SUPREME COURT REPORTS [1961)

1961 this a. case of. a. receipt of any money or movable properties.; nor is there any question of entering into • Sarda Prasad an agreement or compromise on behalf of the minor. •

LolaJu.:~.PrasaaFor, clearly acceptance of delivery of possession of

- property in terms of the decree in a pa.rtit ion suit, can Das Gupta J. by no stretch of imagination be considered enterig into any" agreement or compromise."

Fbrua,.y 2I.

We a.re therefore of the opinion that Jawala Prasad, the managing member of the family could have given a discharge.of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under s. 7 of the Limitation Act from the date of the decree. The High Court was .therefore right in its conclusion that the application for execution was barred by limitation.

The appeal is accordingly dismissed with costs.

Appe, al dismissed.

HARIDA8 MONDAL

' v.

ANATH NATH MITTRA. (J. L. KAPUR, M. HII~AYATULLAH and J.C. SHAH, JJ.)

Money lending-Reopening of transactions-Successive suits by borrower for relief-Maintainability-Res judicata-Benal Moneylenders Act, r940 . (Ben. X of 1940), s. 36-Code of C•vil Procedure, r908 (ct V of r908), s. II, 0. 2, r. 2. ' ,

'The appellant obtained a preliminary and then a final mortgage decree against the respondent and thereafter a personal decree for the debt remaining due to him after sale of the pro~ pcrty mortgaged: The appellant applied for execution ofthe personal decree 'and thereupon the respondent sued 'for relief under s. 36 of the Bengal Money-lenders Act, r940, by reopening the personal decre, In the suit relief for reopening the preliminary .decree and. final decree was not claimed, The personal decree was reopened in that suit and an instalment decree for a smaller amount passed instead, which was ultimately' upheld', by the High Court. The respondent failed to pay the instalments and the appellant applied for executing the decree; The respondent then filed another suit under s. 36 of the Act for reopening the preliminary and final decrees.

The Subordinate Judge dismissed the suit holding that it was barred as res judicata and the District Judge on appeal affirmed that decision. But the

High Court in second appeal reversed those decisions and direct-

I96I ed the preliminary and the final decrees be reopened and . remanded the case to the trial court for passing a fresh prelimi- Handas Moxdal nary decree. Hence this appeal with special leave.

A v, h M. nath N al '"'~ Held (per Kapur and Shah, JJ.), that s. 36 of the Bengal Money-lenders Act, 1940, contemplated the filing of one and not successive suits for the reopening of transactions ihcluding decrees and ohtaining relief under the Act. If in such a suit, the borrower failed to seek the entire relief he was entitled to and abandoned his right to a part of the relief, he would be precluded from seeking that relief in another suit.

The principle underlying r. 2 of 0. 2 of the Code of Civil Procedure as also t.he principle of res judicata applied to a suit under s. 36 of the Act.

Per Hidayatttllah, J.-When the respondent moved the executing court under s. 36 of the Act he had not filed a suit bnt only an application. It was the duty of the court thereunder to give him full relief although he might not have asked for it.

If the court failed in its duty and he filed a sujt no question of waiver or constructive res judicata could at all arise. This was made clear by the non obstante words of sub-ss. (1) and

(6) of s. 36 and the question that arose under the section was not so much of the right of a party as of the dnty of the court to give entire relief under the Act. The remedies enjoined by the Act were not exclusive of one another, either expressly or by necessary intendment, and were intended to give the widest possible relitif to the borrowers.

Jadhunath Roy v. Kshitish Chandra Achariya Choudhury

(1949) L.R. 76 I.A. 179 and Joy Chand Lal Babu v. Kamalaksha Choudhury, (1949) L.R. 76 I.A. 131, referred to.

Since the Act required that the decrees passed against the respondent had to be reopened, no provision of the Code of Civil Procedure or of equity could bar the suit, the former being expressly excluded and the latter made inapplicable by the substa11tive provisions of the Act.

CrvIL APPELLATE Ju:arsDICTION: Civil Appeal No. 508 of 1957.

Appeal by special leave from the judgment a.nd decree dated June 3, 1955, of the Calcutta. High Court in Appeal from Appellate Decree No. 1090of1949.

N. C. Chatterjee a.nu D. N. Mukherjee, for the a.ppella.nt.

B. C. Panda a.nd P. K. Chatterjee, for the res pondent,

SUPR~ME COURT REPORTS (1961]

1961. February 21.

The Judgment of Kapur and

H~•idas Mondal Shah, JJ. was delivered by Shah, J. Hidayatullah, J. v.. delivered a separate judgment.

'""'"Nath Mitt.a SHAH, J.-To 'secure repayment of Rs. 2,500/- Anath

Shah j.

Nath Mittra-hereinafter referred to as Mittra-mortgaged fonr parcels of land to Haridas Mondalhereinafer referred to as Mondal-hy deed dated April 25, 1930.

Monda! filed suit No. 18 of 1937 on Juno 11, 1937, for enforcement of the mortgage in the Court of the 2nd Subordinate Judge, Midnapore, and obtained a prelimiµary mortgage-decree for Rs. 5,000/- and interest and costs. This decree was made absolute and in execution of the decree, the mortgaged property was sold for Rs. 4,160/- and an amonnt of Rs. 2,176-6-6 ont of the decretal amount remained due and pli.yable under the mortgage decree. Out of the four parcels of land sold, three were purchased by Monda! and the remaining was purchased by Mittra's wife.

Monda! then applied for a personal decree under 0. 34, r. 6 of the Civil Procedure Code and obtained on September 7, 1940, a decree for payment of Rs. 2,338-15-0 against Mittra. Monda] then applied for executing the personal decree by Misc. Execution Case No. 11 of 1941. In the meanwhile, the Bengal Legislature enacted the Bengal Money -lenders Act, 1940, which enabled the courts in certain circumstances to reopen. decrees already passed.

Availing himself of this Act, Mittra filed a suit under s. ::!6 of tho Bengal Money-lenders Act for an order reopening the personal decree. By order dated August 16, 1941, the Subordinate Judge, Midnapoxe, decreed the. suit and directed that a new decree for Rs. 1,431-15-0 be drawn up and tha,.t the amo.unt due under the persona.I decree be pad in three annual instalments. Against. this decree, an agpeal wa.s preferred to the District Court, Midnapore:.. The District Judge dism.issed the appeal a.nd all0; wed the cross, objections filed by Monda!. In Sec0nd Appeal No. 1442 of 1942, the.

High Court of Judicature. at Calcutta. set aside. the.

decNe of the District Judge and rest•ired the. decree of the Subordin.a.te Judge, 2nd Court, Midnapore.

Mittra did not pay the aonnt as directed under the

new decree and Monda! applied for executing the ''"' decree. Mittra then filed another suit under s. 36 H . of the Bengal Money-lenders Act in the 2nd Court of •nd•:.Mo>1dat the Subordinate Judge, Midnapore, for reopening the Anath Nath Miura decrees preliminary and final passed iD the mortgage suit. The Subordinate Judge dismissed this suit as Shah J. it was, in his view, barred as res judicat.a. In appeal to the District Court, the decree was confirmed. But the High Court in Seco.nd Appeal ordered that the preliminary and final decrees be reopened and the case be remanded to the trial court for passing a. fresh. preliminary decree. Against the said decree of the High Court, this appeal is filed with special leave.

Section 30 of the Bengal Money-lenders Act, 1940, provides in so far as it is material that notwithstanding anything contained in any law for the time being in fore(), or in any agreerr.ent, no borrower sha.l! be liable to pay after the commencement of the Act a. sum in respect of principal and interest which, together with any amount already pa.id or included in any decree in respect of a. loan exceeds twice the principal of the original loan and that the borrower shall not be liable to pay interest at rate per annum in cases of secured loans exceeding 8 per cent. simple.

By s. 36, the liability on loans secured or otherwise which contravenes the provisions of s. 30 is liable to be reopend. It is provided by sub-s. (1) of s. 36 in

o far as it is material that notwithstanding anything contained in any law for the time being in force, if in any suit brought by a borrower for relief under this section whether heard ex.parte or otherwise, the court has reason to believe that the exercise of one or more of the powers under the section will give relief to the borrower it shall exercise all or any of the powers specified therein as may be considered appropriate.

The court is invested with the power of reopening

ta.nsactions including taking of accounts be.t'il'.een the parties, of releasing the borrower of ~II liability in e:"tcess of the limits specified in els. (1) and (2) o~ s.30 and of setting aside either wholly or in part, or of revising or a.haring any security given or. a.greement made in respect of any loan. Eii:ercise of these po'l'l'.ers

'96' is subject to the provisos which are not material for

Haridas Monda/ the purposes of this appeal. By sub-s. (2), the court v. reopening a decree is prohibited from doing anything Anath Nath Miura which affects the rights acquired b<ma fide by any

Shah J. person other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened and also to order the judgment-debtor to pay to the decree-holder in such number of instalments &s it may think fit, the whole amount of the new decree passed under cl. (a). The court is further. enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into p9ssession of the property which has been restored to the judgment-debtor and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remained.unsatisfied.

