{"document_id": "1961_3_563_578_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREME COURT REPORTS 563\n\ntribunal has considered all the relevant factors and has come \"to the conclusion that five months' bonus Standa:.i-;,., •• ,.\n\nwould meet the ends of justice.\n\nWe do not see any Refining co. of reason to interfere with this award.\n\nIndia In the result both the appeals fail and are disv. b h Its Worknten missed. There will be no order as to costs in ot the appeals.\n\nGajendragadkar ].\n\nAppeals dismissed.\n\nBHAGWATI SARAN AND ANOTHER v.\n\nTHE STATE OF UTTAR PRADESH. (B. P. SINHA, C.J., s. K. DAS, A. K. SARKAR,\n\nN. RAJAGOPALA AYYANGAR AND\n\nJ. R. MUDHOLKAR, JJ.) Iron ad Steel Control-Notification fixing maximum prices- W hether ultra vires-If notification discriminates between \"controlled stockholders\" and\" registered stockholders \"-Report to Magistrate- Facts constituting the offence, meaning of-New Point-Iron and Steel (Control of Production and Distribution) Order, r94I, Cl. IIB -Essential Supplies (Temporary Powers) Acl, r946 (XXIX of\n\nr9~). s. II-Constitution of India, Art. r4.\n\nA police officer made a report under s. II of the Essential Supplies (Temporary Powers) Act, 1946, regarding a contravention of cl. .n-B(III), Iron and Steel (Control of Production and Distribution) Order, 1941, read with s. 8 of the Essential Commodities Ordinance, 1955 to the Magistrate against the appellants who were registered stockholders that they had sold iron bars at prices higher than the controlled rate. After enquiry the Magistrate framed a charge against the appellant under s. 7, Essential Supplies (Temporary Powers) Act •. 1946, read with cl. ll-B(III) of the Control Order. The appellants contended that the charge ought to be quashed on the grounds, (i) that the notification of the Controller fixing the maximum sale price of the several categories of iron and steel was ultra vj1es the rule-making power in\n\ncl. n-B(i) of the Control Order, (ii) that the notification was discriminatory and violated Art. 14, and (iii) that the complaint could not be taken cognisance of by the Magistrate because the report of the police officer did not set out the facts constituting the offence as required by s. II of the Act. The first two grounds were raised for the first time before the Supreme Court.\n\nHeld, that the notification fixing the rates was intra vires\n\ncl. n-B(i) of the Control Order. The notification did not omit any class mentioned in cl. n-B(i) from its purview; it included\n\nI96I\n\nJanuary io.\n\nI96I\n\nBhagwati Sara'lt\n\nStale of Uttar Praiesh\n\n\"registered producers\" and it was not shown that there were any \"producers\" other than \" registered producers\" enumerated in the notification. The notification governed \"registered stockholders\"' also as they were included in the residuary category of persons other than \" registered producers \" and \" controlled stockholders \".\n\nThe notification was not discriminatory and did not offend Art. 14 of the Constitution. The notification no doubt permitted the grant of credit facilities and the right to charge for cutting and wastage in sales to \"controlled stockholders'\" but not to \"registered stockholders\" in regard to sales by them. Differentiation was not per se discrimination. There was no material to show that there was any unfair or irrational discrimination which could attract Art. 14.\n\nH ela, further, that the police report on which the prosecution was launched satisfied the requirements of s. rr of the Act.\n\nThe purpose of s. rr was to eliminate private persons from initiating prosecutions and to confine it to public servants. The requirement of the section that the report should be in writing and should set out the fact's constituting the offer.ce was to ensure that there was a record that the public servant was satisfied that a contravention of the law had taken place. If the contravention was sufficiently designated in the report the requirements of the section were satisfied. Section II did not require the mention in the report of details which would be necessary to be proved to bring home the guilt to the accused.\n\nDr. N. G. Chatterji v. Emperor (1946) 47 Cr. L.J. 876 and Rachpal Singh v. Rex (1947) 50 Cr. L.J. 469, not applicable.\n\nAdditional grounds, other than those urged before the High Court, would not lJe permitted to be raised before the Supreme Court as a matter of course, but only, in exceptional circumstances like cas ..... -\n\nSUPRE~IE COURT REPORTS - [1961] \\\" '' . -. -. ·. \\ ' '. .\n\n'9~' -n. N. Mukherjee, for the a.ppella.nts •. ....\n\nJnter•atio•al '\\ . N. C. ChlJtterjee a.nd R. R. Biswas, for respondents Confra ' .\n\n- SUPRElllE COURT REPORTS [1961]\n\n~ ,\\.\n\n\". I96' . ' .From these obsef ations itwould -appear as if the\n\nState of' learned Judges of the High Court were differing from ll!adhya Pradesh the learned Sessions Judge in his conclusion as regards v. the application of section 84 to the facts of the present Ahmaaullaio case. They however, continued:\n\nAyyangar ].\n\n·:.-·\n\n\"The Sessions Judge was satisfied that the defence has discharged the onus of proving that at • -the -time of •/the commission of the offence the accused was mentally so unsound as not . to know that the act was wrong and contrary to law. Now -it is for the/ State to establish in appeal that the finding is perverse and that there are compelling reasons why that decision should be reversed.\". and it is ori this ground that the learned Judges dismissed the ap ea! by the State. - - _ We find our elves wholly unable _to ccmcur with this _ conclusion or ith the reasoning on which it. is rested.\n\nThe learned /Judges failed to appreciate that the error in the Ndgment of the Sessions Judge lay not . so much in4he implicit acceptance of the testimony . of the fathe of the accused-because he was obvi-\n\n. ously an int ested witness, and of this the appellant.\n\nState could rtainly and justifiably complain-but in proceeding on a basis wherein.inferences and probabi- . lities_ resting on assumptions were permitted to do duty for proved facts, which . the statute required to be established before the exemption under the section could be claimed; Refusal to interfere with an acquital in such circumstances could hardly be justified under\n\nny ruleas to. \"impelling reasons\" for interference even assuming the existence of such a rule. The error : in the judgment of the High Court consisted in ignor- ,·- ing the fact that there was nothing on the record on the basis of which it could be said that at the moment of the act, the accused was incapable of knowing that what he was doing was wrong or contrary to law.\n\nIn this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Perry(') where also the defence was that the accused _ had been prone to have fits of epileptic insanity. • During the course of the argument Reading, -C.J., observed:\n\n(1) 't Cr. Appeal Rep. t8,\n\n\"The crux of the whole question is whether this '96' man was suffering from epilepsy at the time he comf . d h . 