S.C.R.

SUPREME COURT REPORTS

J. 0. JAIN v.

R. A. PATHAK AND OTHERS . (P. B. GAJENDRAGADKAR, K. SuBBA RAO and K. c. DAS GUPTA, JJ.)

Payment of Wages-EmPl<?yer's right of appeal--When accrues -Paym_ent of Wages Act, r936 (4 of r936), ss. r5(3), r6, r7(r) (a) ••

The expression " the total sum directed to be paid " used in s. 17(1) (a) of the Payment of Wages Act, 1936, properly construed, does not mean the total sum directed to be paid to each individual applicant. Consequently, an employer against whom a direction for .payment is made under s. 15(3) of the Act has a right of appeal under s. 17(1) (a} not only when a single applicant is awarded a sum exceeding Rs. 300 but also when an award of a like amount is made on a single application made under s. 16(2) of the Act on behalf of several employees belonging to the same unpaid group or on several applications consolidated into one under s. 16(3) thereof. Section 17(1) (a) does not contemplate that before the right to appeal can accrue to the employer in the latter case each individual applicant must be awarded Rs. 300 or more. ; Since the language of the statute is clear and unambiguous no consideration of any possible hypothetical anomaly can be allowed to affect its plain meaning.

Laxman Pandu and Others v. Chief Mechanical Engineer, Western Railway (B. B. and C. I. Railway), Lower Parel, Bombay.

(1957) 57 B.L.R. 399, overruled.

Union of India, Owning the South Indian Railway by General Manager v. S. P. Nataraja Sastrigal & Ors. A.LR. 1952 Mad. 808; A. C. Arumugam & Ors. v. Manager, ]awahar Mills Ltd., Salem ]unction, A.IR. 1956 Mad. 79; Promod Ranjan Sarkar v.

R. N. Mullick, A.LR. 1959 Cal. 318 and Cachar Cha Sramik Union v. Manager, Martycherra Tea Estate & Anr. A.LR. 1959 Assam 13, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 75 of 1956.

Appeal by special leave from judgment and order dated March 17, 1955, of the Small Causes Court, Bombay, in Appeal No. 1 of 1955.

M. 0. Setalvad, Attorney-General for India, S. N.

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

K. R. Ohoudhuri, for the respondents.

:r960

January :rz

i96o

1960. January 12. The JudgmentoftheCourtwas J. c. Jain delivered by

GAJENDRAGADKAR J.-When does an employer get R. A. Pathak a right to prefer an appeal against a direction made and Others under sub-s. (3) of s. 15 of the Payment of Wages Act,

Gajendragadkar J.1936 (4 of 1936) (hereinafter called the Act)? That is

 the short question which arises for our decision in the present group of four appeals. The decision of this question depends on the construction of s. 17 (l)(a) of the Act. In dealing with the question thus posed by the present group of appeals we will refer to the facts in Civil Appeal No. 75 of 1956, and our decision in it would govern the three remaining appeals.

Civil Appeal No. 75of1956 which has been brought to this Court by special leave arises from a dispute between the General Manager of the Times of India Press, Bombay, owned by Benett Coleman & Co, Ltd., (hereinafter called the appellant) and some of the employees in his service (hereinafter called the respondents). In November 1953, 1,066 applications were made by the Vice-President of the Times of India Indian Employees Union on behalf of some of the respondents before Mr. C. P. Fernandes, the authority appointed under the Act in which a claim was made for arrears of increments alleged to have been withheld by the appellant from July 1, 1951, to September iJO, 1953, as also for increased dearness allowance from January 1, 1953, to August 31, 1953. The authority dealt with the whole group of the said applications as a single application under s. 16(3) of the Act, and held that the claim made by the respondents for increased dearness allowance was not justi. fied. In regard to the claim of arrears of increments alleged to have been withheld the authority rejected the claim made by 761 employees and allowed the same in respect of 305 employees. In the result the order passed by the authority on 31-12-1954 directed the appellant to deposit Rs. 22,698 for payment to the said 305 employees.

The direction thus issued by the authority gave rise to two appeals before the Small Causes Court at Bombay, which is the appellate authority appointed

under the Act. Appeal No. 1 of 1955 was filed by the 1960 appellant while Appeal No. 187.of 1954 was filed by 1 h . b h j C. Jain the respondents. Meanwhi e t e quest10n a out t e v. extent of the right conferred on the employer to R. A. Pathak prefer an appeal by s. 17(l)(a) of the Act had been and Others considered by the Bombay High Court in Laxman .

Pandu & Ors. v. Chief Mechanical Engineer, Western Ga; endragadkar J.

Railway (B.B. & 0.1. Railway), Lower Parel, Bombay (1); and it had been held that under the said section the employer gets a right of appeal only if the order of the ' authority under the Act awards payment of an amount of Rs. 300 or more in respect of a single individual worker; the right does not exist if the order awards a sum exceeding Rs. 300 collectively to an unpaid group of workers every one of whom gets an amount under Rs. 300.

Following this decision the appellate authority held that the appeal preferred by the appel. lant was incompetent and so dismissed it. The appellant then applied for and obtained special leave from this Court to prefer an appeal against the said appellate decision; and so the main point raised by the appeal is about the construction of s. l 7(l)(a) of the Act.

The Act has been passed in 1936 with a view to regulate the payment of wages to certain classes of persons employed in industry. Section 15(1) of the Act authorises the State Government by notification in the official Gazette to appoint any Commissioner for W orkrnen's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising•out of deductions from the wages, or delay in P.ayment of wages of persons employed or paid in that area.

Section 7 has. provided for deductions which may be made fr©m wages. Any deductions made not in accordance with the said se0tion and contrary to the provhlions of the Act as well as wages the payment of which has been delayed can be brought before the authority under sub-s. (2) of s. 15. • Sub-sec.tion (3) of s. 15 empowers the authority to deal with the applications made under sub-s. (2) and to direct a refund to

, ..;- (I) (195~) 57 '.a.I,, R. 399,

r96o the employed person of the amount deducted or the payment of delayed wages together with the payment J c~.Jain of such compensation as the authority may think fit,

R. A. Pathak not exceeding ten times the amount deducted in the and Others former case and not exceeding Rs. 10 in the latter. . - Sub-section (4) provides that in cases where the Ga1endragadkar f. authority is satisfied that the application made by the employee was either malicious or vexatious it may direct that a penalty not exceeding Rs. 50 be paid to the employer or other persons responsible for the payment of wages by the applicant. It would thus be seen thats. 15 provides for the making of applications by the employees and for their decision in accordance with the provisions of the Act. It is necessary to refer to s. 16 as well before dealing with the question of the construction of s. l 7(l)(a). Section 16 provides for the making of a single application in respect of claims fr.om unpaid group. Section 16(1) provides that employed persons are said to belong to the same unpaid group if they are borne on the same establishment and if their wages for the same period or periods have remained unpaid after the day fixed by s. 5.

Subsection (2) provides for the making of a single application under s. 15 on behalf of or in respect of any number of employed persons belonging to 'the same unpaid group, and prescribes that in such a case the maximum compensation that may be awarded under sub-s. (3) of s. 15 shall be Rs. 10 per head. Subsection (3) then provides that the authority may deal with any number of separate pending applications presel'\ted under s. 15 in respect of persons belonging to the same unpaid group as a single application presented under subs. (2) of the said section, and the provisions of that sub-section shall apply accordingly.

Thus the effect of s. 16 is that a single application may be made on behalf of any number of employed persons belonging to the same unpaid group, or if separate applications are made by employed persons belonging to the same unpaid group they may be consolidated and tried as a single application.

Let us now read s. 17 which provides for appeals.

Section 17(1) provides that an. appeal against a

. ..

direction made under sub-s. (3) or sub-s. (4) ofs 15 may r96o be preferred within thirty days of the date on which the direction was made, in a Presidency-town before J. c. fain v. the Court of Small Causes and elsewhere before the R. A Pathak District Court-(a) by the employer or other person and Others responsible for the payment of wages under s. 3, if the . - total sum directed to be paid by way of wages and Ga; endragadkar J. compensation exceeds Rs. 300, or (b) by an employed person, if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds Rs. 50, or (c) by any person directed to pay a penalty under sub.s. (4) of s. 15.

Sub-section (2) of s. 17 makes the directions made under sub-s. (3) and sub-s. (4) of s. 15 final save as provided in sub-s. (1).

On a plain reading of s. l 7(l)(a) it seems fairly clear that the only test which has to be satisfied by the appellant before preferring an appeal against a direction issued under s. 15(3) is that the total sum directed to be paid by him should exceed Rs. 300.

Where a single application has been made on behalf of a number of employed persons belonging to the same unpaid group under s. 16, sub.s. (2), and a direction has been issued for the payment of the s:r:ecified amount, it is the said specified amount that must be considered in deciding whether the test prescribfd by s. l 7(l)(a) is satisfied or not. The view tn, ken by the Bombay High Court, however, is that s. l 7(l)(a) is applicable only where the amount directed to be paid to each single applicant exceeds Rs. 300. In other words, on this view the expression " the total sum directed to be paid" used ins. l 7(l)(a) is construed to mean the total sum directed to be paid to each individual applicant, and that clearly involves the addition of certain words in the section. If the application is made by a single employee an appeal can be preferred by the employer against the direction issued in such an application if the total sum directed to be paid to the applicant exceeds Rs .. 300; but if a single application is made on behalf of several employees belonging to the same unpaid group the test to be applied is not .whether a direction has been issued that the employer

z960 should pay Rs. 300 or more to each one of the applicants; the test clearly is whether a direction has been ]. C. Jain v. issued on the said single application calling upon the R.A. Pathak employer to pay to the applicants Rs. 300 or more.

and Othm Reading s. l 7(l)(a) by itself we feel no difficulty in . -~ reaching this conclusion.