Sub-section (6) provides that notwithstanding anything contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub-ss. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-s. (1), contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed. . Mittra. in the year 1941 filed the suit under e. 36 of the Act for reopening the persona.I decree passed under O. 34, r. 6 of the Civil Procedure Code. In Schedule " A" to the plaint, he sej out the principal a.mount due under the mortgage, the interest at the rate of 8% due thereon from the date of the mortgage till the date of the suit, costs of the suit, a.nQ: after giving credit. for the price realised by sale of the properties, he submitted that Monrlal was entitled to

recover only Rs. 66-13-2 and that Monda! should be '96' declared entitled to that amount in twenty annual a M dal instalments. By a suit under s. 36, Mittra undoubt- Har> as

0 " edly was entitled to reopen the preliminary decree, Anath N":.ih Miura decree absolute for sale and also the personal decree ; but in the first suit, he gave up his right to reopen the Shah J. preliminary decree and the decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittra's wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order passed by the 2nd Court of the Subordinate Judge in the first suit under s. 36 of the Act observed :

" It is admitted before me by the learned pleader for the appellant that the reopening of the entire transaction.will not be to J; he benefit of the appellant and the latter, therefore, does not want this to be done. The only relief he claims is that the new decree passed by the learned Subordinate Judge for Rs. 1,431-15-0 shall be reduced to Rs. 66-13-2 as mentioned in his application under s. 36 of the Act." In the first suit under s. 36 filed 'by Mittra, the claim to reopen the preliminary decree and the decree absolute was deliberately abandoned and he obtained relief expressly on the footing that he did not desire that those decrees should be reopened. Is it thereafter open to Mittra to file another suit for obtaining relief under s. 36 by reopening the preliminary decree and the decree absolute ? In our judgment, s. 36 contemplates filing of one suit and not successive suits for reopening transactions including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower 'does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.

The plea that in the previous suit it was not open to Mittra to make a claim for reopening the

'-{96i: ·. prelimiµary decree and the decree absolute is without if aa M d: i substance. By sub-s. (6) of s. 36, the right to grant

"". : on • relief in proceedings in execution of a decree already Anath Na; h .M111ra passed but whiCh is not satisfied is vested in the court

passing the decree and the first suit under s. 36 was Shah J. filed in the court which had originally passed the mortgage decree. The claim' to reopen the decrees preliminary and final was abandoned not because the corirt was incompetent to grant relief but because l'rlittra did not at that stage desire to reopen those

- decrees; • We are iiriable io agree with the High Court

that to 8.. siiit. under 5, 36 of the Act, the rule con' tamed in 0. 2, r. 2 of the Code of Civil Procedure does

1 hot apply, \Ve are also of the view that the right to Claim relief which could have been but has not been asked for in the previous suit must be regarded as res judicata.. . : . . . . . .· . _. -- - In that view of the ease, this •appeal will be allowed and l'rlittra's suit No. 105 of 194 7 dismissed with costs throughout. . - , -

HidayaMla'ttj. . Hii>AYATULLAH, J.-I have had the advantage of reading the judgment . just delivered -by. my brother, - Shah, J,; but I regret my inability to agree that the judgment under appeal be reversed.·. ·

The appellant, a money, lender, had advanced a sum of Rs. 2,500/' to the respondent on a. simple mortgage of four properties. He filed a suit which , was decreed ori November 13, 1937, when a preliminary decree for Rs, 5,000/• plus costs was passed ag:iinst the respondent •. This. decree was made final on February 25; 1938.

On May. 17, 1939, the four properties were sold for

Rs. 4,160/•, arid the balance then remaining due was Rs. 2,176/-. Three of the properties were purchased by th.El appellant (decree-holder), and the fourth; by the -- wife of the mortgagor;_ . . .

On September 7, 1940, a personal decree for Rs. 2,338-15-3 was passed against the respondent. In 1941, execution of that decree was taken out. •. In the meantime, the Bengal Money-lenders Act had come . into force on August I, 1940. The respondent thereupon made an application under s. 36 of the Bengal Money-lenders Act for reopening the decree. The

•• a s.c.:R.

SUPREME GOURT REPORTS

SS7

rilspolldellt did not say which tlecreil he wantetl rehJ6z opelled; but with his applicatiOll he gave a statement Ha.idas Mond.il of account of the entire amount as reduced under the v.

Bengal M:oney, Jenders Act and by the amount realised Anath Naih Mitt• by sale of the four properties; and asked that a decree . _ . -- . for the balance; Rs. 66-13,2, should be passed against Hidayatullah J; him •. The application was partly allowed, and a fresh decree for Rs. 1,431-15-0 was passed. If the earlier decrees had heell reopened, the amount due would have been Rs. 5,591-15-0, but the Subordinate Judge said :

"As Rs. 4,160/- was paid, I find no necessity of cahcellillg the sale and ordering restitution, but for the balance Of Rs. l,431,15-0, a new decree be drawn tip." The :respondent appealed, antl the appellant crossobjected. The District Judge dismissed the appeal,

a.Howed the cross-objection, and disiliissed the application. On appeal to the High Court by the present respondent, R. C. Mitter, J. allowed the appeal. He held that the personal decree was liable to be reopened, alld restored the decree for Rs. 1,431-15-0 passed by the Subordinate Judge.

The respondent who was directed to pay the amount by instalments under the orders of Mitter, J. made default in payment, and a money execution case was started against him. He; thereupon, brought a suit

under s. 36 of the Bengal Money-lenders Act for reopening the pteliminaty, final and personal decrees.

This 1mit was dismissed as barred by (lonstructive res judicata and the principle of 0. 2, r. 2 of the Code of

Civil Procedure, by the Subordinate Judge, and the appeal to the District Judge also failed. On further appeal to the High Court, K. C. Das Gupta, J. (as he then wa.s) and Guha, J. allowed the appeal. The learned Judges held that 0. 2, r. 2 of the Code of Civil Procedure did not apply to the suit, because it refers to a. previous suit and not to an application filed in execution for relief. They also pointed out that •mder the Bengal Money-lenders Act the duty was laid upon the Court to reopen any decree, if it was likely to give relief to the borrower, and that the relief did not

i96i depend .upon the desire or claim of the borrower. They

HMidas Mondal further pointed out that even Mitter, J. was of the

v. opinion that the relief to be given was incumbent bath N••h Miltra upon the Court and independent of the wishes of the borrower.

Hidayatullah J.

In the appeal before us filed with special leave, Mr. N. C. Chatterjee contended that the suit was barred by res judicata, waiver and estoppel; and that the Divisional Bench of the High Court was in error ill ordering the reopening of the three decrees; when the respondent himself had not asked on the earlier occasion that they be reopened.

The scheme of the Bengal Money-lenders Act is as followJ: The Act, though passed to control moneylenders and to regulate and control money-lending, gave relief to borrowers in many ways. One such way

was to put the limit of what is popularly known it.s Damdupat on interest, and another was .to limit the rate of interest to 8 per cent. simple in the case of secured loans. By s. 36, transactions which contravened these provisions were required to be rnopened. This reopening was not; limited to transactions, but. decrees also were required to be reopened, unless fully satisfied by the first day of January, 1939. The section gave'vast powers to Courts reopening decrees. Sub-section (2) .of s. 36 provided : , " (2) If in exercise of the powers conferred by sub-seQtion (1) the Court reopens a decree, 'the Court-

( a) shall, after affording the parties an opportunity of being heard, pass a new decree in accordance with the provisions of this Act, and may award to the decree-holder such costs in respect of the.reopened decree as it thinks fit, . ·

(b) sh8.ll not do anything which affects any right acquired bona fide by any person, other than the decree-holder, in consequence 9f .the execution of the reopened decree,

(c) shall order the restoration to the judgment. debtor of such prarty, if any, of the judgmentdebtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be inthe possession of the decree-holder on the date on r96r which the decree was reopened, {d) shall order the judgment-debtor to pay to the Haridas Mondal decree-holder, in such number of instalments as it Anath N:; h Miltra may think fit, the whole a.mount of the new decree passed under clause {a), and Hidayatullah ]. {e) shall direct that, in default of the payment of any instalment ordered under .clause { d ), the decreeholder shall be put into possession of the property referred to in clause { c) and that the a.mount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remains unsatisfied. " The stages at which decrees could be reopened were Ia.id down by sub-ss. {l)and (6) ofs. 36. Sub-section (I) provided:

" N otwithsta.nding anything contained in any law for the time being in force, if in any suit to which this Act applies, or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the borrower, it shall exercise all or any of the following powers as it may consider appropriate, ... " Sub-section (6) provided : "Notwithstanding anything contained in any law for the time being in force,- { a) the Court which, in a suit to which this Act applies passed a decree which was not fully satisfied by the first day of January, 1939, may exercise the powers conferred by sub-sections (I) and {2)-

(i) in any proceedings in execution of such decrl'e, or {ii) on an application for review of such decree ma.de within one year of the date of commencement of this Act, and the provisions of rules 2 and 5 of Order XL VII of the First Schedule to the Code of Civil Procedure, 1908, shall not apply to any such application;

Haridas Mondal v.