0 h , 't ld b t Stale o m1tte t e crime. t erw1se I wou e a mos Madhya Pradeslo dangerous doctrine if a man could say, 'I once had v. an epileptic fit, and everything that happens here- Ahmadullah after must be put down to that'.\" In dismissing the appeal the learned Chief Justice Ayyangar J. said:\n\n\" Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing-that is, the physical nature and quality as distinguish11d from the moral-or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong ...... There is, however, evidence of a medical character before the jury, and there are statements ma.de by the prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilepsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved.\" We consider that the situation in the present case is very similar and the observations extracted apply with appositeness. We consider that there was no basis in the evidence before the Court for the finding by the Sessions Judge that at the crucial moment when the accused cut the throat of his mother-in-law and severed her head, he was from unsoundness of mind incapable of knowing that wha.t he was doing was wrong. Even the evidence of the father does not support such a finding. In this connection the Courts below ha.ve failed to take into account the circumstances in which the killing was compassed. The accused bore illwill to Bismilla and the act was committed at dead of night when he would not be seen, the accused\n\nx96x taking a torch with him, access to the house of the\n\n5 1 deceased being obtained by stealth by scaling over a Madh;:'•;.adesh wall. Then again, there was the mood of exaltation v. which the accused exhibited after he had put her out Ahmadullah of her life. It was a crime committed not in a sudden mood of insanity but one that was preceded by careful Ayyangar f. planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy.\n\n]anua,.y a7.\n\nThe appeal is therefore allowed, the order of acquittal passed against the respondent set aside and in its place will be substituted a finding that the respondent is guilty of mQJ.'der under s. 302 of the Indian Penal Code. In the normal course the proper punishment for the heinous and premeditated crime committed with inhuman brutality would have been a sentence of dee.th. But ta.king into account the fact that the accused ha.a been acquitted by the Sessions Judgea.n order which has been affirmed by the High Courtwe consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life. It is needless to add that the State Government will take steps to have the accused treated in a.n asylum until he is cured of his illness, if this still continues.\n\nAppeal allowed.\n\nARDESHIR H. BHIW ANDIWALA\n\nti.\n\nTHE STATE OF BOMBAY. (JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.) Factory-Sall Works, whether a factory-Premises, if include open land-Manufacturing process-Conversion of sea water into\n\nsalt-Factories Act, z948 (LXIII of I948), ss. 2(k) and (m), 92.\n\nThe appellant was convicted of an offence under s. 92 of the Factories Act, 1948, for working a salt works without obtaining a licence. The salt works extended over an area of about\n\n250 acres. The only buildings on this land were temporary shelters for the resident labour and for an office; at some places there were pucca platforms for fixing the water pump wh•ll", "total_entities": 71, "entities": [{"text": "STATE OF MADHYA PRADESH", "label": "PETITIONER", "start_char": 1086, "end_char": 1109, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "AHMAD ULLAH", "label": "RESPONDENT", "start_char": 1111, "end_char": 1122, "source": "metadata", "metadata": {"canonical_name": "AHMAD ULLAH", "offset_not_found": false}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 1126, "end_char": 1138, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "N. RAJAGOPALA AYYANGAR, JJ.", "label": "JUDGE", "start_char": 1143, "end_char": 1170, "source": "metadata", "metadata": {"canonical_name": "N. RAJAGOPALA AYYANGAR", "offset_not_found": false}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1280, "end_char": 1297, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 84, 3", "label": "PROVISION", "start_char": 1299, "end_char": 1308, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1405, "end_char": 1411, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1419, "end_char": 1436, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "lnlef'national Contractors Ltd.", "label": "PETITIONER", "start_char": 2003, "end_char": 2034, "source": "ner", "metadata": {"in_sentence": "75\n\nI96I\n\nlnlef'national Contractors Ltd.\n\nPrasanta Kum at\n\nSur\n\nKapur J.\n\nz96z\n\nz96I\n\nState of Madhya Pradesh\n\nAhmaduUah\n\n584 SUP):tEME COURT REPORTS [1961]\n\ncommitted, the burden of proving which lies on the accused in order to entitle him to the exemption provided under s. 84 of the Indian Penal Code. ."}}, {"text": "State of Madhya Pradesh", "label": "RESPONDENT", "start_char": 2080, "end_char": 2103, "source": "ner", "metadata": {"in_sentence": "75\n\nI96I\n\nlnlef'national Contractors Ltd.\n\nPrasanta Kum at\n\nSur\n\nKapur J.\n\nz96z\n\nz96I\n\nState of Madhya Pradesh\n\nAhmaduUah\n\n584 SUP):tEME COURT REPORTS [1961]\n\ncommitted, the burden of proving which lies on the accused in order to entitle him to the exemption provided under s. 84 of the Indian Penal Code. .", "canonical_name": "STATE OF MADHYA PRADESH"}}, {"text": "s. 84", "label": "PROVISION", "start_char": 2267, "end_char": 2272, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2280, "end_char": 2297, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Henry Perry", "label": "OTHER_PERSON", "start_char": 2449, "end_char": 2460, "source": "ner", "metadata": {"in_sentence": "Henry Perry, 14 Cr."}}, {"text": "s. 84", "label": "PROVISION", "start_char": 2748, "end_char": 2753, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2761, "end_char": 2778, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 3176, "end_char": 3188, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the appellant."}}, {"text": "AYYANGAR", "label": "JUDGE", "start_char": 3318, "end_char": 3326, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nAyy•\"lf•• J.\n\nAYYANGAR, J.-This is an appeal by special leave by the State of Madhya PNl.desh against the dismissal of an appeal preferred by it to the High Court of Madhya Pradesh (Gwalior Bench) which declined to reverse the order of acquittal passed by the Sessions Judge holding the respondent not guilty of an offence under s. 302 of the Indian Penal Code.", "canonical_name": "AyyangaYJ"}}, {"text": "State of Madhya PNl.desh", "label": "ORG", "start_char": 3373, "end_char": 3397, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nAyy•\"lf•• J.\n\nAYYANGAR, J.