GaJendmgadkar J.

It is, however, urged that in construing s. l 7(l)(a) it would be relevant and material to compare and contrast its provisions with those of cl. (b) of s. 17, sub-s. (1).

Providing for the right of an employee to make an appeal this clause requires that the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged should exceed Rs. 50. It is emphasised that this clause refers expressly to the case of an individual employee as well as the cases of employees belonging to an unpaid group; and the argument is that since cl. (a) does not use the words "unpaid group" it indicates that the direction about the payment of the amount prescribed by the said clause has reference to each individual employee. We are not impressed by this argument. Since the Act has provided for the making of a single application on behalf of a number of employed persons belonging to the same unpaid group as well as separate applications made by individual workmen it was unnecessary to refer to the persons employed in the unpaid group while providing for appeals against directions made under s. 15(3). On the other hand, if the Legislature had intended that the right to prefer an appeal should accrue to the employer only if Rs. 300 or more are directed to be paid to each individual employee it would have used appropriate additional words in cl. (a). Therefore the argument based upon the use of the words "unpaid group" in

cl. (b) is not of any assistance in construing cl. (a).

We are also inclined to think that it could not have been the intention of the Legislature to confer on the employer the right to prefer an appeal only if Rs. 300 or more are ordered to be paid to each one of the applicants. It is true that the poliqy of the Act is to provide for speedy remedy to the employees in respect of unauthorised deductions made by the employer or

. '

in respect of delayed wages; and with that object the r96o Act provides for the appointment of the authority and prescribes the summary procedure for the decision J. c. fain of the claims; but it seems very unlikely that whereas R. A."Fathak an appeal by the employee has been permitted by and Others

cl. (b) whenever the amount in dispute happens to be Rs. 50 or more in respect of an inQ.ividual applicant Gajendragadkar J. or in respect of the unpaid group the Legislature could have intended that the employer should have no right. of appeal against a direction made on a single consolidated application even though the total liability fl.owing from the said direction may exceed the specified amount of Rs. 300 by several thousands.

In the present case the amount directed to be paid is more than Rs. 22,000 but it has been held that since each one of the employees is not ordered to be paid Rs. 300 or more there is no right of appeal. On general considerations, therefore, the conclusion which we have reached on a fair and reasonable construction of cl. (a) appears to be well-founded.

There is another point to which reference must be made. Section 16(3) empowers the authority to consolidate several applications made by individual employees and hear them as a single application as though it was presented under s. 16, sub-s. (2); and it is urged that this procedural provision cannot and should not have a decisive effect on the employer's right to prefer an appeal under s. 17(l)(a). If several applications made by individual employees are not consolidated and heard as a single application under s. 16(3) and separate directions are issued, then the employer would have the right to prefer an appeal only where the total amount directed to be paid exceeds Rs. 300. On the other hand, if the authority consolidates the said applications and makes a direction in respect of the total amount to be paid to the employees belonging to the unpaid group the employer may be entitled to make an appeal even though each one of the employees receives less than Rs. 300. It would be anomalous, it is said, that the right to appeal should depend upon the exercise of discretion vested in the authority under s. 1.6(3).

We are unable to see the force of this argument. We apprehend that

]. C. Jain v.

R.A. Pathak and Others

Gajendragadkar

ordinarily when several applications are made by the employees belonging to the same unpaid group the authority would prefer to treat the said applications as a single application under s. 16(3); but apart from this practical aspect of the matter, ifs. 16(3) permits the constilidation of the several applications and in J. consequence of consolidation they , are assimilated to the position of a single application contemplated by s. 16(2), the only question which has to be considered in dealing with the competence of the appeal is to see whether the direction appealed against satisfies the test of s. l 7(l)(a), and on that point we feel no hesitation in holding that the test prescribed by s. l 7(l)(a) is that the direction should be for the payment of an amount exceeding Rs. 300.

Besides, we think it would not be right to assume that it is anomalous if different consequences follow from the adoption of different procedures in trying employees' claims and an appeal does not lie where several applications are tried separately while it lies where similar applications are heard as a single application under s. 16(3). This difference is clearly intended by the Legislature. A similar different consequence is prescribed in the matter of the award of compensation by s. 15, sub-s. (3) and s. 16, sub-s. (2) respectively. Therefore, the argument based on the alleged anomaly cannot have any validity inconstruing s. l 7(l)(a).

Incidentally, if one or more employees in the same unpaid group are paid an amount exceeding Rs. 300 and the rest are paid less than Rs. 300, on the alternative construction, the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs. 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs. 300. In such a case, if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outs'tanding two conflicting decisions, with the result that a large number of employees in the same unpaid group may get the a.mount under the direction of the authority while those who were awarded more

r ,

- ...

' 4

than Rs. 300 by the authority would get a smaller z96o amount under the decision of the appellate authority . .c • h l f ]. C. Jain We are re1errmg to t is anoma ous aspect o the v. matter only for the purpose of showing that where R. A. Pathak the words used in the relevant clause are clear and and Others unambiguous considerations of a possible hypothetical - 1 t ff t •t l · Th t . Gajendragadkar J. anoma y canno a ec i s p am meanmg. a is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used ins. 17(l)(a). Ifthe said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies. We would, therefore, hold that the appellate authority

was in error in dismissing the appeal preferred before it by the appellant on the ground that_ it was incompetent under s. 17(l)(a). We would like to add that the question about the construction of s. l 7(l)(a) has been considered by the Madras High Court (Union of India, owning the South Indian Railway by the General Manager v. S. P. Nataraja Sastrigal & Ors. (1) and A. 0. Arumugam & Ors. v. Manager, Jawahar Millf Ltd., Salem Junction (2), the Calcutta High Court (Promod Ranjan Sarkar v. R.N. Mullick (3) and Assam High Court (Gachar Cha Sramik Union v. Manager, Martycherra Tea Estate & Anr. (4} and they have all differed from the view taken by the Bombay High Courtand have construed s. l 7(l)(a) in the same manner as we have done.

The result is the appeal is allowed, the order of dismissal passed by the appellate authority is set aside and the appeal sent back to it for disposal in accordance with law. Since the hearing of the appeal has been thus delaylild we would direct that the appellate authority should dispose of the appeal as expeditiously as possible.

Under the circumstances of this case we would direct that the parties should bear their own costs.

Appeal allowed.

(1) A.LR. 1952 Mad. 808.

(3) A.LR. 1959 Cal. 318 S.C.; 63 C.W.N. 6.

(2) A.LR. 1956 Mad. 79.

(4) A.I.R. 1959 Assam 13.

J. 0. JAIN

OTHERS . (P. B. GAJENDRAGADKAR

K. SuBBA RAO

K. c. DAS GUPTA, JJ.

s. 17(1)

Payment of Wages Act, 1936

s. 15(3)

s. 17(1)

s. 16(2)

s. 16(3)

Section 17(1)

M. 0. Setalvad

S. N.

Andley

J. B. Dadachanji

Rameshwar Nath

K. R. Ohoudhuri

GAJENDRAGADKAR

R. A. Pathak

s. 15

Payment of Wages Act

Gajendragadkar

s. 17

Times of India Press, Bombay

Benett Coleman & Co, Ltd.

Times of India Indian Employees Union

C. P. Fernandes

July 1, 1951

September iJO, 1953

January 1, 1953

August 31, 1953

s. 16(3)

Small Causes Court at Bombay

s. 17(l)(a)

Laxman

Section 15(1)

Section 7

s. 15

s. 15

s. 16

Section 16

Section 16(1)

s. 5

s. 15

s. 15

s. 15

s. 16

s. 17

Section 17(1)

s. 3

endragadkar

s. 15

s. 17

s. 15

s. 15(3)

s. 16

Bombay High Court

R.A. Pathak employer

GaJendmgadkar

s. 17

s. 15(3)

R. A."Fathak

Section 16(3)

s. 16

s. 17(l)(a)

s. 16(3)

s. 1

s. 16(3)

s. 16(2)

s. 16(3)

s. 15

s. 16

C. Jain

s. 17(l)(a)

Madras High Court

Calcutta High Court

Assam High Court

Bombay High Courtand


r960

January I:J

SUPREME COUHT REPORTS [1960(2)]

BHAGWANTRAO v.

VISHW ASRAO AND ANOTHER (S. K. DAS, and A. K. SARKAR, JJ).

Grant-Rcsnmption--Patelki huq inam-True nature and character of-Inam RHles, r859-Patel and Patwaris Law, r900-

Berar Land Revenue Code, r928, s. r90.

The question for decision in the appeal was the right of the revenue authorities of the State Govern1nent concerned, to resume certain lands known as 'patelki huq inam,' which lay in the Jagir village of Nawabag situate in the ceded area of Berar.

The lands were granted by the then so'f'reign authority by way of remuneration or emoluments for services to be rendered by the pa tel; the grant was of ancient origin and was recognised as a 'service in am' by the British Government. In the village of Nawabag there were four families of patels, who went by the surnames of Dongre, I<okade, Raut and Ingle, the members of which held the patel's office in rotation of ten years. There was a partition in the Rokade family as result of which the • patelki inam' lands were divided, and the lands in suit were allotted to the share of the appellant who never held the patel's office.

During an enquiry for the preparation of the record of rights of the said Jagir village, it was held that the appellant was not entitled to hold the • patelki inam, lands which were given as emoluments for service to the working pate!, and the Financial Commissioner finally held that the person actually working as pate! was entitled to receive the full emoluments of his office, and confirmed the order that the lands in possession of the appellant should be resumed and regranted to the working pate!, viz., the respondent No. r.