Anath Nath Mittra

Hidayat"4llak J.

(b) any Court before which an appeal is pending in respect of a decree referred to iu clause (a) may either itself exercise the like powers as may be exercised under sub-sections (1) and (2), or refer the case to the Court which passed the decree directing such Court to exercise such powers, and such Court shall after.exercise thereof return the record with the additional evidence, if any, taken by it and its findings and the reasons therefor to the Appellate Court and thereupon the provisions of rule 26 of Order XLI of the First Schedule to the Code of Civil Procedure, 1908, shall apply." The words "suit to which this Act applies" were defined to mean :

"2 (22) ...... any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a proceeding in execution- ( a) for the recovery of a loan advanced before or after the commencement of this· Act;

(b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or

(c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act. " Bys. 2(21), "suit" included an appeal. The definition was still further widened for purposes of s. 36 [ vide sub-s. (3)] ; but nothing turns on it.

The effect of these provisions may be summed up: The reopening of transactions and decrees could be achieved: -

(a) in any suit to which the Ac.t applied;

(b) in a suit brought by the borrower for relief under s.-36;

( c) in any proceeding in execution of decrees ;

(d) by an application for review of'Thdecree made within qne year of the d&te of oommencement of the Act; and

•••

(e) by a.ppella.te Courts a.t a.II the above stages. r96L.

Onoe the Court wa.s moved, the aotion of 'the Court Haridas Mond•l wa.s dictated by the Act, and the Court was compelled v. by the Aot to give full relief.

The Court in this case Anath Nath Mitt•• wa.s required by la.w to reopen a.II the decrees passed age.inst the respondent. Irideed, R. C. Mitter, J. quite Hlday•l•l/ah J. correctly pointed out :

"In this oase the judgment-debtor was entitled to ha. ve all the decrees, namely, the preliminary, final a.nd the personal decrees reopened. He should not ha. ve been refused relief simply because he had asked for the reopening of the personal decree only if there ha.d been a contravention of the provisions of seotion 30 of the Bengal Money-lenders Aot." The learned Judge, however, declined to remand the case for the application of the Act or even to apply it himself, because he felt that what was asked for by .the respondent should at least have been granted, and he granted only that relief. The law, however, gave no such option. It wa.s mandatory, and laid a duty upon the Court.

The respondent then filed a suit, and asked for all the reliefs which the Court had to award, and there oa.n be no doubt that unless the suit be incompetent, the Act must be applied even now, because the volition of the borrower is entirely out of place in the a.pplica.- tion of the Act. The respondent no doubt, when he applied on the previous occasion, asked that the Act be applied only so far as benefited him; but his wishes were irrelevant, and the Act ha.d to be applied, as it stoqd. Every one who has dealt with this case ha.s felt this to be the true position in law. ·

Thus, the question is whether the respondent was precluded from bringing the suit. The suit could be barred under s. 11 or 0. 2, r. 2 of the Code of Civil Procedure, or by the application of the principle of constructive resjudicata, or because of waiver, estoppel or the equitable principle of approbation and reprobation. The opening words of sub-s. (1) and again of sub-s. (6) of s. 36 a.re : "Notwithstanding anything contained in a.ny 1111'\f for the time beins in foroe ",

1961 and they are apt to put out of consideration both

Haridas Mondal: s. 11 and O. 2, r. 2 of the Code of Civil Procedure. v.

Waiver and the equitable doctrine of approbation and Anath Nath Mittra reprobation can apply only if a right were give up.

They can have no application where the question is Hidayatullah J. not so much of a right of a party as of the duty of a

Court under the Act. The Court was.moved, and had to do its duty. If it can be moved a second time by another proceeding, neither those principles nor the principle of constructive res judicata can apply.

The remedies which are enjoined by the Act are not exclusive of one another, either expressly or by necessary intendment. As tile law stands, the Court could take action t0 enforce it at almoHt any stage of the proceedings between the parties commenced by the creditor, and, in addition, in proceedings or a suit commenced by the borrower. The intention of the law is clear and manifest that borrowers must be protected. Indeed, in Jadunath Roy v. Kshitish Chandra Achariya Choudhury('), the Judicial Committee hflld that the preliminary, the final an.ii the personal decrees in a suit to enforce a simple mortgage were all connected and were, in effect, one decree only, and there could be no question of reopening one decree and not the others. And in Joy Chand Lal Babu v. Kamalaksha Choudhury('), a consent decree in a mortgage suit, which combined the preliminary, the final and the personal decrees into one decree, was held to be properly reopened. The decrees passed against the respondent were required by Jaw to be reopened, and no provision of the Code of Civil Procedure or o.f eqity could bar the suit. The first was excluded expressly, and equity was hardly applicable in view of the Jaw on the subject. Indeed, by the suit even the decree of Mitter, J. could be reopened, if it did not comply with the law.

In my opinion, the order of t.he Divisional Bench of the Calcutta High Court, with respect, is correct, and to hold otherwise is to decline to give effect to the protection, which the Act has oedulously erected in

(z) (194(_1) I.. H, 7~' I.A. 131.

3 S.U.R.

SUl'RElllE COCRT HEPOHTS 893

Harida5 .J!Ondal

favour of borrowers an'.! against rapacious moneylenders. I find myself in such complete agreement with the judgment impugned, that I do not find it necessary to cover the same ground.

Anath ,, Vath 1.llittra I .would, therefore, dismiss the appeal with costs.

BY COURT.-In view of the majority judgment of the Court, this appeal will be allowed and Mittra's Suit No. 105 of 1947 dismissed with costs throughout.

THE COMMISSIONER OF INCOME-TAX,

BOMBAY

M/s. FILMISTAN LTD. (J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)

focome-tax-J'cnalty for failure to pay tax-Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2),

46(I).

Against an order imposing penalty under s. 46(1) of the Indian Income-tax Act on account of failure to pay an instalment of Income-tax, an appeal was preferred. Though the memorandum of appeal was presented within the period of limitation, the tax was paid after the period of limitation prescribed for presenting the appeal had expired.

Held, that the expression "t-<o appeal shall lie" in the proviso to s. 30(2) of the Indian Income-tax Act means that the appeal cannot be held to be properly filed until the tax is paid, and not that no memorandum of appeal may be presented.

The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2) ...of the Act is that the appeal will be deemed to be filed on the date when the tax due is paid and the question will then have to be decided whether there is sufficient cause for condonation of delay.

CIVIL

APPELLATE

JURI8DIUTIO:\ : Civil Appeal No. 451 of 1960.

Appeal from the judgment and or<lcr dated September 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8 of 1957.

/{. N. Rujar; opol s,1,1n: a11d /J. Unpta. fu,. the appell<tnt.

Hidayatullah j.

FebYuary 21,

Jawala Prasad

s. 7

Limitation Act

HARIDA8 MONDAL

ANATH NATH MITTRA

L. KAPUR

C. SHAH, JJ.

s. 36

s. 36

s. 36

Kapur

Shah

s. 36

Bengal Money-lenders Act, 1940

the Code of Civil Procedure

s. 36

Hidayatttllah

s. 36

s. 36

(1949) L.R. 76 I.A. 179

(1949) L.R. 76 I.A. 131

the Code of Civil Procedure

Calcutta. High Court

N. C. Chatterjee

D. N. Mukherjee

Mondal Shah

Nath Mitt.a SHAH

Monda

Monda

Mittra

September 7, 1940

Bengal Money-lenders Act

August 16, 1941

Subordinate Judge, Midnapoxe

District Court, Midnapore

High Court of Judicature. at Calcutta

s. 36

Section 30

Bengal Money-lenders Act, 1940

s. 36

s. 30

s. 36

Haridas Monda/

Anath Nath Miura

first day of January, 1939

Section 36

Monrlal

s. 36

Anath N":.ih Miura

District Judge, Midnapore

s. 36

s. 36

s. 36

s. 36

s. 36

s. 36

s. 36

the Code of Civil Procedure

HidayaMla'ttj

Hii>AYATULLAH

November 13, 1937

February 25; 1938

May. 17, 1939

August I, 1940

s. 36

rilspolldellt

Bengal M

Anath Naih Mitt•

Hidayatullah

R. C. Mitter

Mitter

s. 36

K. C. Das Gupta

Guha

the Code of Civil Procedure

HMidas Mondal

N••h Miltra

N. C. Chatterjee

s. 36

s. 36

Haridas Mondal

Hidayatullah

1st day of January, 1939

s. 36

Anath Nath Mitt••

s. 11

the Code of Civil Procedure

s. 36

s. 11

the Code of Civil Procedure

Anath Nath Mittra

the Code of Civil Procedure

Calcutta High Court

S.U.R.