-This is an appeal by special leave by the State of Madhya PNl.desh against the dismissal of an appeal preferred by it to the High Court of Madhya Pradesh (Gwalior Bench) which declined to reverse the order of acquittal passed by the Sessions Judge holding the respondent not guilty of an offence under s. 302 of the Indian Penal Code."}}, {"text": "High Court of Madhya Pradesh (Gwalior Bench)", "label": "COURT", "start_char": 3456, "end_char": 3500, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nAyy•\"lf•• J.\n\nAYYANGAR, J.-This is an appeal by special leave by the State of Madhya PNl.desh against the dismissal of an appeal preferred by it to the High Court of Madhya Pradesh (Gwalior Bench) which declined to reverse the order of acquittal passed by the Sessions Judge holding the respondent not guilty of an offence under s. 302 of the Indian Penal Code."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3633, "end_char": 3639, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3647, "end_char": 3664, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 84", "label": "PROVISION", "start_char": 3884, "end_char": 3889, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3897, "end_char": 3914, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 84", "label": "PROVISION", "start_char": 3996, "end_char": 4001, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 84", "label": "PROVISION", "start_char": 4415, "end_char": 4425, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4433, "end_char": 4450, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 105", "label": "PROVISION", "start_char": 4992, "end_char": 4998, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 5000, "end_char": 5019, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bismilla", "label": "OTHER_PERSON", "start_char": 5337, "end_char": 5345, "source": "ner", "metadata": {"in_sentence": "Before we do so, however, we shall narrate a few facts regarding which there is no dispute : The deceased Bismilla was related to the accused-respondent as the mother of his wife Jinnat whom he had divorced."}}, {"text": "Jinnat", "label": "OTHER_PERSON", "start_char": 5410, "end_char": 5416, "source": "ner", "metadata": {"in_sentence": "Before we do so, however, we shall narrate a few facts regarding which there is no dispute : The deceased Bismilla was related to the accused-respondent as the mother of his wife Jinnat whom he had divorced."}}, {"text": "September 28,\n\n1954", "label": "DATE", "start_char": 5594, "end_char": 5613, "source": "ner", "metadata": {"in_sentence": "Bismilla went to bed in her own house on the night of September 28,\n\n1954."}}, {"text": "Court of Sessions Judge, Gwalior", "label": "COURT", "start_char": 7207, "end_char": 7239, "source": "ner", "metadata": {"in_sentence": "He was thereafter committed to stand his trial before the Court of Sessions Judge, Gwalior, for the offence under s. 302 of the Indian Penal Code."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7263, "end_char": 7269, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 7277, "end_char": 7294, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 342", "label": "PROVISION", "start_char": 7522, "end_char": 7528, "source": "regex", "metadata": {"statute": null}}, {"text": "Mahavir Singh", "label": "WITNESS", "start_char": 7752, "end_char": 7765, "source": "ner", "metadata": {"in_sentence": "The first witness- Mahavir Singh was the District Civil Surgeon and Superintendent of the Mental Hospital."}}, {"text": "s. 84", "label": "PROVISION", "start_char": 8288, "end_char": 8293, "source": "regex", "metadata": {"statute": null}}, {"text": "November 18, 1954", "label": "DATE", "start_char": 8454, "end_char": 8471, "source": "ner", "metadata": {"in_sentence": "The other medical witness examined for the defence was the Superintendent of the Mental Hospital who had examined the accused on and after November 18, 1954, i.e., nearly two months after the occurrence."}}, {"text": "Ahmaduliah", "label": "RESPONDENT", "start_char": 8862, "end_char": 8872, "source": "ner", "metadata": {"in_sentence": "The witness testi- Stal• of fied, that at the first stage of the attack of a fit the Madhya Pr•tksh\n\nv. patient becomes spastic, that in the second stage the patient would have convulsions of hands and feet and Ahmaduliah in the tertiary stage becomes unconscious and at the 1 k k\n\nAyyanga1 ].", "canonical_name": "AHMAD ULLAH"}}, {"text": "September 28, 1954", "label": "DATE", "start_char": 9399, "end_char": 9417, "source": "ner", "metadata": {"in_sentence": "In his evidence he stated :\n\n\" The accused was in a •disturbed state of mind in the evening of September 28, 1954."}}, {"text": "September 29, 1954", "label": "DATE", "start_char": 9497, "end_char": 9515, "source": "ner", "metadata": {"in_sentence": "When I went to the shop on the morning of September 29, 1954, at 7-30 or 7-45 I found the accused was unconscious and 1hat his hi1nds and feet were stiffened."}}, {"text": "s. 84", "label": "PROVISION", "start_char": 9783, "end_char": 9788, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9796, "end_char": 9813, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Madhya P1adesh", "label": "RESPONDENT", "start_char": 10796, "end_char": 10819, "source": "ner", "metadata": {"in_sentence": "State of Madhya P1adesh\n\nAhmadullah\n\nAyyangaYJ.", "canonical_name": "STATE OF MADHYA PRADESH"}}, {"text": "AyyangaYJ", "label": "JUDGE", "start_char": 10833, "end_char": 10842, "source": "ner", "metadata": {"in_sentence": "State of Madhya P1adesh\n\nAhmadullah\n\nAyyangaYJ.", "canonical_name": "AyyangaYJ"}}, {"text": "Ahmedullah", "label": "RESPONDENT", "start_char": 11744, "end_char": 11754, "source": "ner", "metadata": {"in_sentence": "I, therefore, find that the accused Ahmedullah did kill Bismilla by severing her head from the body with a knife but that by reason of unsoundness of mind he was incapable of knowing that what he was doing was wrong or contrary to law anc!", "canonical_name": "AHMAD ULLAH"}}, {"text": "section 302", "label": "PROVISION", "start_char": 12038, "end_char": 12049, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12051, "end_char": 12068, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 84", "label": "PROVISION", "start_char": 12708, "end_char": 12713, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12721, "end_char": 12738, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 84", "label": "PROVISION", "start_char": 13174, "end_char": 13184, "source": "regex", "metadata": {"statute": null}}, {"text": "29th September, 1954", "label": "DATE", "start_char": 14306, "end_char": 14326, "source": "ner", "metadata": {"in_sentence": "This finding is not one without any evidence to support it, or one that can be called perverse; still, it is one that could properly be arrived at, only if it is consistent with the observation made on the respondent immediately after the 29th September, 1954.