agreement with the view expressed by the High

Kap11r J.

March 10 ..

Court and would therefore dismiss these appeals with costs. . One set of costs between the two appeals except as to Court-fees.

Appeals dismissed .

EARNEST JOHN WHITE v.

MRS. KATHLEEN OLIVE WHITE AND OTHERS

(BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.)

Divorce-Adultery-Standard of proof-Principle-Direct evidence if imperative-Finding of fact when can be interferred with-Divorce Act (IV of 1869), u. 14 and 1.

The appellant sued his wife for dissolution of marriage on the ground of adultery. ·

On the evidence the trial coun found that it wa5 not possible to bold that adultery had been committed, though it found that one of the letters contained "a large substratum of truth". The High Coun in appeal concurred with the decision.

On appeal to the Supreme Coun it was contended for the appellant that the finding of the courts below was vitiated because certain pieces of evidence had been Misread, and some others ignored. As a matter of legitimate and proper inference the Coun should not have arrived at any other conclusion, but that the wife was guilty of adultery with respondent No. 2. The evidence showed that the wife went to Patna and stayed in a hotel with respondent No. 2 under an assumed name, that they occupied the same room in the hotel, that the conduct of the respondent indicated a guilty inclination, and that so far as the wife was concerned, her conduct wa! entirely consistent with her guilt:

Held, that, the nature of the evidence adduced was such a.s would satisfy the requirements of s. 14 of the Divorce Act, and that the finding of the Couns below that an inference of adultery

could not be drawn therefrom must. be set aside.

Although it is not usual for the Supreme Coun to interfere

on questions of fact, were, howeer, the. cou~ .below iore or 1958 misconstrue important pieces of evidence m arnving at therr finding and this Court is of the opinion that no tribunal could have Whit~- coiiie to such a find on the evidence taken as a whole, such v. finding was liable to be interferred with by this Court.

Whitt

Held, further, that the words "satisfied on the evidence" in s. 14 of the Divorce Act, 1869, imply that it is the duty of the Court to pronounce a decree only when it is satisfied that the case has been proved beyond reasonable <4>ubt as to the commission o[ a matrimonial offence.

The evidence must be clear and satisfactory beyond mere balance of probabilities. It is not necessary and rarely possible. to prove the issue by any direct evidence.

The rule laid down in Preston /ones v. Preston /ones, [1951] A.C. 391, lays down the principle that should be followed by the courts under s. 7 of the Divorce Act.

State of Madras v. A. Vaidanatha Iyer, A.I.R. 1958 S.C. 61, Purvez Ardeshir Poonawala v. The State of Bombay, Cr. A. 122 of 1954, decided on December 20, 1957, Stephen Seneviratne v.

The King, A.I.R. 193~.C. 289, Mordaunt v. Moncrieffe, (1874) _30 I:.T. 649 and Gower v. Gower, [1950] 1 All. E.R. 804, referred._ to.

Loveden v. Loveden, (1810) 161 E.R. 648; (1810) 2 Hag.

Con. 1, 3, referred to. Preston /ones v. Preston /ones, (1951] A.C. 391, relied upon.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 of 1956.

Appeal from the judgment and decree dated July 21, 1954, of the Patna High Court in Letters Patent Appeal No. 24 of 1951, arising out of the judgment and decree dated May 15, 1951, of the said High Court in Matrimonial Suit No. 2of1950.

M. C. SetQJvad, Attorney-General for India, N. C.

Chatterjee and P. K. Chatterjee, for the appellant.

Both the Courts below have failed to draw the proper inference of the commission of adultery, which should legitimately have been drawn from the facts proved.

Both the Single Judge and theppeal Court failed to take into consideration some pieces of evidence and certain other dieces of evidence which were equally important ha been misread and misconstrued and as a matter of legitimate and proper inference .thelower cour:ts. should not have arrived at any other

White

v. White

conclusion but that the wife was guilty of adultery and in such case the interference with the finding of facts below by the Supreme Court will be called for.

State of Madras v. A. Vaidanatha Iyer, A.LR. 1958 S.C. 61 and Stephen Seneviratne v. The King, A, I.R.