On the question of the true nature of the patelki huq inam, two points arose:

(r) was it a grant by way of remuntlration or emoluments of the patel's office by the use of the land, or

(2) was it a grant of land to the patelki family burdened with service and so long as the service \~.ras performed by any member of the family, the lands were joint family lands subject to partition etc. among the members of the family.

Held, that the 'patelki inam' in this case was in its origin a grant by way of remuneration for patelki service by the . sovereign authority; it was separate from and independent of the Jagir of Nawabag though the land lay within the Jagir village. In its true character the ' patelki inam' was land given in lieu of wages or emoluments for the office of pate!; it could not be freely alienated and the Government could resume the land.

Held, further, that where one of two or more patels of the village held office in turn by rotation, that did not mean that

• •

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the pate! ceases to be a pate! when his turn was over; he continued to be a pate! and to enjoy his emoluments of office.

Held, also, that there was nothing in the lnam Rules, 1859, on the basis of which a person could claim as of right that he had a share in the ' patelki inam' lands as a member of the patel's family irrespective of whether he performed the service or not. A member of the patel's family was not entitled as of right to a share in the emoluments of the patel's office and Government had every right to resume 'patelki inam' lands and regrant them to the officiator in accordance with the provisions of the Patel and Patwaris Law, 1900, and s. 190 of the Berar Land Revenue Code, 1928.

Held, also, that on the finding that the lands were given by way of emoluments for the patel's office, no question of title by adverse possession arose against the Government in the circumstances of the case.

Venkata J agannadha v. Veerabhadrayya, (1921) L.R. I.A. 224, referred to.

Krishnarao v. Nilkantha and Others, A.LR. (1922) Nag. 52, Mir Subhan Ali v. Imami Begum, (1925) 21 Na:g. L. Reports n7, Lakhamgouda Basavaprabhu Sardesai v. Baswantrao and Others, A.I.R. (1931) P.C. 157, Jaiwantrao and Another v. Sahebrao, (1933) 29 Nag. L. Reports 210 and Raje Shrinivasrao v. Raje Vinayakrao, I.L.R. [1949] Nag. l discussed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No, 208of1955.

Appeal from the judgment . and decree dated November 27, 1951, of the former Nagpur High Court, in Sec.ond Appeal No. 169 of 1947, arising out of the judgment and decree dated February 3, 1947, of the First Additional District Judge, Amraoti in Civil Appeal No. 85-A of 1946, against the judgment and decree dated December 20, 1945, of the Civil Judge First Class, Ellichpur, in Civil Suit No. 1-A of 1943.

W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.

H.J. Umrigar and Sardar Bahadur, for respondent No. 1. ' R. Ganapathy Iyer, M. P. Nathwani and R. H.

Dhebar, for respondent No. 2.

1960. January 12. The Judgment oftheCourtwas delivered by

S. K. DAS J.-This is an appeal on a certificate granted by the High Court of Nagpur under clause (c)

Bhagwantrao v.

Vishwasrao and Another

S, K. Das].

Bhagwantrao v. "V ishwasrao and Another

S. K. Das J.

of Article 133(1) of the Constitution to the effect that the case is a fit one for appeal to this Court. It raises some important questions as to the right of the revenue authorities of the State Government concerned, to resume certain lands which are known as "pate] ki huq inam" lands situate in what was previously known as the ceded area of Berar. The plaintiff Bhagwantrao Shivaji Patel (Bhagwantrao, to give his short name) is the appellant before ns.

Vishwasrao Patel, who was1defendant No. 2 in the suit, is now respondent No. 1.

Originally, the Provincial Government of the Central Provinces and Berar was defendant No. l, and now the State of Bombay is respondent No. 2 before us. :Formerly, the lands in suit lay within the province of Central Provinces and Berar; later they fell within the State of Madhya Pradesh, and now they are in Bombay.

The relevant facts which have given rise to the appeal may now be shortly stated. The lands in suit were comprised in six survey numbers stated in paragraph one of the plaint. They lay in village Nawabag, a jagir village, of Ellichpur (now called Archalpur) taluq of Berar, and we shall hereinafter give some more details of that jagir. In that village there were four families of Pa tels some members of which held the Patel's office in rotation of ten years each. These four families went by the surnames of Dongre, Rokade, Raut and Ingle. vVe are concerned with the Rokade family.

One Shivajirao of that family had two sons, called Amrit and Bhagwant. Bhagwant, as we know, is the appellant before us.

Vishwasrao, respondent No. 1, is the son of Amrit. Shivajirao died sometime in 1886.

His son Amrit died in 1920. In 1923 there was a partition between the appellant and responddent No. l. The.case of the appellant was that as a result of this partition, the "patelki inam" lands were divided and the lands in suit were allotted to the share of the appellant. When Shivajirao was alive, he worked as pate!; so did Amritrao in his turn. Lastly, Vishwasrao also worked as pate!. In 1935 a special officer was appointed by Government to prepare a record of rights of the jagir village ofNawabag. This

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S.C.R.

SUPREME COURT REPORTS 713

officer submitted a repor~ on which certain enquiries were made. As a result of these enquiries it was held that the appellant was not entitled to hold the "patelki inam" lands which were given as emoluments of his office to the working patel from the Rokade family.

It was ordered by the Deputy Commissioner that the lands in possession of the appellant should be resumed and regranted to the working patel, viz., respondent No. 1.

The appellant appealed against this order.

The Commissioner of Berar set aside the order of eviction, but maintained the status quo pending final orders of Government. Ultimately, on December 19, 19!1, the Financial Commissioner held that the person actually working as patel was entitled to receive the full emoluments of his office, and revenue officers had consistently refused to admit any claims to shares in patelki emoluments. Accordingly, he set aside the order of the Commissioner and restored that of the Deputy Commissioner.

Thereupon, the appellant brought his suit in 1942 in which he claimed that the Government had no jurisdiction or authority to resume and regrant the lands to respondent No. 1 and the orders passed by the revenue authorities concerned were null and void. The appellant asked for possession and mesne profits. By a subsequent amendment of the plaint, the appellant alleged that at least two of the plots, 2JlA and 9/lA, had ceased to be "patelki inam" lands and were private property of the family.

Therefore, in any view of the matter, Government had no right to resume these two plots. His claim with regard to these plots was alternatively placed on a somewhat different footing and we shall, in due course, consider that claim.

The suit was dismissed by the trial Judge, but on appeal by the present appellant the learned Additional District Judge of Amraoti decreed the suit. There was a second appeal to the High Court of Nagpur which allowed the appeal, set aside the decree of the lower appellate court, and restored that of the trial Judge. The High Court substantially held that (1) the lands in suit were granted by the then sovereign authority by way of remuneration or emoluments for

• Bhagw.mtrao v.

Vishwasrao and Another

S. K. Das].

B!tagwantrao ~

services to be rendered by the patel and the grant was recognised as a service inam by the British Government, and (2) it was open to the revenue authorities v.

Vishwasrao and Another to resume and regrant the lands in accordance with the provisions of the Patels and Patwaris Law, 1900 in force in Berar and s. 190 of the Berar Land s. K. Das J.

Revenue Code, 1928. Thereafter, the appellant applied for and obtained a certificate from the High Court, and the present appeal has been brought pursuant to that certificate.

To appreciate the points which have been urged before us on behalf of the appellant, it is necessary to state some more historical facts about the jagir village Nawabag and the "patelki inam" lands comprised therein. The original sanads by which the jagir of Nawabag or the" patelki inam" was created have not been produced in this case. There is no doubt, however, that both are of very ancient origin. Berar was ceded by the Nizam of Hyderabad in 1853 and the Inam Rules for settlement of jagir and inam claims were made in 1859, Rule I whereof stated inter alia that land which was proved to have been held as inams, either under a fixed quit rent or rent.free for a period of 40 years before the cession, was to be treated by the British Government as inam possessed under a valid title. The promulgation of the Inarn Rules was followed by an inams investigation. Ex. P-1 is the copy of an inam entry dated August 31, 1866. This document shows that the jagir of Nawabag was granted by the Kings of Delhi to one Shah Abdul Huq originally. It was subsequently continued and confirmed by sanads granted by the Nizam of Hyderabad in 1757.

The village had a total area of about 1,846 big has, out of which about 262 bighas were held by pn, tels in lieu of their "huq "in the proportion of 1 bighas per netan (a measure of nine bighas) .. The Inam Commissioner stated that the jagir had been held upwards of 100 years before the inam enquiry and should be continued (except for an area of 200 highas for which there was no satisfactory proof) in perpetuity subject to a quit rent of Rs. 87-8-0. There

is an earlier document, Ex. P-9A, of October 24, 1771,

' .

- ..

IP-

...

which shows that there was a dispute between the jagirdars and the patels about the latter's right to get

H bighas of" patelki inam" land per "netan ". The jagirdars disputed the claim of the patels and ultimately the dispute was submitted to the Nazim Sahib of E!lichpur. The document contains the following recital which shows that the" patelki inam" lands of village Nawabag were also very ancient grants: "The Nazim, after seeing from the previous records as to who was in enjoyment, granted the mukaddami inam of a bigha and a half from year to year as desired by the mukaddaman. As per the old judicial usage, land is calculated at the rate of one and half bigha per netan and measured out from the lands of Nawabag and the aforesaid mukaddaman are held to be occupants of the said cultivated land". It appears that out of 262 bighas of" patelki inam " lands in the village, the Ro!mde family held about 11 plots, approximately of about 50 acres. Sometime before 1904 some of the co-sharer-jagirdars of Nawabag alienated the jagir lands to strangers. This led to resumption proceedings by Government, and ultimately half of the jagir village was resumed by Government in or about rn04-05. As a result of a detailed enquiry, survey numbers 1 to 21 and 40 to 45 of the "patelki inam " lands fell in the resumed portion and survey numbers 22 to 39 were included in the jagir portion.