\""}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 14735, "end_char": 14740, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 84", "label": "PROVISION", "start_char": 15456, "end_char": 15466, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Ayyangar", "label": "JUDGE", "start_char": 15539, "end_char": 15547, "source": "ner", "metadata": {"in_sentence": "They however, continued:\n\nAyyangar ].", "canonical_name": "AyyangaYJ"}}, {"text": "England", "label": "GPE", "start_char": 17262, "end_char": 17269, "source": "ner", "metadata": {"in_sentence": "In this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Perry(') where also the defence was that the accused _ had been prone to have fits of epileptic insanity. •"}}, {"text": "Ayyangar", "label": "JUDGE", "start_char": 17871, "end_char": 17879, "source": "ner", "metadata": {"in_sentence": "In dismissing the appeal the learned Chief Justice Ayyangar J. said:\n\n\" Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved.", "canonical_name": "AyyangaYJ"}}, {"text": "Ahmadullah", "label": "RESPONDENT", "start_char": 19866, "end_char": 19876, "source": "ner", "metadata": {"in_sentence": "Then again, there was the mood of exaltation v. which the accused exhibited after he had put her out Ahmadullah of her life.", "canonical_name": "AHMAD ULLAH"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 20323, "end_char": 20329, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 20337, "end_char": 20354, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ARDESHIR H. BHIW", "label": "JUDGE", "start_char": 20947, "end_char": 20963, "source": "ner", "metadata": {"in_sentence": "ARDESHIR H. BHIW ANDIWALA\n\nti."}}, {"text": "STATE OF BOMBAY", "label": "RESPONDENT", "start_char": 20983, "end_char": 20998, "source": "ner", "metadata": {"in_sentence": "THE STATE OF BOMBAY. ("}}, {"text": "JAFEB IMAM", "label": "JUDGE", "start_char": 21001, "end_char": 21011, "source": "ner", "metadata": {"in_sentence": "JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "J. L. KAPUR", "label": "JUDGE", "start_char": 21013, "end_char": 21024, "source": "ner", "metadata": {"in_sentence": "JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "K. c. DAS GUPTA", "label": "JUDGE", "start_char": 21026, "end_char": 21041, "source": "ner", "metadata": {"in_sentence": "JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "RAGHUBAR DAYAL", "label": "OTHER_PERSON", "start_char": 21043, "end_char": 21057, "source": "ner", "metadata": {"in_sentence": "JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "Factory-Sall Works", "label": "ORG", "start_char": 21092, "end_char": 21110, "source": "ner", "metadata": {"in_sentence": "Factory-Sall Works, whether a factory-Premises, if include open land-Manufacturing process-Conversion of sea water into\n\nsalt-Factories Act, z948 (LXIII of I948), ss."}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 21218, "end_char": 21231, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 2(k)", "label": "PROVISION", "start_char": 21255, "end_char": 21263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 21326, "end_char": 21331, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act, 1948", "label": "STATUTE", "start_char": 21339, "end_char": 21358, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1961_3_592_609_EN", "year": 1961, "text": "SUPREME COURT REPORTS [1961]\n\nx96x taking a torch with him, access to the house of the\n\n5 1 deceased being obtained by stealth by scaling over a Madh;:'•;.adesh wall. Then again, there was the mood of exaltation v. which the accused exhibited after he had put her out Ahmadullah of her life. It was a crime committed not in a sudden mood of insanity but one that was preceded by careful Ayyangar f. planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy.\n\n]anua,.y a7.\n\nThe appeal is therefore allowed, the order of acquittal passed against the respondent set aside and in its place will be substituted a finding that the respondent is guilty of mQJ.'der under s. 302 of the Indian Penal Code. In the normal course the proper punishment for the heinous and premeditated crime committed with inhuman brutality would have been a sentence of dee.th. But ta.king into account the fact that the accused ha.a been acquitted by the Sessions Judgea.n order which has been affirmed by the High Courtwe consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life. It is needless to add that the State Government will take steps to have the accused treated in a.n asylum until he is cured of his illness, if this still continues.\n\nAppeal allowed.\n\nARDESHIR H. BHIW ANDIWALA\n\nti.\n\nTHE STATE OF BOMBAY. (JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA, RAGHUBAR DAYAL and\n\nN. RAJAGOPALA AYYANGAR, JJ.) Factory-Sall Works, whether a factory-Premises, if include open land-Manufacturing process-Conversion of sea water into\n\nsalt-Factories Act, z948 (LXIII of I948), ss. 2(k) and (m), 92.\n\nThe appellant was convicted of an offence under s. 92 of the Factories Act, 1948, for working a salt works without obtaining a licence. The salt works extended over an area of about\n\n250 acres. The only buildings on this land were temporary shelters for the resident labour and for an office; at some places there were pucca platforms for fixing the water pump wh•ll\n\n3 S.C.R.\n\nSUPREME COUHT REPORTS 593\n\nrequired to pump water from the sea. The appellant contend I96r ed (i) that the salt works was not a factory as defined ins. 2(m) of the Act, (ii) that the word \"premises\" in the definition of A•deshi• factory did not include open land, and (iii) that in converting H. 8hiwandiwala sea water into salt the appellant was not carrying on any manuv. facturing process as defined in s. 2(k).\n\nState of Bombay Held, that the salt works was a factory within the definition given in the Act and that the appellant was rightly convicted for working it without a licence. The word \" premises\" is a generic term meaning open land or land with buildings or buildings alone; the salt works came within the expression \"premises\" in the definition of the word \" factory \". The extraction of salt from sea water was not due merely to natural forces but was due to human efforts aided by natural forces. The process of conversion of sea water into salt was a \"manufacturing process \" as defined in. cl. (k) of s. 2, inasmuch as salt was manufactured from sea water by a process of treatment and adaptation. By this process sea \\.vater, a non.commercial article, was Cv .... verted into a different thing salt, a commercial article.\n\nKent v. Astley, L.R. (1869) 5 Q. B. 19, Redgrave v. Lee,\n\n(1874) 9 Q. B. 363 and Nash v. Hollinshead, [rgor] r K.B. 700, distinguished.\n\nSedgwick v. Watney, Combe, Reid & Co. Ltd. [1931] A.C. 446, Grove v. Lloyds British Testing Co. Ltd. [1931] A.C. 466, Kaye v.\n\nBurrows & Ors. and Hines v. Eastern Counties Farmers' Co-operative Association Ltd. [1931] A.C. 477, The State of Kerala v. V. M.