1936 P. C. 289.

N.C. Chatterjee cntinued. The judgment of the High Court suffers from certain serious infirmities and this Court should not act on the rigid principle that finding of fact should not be interfered with in the final court of appeal.

Sir William Scott's dictum in Loveden v. Loveden,

(1810) 161 E.R. 648, as to "the guarded discretion of a reasonable and just man" does not mean there should be satisfactory evidence of the commission of a matrimonial offence. Lord MacDermott has pointed out in Preston Jones v. Preston Jones, L.R. [1951] A.C. 391, that if a judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence relied on by the petitioner as ground for .divorce, he must surely be "satisfied" within the meaning of the enactment, and no less so in cases of adultery where the circumstances are such as t<> -involve the paternity of a child. To succeed on an issue of adultery it is not necessary to prove the direct fact of, or even all act of adultery in time and place.; for if it were so, in many few cases would that proof be attainable. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery and such evidence will have to be disbelieved.

Rydon on Divorce, 6th Edn., P. 115; Douglas v. Douglas, [1951] P. 85 : [1950] 2 All E.R. 748.

In nearly every case the fact of adultery is inferred from circumstances which lead to it by fair inference as a necessary conclusion. Unless it is so held there will absolutely be no protection to marital rights. Allen v. Allen, [1894] P. 248, approving Loveden v. Loveden.

Counsel then cited Davis v. Davis, [1950] P. 125 :

(1950) I All E.R. 40. In that case Bucknill, L. J., and Somervell, L. J., held that when husband petitions for divorce on the ground of wife's cruelty, it is

'1nnecessary to introduce any question of the standard of proof required of a criminal charge. Denning, L. J., emphasised that a suit for divorce is a civil and not a criminal proceeding.

The same standard of proof as that required in criminal cases is not .needed. The stringency of proof required in a criminal court is not m:cessarily called for in divorce suit. Lord Merriman's dictum quoting Churchman v. Churchman, [1945] P. 44, that the same strict proof is required in the case of matrimonial offence as is required in connection with criminal offence has been too widely expressed and should be read in the light of later judgments.

Recent judgment of the Court of Appeal (Bucknill, L. J., and Denning L. J.,) lays down the correct law in Gowerv. Gower, [1950] 1 All E.R. 804, that the correct approach has been laid down by Denning, L. J., who observed that the court should not be irrevocably committed to the view that a charge of adultery must be regarded a criminal charge, to be proved beyondall reasonable doubt. All that the statute requires is that the court must be satisfied on the evidence that the case of the petitioner pas been proved and it is submitted that Denning, L J., has enunciated the correct principle and the statute lays down a standard and puts adultery on the same footing as cruelty, desertion or unsoundness of mind.

N. C. Chatterjee cited also Mordaunt v. Moncrieffe,

[1874] 30 I:,.T. 649. . .

S. P~ Varma, for-the respondent. The burden of proof is on the person alleging adultery and there is always a presumption of innocence. In any event on a petition for divorce some strict proof is required of adultery as is required in a criminal case before a rson is found guilty. Ginesi. v. Ginesi, [1948] P. 179 : [1948] 1 All E.R. 373. Applying the dictum of Lord Merriman in Churchman v. Churchman, [1945] P. 44, the trial court was not satisfied of the guilt beyond all reasonable doubt. It is for the trial judge to decide an issue of fact; unless he has misdirected himself his finding should not be disturbed.

R. Patnaik, for co-respondent No. 1. Submitted thai

1958.

White

Whit~

"1958

WhUe

H'hite

/<apur J.

the evidence in the case falls far short of the standard of proof required.

1958. March 10. The Judgment of the Court was delivered by

KAPUR J.-This is an appeal with a certificate under s. 56 of the Divorce Act (IV of 1869) (hereinafter called the Act) against a judgment and decree dated July 21, 1954, of the High Court of Patna dismissing the husband's suit. The husband who is the appellant sued his wife who is respondent No. 1 for dissolution of marriage on the ground of her adultery with two <:o-respondents now respondents Nos. 2 and 3. The suit was tried in the High Court by Shearer J., who dismissed the suit and this decree was on appeal <:onfirmed by the Appeal Court. The question as to the legality of the certificate granted was raised but in the view that we have taken it is not necessary to decide this question.