As survey numbers 2/lA and 9/lA in possession of the Rokade family fell in the resumed portion, they were recorded as Khalsa and were assessed to revenue, while the remaining survey numbers viz. 29/1, 34/3, 36/2 and 37/2 continued to be in possession of the Rokade family free of assessment. There was another resumption proceeding in or about 1917 when it was discovered that the jagirdars had alienated lands falling in the jagir portion also. This time the lands resumed were not made Khalsa but were regranted to the jagirdas. As a result of this regrant the jagirdars thought that they were entitled to take possession of the "patelki inam" lands of the Rokade family also. This led to some more revenue proceedings, and we come now to one of the important

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

x960

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

documents in this case, viz., a letter dated August 28, 1922, by which sanction of Government was conveyed to the "exclusion from resumption of 25 acres and 15 gunthas of land in the khalsa portion of the village and to the exclusion from the land regranted to the jagirdar viz. of 24 acres 30 gunthas in the inam portion of Nawabag jagir village''. The order made by the Government further stated that the aforesaid lands would be recorded in the name of Amrit Shivaji Patel as his" patelki huq inam ". Some of the other pate! families made an attempt to get a release of the ioam lands held by them, which had since been resumed; but this attempt proved unsuccessful and Government held that an enquiry showed that with the exception of Amritrao, no member of the old patelki families except Deo Rao was in possession of the old "patelki inam" lands and as Deo Rao did not belong to a branch in which the right to officiation resided, his claim could not be considered. The order of Government in 1922, therefore, made it clear that the "patelki inarn" lands of Amritrao formed one homogenous, separate service grant and were not dependent on the resumption of the jagir of Nawabag.

The proceedings of 1917-1922 were followed by the proceedings of 1935.1941 which culminated in a third resumption of the "patelki inam " lands and regrant to Vishwasrao and to which we have earlier referred.

These proceedings bring the history of the lands in suit up to the time when the appellant brought his suit in 1942.

Now, apart from the alternative claim with regard to survey numbers 2/IA and 9/lA and the claim of title by ad verse possession, which claims we shall consider later, the principal question which falls for decision in this appeal, is the true nature of these " patelki inam" lands; do they constitute a grant by way of remuneration or emoluments of the patel's office by the use of the lands, as found by the High Court, or do they constitute a grant of land to the patelki family burdened with service and so long as the service is performed by any mePJber of the family, the lands are joint family fands subject to partition

• -

...

- .r

.. -

...

etc. among the members of the family? On behalf of the appellant, ithas been very strongly contended before us that the finding of the High Court on this point is wrong. On this part of the case learned counsel for the appellant has made a four-fold submission; firstly, that the rights which the Rokade family had in these lands were rights of dealing with the property as owners, subject to a member of the family rendering patelki service; or in other words, the grant was a grant of land burdened with service; secondly, the grant was made by the jagirdar of village Nawabag and not by the sovereign authority and neither the Inam Rules, nor the provisions of the Patels and Patwaris Law, 1900 applied; thirdly, even if the aforesaid Rules and provisions applied, the appellant still retained his hereditary rights in the lands ; and fourthly, the orders of Government dated August 28, 1922, did not confer any new right nor did they deprive anybody of any subsisting right in respect of the "patelki inam " lands and Government had no right to resume the lands and "'regrant them to respondent No. 1.

The second submission can be disposed of without much difficulty. We have already stated that the sanads creating the jagir or the "patelki inam" have not been produced. The earliest document we have is the kararnama of October 24, 1771. That document shows, as we have stated earlier, that there was a dispute between the jagirdars and the patels; the patels were demanding I! bighas per netan as .their "huq" and the jagirdars were saying that no such "huq" was mentioned in the sanads granted to the jagirdars. The dispute was referred to the Nazim, who was the local representative of the then sovereign authority, and t.he decision of the N azim was expressed by saying

" ue N azim granted the inam of a bigha and a half from year to year for each netan; it was also stated that this was supported by old judicial usage.

In our view the kararnama shows two things : first, the grant of "patelki inam" of l! bighas per netan was in its origin a grant by the sovereign authority which the Nazim confirmed in accordance with old

Bhagwantrao v.

Vishwasrao and Another

S.K. Das].

Bhagwantrao v.

Vishwasrao and Another

S. J(. Das f

judicial usage; secondly, that the grant was from year to year in lieu of patelki services and was binding on the jagirdars who agreed to be bound by it. The entry in the Inam Hegister, dated August 31, 1866 (Ex. P-1) is to the same effect; it shows that 262 bighas were excluded from the jagir "as allowed to pate! in lieu of his huq to l t bighas", in contradistil).ction to other petty inams allowed by the holders

(jagirdars) themselves. On behalf of the appellant our attention has been drawn to Rules I and 11 of the Inam Rules and to Rule XV; it has been submitted that if the "patelki inam" was separate from and independent of the jagir which was a class III inam, a separate title deed in the form of an inam certificate would have been granted in respect of the "patelki inam" as a class lV inam. It may be, as the High Court points out, that the " patelki inams " were not separately recognised during the inam enquiry, and it was then assumed as if these were interests carved out of the lands granted to the jagirdars. There is, however, clear evidence in the record that the "patelki inam" of this case was independent of the jagir. ,, Immediately after the first resumption proceedings against the jagirdars in 1904-05, the position of the patels came under consideration of the revenue authorities. In 1906 one Moti of Dongre family was appointed pate! by the Sub-divisional officer, Ellichpur.

In 1907 Amrit, son of Shivaji, was appointed pate! in the Rokade family to officiate in rotation with Moti.

This appointment was made by the Deputy Commissioner. In 1908 there was a dispute between the jagirdars and pa tels and the order of the Sub-divisional officer who decided the dispute said :

"The Jagirdar says that his family appointed Patels from the watan family, but this is not borne out by such papers as exist. There is a petition dated 4-1-67 from the , Tagirdar 11equesting the Revenue authority of the time to appoint a certain person as Patel. At that period then the Revenue authorities and not the Jagirdar appointed the Patel.

The Pa tels are village servants only and are responsible only to the Government and not to the Jagirdar.

. l;

The Patel family has had watandari rights for certainly 150 years or so.

I am of opinion therefore that the watan seems independent of the Jagir." This dispute went up to Commissioner Sly (later Sir Frank Sly) and he held that the patelki is a watan independent of the jagir, andhe approved the proposal for rotation between Moti and Amrit. The "patelki inams" were treated on the same basis in the resumption proceedings of 1917 -1922, and by the order dated August 28, 1922, Governrµent excluded the " patelki . inam" lands from the resumption proceedings relating to the jagir on the footing that they were separate from and independent of the jagir. Mr. Walker, then Financial Commissioner, said in his order dated August 7, 1918, (Ex. ID-II):

"Although the Patel holds no Inam Certificate, I agree with the Commissioner that the inam resumption procedure which was necessitated by the action of the jagirdar, ought not to upset the arrangement concerning the Patels, which was made at the suggestion of His Exalted Highness the Nizam's G6vernment many years ago. To give effect to this view, it will be necessary to reopen the enquiry as regards the whole village-both t:\J.e khalsa part and the regranted inam part-and to determine what fields in each represent the original grant of 262 bighas to the Patel in lieu of his huq. When that area has been determined, the orders of resumption will have to be modified so as to exclude it."

There is, therefore, overwhelming evidence in this case to show that the patelki inams were separate from and independent of the jagir of Nawabag, though the lands lay within the jagir village.

This brings us to the more important questionwhat is the true character of the "pafrlki inai:u" lands of this case ? On this point also, we I hink that there is clear and unimpeachable evidence in support of the finding of the High Court. We have already referred to the kararnama of 1771 and the inam entry of 1866.

If the grants were a grant of land to the patelki

r960

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

r960

Bhagwantrao v.

Vishwasrao and Another

s. K. Das].

families burdened with service, it is difficult to understand how there could arise a dispute about remuneration between the jagirdars and patels and why the remuneration of 1 ! bighas per netan should be fixed from year to year.

In a revenue case of 1908 Amrit Patel had himself stated that the land was given to his ancestors in lieu of patelki huq and it should not be assessed to land revenue. Even in his plaint, the appellant had asserted that the "Patels were given certain lands out of the jagir village for their working as patels and for discharging other duties." There is another important document in this connection. In the second resumption proceedings of 1917 Government had first decided to resume the jagir and regrant it to the then Jagirdar Amerulla Khan. In the orders passed (Ex. ID-18) it was stated that the Jagirdars would be at liberty to allow the working patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and in lieu of mushahara (emoluments or wages). It is important to note that everybody understood then that the "patelki inam" was in lieu of wages or emoluments for the office of patel. These orders led to an enquiry, and Amritrao made a statement that he was holding survey numbers 26 27, 29, 34, 36 and 37 in lieu of patelki emoluments. He said that he was even willing to hold 4 acres 17 gunthas of survey no. 27 in lieu of his emoluments. It appears that the Sub-divisional officer then recommended that Amrit Patel should be given only 4 acres 17 gunthas, as emoluments for his office.

Later, an application was made on behalf of Amrit, which was signed by his brother, the present appellant as his agent, in which occurred the following significant statements:

"The learned S.D.0. has again lost sight of the fact that the family of the applicant has been doing the work of the Patel from a very long time, that in the early days of the Berar Administration when land had no value and did not fetch the income it is doing now, the applicant and his predecessors worked to what they would get from the land. Cash had more value then than land and hence the Inamdars thought

it is advisable to commute money payment into land grant. ..................................................................... .......................................................................