\n\nPatel, Cr. App. No. 42 of 1959, decided on 12-10-1960, In re: Chinniah, Manager, Sangu Soap Works, A.LR. 1957 Mad. 755, Paterson v. H11nt (1909) IOI L.T.R. 571, Law v. Graham, [1901] 2 K.B. 327, Ho.ue v. Truman, Hanbury, Buxton & Co. (1902) 86 L.T.R. 417, and JicNicol v. Pinch, [1906] 2 K.B. 352, referred to.\n\nCRIMINAL\n\nAPPELLATE\n\nJURISDICTION: Criminal Appeal No. 32 of 1956.\n\nAppeal from the judgment a.nd order dated October 7 and 10, 1955, of the Bombay High Court in Criminal Appeal No. 817of1955.\n\nPorus A. Mehta, R. Ganapathy Iyer and G. Gopalakrishnan, for the appellant.\n\nN. S. Bindra, R.H. Dhebar and T. M. Sen, for the respondent .\n\n1961. January 27. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This is an appeal by specia1Raghuba, Dayal leave by Ardeshir H. Bhiwandiwala against the order of the High Court of Bombay allowing an appeal\n\nz96z by the State against the acquittal of the appellant\n\nA deshir of an offence under s. 92 of the Factories Act, 1948 n. Bh; wandiwala (Act LXIII of 1948), hereinafter called the Act, v. for his working the Wadia Mahal Salt Works situate State of Bombay at Wada!&, Bombay,· without obtaining a licence\n\nR h - under s. 6 of the said Act read with r. 4 of the rules ag ubar Dayal J. framed under the Act.\n\nThe main question for determination in this appeal is whether these Salt Works come within the definition of the word \" factory \" under cl. (m) of s. 2 of the Act. The answer to this question depends on the meaning of the word \" premises \" in the definition of the word \"factory \"and on the determination whether what is done at this Sa.It Works in connection with the conversion of sea water into crystals of salt comes within the definition of the expriission \" manufacturing process\" in cl. (k) of s. 2 of the Act.\n\nThe Salt Works extend over an area of about two hundred and fifty acres. Some of the other salt works, however, have even larger areas. The only buildings on this land consist of temporary shelters constructed for the resident labour and for an office.\n\nAt a few places, pucca platforms exist for fixing the water pump when required to pump water from the sea. When not required, this pump is kept in the office. With the exception of the constructions already mentioned, the entire area of the Sa.It Works is open. On the sea side, it has bunds in order to prevent sea water flooding the salt pans.\n\nClause (m) of s. 2 of the Act reads:\n\n\" ' factory ' means any premises including the precincts thereof-\n\n(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any pa.rt of which a manufacturing prooeBB is being carried on with the aid of power, or ls ordinarily so carried on, or\n\n(ii) whereon twenty or more workers are working, or wiire working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, -\n\nI..\n\nbut does not include a mine subject to the opera. >96r tion of the Mines Act, 1952, or a. railwa.y running Ardeshir shed.\" H. Bhiwanttiwala The relevant portion of the definition of\" manufacturv. ing process\" in cl. (k) of s. 2, reads : s1a1, of Bombay \"'manufacturing process' means any process for- -- \") k' 1 · t' fi h Raghubar Dayal ]. (1 ma mg, a termg, repa1rmg, ornamen mg, ms - ing, packing. oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting a.ny article or substance with a view to its use, sale, tra.nsport, delivery or disposal ; or\n\n(ii) pumping oil, water or sewage ; or ............ \" It is contended for the appella.nt that the expression \"premises\" in the definition of the word \"factory\" means \" buildings \" and that \"mere open land \" is not covered by the word \" premises \" and as there are no buildings except temporary sheds on the Salt Works, the Salt Works cannot be said to be a \" factory \". We do not agree with this contention. The word \"premises \" has now come to refer to either land or buildings or to both, depending on the context. The meanings of the word \" premises \" in various lexicons and dictionaries are given below :\n\n(a) Wharton's Law Lexicon:\n\n\" Premises \" is often used as meaning \" land or houses\".\n\n(b) Cochran's Law Lexicon, IV Edition:\n\n\" Premises \" means \" houses or la.nds \".\n\n(c) Black, H.C., Law Dictionary, IV Edition:\n\n\" Premises \" as used in the estates means-\n\n(i) lands and tenements ; an estate; land and buildings thereon; the subject-matter of the conveyance ;\n\n(ii) a distinct a.nd definite locality and may mean a room, especially building or other definite a.rea;\n\n(d) Ea.rl Jowitt, Dictionary of English Law:\n\n\" Premises\" ....•.... from this use of the word, \"premises\" has gradually acquired the popular sense ofland or buildings. Originally, it was only used in this sense by laymen, and it was never so used ill well-dra.wn instruments, but it is now\n\nz96z\n\nArdeskir H. Bhiwantliwala\n\nState of Bombay\n\nRaghubar Dayat J.\n\nfrequently found in instruments and in Acts of Parliament as meaning land or houses, e.g., the Public Health Act, 1875, s. 4, where \"premises\" includes messuages, buildings, lands, easements, tenements and hereditaments of any tenure ..... .\n\n(e) Ballentine, J.A., Law Dictionary with Pronunciation, II Edition :\n\n\"Premises \"-as applied to land, Webster's New International Dictionary defines the word as follows: The property conveyed in a deed ; hencP\n\nin general, a piece of land or real estate ; some. times, especially in fire insurance papers, a building or buildings on land; the premises insured.\n\nIt is therefore clear that the word \" premises \" is a generic term meaning open land or land with buildings or buildings alone.\n\nThe expression \" premises including precincts \" it has been urged, clearly indicates that in the context of the definition of the word \"factory'', premises meant only buildings as buildings alone can have precints and there can be no precincts of any open land. This expression \" premises including precincts\" does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word \"including\" is not a term restrrcting the meaning of the word \" premises \" bnt is a term which enlarges the scope of the word \" premises \". We are therefore of opinion that even this contention is not sound and does not lead to the only conclusion that the word \"premises\" must be restricted to mean buildings and be not taken to cover open land as well.\n\nSub-cl. (bb) of cl. (I) of s. 7 of the Act requires the occupier of a factory to mention in the written notice to be sent to the Chief Inspector before his occupying or using any premises as a factory, the name and address of the owner of the premises or building including the precincts thereof referred to in s. 93.\n\nThis sufficiently\" indicates that the word \" premises \" is not restricted in Rcope to buildings alone. Of course, the building referred to in this clmbe, Reid & C<>mpany, Limited (1) at page 463, support the\n\n(1) [1931) A.C. 446.\n\n3 S.C.R.\n\nSUfREME COURT REPORTS 605\n\nview that the process undergone at the Salt Works is '96' the process. of treatment of sea water fo~ the purpose AYdesAfr of convertmg it into salt.