The husband was married to the wife at Kharagpur on February 3, 1943, and there is no issue of the marriage. The parties therafter resided at "Rose Villa" at Samastipur and respondent No. 2 was residing with his mother in an adjoining house called "Sunny Nook". The husband alleged various acts .of adultery between the wife and the other two repsondents. As regards allegations of adultery of the wife with respondent No. 3, the High Court has found .against the husband and these findings have not been -challenged before us.

The allegations of adultery between the wife and respondent No. 2 were also held not proved. In appeal before us the h"tisband has confined his case to the acts of adultery alleged to have been committed at the Central Hotel, Patna where the wife and respondent No. 2 are alleged to have resided together between July 25, 1950 and July 28, 1950, under the assumed names of Mr. and Mrs. Charles Chaplin. The wife pleaded that she came to Patna solely with the object of haviqg her tooth extracted and returned to Samastipur tlie same day and that she had to come alone as in spite of her request the husband refused to accompany her.

Respondent No. 2 pleaded that he came to Patna with his mother "in connection with seeking employment under the Superintendent of Police, Anti-Smuggling Department, also in connection with mother's tooth trouble and for household shopping". He also pleaded that he stayed with his mother in the same room under his own name and not under an assumed' name.

The trial judge found that the wife and respondent No. 2 and the latter's mother stayed in two rooms iii the Hotel Nos. 9 & 10 froni July 25, 1950 to July 28,

1950. He accepted the testimony of the Manager of the Hotel, Cardoza P. W. 3 and also of the sweeper Kira Ram P. W. 4. He found that the wife and respondent No. 2 were seen by Kira Ram in room No. 10 and also that the party, i.e., the wife, respondent No. 2 and the latter's mother were served rooming tea in one room which they had together but he did not infer any acts of adultery from this conduct. The document Ex. 8, dated November 22, 1950, but actually 'Written earlier was held by the learned Judge to contain "a large substratum of truth". The Appeal Court (S. K. Das C. J. and Ramaswami J.) agreed with the findings of the trial judge but they also were unable to draw the inference of the commission of adultery from the evidence. In appeal it was contended that the findings of the courts below were vitiated bacause certain pieces of evidence had been misread, some ignored and as amatter of legitimateandproper inference the court should not have arrived at any other conclusion but that the wife was guilty of adultery with respondent No. 2.

This Court will not ordinarily interfere with :findings of fact given by the trial judge and the Appeal Court but if iii giving the :findings the Courts ignore certain important pieces of evidence and other pieces of evidence which are equally important are shown to have been misread and misconstrued and this Court comes to the conclusion that on the evidence taken as a whole on tribunal could properly as a matter of legitimate inference arrive at the conclusion that it has, interference by this Court will be called for. [See

White v. White

Kapur/.

White v. iVhite

KapurJ.

State of Madras v. A. Vaidanatha Iyer ('); Purvez Ardeshir Poonawala v.

The State of Bombay (2); Stephen Seneviratne v. The King (')J.

The Central Hotel, Patna, which is alleged to be the scene of adultery by the wife had only 10 rooms, which were all single, but whenever necessary additional beds were put in. At the relevant time M. C. Cardoza P. W. 3 was employed as its Manager, Kira Ram P. W.4 as a sweeper, Abdul Aziz P. W. 5 and Usman Mian P. W. 6 as bearers. Kira Ram identified the wife as the lady who had stayed at the hotel with respondent No. 2 but the other hotel servants although they were shown the photograph of the wife and also saw her in court wereunable to recognise her as the person who stayed with respondent No. 2.

But they did. identify him as the gentleman who had stayed in the hotel along with two ladies.

Examined by counsel Kira Ram stated: Q. "(Pointing out to the wife) I ask you, do you know this lady ? A. Yes. Q. Did they ever visit your hotel ? A. Yes.