That the learned Sub-Divisional Officer has lost sight of the fact that in the inam enquiry and the sanad granted to the Inamdar of the Nawabag1Jahagir in 1866, the land in the possession of the applicant has been deducted from the area of the village and it is only the rest of the area that is made over to the Inamdar, vide, Co. 5 of the sanad viz. area of grant.

This shows that in 1866 the area reserved for the Patel was considered as a fair remuneration in kind to the Patel for his work." These statements show clearly enough what the appellant and his brother Amrit, understood to be the character of the " patelki inam " lands ; they clearly said that the lands were given in lieu of emoluments or remuneration. This view ultimately prevailed and the earlier orders were modified on the recommendation of Commissioner Standan who said that the lands held by the patel as " patelki inam " should be excluded from resumption and the patel should be allowed to hold the lands free of any payment in lieu of cash remuneration for his office. In the result were passed the orders dated August 28, 1922, to which a reference has already been made.

These transactions and the statements made therein are admissible, in the absence of the sanads creating the grant, to show how the parties themselves have understood and dealt with the grant in contested revenue proceedings between the jagirdars and patels.

On behalf of the appellant it has been submitted that there is evidence in the record to show that some of the patels had alienated " patelki inam" lands and the "patelki inam" lands of each patel remained with him, in spite of the fact that the office was held in rotation ; these circumstances, it is contended, militate against the view that the grant was a mere grant of office with emoluments in the shape of Inam lands. We are unable to accept this contention as correct. The statement of the appellant himself in a

9:1

r960

Bhagwantrao v.

Vishwasrao and Anolhor

SK Das].

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

revenue case of 1937-38 (Ex. ID-15) shows that the lands alienated by the other patels were resumed and regranted to the jagirdar in the resumption proceedings of 1917-18. After Amritrao had succeeded in getting his " patelki inam " lands excluded from resumption, the other patels also unsuccessfully attempted to get their lands released-a circumstance to which we have earlier referred. This shows that Government never accepted the position that the "patelki inam " lands could be freely alienated; on the contrary, the evidence in the record shows that Government had resumed such Janus on more than one occasion.

As to the second circumstance, it is indeed true that the office was rotatory (this is provided for in s. 3 of the Patels and Patwaris Law, 1900); but each pate! retained his inam land even when it was not his turn to work as pate!. We do not however, consider this circumstance as establishing that the grant was other than what the High Court held it to be. Section 3 of the Pa tels and Patwaris Law, 1900 says in clear terms that when there are two or more patels in a village and the duties can, in the opinion of the Deputy Commissioner, be efficiently performed by one pate], the Deputy Commissioner can direct that each pate! shall hold office in turn by rotation for a term of not less than 10 years. This does not mean that a patel ceases to be a pate! when his turn is over ; he continues to be a patel and enjoys his emoluments.

We propose now to examine the position under the Inam Rules, 1859, the Berar Patels and Patwaris Law, 1900 and the Berar Land Revenue Code, 1928. The argument on behalf of the appellant is that even under the Inam Rules, he is entitled to his share in the "patelki inam" lands, so long as a member of the family works as pate!. Learned counsel for the appellant has drawn our attention to Rules V and VI and has submitted that being a service inam, the " patelki inam " would come under the fourth class mentioned in Rule II and would be governed by Rule VI(2) which says :

"Inam'! granted in lieu of lands or money stipends, commonly called huqs and ressums of offices, such as

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Deshmukh, Deshpandia, and others the service of which has either been dispensed with or otherwise discontinued, shall be disposed of according to clause 2 of the Rule V, if they are hereditary. in their terms, either by express declaration of Government or by recognized usage. Nothing in this rule shall be deemed to apply to cash allowance known as ressums or lawazamas granted to Deshmukhs and Deshpandias in lieu of emoluments previously payable to them."

That Rule refers to clause (2) of Rule V which reads: "If the present incumbent is a descendant of the original grantee, the inam will be continued to him hereditarily, subject to the following conditions:- First-Successions limited to direct lineal heirs and undivided brothers.

Second-The inam escheats to Government on failure of such heirs.

Third-Future alienation of the inam is prohibited.

Fourth-The right of adoption to an inam is not recognized." The contention before us is that under Rule VI(2) read with Rule V(2), the appellant was entitled to his share in the " inam " as an undivided brother of Amritrao, Patel. We do not think that this contention is correct. For one thing, Rule VI(2) applies to inams, granted in lieu of lands or money stipends, the service of which has either been dispensed with or otherwise discontinued. That is not the case here. Secondly clause (8) of Rule VI makes it clear that when the inam attached to the office is wholly or partially in the enjoyment of members of the family who dp not perform service, such portion of the alienated inam as may be considered necessary for the efficient performance of the duties will be attached to the officeholders, and Rule XIV(2) says that service grants are not liable to be alienated by purchase or otherwise.

Rule VIII explains the term 'inam' and Rule II also has a bearing on the question before us. It says, so far as it is relevant for our purpose:

" The settlement will be made with the head member of the family holding the office or enjoying the

z960

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

I960

Fishwasrao attd Another

S. K. Das].

inam and who will be held alone responsible to Government, and in no case will the Government interfere to compel the actual incumbent of an office to make over any portion <if his regulated service grant to other branches of the family, as service grants cannot be divided according to the orders of Government ... "

Rule XXI(2) says interalia that in respect to service grants, the decisions of the Commissioner and the Resident respecting lands held free by the village officers as remuneration for service, shall be considered final.

From these Rules it is manifestly clear to us that there is nothing in them on the basis of which the appellant can claim as of right that he has a share in the "patelki inam " lands as a member of the patel's family, irrespective of whether he performs the service or not.

The position under the Patels and Patwaris Law, 1900, appears to be clearer still. Section 9 of the said Law states that the emoluments appertaining to the office of the pate! or patwari shall be enjoyed solely by the person for the time being holding the office; even a substitute shall receive the whole of the emoluments appertaining to the office, unless the Deputy Commissioner otherwise directs, and if there are two or more patels in a village, the Deputy Commissioner shall determine. the proportions in which they shall share in the emoluments of office.

Sections 10 and 11 say that the emoluments appertaining to the office of pate! shall not be liable to attachment or sale, and every assignment thereof shall be void.

Under s. 20 the jurisdiction of the Civil Court is barred with respect to any claim by any person to any emolument appertaining to the office of pate!.

These provisions clearly indicate that the "patelki inam" lands are subject to orders passed by the revenue authorities in_ respect of the matters mentioned therein, and no right is given to a member of the family of the pate! to claim a share in the emoluments.

The power to resume lands granted on condition that the holder shall render certain services is

• -

S.C.R.

SUPREME COURT REPORTS 725

specifically referred to in s. 190 of the Berar Land Revenue Code. We quote below the material portion of the section :

"Section 190(1)-If alienated land has been granted on condition that the holder shall render certain services or incur expenditure for the benefit of the community or any section thereof, and the holder fails to render such services or to incur such expenditure to the satisfaction of the Deputy Commissioner, or, ifthe holder trnnsfers the land in such a manner that, in the opinion of the Deputy Commissioner, the purpose of the grant is likely to be defeated, the Deputy Commissioner may declare such land to be forfeited. (2). Land forfeited under this section shall vest in the Crown for the purposes of the Province free of all encumbrances and shall be regranted on the original conditions made under this Law." Section 192 says inter alia that no civil court shall entertain any suit to obtain a decision on any matter which the revenue authorities are empowered under the Law to determine, and among the matters mentioned in the section, is any claim against the State relating to any property or emoluments appertaining to the office of any hereditary officer or servant. These provisions also negative the claim of the appellant.

We proceed now to consider certain decisions on which learned counsel for the appellant has sought to place reliance. We may notice here one comment made by him. He has submitted that the High Court has relied on ; the decision of the Privy Council in

Venkata Jagannailha v. Veerahadrayya (1) where the question was whether the karnam service lands enfranchised to a karnam, a village accountant in Madras State, were subject to any claim of partition by other members of the family, and his comment is that the " patelki inam" lands in Berar stand on a footing different from karnam service lands in Madras and there are decisions in which it has been held that co-sharers have a right to a share in service grants in Bera.r. The first decision to which our attention has

(I) (1921) L.R. 48 I.A. 244.

Bhagwantnio

Vishwasrao and Another

S. K. Das].

Bhagwantrao v.

Vishwasrao and Another

S. K. Das].

been drawn is Krishnarao v. Nilkantha and Others (2 ).

That was a case of a jagir, and it was held that it came under the third class, and nothing regarding service was mentioned 'in the terms of the original sanad. The decision proceeded on the basis that the ordinary rule is that if persons are entitled beneficially to shares in an estate, they may have a partition. It was further held that property consisting of an ordinary inam village was liable to partition at the suit of a co-sharer except when it was held on a saranjam or other impartible tenure or where the terms of the grant impose a condition upon its enjoyment. We do not think that this decision establishes what the appellant is seeking to establish in this cae, that is, that he has a share in the emoluments of the patel's office.

The next decision is that of the Privy Council in Mir Subhan Ali v. lrnami Begum('); all that was laid down there was that the devolution and incidents of an inam estate in Berar were regulated by the Inam Rules, 1859, but only in matters not mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the particular case. The fundamental question at issue there was one of construction, namely, whether the beneficial interest in the Inam granted to a common ancestor of the parties and continued by the British Government in 1866 passed under the terms of the grant then made to all heirs of the grantees according to Shia Mahomedan Law or whether the interest devolved on the male descendants only. It was not a service grant, and no question of a share in the emoluments of the patel's office arose there. In Lakhamgouda Basavaprabhu Sardesai v. Baswantrao and Others(') the Privy Council pointed out the distinction between the grant of an office to be remunerated by the use of land and the grant of land burdened with service; it said that in the former case, the land would be prima facie resumable but not so in the latter case, unless the terms of the grant or the circumstances in which it was made established that it was resumable.