.J!Ondal

COMMISSIONER OF INCOME-TAX,

BOMBAY

M. HIDAYATULLAH

SHAH

Income-tax Act

ss. 30

s. 46(1)

Income-tax Act

s. 30(2)

Income-tax Act

s. 30

N. Rujar

Hidayatullah


3 S.U.R.

SUl'RElllE COCRT HEPOHTS 893

Harida5 .J!Ondal

favour of borrowers an'.! against rapacious moneylenders. I find myself in such complete agreement with the judgment impugned, that I do not find it necessary to cover the same ground.

Anath ,, Vath 1.llittra I .would, therefore, dismiss the appeal with costs.

BY COURT.-In view of the majority judgment of the Court, this appeal will be allowed and Mittra's Suit No. 105 of 1947 dismissed with costs throughout.

THE COMMISSIONER OF INCOME-TAX,

BOMBAY

M/s. FILMISTAN LTD. (J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)

focome-tax-J'cnalty for failure to pay tax-Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act, r922 (II of r922), ss. 30, sub-ss. (I) and (2),

46(I).

Against an order imposing penalty under s. 46(1) of the Indian Income-tax Act on account of failure to pay an instalment of Income-tax, an appeal was preferred. Though the memorandum of appeal was presented within the period of limitation, the tax was paid after the period of limitation prescribed for presenting the appeal had expired.

Held, that the expression "t-<o appeal shall lie" in the proviso to s. 30(2) of the Indian Income-tax Act means that the appeal cannot be held to be properly filed until the tax is paid, and not that no memorandum of appeal may be presented.

The effect of proviso to s. 30, sub-s. (r) read with sub-s. (2) ...of the Act is that the appeal will be deemed to be filed on the date when the tax due is paid and the question will then have to be decided whether there is sufficient cause for condonation of delay.

CIVIL

APPELLATE

JURI8DIUTIO:\ : Civil Appeal No. 451 of 1960.

Appeal from the judgment and or<lcr dated September 18, 1957, of the Bomu>1y High Court in I.T.H.. Ko. 8 of 1957.

/{. N. Rujar; opol s,1,1n: a11d /J. Unpta. fu,. the appell<tnt.

Hidayatullah j.

FebYuary 21,

z96I

Commissioner of

lncomela~.

Bombay

SUPREME COURT REPOUTS ' [1961]

Bishan Narain, S. N . .Andley, J. B. Dadaehanji, Rqmeshwar Nath and P. L. Vohra, for the respondent.

1961. February 21. The Judgment of the Court was delivered by

M/s.Filmistan°Ltd.

KAPUR, J.-This iR an appeal pursuant to a certi-

Kapur]. ficate of the High Court of Bombay under s. 66A(2) of the Indian Income-tax Act (hereinafter called the " Act").

For the year of assessment 1949-50 the respondent was assessed to a sum of Rs. l,80,6i6/14/- as income-tax andsuper-tax on June 2, 1954. A notice of demand under s. 29 of the Act was served on the respondent to pay that amount on or before July 17,

1954. On his application the respondent was allowed to pay by instalments. .. The last instalment of Rs. 30,646/14/- was payable on or before March 20,

1955. As there was a default in the payment of this instalment the Income-tax Officer ou March 31, 1955 imposed a penalty of Rs. 3,000/ under s. 46(1) of the Act. On April 20, 1955 the respondent filed an appeal to the Appellate Assistant Commissioner but by that date the last instalment had not been paid and it was paid on May 16, 1955. The Income-tax Officer raised a. preliminary objection before the Appellate Assistant Commissioner that the appeal was not competent because the last instalment of the tax had not been paid.

This was upheld by the Appellate Assistant Commissioner. Against this order the respondent took an appeal to the Income-tax Appellate Tribunal which held that the right of appeal was conferred by s. 30(1) of the Act and is not taken away by s. 30(2) of th~

Act, only the remedy is barred. It further held that as the right had not been destroyed the appeal became good appeal as soon as the assessee paid the arrears of tax and the only effect of the payment on May 16, 1955, was that the appeal shall be taken to have been preferred before the Appellate Assistant Commissioner on that date an<l it was then for the Appellate Assistant Commissioner to decide whether it was a fit case for extension of time and con<lonation of delay.

The Tribunal therefore directed the.Appellate Assistant Commissioner to dispose of the appeal in accordance with law. At the instance of the Commissioner

3 S.C.R.

SUPREME COURT B, EPO.RTS 895

of Income-tax, who is the appellant before us, the '96' Tribunal stated the following question of law to the Commi,, ioii" of ' High Court:- /,, come-to.• "Whether the appeal filed before the Appellate Bombay Assistant Commissioner Oil 20th April, 1955, became . v;. a proper and complete appeal though barred by M/s.FilmistanLld. limitation and the Appellate Assistant Commissioner

I<;;,,: J. should have decided the question of the condonation of delay?" The High Court answered the question in the affirmative; The Commissioner of Income-tax has come in appeal n.gainst this judgment ..

Appeals are provided against assessments under s. 30 of the Act. There is a proviso to .s. 30(1) in regard to the payment of taxes in the following words:

" Provider! that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid." The controversy between the parties revolves round the words "no appeal shall lie ." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper. In our opinion the meaning of the words " no appeal shall lie " in the proviso is not that no memorandum of appeal can be presented. All that it means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is pa.id after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation.

The question will then have to be decided whether there was sufficient cause for condona.tion of delay and that is exactly what the Tribunal had ordered

SUPHEME COURT REPORTS [1961]

1961 and that in our opinion is the effect of the proviso to

Commissio"" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is

Income-tax, unnecessary therefore to refer to the two cases referred Bombay to by the High Court, i.e., Raja of Venkatagiri v. Com . •·. missioner of Income-tax (1) and Kamdar Brothers v. Con, M/s.F•lmistanLtd.missioner of Income-tax(').

Ka-;::; J.

The appeal is without force and is therefore dismissed with costs.

Fbruary 2I.

Appeal dismissed.

DEVIDAS AND OTHERS

SHRISHAILAPPA AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)

Mortgage-Non-joinder of parties-Proper, but not necessary, party added beyond limitatior>-Suit instituted on behalf of joint family-Plaintiff not described as manager in the plaint-M ainlainability of suit-Indian Limitation Act, z908 (9 of I908), s. zz.

The manager of an undivided Hindu family consisting of himself, his brother and their step-mother •.. instituted a suit for recovery of the amount due under a mortgage belonging to the family.

The step-mother who was interested in the mortgagee right was not made a party to the suit. Though the manager (the first plaintiff) did not describe himself as the manager in the plaint, the allegations in the plaint showed that the suit was filed on behalf of the joint family. No objection as to non-joinder was raised in the trial court, but when the appeal was pending in the High Court the step-mother was added as a party on her application .. The contesting defendants pleaded that as all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage, and the first plaintiff did not, in any Gase, purport to institute the suit in his capacity as the manager, the suit must fail.

Held: (I) that the failure to join a per.son who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of s. 22 of the Indian Limitation Act, 1908 ;

(2) that the question whether a suit was instituted by the manager of an undivided Hindu family in his personal capacity or as representing the family depends upon the circumstances of each case and that the failure of the plaintiff to describe himself as the manager in the plaint is not decisive of the question.

(1) (1955) 28 l.T.R. 189

(2) (1955127 l.T.R. 176,

Mittra

THE COMMISSIONER OF INCOME-TAX,

BOMBAY

s. FILMISTAN LTD.

M. HIDAYATULLAH

c:SHAH, JJ.

Income-tax Act

ss. 30

s. 46(1)

Income-tax Act

s. 30(2)

Income-tax Act

s. 30

Hidayatullah

Bishan Narain

S. N . .Andley

B. Dadaehanji

Rqmeshwar Nath

P. L. Vohra

Filmistan°Ltd.

s. 66A(2)

Income-tax Act

s. 29

March 20,

1955

March 31, 1955

s. 46(1)

April 20, 1955

May 16, 1955

Income-tax Appellate Tribunal

s. 30(1)

s. 30(2)

s. 30

s. 30(1)

section 46

s. 30(1)

s. 30

DEVIDAS

SHRISHAILAPPA

L. KAPUR

c. SHAH

Limitation Act

s. 22

Indian Limitation Act, 1908


SUPHEME COURT REPORTS [1961]

1961 and that in our opinion is the effect of the proviso to

Commissio"" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is

Income-tax, unnecessary therefore to refer to the two cases referred Bombay to by the High Court, i.e., Raja of Venkatagiri v. Com . •·. missioner of Income-tax (1) and Kamdar Brothers v. Con, M/s.F•lmistanLtd.missioner of Income-tax(').