Q. How long ago ? A. About 9 or 10 months ago. Q. How long did they stay there ?

A. About 4 or 5 days. Q. What room did they occupy?

A. Room No. 10".

He was unable to say as to the number of beds in room No. 10 nor is there any other evidence in regard to this.

He also stated : ' Q. "During their stay for these 4 or 5 days in your hotel, did you go to clean their bath room ? A.

Yes. Q. Did you see them in that room whenever you went ? A. Yes, whenever I used to go to sweep the room I found Memsaheb and Saheb there." Questioned by the Court the witness said : Q. "Can you remember was there any other Memsaheb with these two ? A. There was another Memsaheb who lived in room No. 9.

Q. What was she like young Memsaheb or what ?

A. She was not very old, but she was old."

(1) A. I. R. 1958 S.C. 61, 64. ·

(2) Cr. A. 122 of 1954, decided on December 20, 1957.

{3) A. I. R. 1936 P .C. 089, 099.

S.C.R.

SUPREME COURT REPORTS 1417 ' And this obviously refers to respondent No. 2's mother. The evidence of Kira Ram therefore shows that the wife and respondent No. 2 occupied one room, room No. 10. No question was put to this witness as to his hours of duty nor was the manager Cardoza asked anything about it but another witness Abdul Aziz bearer P.W. 5, was ked about it as follows : Q. "What are the hours of work of the sweeper ?

A. He comes at 7 a.m. and he leaves in the evening.

He sometimes goes away at about 11 and 11-30 a.m. or 12 noon".

Similarly no questions were put to Kira Ram about the state of habillement of the wife and respondent No. 2 and the witness never deposed about this fact.

The learned trial Judge erroneously thought that when Kira Ram spoke of the wife and respondent No. 2 he "speaks as if 'they' were fully dressed and not en

deshabille" and the Appeal Court took this finding to be "as if this witness's evidence showed that both of them were fully dressed". The Appeal Court also seems to have misdirected itself in regard to the duty hours.

It said "the sweeper concedes that he was on duty from 6 a.m. to 11 a.m." There is also evidence which has not been rejected that morning tea Was served to all the three, i.e., the wife, respondent No. 2 and the mother of the latter in the same room. The statement of Kira Ram that the wife and respondent No. 2 occupied the same room receives corroboration from Ex. 6 the hotel bill and receipt dated July 29, 1950

for room No 10 in the name of Mr. and Mrs. Charles Chaplin. This document even though contempo~ raneous with the events under consideratiOn and strongly corroborative of Kira Ram's evidence and of the statement of Cardoza that when Mr. and Mrs.

Charles Chaplin "stayed in the hotel, they stayed in their own room" does not seem to have been brought to the notice of either of the Courts below. Because of the infirmities pointed out above the import of the testimony of Kira Ram which has in the main been accepted by both the Courts below has been missed and its necessary consequences ignored.

M2SC/61PX-5

White v.

White

Kapur/.

White

White

KapurJ.

[1958J

Then there. is the evidence as to disappearance of the entry in the Hotel Visitor's Book which was in the handwriting of respondent No. 2. This entry was in the assumed name of Mr. and Mrs. Charles Chaplin from Hong Kong but when he (respondent No. 2) was asked to fill in the Foreigner's form the entry was changed from Hong Kong to Samastipur. The entry itself could not be produced in Court because as deposed by Cardoza, respondent No. 2 came to the hotel and by managing to send the hotel servant away from the room where the Visitor's Book was kept, he tore off . the pages containing this entry. This fact receives support from the complaint which Cardoza made to the police on December 5, 1950, and the entry in regard to this complaint made in the Station House Diary of the same date. Both these documents have been produced as Exs. 1/1 and 1/2. The significance of this piece of evidence lies in the fact that it was done after the husband started collecting evidence of adultery and after he and his sister had inspected the entry which according to his statement was in the handwriting of respondent No. 2.