\n\nThe hered1tament, the H. Bhiwadiroala subject of controversy in the case, was used in connecv. tion with the manufacture of \"bottled beer \" by the Slate of Bombay respondent. Brewed beer, which was not in a drink- - able condition, and therefore not saleable as draught Raghubar Dayal f. beer, was brought to the premises in tank wagons and pumped into large tanks. Carbonic acid gas was put into it. It was then filtered and put into bottles which were corked and labelled.\n\nThe bottles were then packed and removed for delivery. The question for decisiou was whether the hereditament was occupied and used for the purpose of distributive wholesale business. In that connection it was said :\n\n\" But the point is whether the treatment that the beer undergoes in these premises is a mere prelude to distribution. I am clearly of opinion that it is not. The finished article that is being prepared for\n\nditribution is bottled beer. It undergoes treatment, a treatment which changes its quality and makes it from an unpotable and unmarketable article into a potable and marketable one.\" In the present case, in the Salt Works, the finished article is \"salt\". It does not enter the Salt Works as \"salt\". It enters as brine which, under the process\n\ncarried out, changes its quality, and becomes salt, a marketable article.\n\nThe observations in Grovt v. Lloyds British Testing Go. Ltd. (1) at page 467 support the view that the conversion of sea water into salt amounts to adapting it for sale. It is stAted there :\n\n\" I think • adapting for sale' points clearly to something being done to the article in question which, in some way, makes it in itself a little different from what it was before.\" In Kaye v. Burrows & Others ancl. Hines v. Eastern Counties Farmers' Go operative .Association Ltd.'(') it was said at page 484: \" The test is just as it was in the bottled beer case. You must look at what is the finished article\n\n(1) [1931) A.C. 'f66,\n\n(z) [19~1J A.C. '177\n\nA1deshi1 H. Bhiwandiuiala v.\n\nState of Bombay\n\nto be turned out. If that finished article is only put into the condition of a finished article by the processes to which it has been subjected in the hereditament, then the processes will fall within the expression 'altering or adaptation for sale '. * * • RaghubarDayal J.\n\nIn both the cases of the rags and the seeds the finished article is different from the article in bulk which enters the hereditament, and that is, in our opinion, an adaptation for sale.\" In The State of Keraia v. V. M. Patel (1) this Court held the treatment of pepper and ginger to be a\n\n\"manufacturing process\" where the work which was carried on in the premises of the firm was described thus:\n\n\" It consisted of winnowing, cleaning, washing and drying pepper on concrete floor. A similar process was also being applied to ginger, which was dipped in llme and laid out to dry in a warehouse on the premises.\" The case reported as In re: Chinniah, Manager, Sangu Soap Works(') is of no help to the appellant as there nothing definite was held about the process carried out to be a manufacturing process or not and what was stated was in connection with the word \"manufacture\" in general and not with reference to \"manufacturing process.\"\n\nSimilarly the case reported as Paterson v. Hunt (3) is not of much help. It simply held that mere sorting of rags will not amount to adapting for sale.\n\nIn l this case reference was made to it being held in Law\n\nv. Graham(') that washing the bottles before the beer • was put into them was not adapting the beer, or adapting the bottles or adapting the bottled beer for l the purpose of sale and in Hoare v. Truman, Hanbury, Ill Buxton & Co.(') that it was a case of adapting for sale when gas was used to force carbonic acid at high pressure into the beer for charging it with the acid and mixing it and so aerating the beer. The case is\n\n(1) Cr!. <\\pp. No. 42 of 1959.\n\nP, ided on October 12, 1960.\n\n(2) A.l.R. 1957 Ma powers, if can carry out executive powers of the Municipality-\" Profession\", definition of-Travancore District Municipalities Act, rn6 (Act XX ill of the Malayalam year III6), ss. I6, 78, 9I.\n\nThe imposition of \"profession tax\" by the respondent Municipal Council under the Travancore District Municipalities Act (Act XXIII of the Malayalam year n16) was challenged on the grounds, inter alia (1) that the requisite notification was not published by the Municipal Council but by its commissioner,\n\n(2) that the period of thirty days which was given for filing objections to the imposition was insufficient in Jaw which required a period of \"not Jess than a month \", and (3) that this was a mandatory provision under the proviso to s. 78 of the Act.\n\nHeld, tr.at under s. r6 the Commissioner being the executive authority of the Municipal Council was authorised to give effect to the resolutions of the Council and to perform all its executive duties.\n\nThe words \"not being less than one month\" in the proviso to s. 78 implied the necessity for one clear' month's notice excluding the first and last day of the month, but the use of the words\n\n\" reasonable period \" before the word~ \" not being less than one mont.h \" showed that the time given must be reasonable. In view of the facts of the case the period allowed must be regarded as reasonable and to have complied with the provision which is directory in its later part.\n\nCommissioner. of Income-tax v. Ekbal and Co. [1945] 13 I.T.R. 154 and Thompson v. Stimpson, [196o] 3 All E.R. 500, distinguished. Municipal Council, Cud powers, if can carry out executive powers of the Municipality-\" Profession\", definition of-Travancore District Municipalities Act, rn6 (Act XX ill of the Malayalam year III6), ss. I6, 78, 9I.\n\nThe imposition of \"profession tax\" by the respondent Municipal Council under the Travancore District Municipalities Act (Act XXIII of the Malayalam year n16) was challenged on the grounds, inter alia (1) that the requisite notification was not published by the Municipal Council but by its commissioner,\n\n(2) that the period of thirty days which was given for filing objections to the imposition was insufficient in Jaw which required a period of \"not Jess than a month \", and (3) that this was a mandatory provision under the proviso to s. 78 of the Act.\n\nHeld, tr.at under s. r6 the Commissioner being the executive authority of the Municipal Council was authorised to give effect to the resolutions of the Council and to perform all its executive duties.\n\nThe words \"not being less than one month\" in the proviso to s. 78 implied the necessity for one clear' month's notice excluding the first and last day of the month, but the use of the words\n\n\" reasonable period \" before the word~ \" not being less than one mont.h \" showed that the time given must be reasonable. In view of the facts of the case the period allowed must be regarded as reasonable and to have complied with the provision which is directory in its later part.