Ka-;::; J.

The appeal is without force and is therefore dismissed with costs.

Fbruary 2I.

Appeal dismissed.

DEVIDAS AND OTHERS

SHRISHAILAPPA AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)

Mortgage-Non-joinder of parties-Proper, but not necessary, party added beyond limitatior>-Suit instituted on behalf of joint family-Plaintiff not described as manager in the plaint-M ainlainability of suit-Indian Limitation Act, z908 (9 of I908), s. zz.

The manager of an undivided Hindu family consisting of himself, his brother and their step-mother •.. instituted a suit for recovery of the amount due under a mortgage belonging to the family.

The step-mother who was interested in the mortgagee right was not made a party to the suit. Though the manager (the first plaintiff) did not describe himself as the manager in the plaint, the allegations in the plaint showed that the suit was filed on behalf of the joint family. No objection as to non-joinder was raised in the trial court, but when the appeal was pending in the High Court the step-mother was added as a party on her application .. The contesting defendants pleaded that as all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage, and the first plaintiff did not, in any Gase, purport to institute the suit in his capacity as the manager, the suit must fail.

Held: (I) that the failure to join a per.son who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of s. 22 of the Indian Limitation Act, 1908 ;

(2) that the question whether a suit was instituted by the manager of an undivided Hindu family in his personal capacity or as representing the family depends upon the circumstances of each case and that the failure of the plaintiff to describe himself as the manager in the plaint is not decisive of the question.

(1) (1955) 28 l.T.R. 189

(2) (1955127 l.T.R. 176,

In the present case, the step-mother was not a necessary party, and the facts showed that the suit was instituted by the first plaintiff in his capacity as manager. Accordingly, the suit was maintainable.

Guruvayya Gowda and Others v. Daltatraya Anant and Others

(1904) I.L.R. 28 Born. rr, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 112of1957.

Appeal by special leave from the judgment and decree dated Januarv 28, 1954, of the Bombay High Comt in :First Appeal No. 69 of 1950.

Pur8hottam T1ikamdM and Nanni! Lal for .the appellants.

C. K. Daphtary, Solicitor.General of India, S. N.

Andley, J.B. Dadachanji and P. L. Vohra for respondents Nos. 1 and 2.

B. R. L. Iyengar for respondents Nos. 6 to 9.

1961. February 21. The , Judgment of the Court was delivered by

SHAH, J.-The genealogy which sets out the relationship bet\\een some of the principal parties in this litigation is as follows:

I Balappa

I I I Rachappa Ba!!a\inga ppa deft. 9 (adopted by l Basavanappa) Chanamalappa

I Malappa (deft. 5)

I Chanabasappa (deft, 6)

Mallappa

I I Shivappa

I Basavanappa

I Basalingappa

(Parvatewa

respdt. 12)

I I Shrisbailappa (plaintiff 1)

I I Balappa Basavanappa (adopted by (deft. 7) Cbanamalappa

I Chanamalappa

I Balappa

I Sbivappa (plaintiff :z)

Shrishadappa

(deft. 8)

Mallappa had four sons Bala.ppa, Shiva.ppa, Basava.nappa. and Chanamalappa. These four sons formed a. joint Hindu family. Chanamalappa separated himself from the joint family sometime in the year 1909 and his other three brothers continued to remain joint. Shivappa was the Manager of the joint family

DeuidtJs

SllrJshailappa

Shah ].

 r96r

Devidas

v. Shrishailappa

Shah I

898 StJPREME COURT REPORTS [1961]

after the death of Mallappa. Shivappa died in 1928 and Rachappa became the Manager of the family.

The joint family possessed lands in seventeen villages and many houses in Khanapur. The family had also a.n extensive money.lending business. One Biishetta.ppa Neeli-hereinafter referred to as Bashettappawas married to the sister of Rachappa. On July 29, 1929, Bashettappa executed a deed of simple mortgage in favour of Rachappa in respect of certain parcels of lands and houses belouging to him to secure repayment of Rs. l,73,000/-, Rs. 76,700/- out of which were received in cash and the balance represented a.mounts which Rachappa agreed to pay to Bashettappa's creditors. To one Gurappa, Bashettappa owed Rs. 8,000/- as an unsecured debt and Rachappa agreed to pay that debt. In Insolvency Application No. 22 of 1929 of the file of the First Class Subordinate Judge, Dharwar, Bashettappa was adjudicated an insolvent and receivers were appointed by the Insolvency Court to administer his estate. The receivers applied for a declaration that the mortgage deed in favour of Rachappa was in fraud of creditors and ; was accordingly void. The Assistant Judge, Dharwar, in Appeal No. 25 of 1934 from the order of the Insolvency Court held that Rachappa was entitled out of the mortgage amount to recover Rs. 45,700/- as a secured debt and Rs. 31,000/- as unsecured debt. Gurappacreditor of Bashettappa-in the meanwhile filed Suit

No. 84of1932 against Rachappa and other members of his family in the court of the Frst Class Subordinate Judge, Dharwar, for a decree for Rs. 8,000/' claiming that Rachappa had, acting on behalf of the joint family of which he was the man'1ger, undertaken under the deed of mortgage to pay that amount and that he-Gurappa-had accepted that undertaking.

A decree e; i; pr; irte was passed in~ that sui_t against Rachappa on February 28, 1933, and the claim against the other members of the family was either withdrawn or rejected. On July 23, 1939, the three branches .of the joint family by mutual agreement severed the joint status and properties movables and immovables belonging to the family were <livided.

Pursuant tq

" '

3 S.C.R.

SUPRE~IE COURT REPORTS 899

this division, lands and houses which fell to the shares of the three branches were mutated in the Revenue and Municipal records in the names of the managers of the respective branches. Movables were also divided. The mortgage amount recoverable from Basliettappa and a claim against one Desai were, it is the case of the plaintiff in the suit out of which this

appeal arises, kept joint. Gurappa after making certain infructuo11s attempts to execute the decree filed dharkhast No. 176 of 1940 to recover .Rs. 11,061-6.9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated July 29, 1929. One Ganpatrao N. Madiman-hereinafter referred to as Madimanoffered the highest bid at the court auction and the mortgage bond was sold to him for Rs. 20,000/-. An application. filed by Rachappa for setting aside the sale pleading that the sale was vitiated by material irregularities and fraud in publishing and conducting the sale was rejected.

The mortgage bond was delivered by the executing court to Madiman and orders were issued against Bashettappa and the receivers of his estate prohibiting them from making payments of the dues under the mortgage or any interest thereon to any person or persons except the purchaser Madirnan. In Miscellaneous Application No. 57 of 1944, Madiman applied to the Insolvency Court to be recognised as an unsecured creditor for Rs. 31,000/-, and the application was granted on the footing that the entire inter0b't under the mortgage bond was purchased by him. Receivers appointed by the Insolvency Court thereafter put up for sale the equity of redemption in the mortgaged properties and the same was purchased for Rs. 15,500/- by Madiman.

The sale deed in this behalf was executed by the receivers in favour of Madirnan on' January 28, 1947. Madiman accordingly became the owner of the equity of redemption and claimed to be entitled to the entire mortgagee right as a purchaser of the right, title and interest of Rachapp.a.

Basalingappa who was the natural brother of Hachappa and was adopted by his uncle Basavanappa died in 1946 leaving him surviving his widow

J 1.5

I96I

Devidas

Shrishailappo

Shah J.

Devidas v.

Shrisltailapa

Shah].

Parvatewa, and two sons Shrishailappa and Shivappa.

The sons of Basalingappa who will hereinafter be . referred to as the plaintiffs filed Suit No. 253 of 194 7 for a decree for Rs. 1,23,400/- by enforcing the mortgage deed executed by Bashettappa claiming that Madiman had at the court auction acquired in t.he mortgagee right only the right, title and interest of Rachappa which was a third a.nd the plaintiffs and defendants 5 to 8 sons of Shivappa continued to remain owners of the remaining two-third share. The plaintiffs prayed for a decree that the amount due under the mortgage be awarded to them and in default of payment the amount be realised by sale of the mortgaged property. To this suit were impleaded Bashettappa as defendant No. 1, receivers of his estate as defendants Nos. 2 and 3, Madiman as defendant No. 4, sons of Shivappa as defendants Nos. 5 to 8 and Rachappa. and his son as defendants Nos. 9 and 10. Madirnan died after the institution of this suit and his sons were impleaded as defendants Nos. 4A to 4C and his widow as defendant 4D.