The reason of the wife's visit to Patna was tooth trouble. After her tooth was extracted she did not see her Dentist again even though he had asked her to do so. Her version is that she returned to Samastipur the same evening which the Courts below have not accepted. Thus it shows that she stayed on at the Central Hotel, Patna for four days with respondent No. 2 without any reason being given by her and so far as the hotel bill and receipt Ex. 6 goes, the hotel charges for her stay were paid by "Charles Chaplin", i.e., respondent No. 2 and not by her. This fact has again escaped the notice of both the Courts below.

And this is more in consonance with guilt than .innocence of the wife.

There are then the statements of J. A. Baker P.W. 8 and T. H. O'Connor P.W. 9 to the effect that in September 1950, at the house of O'Connor respondent No. 2 in the presence of these two witnesses boasted of his having had a good time with the wife and that "she was a remarkable lady". Respondent No. 2

had also love letters purporting to be from the wife, parts of which he read out to these witnesses. They repeated the story to the husband which set him thinking. Shearer J. held this part of the evidence to be true and the Appeal Court also accepted it bt construed it as showing that there was no adulterous connection at that time, i.e., in September or it had ended at the instance of the wife. Even as it is this finding is not destructive of the husband's case as to adultery at Patna in the month of July; on the other hand it supports adulterous relations.

The presence of the mother of respondent No. 2 might have been, a shield against the commission of adultery at Patna but the document Ex. 8 which has been accepted by the Courts below to have a substratum of truth just strip~ it away. This document is indicative of the mother's attitude towards the wife. The following extract from this document is relevant as showing that she wanted the wife for her son:

" 'How nice it would have been if you had married my :; on David'. On another occasion while having tea along with her she begged me to leave my husband and go away with her son who was ruining his life and health and could not settle down to a job as he could not bear to see me married to another man." The presence of the mother would thus be no impediment to adulterous relations between the two. The wife in the witness box wholly denied the episode of the Central Hotel including her stay there, which has deprived the Courts of her explanation. We are, therefore.. unable to get any assistance from her or . as a matter of that from respondent No. 2 ai to what happened in the hotel at Patna.

The appellant contends that the only conclusion to be arrived at upon the evidence taken as a whole is that the wife was guilty of adultery with respondent No. 2. In other words the evidence was ia quality and quantity such that it satisfies the requirements of s. 14 of the Act which provides :

S. 14 "In case the Court is satisfied on the

195S

White

White

KapurJ.

White v.

White

Kapur J.

evidence that the case of the petitioner has been proved ....................................................................... ".

The important words requiring consideration are

"satisfied on the evidence". These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if not so satisfied. In s. 4 of the English Act, Matrimonial Causes Act of 1937 the same words occur and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive. in the sense that it will satisfy what Sir William Scott described in Loveden v. Loveden ('), as "the guarded discretion of a reasonable and just man". Lord MacDermott referring to the description of Sir \Villiam Scott said in Preston Jones v. Preston Jones (2):

"The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be "satisfied" in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law.

I do not think it is possible to say, at any rate since the decision of this House in Mordaunt v. Moncrieffe(') that the two jurisdictions are other. than distinct.

The true reason, as it seems to me, why both accept the same general standard-proof beyond reasonable doubt-lies not in any analogy but in the gravity and public importance of the issue with which each is concerned."

The Act lays down in s. 7 that Courts in all suits and proceedings under the Act shall act and give relief on principles and rules which in the opinion of the

(1) (1810) 161 E. R. 648, 649; (1810) 2 Hag. Con. 1, 3.

(2) [1951] A.C. 391, 417.

(3) (1874) 30 L.T. 649.

S.C.R.

SUPREME COURT.REPORTS 1421

Court are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. In our opinion the rule laid down by the House of Lords would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of s. 14 of the Act. The two jurisdictions, i.e., matrimonial and criminal are distinct jurisdictions but the terms of s. 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes.

Gower v. Gower (1) was pressed before us by counsel for the appellant as to the approach that the court should have to a matrimonial offence. But in view of the decision in Preston Jones Case (2) it is unnecessary to discuss that case.

In a suit based on a matrimonial offence it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable.