\n\nCommissioner. of Income-tax v. Ekbal and Co. [1945] 13 I.T.R. 154 and Thompson v. Stimpson, [196o] 3 All E.R. 500, distinguished. Municipal Council, Cudn of new taxes 'And tolls.-When a municipal council shall have\"determined subject to the provisions of Section 78 to levy any tax or toll for the first time or at a new rate the executive authority shall forthwith publish a notification in Our Government Gazette . and by beat of drum specifying the rate at which the date from which,\n\nand the period of levy, if any, for which such tax or toll shall be levied.\" The functions of the executive authoritv, that is, of Pioneer Mol<>I'• the Commissioner of the Council are contained ins. 16 (Priva\"J Ltd. v. of the Act, which is as follows :- Municipal Coum:;1, \" S. 16. Functians of the Executive A uthority.-The Nagereoil executive authority of the municipal council shall-\n\n(a) carry into effect the resolutions of the council;\n\n(b) furnish to the council such periodical reports regarding the progress made in carrying out the resolutions of that body in the collection of taxes as . the council may direct; and\n\n(c) perform all the duties and exercise all the powers specifically imposed or conferred on the executive authority by this Act, and subject, whenever it is hereinafter expressly so provided, to the sanction of the council, and subject to all other restrictions, limitations and conditions hereinafter imposed, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purposes of this Act.\" Section 16, which contains the power of the executive authority, does not support the contention of the appellants, because it provides that the executive authority has to give effect to the resolutions of the council and has to perform a.II duties specifically imposed on the executive authority by the Act and can also exercise executive power for the carrying out of the provisions of the Act and can act without sanction, unless the Act otherwise requires. Therefore, when the Commissioner of the respondent council got published a. notification of the resolution under s. 78 of the Act to impose a tax, be was acting within his powers and the fixing of the time in which objection had to be ma.de was provided under the Act and was not exercise of authority by the executive which it did not possess.\n\nThe only serious question which a.rises for decision is whether the period of\" within thirty days \" given in the notification was compliance with the provisions of the Act or not. Jf it was not then is the period of\n\nKapur J.\n\nSUPRFME COURT REPORTS [1961]\n\ntime mentioned a mandatory requirement, a breach of which makes the tax illegal?\n\nPioneer Motors\n\n(Privat•J Ltd.\n\nCounsel for the appellants in the first three appeals v. argued, and that argument was adopted by counsel 'lfunicipal Council, for the appellant in the fourth appeal, that the words\n\nNagmoil used in the first proviso to s. 78 required that a clear\n\nKapur]. period of one month had to be given for imiting objections and as \" within thirty days\" was nut a clear period of one month, the provisions of the section had not been complied with. In support of his contention that the provision as to time was a mandatory requirement, he particularly stressed three words and phrases used in that proviso: (1) \"before passing a resolution\"; (2) \"shall publish\"; and\n\n(3) \"fix a reasonable priod not being less than one month for submission of objections.\" The argument was that where these words are used, the effect was that the requirements. were mandatory and not merely directory. It was submitted that the words\" before\" and \"shall\" provided that what was mentioned in the proviso were conditions precedent for giving power to the Municipal Council to pass a resolution under s. 79 and when those two words were read along with \"not being less than one month\", it was a clear indication of the mandatory nature of the requirements of th!i section. Quite a number of cases were relied upon by Counsel and besides this it was also emphasised that sa. 78 and 79 concerned taxing matters and as the liability of the tax-payers a.rises after the tax is legally imposed, strict compliance with the provisions was necessary. It is not necessary to discuss all the cases on which reliance was placed.\n\nThe words \"not being less than one month\" do imply that clear one month's notice was necessary to be given, that is, both the first day and the la.st day of the month had to be excluded. To put it in the language used by Maxwell on Interpretation CJf Statutes, 10th Edition, p. 351 :-\n\n\" ... when ...... 'not less than ' so many days a.re to intervene, both the terminal days a.re excluded from the computation,\"\n\n3 S.C.R.\n\nSUPREME COURT.REPOR'fS 615\n\nThat does not seem to have been done in the present 1961 case. But in order to decide whether this portion of Pioneer Motors the proviso is a mandatory provision, it is convenient (PrivalC) Ltd. to see the object for which it has been enacted. Under v. s. 78, the procedure is laid down for the levying of a Municipal Council, new tax, which has to be done by a resolution. But Nagercoil in the proviso, it is stated that before such a resolution can be passed, a notice to that effect has to be published in the official gazette and also in one Malayalam or Tamil newspaper having circulation within the municipality. Then comes the period for inviting objections. The object of notifying in the Gazette and Local Newspaper is both to give notice to the public and particulary to the persons who are likely to be taxed and to invite their objections. For this purpose, the proviso requires a reasonable. period of not less .than one month to be given. The object of the provision is to give reasonable time and opportunity and it is given as a guidance that reasonable time would be a month. The use of the words \"reasonable period \" before the words \" not being less than one month \" is significant. If sufficient time has been given for the invitation of the objections which only just falls short of the peiod mentioned in the proviso, then it would serve the object of the legislature. The provision in regard to time in the context must be hPld to be directory and not mandatory.\n\nThe cases under the Income-tax Act like the OI ha.d been interpreted in the past as providing for four\n\nKapur]. clear weeks a.nd also it wa.s construed a.s four clear weeks, so that there might be certainty in the matter.\n\nIn other cases, that were relied upon a.nd which related to taxing statutes, the Municipal Council, Gudd, apah v. The Madraa and Southern Mahratta Railway Ltd.