Madiman's sons were the principal contesting defendants and the me.in contentions raised by them were:

(1) tha, t the mortgagee right wa, s the separate property of Rachappa and it did not belong at a, ny time to the joint family of Rachappa defenda, nts 5 to 8 a, nd the plaintiffs, (2) that in any event, at the partition between the three branches the mortgagee right lrnd fallen to the share of Racha, ppa a, nrl that it was not kept undivided as alleged by the plaintiffs, and (3) that in Execution Petition No. 176 of' 1940, the entire interest of the joint family \rns old aud it was purcha, sed by Madi. man and consequently, the plaintiffs could not enforce the mortgage. The trial court 110gatived the contentions raised bv the sons of Madinia.1i. and held that only a third shaie in the mortgagee right was purchased at the court auction by Madiman. The court accordingly passed a decree against defondants Nos. 4A to 4D for pay. ment of Rs. 60,933-5-4 and proportionate costs with future intPrest at 6°1,, per annum "" Rs. 30,466-10-8

~ I '

' ' II

""".""1-1',.---:··~ ·,\ . "._;. 3 s.C:IL SU PH EM!<: cuuil1: '1tEPOR'fS ',_". , ' 901 . ·;_.,_,_,, ... ,• .. ' ' ' '. from , the date of the suit to the plaintiffs and defendants 5 to 8 within. six months and in uefanlt of payment for sale of the mortgaged property. Against that decree, defendants 4A to 4C-hereinafter referred to as the appellants-appealed to the High Court at Bombay. The High Court held that the .mortgagee right belonged to the joint family, that the agreement to pay Rs. 8,000/· to Gurappa was not binding upon ' that family and therefore in execution . of the decree passed in favmir of Gurappa_only the right, title and interest of Rachappa was purchased by Madiman. The High Court further held that there was in 1939 ·severance ofjoint family status between the members of the family of Rachappa, plaintiffs and others, but as in the state of the record in the view of the court a finding on the question whether the mortgage debt was kept undivided could not be recorded, they remanded the case for recording a finding on the following issue : '' \Vhether it is proved that the mortgage debt of 29th July, 1929, fell to the share of defendant No. 9 · at the family partition of July, 1939, " and directed the trial court to allow both the parties to lead evidence upon this issue and to certify its findings thereon. The trial court recorded a negativt> finding on that issue. It held that the mortgage claim .was kept undivided at the partition. The High Court confirmed this finding. and dismissed the appeal filed by the appellants, subject to a slight modification as to the rnte of interest awarded by the trial court . . \Vith special leave under Art. 136 of the Constitution, this appeal is preferred. , . . · .. No serious argument was advanced before us on the

plea that the amount due under the mortgage from Bashettappa was not the property of the joint family.

At the material time .when the mortgage deed was executed by .Bashettappa, Rachappa was the manager of the joint family.

In Suit Xo. 84 of 1932 tiled by Gurappa it was alleged that Rachapp:i. was the manager of the joint family consisting of himself and the branches of Shi\appa and 1fa~; wanappa, arnl tha.t the mortgage trans;\ction was for t hl• hem tit of tlw joint family and that Rachappa ha<l entered into that . . ' - .

Devidas

Slirishailap'pa

S/iah ].

z,6I

. DMdas

Shmhailappa

Sha~}.

SUPREME COUHT REPORTS [1961]

transaction for and on behalf of the joint family, and in that suit Rachappa alone was declared liable to pay Rs. 8,000/-.

Partition of the year 1939 is supported by evidence which has remained unchallenged. Intimation was given to t.he village and Municipal authorities pursuant to the partition for mutating the names of the different branches to whom the shares were allotted. The evidence of Rachappa and Mallappa that the partition took place also has remained uncontradicted.

The question which calls for consideration is whether at . the partition, the mortgagee right under the deed executed by Bashettappa was kept undivided.

Mallappa defendant No. 5 in his evidence wh.en he was examined after remand stated that " an equal division was made of the lands according to the income and that Racha.ppa was not given a smaller share in the lands." He alsll stated that the houses were divided in equal shares and the outstandings in the money-lending busines8 except, two bonds-the mortgage bond, executed by Bashettappa and one Desaiwere kept undivided.

He denied the suggestim;1 that the mortgage d<lht due from Bashettappa was allotted exclusively to Rwhappa. l{achappa in hiH evidence, also stated that the mortgage bond was kept undivided between the three branches and that. it was not true that it was allotted to bis share at the partition.

Devidas----, defendant No. 4A-had evidently no. personal knowledge rtbout, this partition or the terms thereof.

HiR st:ttement that Rachappa had told him at the time when Madiman offered his bid at the court auction that the mortgage bond was allotted exclusively to Rachappa's share could not in the circumstances of the case be true itn<l was r.ightly disbelieved by the trial court and the High Court.

On an analysis of t, hc various entries on the record of rights relating to the lauds held by the three branches, the trial Judge held that the plaintiffs' father had received at the partition lands admeasuring 203 acres 18 gunthas assessed at Rs. 233-1.0, defendants 5 t, o 8 had received 127 acres 29 gunthas of lands assessed at Rs. 262.6-0 and Rachn.ppa had received

3 S.C.R SUPREME COURT ltEPORTS , 903

:,;<';.

.<'1'\~: 122 acres 18 gunthas of lands assessed at/; RS 232-6-0 "in addition to a number of lands whose';.reas and assessment were not known". In theviewOf the trial court, this supported the plea that the partition of lands was not unequal. It appears from entries inthe record of rights that Rachappa received at the partition lands producing annually 86 bags of paddy, defendants 5 to 8 received lands p!'oducing 92 bags of paddy and Basalingappa received for his share lands producing 89 bags of paddy. It also appears from the village Panchayat extracl s that the family was possessed in 1938-39, of 30 houses which stood in Rachappa's name as m>inager and the total rental of those houses was Rs. 1,262/,. These .30 houses we're also divided : 16 houses were allotted to defendants 5 to 8, 10 houses to lachappa and 3 houses to the plrtintiffs and this d.ivision was not shown to be uneq 1ml.

According to the trial Judge, the movables were also equally divided. The view of the trial judge as to the equality "f the division of the houses, lands, movables and outstandings was confirmed by the High Court.

The High Court accordingly held agreeing with the trial Judge that the mort.gagee right was left undivided.

Prima facie, the question whether at a partition between members of a joint Hindu family certain property was left undivided is a question of fact depending upon appreciation .of evidence.

Before the trial court and the High Court there was evidence of defendants 5 and 9 corroborated by the division of the properties movable and immovable, indicating that the mortgage claim was left undivided and this court according to its settled practice regards that conclusion as binding.

But counsel for the appellants submitted that to certain important circumstances which appeared from the evidence, due weight was not attached by the trial Court and the High Court.

[Their Lordships then considered the arguments urged on behalf of the appellants and concluded.] We would not be justified in an appeal with special leave in discarding that finding because some other 'evidence which could have been brought before the court in support thereof was not tendered.

nevidas

Siu ishailappa

Shah].·

Dtvidas

Shrishailappa

Slush J.

904 cl.'Pl:lEME ()JUKT l:lEPORfc l Hl61 J

It was also urged that once it is proved that there is a partition of the joint family, it must be presumed that all the properties are partitioned and whoever alleges that any propert.y was kept undivided, the burden of proving that fact lies upon him, and reliance in support thereof was placed upon the decision of the Judicial Committee of the Pri vv Council in Rajah Kishen Dutt Ram Panday v. Narendar Rahadoor Singh (1 ). But the case of the plaintiffs here is not that the members of the family remained joint qua the mortgagee right but that it was not allotted to any member of the family because it was the subject. matter of pending litigation. Qua that property also the three branches were divided and it was since the partition of their tenancy-in-common. It was the case of the plaintiffs that the property was not divided by metes and bounds, as it could not be, pending the settlement of the disputes.

After the case reached the High Court after remand, counsel for the appellants raised an argument about non-joinder of Parva'.tewa-step-mother of the plaintiffs. It was urged tltr, t the suit as framed was defective and was bound to fail.

Parvatewa was undoubtedly interested in the mortgagee right and was not joined as a party to the suit. But no objection as to non-joinder was raised in the trial court.

After the finding of the trial court was received, Parvatewa applied to be joined as a party respondent in the appeal and that application was granted by the High Court. Relying upon the application and the order passed by the High Court, counsel for the appellants urged that the suit filed by the plaintiffs was not properly 0onstituted because all persons having an interst in the mortgage security were not joined as parties withi~ the period of limitation prescribed for a suit to enforce the mortgage. The partitior. of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint faJY1ily status between members of these three branches inter se was severed.