(1) A.I.H .. t1922) Nag. 52.

(2) (1925) 21 Nag. L.R. 117.

(3) A.LR. (1931) P.C. 157

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...,

In the case of Jaiwantrao and Another v. Sahebrao (1), the inam certificate issued to the head of the senior branch of a family of Deshmukh watandars stated that the village was granted "for personal maintenance to the claimant, his descendants and co-sharers"; Accordingly, it was held that a co-sharer was entitled to possession of his share appearing from the inam statement. In Raje Shrinivasrao v. Raje Vinayakrao (2) there was grant of two villages to the great-grandfather of the appellant and the respondent, who were brothers, and "his lineal heirs" or " his successors".

The question was whether primogeniture was to be the order of descent or the estate was impartible. It was held that the ordinary principles of Hindu Law were applicable and the earlier decision in Mir Subhan

Ali v. Imami Begam (3) was referred to. Here again the grant was not a service grant, and no question of a claim of a share in the emoluments of office fell even for consideration, not to speak of decision.

We consider it unnecessary to multiply decisions.

It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patel's family is entitled as of right to fa share in the emoluments of the patel's office and that Government has no right to resume " patelki inam " lands and regrant the same to the officiator.

It remains now to consider the special claim with regard to survey numbers 2/IA and 9/IA. The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannobi Begum and lVIahmudi Begum, he jagirdars, and the appellant and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession.

The learned trial Judge rightly pointed out that the decrees aforesaid related to property other than plots 2/IA and 9/IA.

Moreover, it is not disputed that the entire "patelki inam" lands in possession of Amritrao pate!, including the plots which were made khalsa in 1904-05, were

(r) (1933) 29 Nag. L.R, 210.

(2) I.L.R. (1949) Nag. r.

(3) (192~) 2r Nag. L.R. rr7 .

r960

Bhagwantrao v.

Vishwasrao and Another

, s .. K. Dtts ].

r960

Bhagwantrao v.

Vishwasrao and Another

S li Das J.

excluded from resumption and Amrit's "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922. The two plots, 2/IA and 9/lA, therefore, stand on the same footing as other "patelki inam" lands of Amritrao.

The claim of title by adverse possession can be disposed of in a few words. Once it is held that the lands were given by way of emoluments for the patel's office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866. Amrit worked as pate! till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. I. The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam" lands and Government had no right to resume the same.

This the appellant has failed to establish.

For the reasons given, we hold that the appeal is without merit and must be dismissed with costs.

Appeal dismissed.

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BHAGWANTRAO

VISHW ASRAO AND ANOTHER

A. K. SARKAR, JJ

Berar Land Revenue Code

British Government

Nawabag

Dongre

okade

Raut

Ingle

Rokade

s. 190

Berar Land Revenue Code, 1928

W. S. Barlingay

A. G. Ratnaparkhi

H.J. Umrigar

Sardar Bahadur

R. Ganapathy Iyer

M. P. Nathwani

R. H.

Dhebar

S. K. DAS

S. K. Das

Article 133(1)

Bhagwantrao Shivaji Patel

Vishwasrao Patel

State of Bombay

Madhya Pradesh

Bombay

Ellichpur

Archalpur

Berar

Shivajirao

Amrit

Bhagwant

Bhagwant

Vishwasrao

Shivajirao

Amritrao

Vishwasrao

ofNawabag

December 19, 19!1

Additional District Judge of Amraoti

High Court of Nagpur

B!tagwantrao

s. 190

s. K. Das

Revenue Code, 1928

Hyderabad

August 31, 1866

Delhi

Shah Abdul Huq

October 24, 1771

E!lichpur

Nawabag

August 28, 1922

Amrit Shivaji Patel

Deo Rao

Amritrao

Moti

Amrit

Shivaji

Moti

Sly

Frank Sly

Walker

August 7, 1918

Amrit Patel

Jagirdar Amerulla Khan

Berar Administration

Standan

s. 3

Section 3

Berar Land Revenue Code, 1928

Rule II and would be governed by Rule

Deshmukh

Deshpandia

clause 2

Patel

Fishwasrao

S. K. Das

Section 9

Sections 10 and 11

s. 20

s. 190

Section 190(1)

Section 192

Madras State

(1921) L.R. 48 I.A. 244

Bhagwantnio

Bannobi Begum

lVIahmudi Begum


S.C.R.

SUPREME COURT REPORTS

R. MUTHAMMAL (Died)

2. PARAMESW ARI THAYAMMAL v.

SRI SUBRAMANIASW AMI DEVASTHANAM,

TIRUCHENDUR

J, l. M uthammaZ

(Died) Parameswari Thayammal v. (S. K. DAS A. K. SARKAR and M. HrnAYATULLAH JJ). Subramaniaswami

' ' Devasthanam

Hindu Law-Exclusion from inheritance-Litnacy, if must be congenital.

A Hindu was found to be a lunatic when succession opened.

It was claimed that under the texts lunacy must be congenital to exclude from inheritance.

Held, under the Hindu law lunacy as distinct from idiocy need not be congenital to exclude from inheritance, if it existed when succession opened.

Muthusami v. Meenammal. (1920) I.L.R. Mad. 464, Wooma Parshad Roy v. Grish Chunker Prochundo, (1884) I.L.R. IO Cal. 639 and Deo Kishen v. Budh Prakash, (1883) I.L.R. 5 All. 5oq (F.B.) approved.

Murarji Gokuldas v. Parvatibai, (1876) I.L.R. l Born. 177 and Sanku v. Puttamma, (1891) I.L.R. 14 Mad. 289,_disapproved.

CIVIL APPELATE JURISDICTION: Civil, Appeal No. 20.0 of 1955.

Appeal from the judgment and decree dated January 20, 1943, of the Madras High Court in A. S. No. 392 of 1943, arising out of the judgment and decree dated March 30, 1943, of the Sub Judge, Tuticorin in

0. S. No. 34 of 1939 .

S. V. Venugopalachariar an\} S. K. Aiyangar, for the appellant No. 2.

A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishna, for respondent No. 1.

1960. January J.1. The judgment of the Court was delivered by HIDAYATULLAH J.-This appeal has been filed on Hidayatul/ah J. leave granted by the High Court of Madras against its judgment and decree dated January 20, 1947, by which the decree of the Subordinate Judge, Tuticorin, dated March 30, 194:3, was substantially modified .

.., 93

r960 Before the application for leave to appeal to the

R. Muthammal Judicial Committee .could be filed, the first defendant (Died) (Ramasami Pillai) died, and the applic:.tion for leave Parnmeswa.i was filed by his widow, R. Muthammal, who was the Thayammal fourth defendant in the suit. R. Muthammal also died

v. . . soon afterwards, and her place was taken by Paramessubrama niaswam• . Th l (h d l b f R D th am wari ayamma er aug 1ter orn o amasam1 '"~" Pillai), who was the fifth defendant in this case. Along Hidayatullah ]. with these three defendants, the other members of Ramasami Pilfa, i's family were also joined as defendants. The suit was filed by Sri Subramaniaswami Devasthanam, Tiruchendur (hereinafter called for brevity, the Devasthanam), and the Devasthanam is the only contesting respondent in this Court.

One Poosa Pichai Pillai had five sons and three daughters, of whom Meenakshisundaram Pillai died on May 21, 1919.

Before his death Meenakshisundaram Pillai executed a registered will on .May 20, 1919, and a registered codicil on May 21, 19'9. By these documents, he left his entire property to his only son, M. Picha Pillai, with the condition that should he die without issue, the property was to go to the Devasthanam . . M. Picha Pillai died a bachelor on December 10, 1927.

Three claimants claimed the property after his death.

The first naturally was the Devasthanam claiming under the gift over to it. The other two were tho heirs of M. Picha Pillai, who asserted that the gift over was void, and Meenakshisundaram's wife's brother and sister, Arunachala Irungol Pillai and N.S. Muthammal (third defendant), respectively, who claimed under an alleged will of M. Picha Pillai. The heirs of M. Picha Pillai were defendants 7, 8, 10, 13 and 14, the father of defendants 9, and the first defendant. These claimants denied the claim of the Devasthanam, contended that the will and the codicil above mentioned gave an absolute estate to M. Picha Pillai, and that the gift over to the Devasthanam was, therefore, void. The Devasthanam filed O.S.No. 57 of 1932 for declaration and possession of the properties covered by the will, together with other reliefs.

During the pendency of the suit, the heirs of M. Picha

• -

Pillai and the present defendants 15 and 16 (two of

I96° the three sons of Arunachala Irungol Pillai) assigned R. Muthammal their interest in favour of the Devasthanam. The (Died) result of the suit, therefore, was that a decree in favour Parameswari of the Devasthanam was passed in regard to the Thayammal interest of the assignors, but it was dismissed as v.. . regards the interest ofN.S. Muthammal (third defend- Suam~iaswami ant) and Pothiadia Irungol ~Pillai (second defendant) evas anam who had not entered into the compromise. It may Hidayatullah ]. be mentioned here that by Ex. D-22, a registered agreement dated May 20, 1928, the heirs had already agreed to give to Arunachala Irungol Pillai and N.S. Muthammal one-eighth share each respectively in the properties of M. Picha Pillai. Thus, by this compromise the Devasthanam received 5/6th share of the properties of M. Picha Pillai, the remaining l/6th, going to Pothiadia Irungol Pillai (l/24th) and N.S.