The question to be decided in the present case therefore, is whether on the evidence which has been led, the court can be satisfied beyond reasonable doubt that adultery was committed by the wife with respondent No. 2 at Patna between July 25, 1950, and July 28, 1950. In our opinion the facts proved are quantitatively and qualitatively sufficient to satisfy the test laid down by the House of Lords in Preston Jones Case (2). The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to

(I) [•!)50) I All E. R. 804. (~) [1951) A. c. 391, 417,

White

White

KapurJ.

JVlrlle

White

K(:pur J.

March 11.

the inclination and conduct of the wife. On the otaer hand her conduct as shown by the evidence is so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the guilt should be reversed.

We would therefore, allow this appeal, set aside the judgment and decree of the High Court and pass a decree nisi for dissolution of marriage. As adultery has been proved respondent No. 2 shall pay the costs in this Court and in the Courts below.

Appeal allowed.

M. P. V. SUNDARARAMIER & CO.

THE STATE OF ANDHRA PRADESH

& ANOTHER (with connected petitions) (S. R. DAS C. J., VENKATARAMA AlYAR, S. K. DAS,

A. K. SARKAR and

VIVIAN BosE JJ.)

Sales Tax-Inter-State sales-Sale outside State but goods delivered for consumption within State-Competence of States to levy tax-Conditional legislation-Power of Parliament to authorise such taxation-President's Adaptatiori Order-Scope of- } Nature of-Retrospective operation-Enactment unconstitutional in part-Effect-Madras General Sales Tax Act, 1939 (Mad. 9 of 1939), as adapted to Andhra, ss. 2(h), 22-.Sales Tax Laws Validation Act, 1956 (7 of 1956), s. 2-.Constitution of India, Arts. 246, 286, 301, 372, Sch. VII, List I, Entry 42, List II, Entry 54.

The petitioners were dealers cai; rying on business in the City of Madras in the sale and purchase of yarn. The dealers in the State of Andhra used to place orders for the purchase of yarn with the petitioners in Madras, where the contracts were concluded and the goods were delivered ex-godown at Madras and thereafter despatched to the purchasers who would take delivery of them within their State. The present dispute related to sales in which property in the goods sold passed outside the State of Andhra, but the goodi theiruelves were actually delivered as a result

EARNEST JOHN WHITE

MRS. KATHLEEN OLIVE WHITE AND OTHERS

BHAGWATI, J.

L. KAPUR

GAJENDRAGADKAR JJ.

Divorce Act

Supreme Coun

Patna

s. 14

Divorce Act

s. 14

Divorce Act, 1869

s. 7

Divorce Act

December 20, 1957

A. 122 of 1954, decided on December 20, 1957, Stephen Seneviratne v.

The King, A.I.R. 193~.C. 289, Mordaunt v. Moncrieffe, (1874) 30 I:.T. 649 and Gower v. Gower, [1950] 1 All.

May 15, 1951

M. C. SetQJvad

India

N. C.

Chatterjee

P. K. Chatterjee

Supreme Court

N.C. Chatterjee

William Scott

MacDermott

Bucknill

Somervell

Denning

Merriman

N. C. Chatterjee

S. P~ Varma

R. Patnaik

KAPUR

s. 56

Divorce Act

High Court of Patna

Shearer

Kharagpur

February 3, 1943

Samastipur

Charles Chaplin

July 25, 1950

July 28,

Kira Ram

Kira Ram

November 22, 1950

S. K. Das

Ramaswami

M. C. Cardoza

Abdul Aziz

Usman Mian

Memsaheb

Saheb

Cardoza

July 29, 1950

Hong Kong

December 5, 1950

J. A. Baker

T. H. O'Connor

s. 14

S. 14

s. 4

Matrimonial Causes Act

\Villiam Scott

s. 7

England

s. 14

s. 14

Preston Jones

July 28, 1950

M. P.

STATE OF ANDHRA PRADESH

S. R. DAS

VENKATARAMA AlYAR

S. K. DAS

A. K. SARKAR

VIVIAN BosE

ss. 2(h), 22

Sales Tax Laws Validation Act, 1956

s. 2

Constitution of India

Arts. 246, 286, 301, 372

Madras

Andhra