Plaintiff" No. 1 was the manager of the branch of

(I) (1875) L.R. 3 l.A. 85.

3 s.e.Ri.

SUPREME COURT REPORTS 005'

BM!ava.napp& and when he filed the suit for enforce. ment of the mortgage, he must be deemed to have filed it as manager of that branch, and the allegations in the plaint especially in paragraph 4 make it abund. a.1ltly clear that the suit was filed on behalf of t.he br&nch of Basa vana ppa. Plaintiff No. 1 therefore represented a.II the members of that branch having an interest in the pr6perty.

In Guruvayya Gowda and Others v. Dattatraya Anant and Others (1 ), it was held that the question of the right of a. manager to sue in that capacity is one of authority. If the other co.sharers are adults and the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early -stage, the objection on the score of want of authorisation being one of a character which it is clearly open to the defendant to waive. Parvatewa was in the suit as constituted not a necessary party.

It is true that she was interested in the mortgage security and could have been joined as a proper pil.rty; but failure to join a person who is a proper but bot a necessary party does not affect the maintainability of the suit nor does it invite the application of s.• '22 of the Indian Limitation Act. The rule that a. person who ought to have been joined as a. plaintiff to the suit and is not made a. party will entail dismis. sal of the suit, if the suit as regards him be ba.rreci.by limitation when he is joined, has no application to non-joinder of proper parties. In Gurumyya' a case (1) a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff being described as the manager of the family. At a. late stage of the suit, defendants raised an objection that the other members of the family had not been joined.

The trial court allowed the application filed by the other members to be joined as parties and decreed the suit; but the appellate court dismissed the suit holding that it was barred because of s. 22 of the Limitation Act. The High Court held that s. 22 of the

(1) (190•) I.L.R. 28 Bo111. p.

Shiidai)appu

ShdJ.

,~,

Bevidfis

SArislu!iltV>J>•

Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the

illlltitution of a suit in all oases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired. Such a result must depend upon whether the joinder was necessary'to enable the court to award such. relief as may be given in the suit as framed. If fresh parties are merely joined fur the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined p&rties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of tha Limitation Act.

Pie.in tiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 bad the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that-the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must he regarded as instituted by plaintiff No. 1 in his capacity as manager and he must he deemed to represent all the members of his branch of the family, males as well as females.

Addition to the suit of any member of the branch to whillh the plaintiffs belonged would only mean setting

out the nanw of such a person eo nomine. _

All the objections raised by the appellants theEefove fail and the appeal is dismissed with costs.

Appeal diamiaaed, -

s. 30(1)

s. 30

DEVIDAS AND OTHERS

SHRISHAILAPPA AND OTHERS

L. KAPUR

M. HIDAYATULLAH

c. SHAH, JJ.

Limitation Act

s. 22

Indian Limitation Act, 1908

Pur8hottam T1ikamdM

Nanni! Lal

C. K. Daphtary

S. N.

Andley

J.B. Dadachanji

P. L. Vohra

B. R. L. Iyengar

SHAH

I Balappa Basavanappa

Shrishadappa

Mallappa

Chanamalappa

Shivappa

Devidas

Shrishailappa

Mallappa. Shivappa

Rachappa

Khanapur

July 29, 1929

Bashettappa

Gurappa

Frst Class Subordinate Judge, Dharwar

February 28, 1933

July 23, 1939

Basliettappa

Desai

Ganpatrao N. Madiman

Madiman

Madirnan

Insolvency Court

January 28, 1947

Rachapp.a.

Basalingappa

Hachappa

Basavanappa

Shrishailappa

Basalingappa

Bashettappa

Madiman

Rachappa

Madirnan

Madiman

Racha

High Court at Bombay

29th July, 1929

Art. 136

.Bashettappa

Rachapp

Devidas

Slirishailap'pa

Mallappa

Mallappa

Racha.ppa was

Desaiwere

Rwhappa

Rachn.ppa

lachappa

Parvatewa

Limitation Act

Gurumyya

s. 22

Limitation Act

s. 22

Shiidai)appu

ShdJ.

Limitation Act

Limitation Act

theEefove


3 S.C.R.

SUPREME COURT REPORTS

SMT. PADMINI KUNWAR JU SAHIBA

!!.

STATE OF VINDHYA PRADESH.

(now Madhya Pradesh) (P. B. G AJENDRAGADKAR, K. N. W ANCHOO and K. c. DAS GUPTA, JJ.)

Jagif Abolition-] agirdar-ljaredar, meaning of-Lambardari least, if ]agir-Vindhya Pradesh Abolition of ]agirs and Land Reforms Act, I952 (II of I952), s. 2(I)(c).

In 1945 the Ruler of Panna granted a " Lambardari lease" in certain villages to the appellant. By a notification dated January l, 1954 issued under the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, the respondent resumed the appellant's right. The appellant contended that she was not a jagirdar within the meaning of the Act and the notification was without the authority of law. The respondent contended that the appellant was an "Ijaredar" and fell within the inclusive .. part of the definition of "Jagirdar" in s. 2(1)(c).

Held, that the appellant was not a Jagirdar and her right under the Lambardari lease could not be resumed under the Abolition Act. In the context in which the word "Ijaredar" was used ins. 2(1)lc) it meant a person holding an Ijara which was a lease or farm of land revenue or other proprietary right as distinguished from other kinds of leases. The Lambardari lease granted the appellant was not a mere farm of land revenue but it conferredghts in the land itself. It was not a mere Ijara, the appellant was not a mere "Ijaredar" and was not covered by the definition of Jagifdar in s. 2(1)(c).

Thakur Amar Singhji v. State of Rajasthan (1955] 2 S.C.R. 303, applied.

ClvIL APPELLATE JURISDICTION: Civil Appeal No. 250of1956.

Appeal from the judgment and order dated January 17, 1955, of the former Judicial Commissioner's Court, Vindhya Pradesh, in Misc. Civil Writ Application No. 105 of 1954.

G. 8. Pathak and G. 0. Mathur for the appellant.

B. Ganapathy Iyer and B. H. Dhebar for the respondent.

1961. February 21. The Judgment of the Court WM delivered by

x96x W ANCHOO, J.-This is an appeal on a certificate . . granted by the Judicial Commissioner of Vindhya.

Smt.Pcdm1n1 p d h Th b. ff fi Ku wa Ju Sahiba ra es . e rte acts necessary or present pur- . " ~- poses are these: The appellant filed a petition under State of Art. 226 of the. Constitution praying that the order of Vindhya Pradesh the Deputy Commissioner, Panna, issued on December 29, 1953, to the effect that the appellant's rights Wanchoo J. in certain villages would be resumed from January l, 1954, in pursuance of the notification of the Government of Vindhya Pradesh dated December 20, 1953, under s. 5 of the Vihdhya Padesh Abolition of Jagirs and Land Reforms Act, No. XI of 1952 (ereinafter called the Act) resuming all jagirs with a gross annual :ncome of Rs. 1,000/- or above, be quashed.

The appellant's case was that she was granted as a special case a Lambardarilease in certain villages by His Highness the Maharaja of Panna on December 7, 1945, for a period of thirty years and had been in possession thereof in accordance with the terms of the lease.

The appellant contended that she. was not a jagirdar within the meaning of the Act and thus the said notification did not apply to her lands and the order issued by the Deputy Commissioner under the said notification was therefore without the authority of law and liable to be quashed. She contended further that she was not a jagirdar under any law, rules, regulations or orders governing jagirdars irl force in any part of the State, and therefore her lands could not be resumed in the manner in which the resumption-had been made.

The petition was opposed on behalf of the State and it was contended that the appellant was a jagirdar within the meaning of that term in the Act. The learned Judicial Commissioner held that the appellant was an Ijaredar and therefore a jagirdar within the meaning of s. 2 (1) (c) of the Act. In oonsequenoe he dismissed the petition. An application was then ma.de for a certificate to appeal to th!a, Court, which was

granted and that is how the appeal has come up before us.

The only q uestiou that falls for our decision is whether the appellant can be said to be an Ijareda, r

within the meaning of s.2 (1) (c) of the Act. A "ja.girdar " is defined in s. 2 ( 1) ( c) a.s meaning smt. Padminl "any person recognised as a J agirdar under any Kunwar Ju S•h•b• law, rules, regulations or orders governing Jagirv. de.rs in force in any part of the State and in- State 0! eludes an .Ilakedar, a Pawaidar, a sub-Pawaidar Vindhya Pradesh (in direct relation with the Government or otherwise), wa.Choo ;. an Ijaredar, au Ubaridar, a Zamindar, a Muafidar and a Grantee of Jagir land from a Jagirdar." "Jagir land" is defined ins. 2 (I) (d) as meaning" any land in which or in relation to which any jagirdar has rights as such in respect of land revenue or any other kind. of revenue." Under s. 5 of the Act it is provided that "as soon as may be after the commencement of this Act, the State Government may, by notification in the Official Gazette, appoint a date for the resumption of any class of jagir lands and different dates may be appointed for different classes of jagir-111-nds. " It was under this provision that the notification resuming je.gir-lands with a gross annual income of Rs. 1,000/- or above was issued.