Muthammal (I/8th).

The Devasthanam filed an appeal in the High Court against the dismissal of the suit in respect of this I/6th share and failed.

An appeal was then taken to the Judicial Committee, which also failed. The judgment of the Privy Council

is reported in Sri Subramaniaswami Temple v. Ramaswamia Pillai (1 ).

Without waiting, however, for the result of the appeal in so far as the I/6th share was concerned, the Devasthanam filed the present suit joining the two sets of claimants for declaration, ejectment and possession by partition of the properties to which it claimed title and for mesne profits. The properties were shown in various schedules annexed to the plaint; but it is unnecessary to refer to those schedules except where the needs of the judgment so require.

One of the contentions raised by the plaintiff-Devasthanam in this suit was that the first defendant, Ramasami Pillai, was not entitled to a share in the properties as an heir of M. Picha Pillai, being a lunatic when succession to these properties opened. On behalf of the first defendant, Ramasami Pillai, who contested the suit through his wife and guardian, R. Muthammal, it was contended that he was :i;10t a

(1) (1950) I M.L.J. 300,

I960 lunatic (buddhi swadeenam illadavar) but only a person of weak intellect (buddhi deechanya matra ), ahd th us, R .. Yuthammal

(Died) he was not excluded from inheritance. This point was Param,.wari the main argument in this appeal, because the two Thayammal Courts below reached opposite conclusions. According v.. . to the Subordinate Judge of Tuticorin, Ramasami Subramamaswami Pillai's plea was correct and proved. The High Court

Devasthanam h h ,. . ' on the other and, eld that the mental de1ect m Hidayatullah J. Ramasami Pillai amounted to lunacy, and that it disentitled him to a share.

Connected with this above matter is the second contention raised by Ramasami Pillai that he was entitled to a I/9th share by virtue of an alleged agreement stated on affidavit in Ex. D-7 by Doraiappa Pillai on April I, 1931. We shall give the details of this contention hereafter. The third contention raised in this appeal and also before the High Court was that the properties described in plaint sch. 4-A were the subject-matter of a decree dated September 19, 1927, in favour of M. Picha Pillai in O.S.No. 35 of 1924 filed by him against his cousins. According to Ramasami Pillai (first defendant), the decree was not executed for a period of 12 years and the claim thereto was, therefore, barred under s. 48 of the Code of Civil Procedure, and thus the Devasthanam was not entitled in this suit to claim possession of those properties.

We shall begin with the question whether Rarnasami Pillai was excluded from inheritance by reason of his mental condition on December 10, 1927. The argument of the appellant is two-fold. The first is on the fact whether Ramasami Pillai was a lunatic within the Hindu law texts. The second is a question of law whether this lunacy was not required to be proved to have been congenital to disentitle Ramasarni Pillai to succeed to his father.

We shall deal with these two questions separately.

In view of the fact that the two Courts below had reached opposite conclusions on the fact of lunacy, we have looked into the evidence in the case, and have heared arguments for the appellant. We are satisfied that the opinion of the High Court is correct in all the circumstances of this case. The argument on behalf

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• -

of the appellant was that in judging this issue we z95o should see the evidence regarding the mental condition R. Muthammal of Ramasami Pillai antecedent and subsequent to (Died) December 10, 1927, the conduct of his father, relatives Parameswari and the other claimants of the property. It was Thayammal contended that Ramasami Pillai was attending school, v. though nothing was shown to us from which we could SuDbramatnhiaswami infer that he had profited by the attempts to educate evas anam

him. The appellant, however, set great store by two Hidayatullah J. documents, Exs. D-1 and D-2, executed by his father, Perumal Pillai, in January and April 1924. By the first, Perumal Pillai released his claim to certain properties in favour of his four sons, mentioning therein Ramasami Pillai without adverting to the fact that he was a lunatic and without mentioning a guardian. By the second, which was a will, Perumal Pillai gave equal shares in his properties to his sons including Ramasami Pillai, and once again without a mention of his mental condition. It was contended that Perumal Pillai was a Sub-Registrar who would know the importance of such a fact and also the law that a lunatic was not entitled to succeed. The fact that the father in these two documents made no mention of the mental condition of his son does not bear upon the present. case for two reasons. The first is that the case of Ramasami Pillai in this suit was that he was quite sane till 1924, and that his mental condition deteriorated only after that year. The second is that the omission by the father to mention this fact might be grounded on love and affection in which the claim of a mentally defective child might not have been viewed by him in the same manner as the law does.

It was next contended that the other heirs recognised the right of Ramasami Pillai in April 1928 and agreed to give him a l/9th share, as has been already stated above. That too would not prove that Ramasami Pillai was entitled, in law, to a share. The compromise (which is also contested) might have been out of motives of charity but might not have been due to the fact that Ramasami Pillai's right to a share was legally entertainable.

The evidence, however, of Ramasami Pillai's mental incapacity is really voluminous.

Between

z96o June ] 924 and till his death, numerous suits were filed

R. Muthammal by different members of the family, including his wife, (Died) his cousins, uncle and aunt, in which Ramasami Pillai Parameswari was always shown as a lunatic requiring the appoint- Thayammal ment of a next friend or a guardian-ad-litem. ln one v.. . case only where Ramasami Pillai was the. second

Suamaiaswam• defendant, an appearance was entered on his behalf evast anam by a vakil, who contended that Ramasami Pillai was

Hidayatullah J. sane and ought to be represented in person. The

Court on that occasion appointed the Head Clerk of the Court as his guardian, and asked him to report about the condition of Ramasami Pillai. Ramasami Pillai was also asked to appear in Court in person, so that the Court might form its own opinion by questioning him. The Head Clerk visited ){amasami l'illai and submitted his report, Ex. P-8, in which he described his observations. It appears that Ramasami Pillai did not even give his name when questioned, and appeared to be moody and silent. The relatives felt that he was hungry and fed him; but even after this, Ramasami Pillai did not give any answers to the questions put to him in the presence of his wife and others. The Head Clerk therefore reported that the appearance of Ramasami Pillai as a gloomy and sickly person with a vacant look and that his inability to answer even the simple question about his name, clearly showed that he was insane. This report was presented to the Court in the presence of the vakil, who had filed the vakalatnama, and on September 20, 1924, an order (0. S. No. 35 of 1924) was recorded by the Subordinate Judge (Ex. P-9). It was mentioned therein that the report was not objected to by the vakil for Ramasami Pillai, and that 1-tamasami Pillai was treated as a lunatic. Ramasami Pillai himself did not appear.

It was contended that this enquiry as well as the fact that in numerous litigations Ramasami Pillai had a guardian or next friend to look after his interests did not prove that he was insane within the meaning of the Hindu Jaw texts; it only proved that he was a person incapable of looking after his interests and for the purposes of the conduct of the suits a guardian or next friend, as the case might be; was necessary. In our opinion, the long and continued course of conduct

• -

on the part of the various relatives clearly shows that I96o Ramasami Pillai was, in fact, a lunatic, and the reµort R. Muthammal of the Head Clerk given in a case long before the (Died) present one was ever contemplated, shows only too ParameswJri clearly that he was, for all intents and purposes, not Thayammal only a person who was slightly mentally deranged but v.. . one who was regarded and found to be a lunatic. There Suram~;•aswami being this evidence, the distinction now sought to be evas ianam made and which appealed to the Subordinate Judge of Hidayatullah 1.

Tuticorin, is not borne out by the evidence in the case. Such a long and continuous course of conduct clearly proves the contention that Ramasami Pillai was, in fact, mad. :Further, in Ex. D-22 dated May 20, 1928, Ramaswami Pillai was not considered as a claimant, and his claims could not have been overlooked by all his relatives simply because they were to get an additional l/72nd share each in the property by reason of his exclusion. Some one of his relatives would have felt the need for asserting the claim on his behalf, if he himself did not do so. In view of the fact that the preponderance of probabilities is in favour of the decision of the High Court, we do not think that the appellant has succeeded in establishing the distinction, which was made in the case, between a lunatic and a person of weak intellect on the evidence, such as it is.

This brings us to the next contention which is one of law. It may be pointed out here that before the Subordinate Judge, Ramasami Pillai did not raise the contention that as a matter of law insanity must be congenital before a person would be excluded from inheritance.

Learned counsel for the appellant explained that it was futile to raise this contention in view of the decision of the Madras High Court in Muthusami v. Meenammal (1), in which it was ruleu that insanity need not be congenital to create the disability, and that insanity at the time succession opened was enough. The point, however, appears to have been raised in the High Court, but it was decided agl}inst Ramasami Pillai. The soundness of this view is questioned in this appeal.

The argument shortly is this : The text of Manu (ix, 201) mentions many causes of exclusion from

(I) (1920) l.L.R. Mad. 464,

i96o inheritance, some of which like blindness, muteness, idiocy and lameness, it is settled, must be congenital R. -~;::,~mal to exclude a person from inheritance. It is argued that Parameswari the collocation of the words in the text suggests that Thayammal insanity like these other disabilities must also be v. congenital. No doubt, the word "Unmatha" comes Subramaniaswami between the words "Jatyandhabadhirau" and" Jadamu-

Devasthanam kascha "; but the rulings have uniformly held that for

Hidayatullah J. madness, the test, that it should be congenital, does not apply. The argument now raised has the support of the opinion expressed by Dr. Sarvadhikari in his Principles of Hindu Law Inheritance (2nd Edn.) p. 846, where the author expounded the text according to rules of grammar, though he was doubtful if according to medical science, madness as opposed to idiocy is ever congenital. The translations of the same text by

Setlur, Gharpure and Dr. Ghose do not admit this interpretation. In Muthusami v. Meenammal (1 ), it was pointed out also that " Unmatha" was not qualified by the word "Jati ". Seshagiri Ayyar, J. observed that " according to Mimamsa rules of interpretation, an adjective qualifying one clause should not by implication qualify a different clause". The counsel on that occasion agreed that this was the correct approach, but relied upon "the opinion of Dr. Sarvadhikari which was not accepted.