It is not in dispute that the lands were not granted to the appellant by the Ruler of Panua as a. jagir. It is also not in dispute that the appellant was not recognized as a. jagirdar under any law, rules, regulations or orders governing jagirda.rs in force in any pa.rt of the State. The contention on behalf of the State was that the appellant is included in the inclusive pa.rt_ of the definition of the word "jagirdar" in s. 2 (1) (c) as she was an Ijaredar. Now the words used in the inclusive part of the definition have not been defined anywhere in the Act. It appears that some of those. words are words of common use while others are not.

For example, the Rewa. Land Revenue and Tenancy Code deals with a Pawaidar, a sub.Pawaidar and Ilakedar who is a big Pawaidar. It is not clear whether the ot.her words used in the inclusive part of the definition of" jagirdar" appear in any other laws in force in the various States which amalgamated to form the State. of Vindhya Pradesh, though the word "Ubarida.r" appears to be somewhat uncommon and must have Rome special local significance. It will

1961 therefore be not unreasonable to hold tha.t where these . . words used in the inclusive pa.rt of the definition Smt. Padmin•. appear in a.ny la.w in force in a,; y part of the State, Kunwar Ju SaMba they must have tha.t meaning; but if they do not

sia: of a.ppea.r in any such law they must be given their Vinahya P•ad•sh ordinary meaning. The Judicial Commissioner in his judgment says that" an Ijaredar a.s such has not been Wanchoo J. defined under any la.w relating to la.nd revenue a.nd tenancy in force in any pa.rt of Vindhya Pradesh." Therefore, the word "lja.redar" must be given its ordinary meaning. Now the ordinary meaning of the word "Ija.ra" from which the word "lja.reda.r" is derived is a. lease or farm f land revenue or other proprietary right a.s distinguished from a patta or lease of la.nd for cultivation, though sometimes it is used to indicate just a. lease of la.nd of any kind. The question then is wha.t meaning should be given to the word "Ija.redar ... ins. 2 (1) (c) of the Act. We are of opinion that considering the setting in which the word "Ija.redar " has been used in the section, it must ta.ke colout from it a.nd cannot be held to mean a.ny lease of la.nd of whatever .kind. In the setting in which the word is used it should in our opinion be confined to a. person holding a.n Ija.ra which is a. lease. or farm of la.nd revenue or other proprietary right a.s distinguished from other kinds of leases of land.

The next question is whether the lease in this particular case is a. lease of la.nd revenue or other proprietary right as distinguished from lease of la.nd of other kinds. The lease in the present ca.se is called a.

La.mbarda.ri lease, though it a ppea.rs tha.t the system of La.mba.rda.ri leases wa.s abolished in the State of .l:'a.nna long ago a.s a.ppea.rs from pa.ragra.ph (2) of Cha.p. II of the Revenue Administration Ma.nua.l of the Pa.nna. State prepared by J. E. Goudge, Settlement Officer, Bundelkha.nd States, in 1907. It ha.s been stated in tha.t pa.ragra. ph tha.t " th~ system of La.mba.rda.ri lea.see ha.a been abolished a.nd rents will in future be realised by the Da.rbar direct from ea.ch tenant through the za.minda.rs of the village." Za.minda.r in tha.t

a.rea. is a petty village official for the purpose of collecting rents a.nd has no interest in the la.nd from which

3 S.C.R.

SUPREME COURT BEPORTS 911

he collects rent. It does appear from this paragraph 1961 that a La.mbardari lease originally was a kind of lease ""'' Pa•m•ni of land revenue; but such leases were abolished in thel>unwa, Ju Sahiba area. from which this case comes long ago. It is true v, that this lease is ca.lied a Lam bardari lease but the State of mere name will not matter and we have to see whether Vindhya Pradesh this was a lease of land revenue.

Wanckoo J.

This brings us to the terms of the lease. The lease starts by saying that the villages given in lease have an average annual income of Rs. 1,242/4/· payable in two instalments in the months of June and December.

The lease is to last for thirty years and the lessee has to pay the entire amount (namely, Rs. 1,242/4/-) as lease money which will remain the same. for the whole period of thirty yea.rs.

The lease also provides that if within this t.ime any settlement is made and the revenue is increased or the Lambardar increases the income by inhabiting the villages, the La.mbardar herself will be entitled to reap this additional benefit.

The lease further provides that if for any reason the rent of land is decreased then the Lambardar will not be entitled to any decrease in the lease money. It is clear from these terms that the Lambardar stood to gain nothing by this lease and no part of the land revenue was left to her except where there was an increase in revenue on account of a future settlement.

The lease further provides that if during the period of lease the Lambardar makes any improvements, i.e., plants, groves and orchards, makes bandhB and bandhia (i.e., large and small dams) she will be entitled at the end of the lease to sell or mortgage them and the benefit of the improvements will go to her. Lastlyand this is an important term of the lease-it is provided that the lessee's right to mortgage and sell the lands will be governed by the laws of the State and if the law is amended afterwards it will be governed by the amended laws. These clauses in the lease clearly show that what the appellant was getting was not merely a lease of land revenue but actual rights in the lands including the right to cultivate them herself.

Reading therefore the lease as a whole it does not

appear that it is a mere lease of land revenue or other proprietary right. It is something more and actually

iy61 gives the lessee the right to a.II lands which were not in the a.ctua.l cultivation of tenants at the time of the

I!.. sme. P1 ad"5'i''.; b lease. The lessee wa.s entitled to make improvements, unwar u aru a v. to plant groves and orchards and to make damslarge state of and sma.11. She was a.lso entitled to mortgage a.nd Vindhya Pradesh sell the lands .which she might bring into her own cultivation in a.ccorde, nce with the Ia ws of the State.

Wa•choo f.

It is difficult under the circumstance• to hold that this wa.s a mere Ija.ra and the appellant was a mere Ija.redar within the meaning of that word as mentioned above. There is a certain element of lease of Ia.nd revenue in this lease though that was not likely to bring any profit to the appellant;. but the lease is much more than a mere ljara of this kind and actually confers on the appellant rights in land not in the a.ctn ii cultivation of the tenants at the time of the lease. In the circumstances we cannot agree with the learned J udicia.l Commissioner that the transaction evidenced by this lease is a mere Ijara in the sense explained above and the appellant is a mere Ijaredar who comes within. the meaning of that word in s. 2(l)(c). The lease in our opinion confers rights in lands a.nd is much more than an I jar a. In the circumstances the appellant cannot be held to be a mere ljaredar covered by the definition of that word as used in s. 2(l)(c). The case of the appellant in our opinion is similar to the case put forward in. Petition No. 392 of 1954 with respect to Khandela estate (see Thakur Amar Binghji v. St.ate of RajMthan(')). There also wa.s an Ijara or lease on payment of an a.nnua.l assessment of Rs. 80,00 I and it wa.s held that it was not covered by the terms of the Raja.sthan La.nd Reforms and Resumption of Jagirs Act. The present case in our opinion is similar and we are of opinioa that the lease granted in this ca.se cannot make the appellant a mere Ija.redar within the meaning of tha.t word ins. 2(l)(c).

We therefore allow the ap}>t; lal and set aside the order of the Deputy Comm{ssioner

resuming the appellant's villagPs. The appellant will get her costs from the State of Madhya Pradesh, which is the successor to the State of Vindhya Pradesh.

Appeal allowed.

\I) [l9j$] a S C.R. 303, ~07.

PADMINI KUNWAR JU SAHIBA

K. c. DAS GUPTA, JJ.

Land Reforms Act

s. 2(I)(c)

s. 2(1)(c)

s. 2(1)(c)

(1955] 2 S.C.R. 303

G. 0. Mathur

B. Ganapathy Iyer

B. H. Dhebar

Art. 226

Wanchoo

January l, 1954

Government of Vindhya Pradesh

December 20, 1953

s. 5

Panna

December 7, 1945

s. 2

s. 2

s. 5

Panua

s. 2

Land Revenue and Tenancy Code

Ilakedar

Vindhya Pradesh

J. E. Goudge

Ju Sahiba

Wanckoo

s. 2(l)(c)

s. 2(l)(c)

Reforms and Resumption of Jagirs Act

State of Madhya Pradesh

State of Vindhya Pradesh