Learned counsel for the appellant also referred to the opinion of Colebrooke in his Digest, Vol. II, p. 432.

Colebrooke's translation is based upon the commentary of J agannatha Tarkapanchanana, and it is J agannatha who made no difference between the various disabilities, and opined that madness like blindness or muteness must be also congenital. No doubt, much weight must be attached to the opinion of Jagannatha who was "one of the most learned pandits that Bengal had ever produced ". But this translation of Colebrooke has not been universally accepted, and is not borne out by the original texts and commentaries on the Mitakshara. Dr. Ghose in his Hindu Law, Vol. I, p. 224 has expressed his doubts. The texts of Narada

XIII, 21, 22, Yajnavalkya II,.140-141 and others do not show that the defect of madness must also be

(1) (19zo) l.L R. 43 Mad. 464.

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congenital. In Saraswati Vilasa 148, the emphasis of z96o congenital disability is placed on blindness and R. Muthammal . deafness. Similarly, in Smriti Chandrika, Chap. V, 4, (Died) persons born blind and deaf are mentioned apart from Parameswari madmen and idiots. That idiots must be congenitally Thayammal so, is ruled by the Courts. .

Subram:iaswami The cases that have come before the Courts have Devasthanam all been uniform, except M urarji Gokuldas v. Parvatibai (1 ), where the observation is obiter and Sanku v.

Hidayatullah J.

Puttamma (2), which was dissented from in later cases.

On the other hand, Wooma Pershad Roy v. Grish

Ohunder Prochundo (3), Deo Kishen v. Budh Prakash (4) and other decisions have clearly held the contrary. In two cases before the Privy Council it was assumed that madness need rrot be congenital. It may also be noted that when the Legislature passed the Hindu Inheritance (Removal of Disabilities) Act XII of 1928 making the change to madness from birth as a ground of exclusion the law was not made etrospecitive, thus recognising the correctness of the judicial exposition of the original ' texts. In this view of the matter, we do not think that we should unsettle the law on the subject; nor has it been made to appear to us that any different view is open. We accordingly do not accept the contention.

The result is that Ramasami Pillai was not entitled to succeed to M. Picha Pillai. We now come to the next contention. It is that even if this be the position, Ramasami Pillai was entitled to I/9th share on the

basis of an alleged arrangement evidenced by Ex. D-7 dated April 1, 1931. This document is an affidavit which was filed by Doriappa Pillai (Defendant 8) in a suit (0. S. No. 25 of 1930) filed by him for possession after partition of his I/8th share on the basis of Ex. D-22. In that suit, Ramasami Pillai was the second defendant. Ex. P-5 is the written statement filed on his behalf in which he repudiated that he was excluded from inheritance by reason of his insanity.

This suit was withdrawn on April 2, 1931, with the leave of the Court, with liberty to bring a fresh suit (Ex. D-6). In the affidavit which was filed, it was stated as follows : {r) (1876) I L.R. l Born. 177.

(3) (1884) l.L.R. 10 Cal. 639. 94

(2) (1891) I.L.R. 14 Mad. 289.

(4) (1883) l.L.R. 5 All. 509 \F.B.).

Ig6o

R. 1'vl uthammal (Died) Pnrameswari

Thayanimal

Subra1naniaswami Devasthanam

H idayatull ah ] •

" 5.

Excepting Defendant 9, myself and almost all the Defendants agree to give to Defendant 2 an equal share with others and thus come to some amicable arrangement between us.

6. In view of the ninth Defendant's contentions in the suit and in view of the fact that I have not prayed in this suit for a declaration of my title to the suit properties as against him, I am ad vised that I should withdraw the present suit for partition with liberty to institute a fresh suit as I may be advised.

7. It is therefore just and necessary that I may be permitted to withdraw this suit with liberty to bring a fresh suit properly framed." The Subordinate Judge held on this and the evidence of D.W. 2 that this family arrangement was duly proved, and that Defendant 10 who was present in Court when the above statement was made, did not choose to deny it.

The High Court rightly pointed out that the affidavit did not show the compromise as a completed fact, and also did not accept the word of D.W. 2. The claimants, who are stated to have given a share to Ramasami Pillai, have not been examined. The High Court also noticed that no application for transfer of the pattas was made. In view of these circumstances which are all correct, the appellant cannot be said to have successfully established the family arrangement, and we do not consider it necessary to examine the oral evidence in the case.

This brings us to the last point that Ramasami Pillai was entitled to a share in the properties comprised in Sch. 4-A.

M. Picha Pillai had filed 0.S.

No. 35 of 1924 against his cousins for possession of these properties. The suit was decreed on September 19, 1927. On October 30, 1927, P. Picha Pillai (Defendant 7) and Serindia Pillai sent a notice,. Ex. P-3, informing M. Picha Pillai that he could take possession of the properties covered by the decree. This notice was refused and returned to the senders. M. Picha Pillai died soon afterwards on December 10, 1927. It is contended that the properties thus remained in possession of the judgment-debtors, and the decree not

having been executed, the present suit filed. on October 18, 1939, is barred in so far as those properties are concerned, and the Devasthanam cannot get possession of them.

R. Muthammal (Died) Para1neswari Both the Courts below have concurred in holding Thayammal that M. Picha Pillai must have got possession other- 5 b v.. . • • u raman1aswam1 wise than by execution of the decree, because even Devasthanam D.W. 2 not very friendly to the Devasthanam admitted that M. Picha Pillai was at the time of his death in Hidayatullah J. possession of all the suit properties. The two Courts below also adverted to the fact that for the years, Faslis 1338and1339 the 10th defendant paid the taxes, and this would not happen if the heirs of M. Picha Pillai were not in enjoyment. The fact that the patta stood in the names of the original jdgment-debtors would not indicate anything, because mutations sometimes lag behind change of possession. In view of the fact that the two Courts below have agreed on the finding and there is evidence to support it, we see no reason to interfere.

The question of mesne profits was not pressed, and no other point having been argued, we hold that the appeal has no merits. It will, accordingly, be dismissed with costs.

Appeal dismissed.

BALLAVDAS AGARW ALA v.

SHRIJ.C.CHAKRAVARTY

(S. K. DAS,' A. K. SARKAR and M. HIDAYATULLAH, JJ.)

Criminal Trial-Prosecution for offence under Municipal Act-- Authority to initiate prosecution Delegation of-If private citizen can file complaint-Calcutta Municipal Act, r923 (Ben. III of r923) SS. I2 and 537.

The appellant was convicted of selling adulterated butter under ss. 406 and 407 read with s. 488 of the Calcutta Municipal Act as extended to the Municipality of Howrah on a complaint filed by the Sanitary Inspector on January z, 1954 which was signed in token of sanction by the Health Officer of the said municipality.

The appellant contended that the trial was vitiated for want of a valid sanction because at the relevant time the Health Officer of the municipality did not have any power ta sanction the prosecution. Under the Act the power to institute

.T anitary I5

1. R. MUTHAMMAL (Died) 2. PARAMESW ARI THAYAMMAL

SRI SUBRAMANIASWAMI DEVASTHANAM, TIRUCHENDUR

S. V. Venugopalachariar

S. K. Aiyangar

A. V. Viswanatha Sastri

R. Ganapathy Iyer

G. Gopalakrishna

Subordinate Judge, Tuticorin

March 30, 194:3

R. Muthammal

Ramasami Pillai

Paramessubrama niaswam•

Ramasami Pilfa

Subramaniaswami Devasthanam

Tiruchendur

Poosa Pichai Pillai

Meenakshisundaram Pillai

May 21, 19'9.

M. Picha Pillai

December 10, 1927

Meenakshisundaram

Arunachala Irungol Pillai

N.S. Muthammal

M. Picha

Pillai

Parameswari

ofN.S. Muthammal

Suam

iaswami

Pothiadia Irungol ~Pillai (

Hidayatullah

May 20, 1928

Pothiadia Irungol Pillai

N.S.

Muthammal

Devasthanam

Ramasami Pillai

Ramasami Subramamaswami Pillai

Hidayatullah J. Ramasami Pillai

Doraiappa Pillai

D-7 by Doraiappa Pillai on April I, 1931.

September 19, 1927

s. 48

the Code of Civil Procedure

Rarnasami Pillai

Ramasarni Pillai

Thayammal

SuDbramatnhiaswami

Hidayatullah

Perumal Pillai

Ramasami Pillai Parameswari

Suamaiaswam•

){amasami l'illai

vakil

September 20, 1924

tamasami Pillai

I96o Ramasami Pillai

ParameswJri

Subordinate Judge of Hidayatullah

Tuticorin

Ramaswami Pillai

Ramasami Pillai

Madras High Court

Manu

Sarvadhikari

Setlur

Gharpure

Ghose

Seshagiri Ayyar

Colebrooke

J agannatha Tarkapanchanana

Jagannatha

Bengal

Mitakshara

Narada

Saraswati Vilasa

Smriti Chandrika

Subram:iaswami

Doriappa Pillai

April 2, 1931

Subra1naniaswami Devasthanam

October 30, 1927

P. Picha Pillai

Serindia Pillai

October 18, 1939

Devasthanam

A. K. SARKAR

M. HIDAYATULLAH

ss. 406 and 407

s. 488

January z, 1954