(•), The Borough Municipal, ity of Amalner\n\nv. The Pratap Spinning, Weaving and Manufacturing Go. Ltd., Amalner(•) a.nd Kalu Karim v. Municipality of Broach (S) ; it wa.s held that taxing statutes have to be strictly construed and requirements which are precedent to the imposition of the tax have to be complied with before ta.x can be legally imposed. In every case the words ha. ve to be construed in the • context taking into consideration the. language used and the object to be achieved. As we have said a.hove, the use of the words \" not being less than one month \" implies the giving of a clear month excluding both the first and the la.st day of the month. There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in Thompsdn v. FJtimpsO'TI (') will apply. But the question t\\lat arises in the present case is : what is the exact significance of these words when used in the context of the other words used in the proviso.\n\nThe power of the municipality to levy the tax does not depend upon a period prescribed for notice for objections. The power to tax is derived from the Statute ; the provisions relating to the length of notice inviting objections and publication are merely procedural. The object of the notification is to inform the future rate payers and to inviie objections .from them. The proviso itself uses words \" reasonable time\". Reading\" reasonable time\" and \"not being less than one month\" together, it is clear that the\n\n(I) (1929) I.L.R. 52 Mad. 779.\n\n(2) I.L.R. [1952) Bom. 9I8,\n\n(3) (I927) I.L.R. 5r Bom. 764.\n\n(t) [196o] 3 All E.R, 500.\n\n--\"'-\n\nz96r time given must be reasonable and the legislature has only added a guide so that periods shorter than a Pioneet M olo, s month may not be fixed.\n\nIn the present case the (Private) Ltd . • whole ofthe period except one day has been fixed and\n\nv. in view of the other ; facts' .it must be regarded as Municipal Counoil, reasonable and to have complied with the provision Natmoil which is directory in its later part.\n\nCounsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was hat the. appellants were not carrying on a profession as they were only engaged in motor business and trade. This question was never raised at any previous stage and was not ta.ken in the statement of the appellants' case.\n\nTherefore, it cannot be allowed to be raised. Besides it is without any substance in view of the definition of profession as given in s .. 91 of the Act, which includes business. In our opinion, the High Court was right in so holding and the thre11 appeals Nos. 499 to 501 of 1958 are dismissed with costs, one hearing fee. . . . . Coming now to Civil AppeaLNo; 502 ofl958, in the plaint it was alleged that the. trµst 'Vt>&.. iJo. religious trust and was follo'Ving no profession and therefore it did not fall within the definHion of the 'iyol:d \".pro, fession\" as used in, s. 91 oft.he Act.· The defendant joined issue and the matter was put in issue in the following form : ' \"Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act?\" Although no specific finding was given as regards the operation of s. 91, the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings, that is, in appeal in the court of the District Judge and in the High Court. It is this point which was urged by counsel for the trust ; his plea was that his case was not covered by s. 91, as being a religious trust it had no profession and was carrying on none. That is a matter which, in our opinion, should have been decided, and as neither the Dist.riot\n\nKapur].\n\n'96' Judge nor the High Court has given a finding on that\n\nPioneer Motors point, it is necessary to remit the case to the High\n\n(PYivate) Ltd.\n\nOourt with the direction that the appeal be reheard v. and that particular question be decided on the . Municipal Council, materials on the record. Nothing that has been said\n\nNagerco•l in this judgment must be taken to be an expression of\n\nKapur J. opinion on the merits of this plea taken by the appellant Trust.\n\nJanuary 27.\n\nAppeal No. 502 of 1958, is therefore, allowed and the case remitted to the High Court for decision. The costs in this Court and in the High Court will abide the decision of the appeal in the High Court.\n\nAppeals nos. 499 to 501 dismissed.\n\nAppeal no. 502 allowed. Case remitted.\n\nV ALLABHDAS AND OTHE.RS\n\nMUNICIPAL COMMITTEE, AKO LA. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)\n\nOctroi Tax-Legality of imposition-:\" System of Assessment\", meaning of-C. P. & Berar Municipal Act, r922 (C. P. & Berar II of I922), S. 67(2).\n\nThe Municipal Committee, Akola_, passed a resolution to impose an octroi ta:: and forwarded it along with the draft rules of-assessment and collection to the State Government. The State Government published a notification in the Gazette which contained the articles to be taxed, the rate or rates at whicq they were to be taxed and a brief statement of objects and reasons for the imposition of the tax. This was followed by draft rules as to how taxation was to be done. Thereafter the Municipal Committee affixed on its notice board and also published in the local newspapers the said proposed _rules but the draft rules in regard to the \"system of assessment\" were not published along with other particulars. It was alleged by the appellants that the Municipality by not publishing the draft rules of tile \"system of assessment\", failed to comply in full with the mandatory requirements of s. 67(2) of the Act rendering the imposition of tax illegal.\n\nHeld, that the words\" system of assessment\" did not necessarily mean the whole procedure of taxation, i.e. imposition, collection and procedure in regard to collection and refund. The notice and not the draft rules relating to assessment and collection were required under the Rules to be affixed on the notice", "total_entities": 61, "entities": [{"text": "THE PIONEER MOTORS (PRIVATE) LTD", "label": "PETITIONER", "start_char": 277, "end_char": 309, "source": "metadata", "metadata": {"canonical_name": "THE PIONEER MOTORS (PRIVATE) LTD", "offset_not_found": false}}, {"text": "THE MUNICIPAL COUNCIL, NAGERCOIL", "label": "RESPONDENT", "start_char": 334, "end_char": 366, "source": "metadata", "metadata": {"canonical_name": "THE MUNICIPAL COUNCIL, NAGERCOIL", "offset_not_found": false}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 397, "end_char": 405, "source": "metadata", "metadata": {"canonical_name": "J.L. KAPUR*", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 430, "end_char": 442, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Travancore District Municipalities Act", "label": "STATUTE", "start_char": 626, "end_char": 664, "source": "regex", "metadata": {}}, {"text": "Municipal Council under the Travancore District Municipalities Act", "label": "STATUTE", "start_char": 781, "end_char": 847, "source": "regex", "metadata": {}}, {"text": "s. 78", "label": "PROVISION", "start_char": 1266, "end_char": 1271, "source": "regex", "metadata": {"linked_statute_text": "Municipal Council under the Travancore District Municipalities Act", "statute": "Municipal Council under the Travancore District Municipalities Act"}}, {"text": "s. 78", "label": "PROVISION", "start_char": 1547, "end_char": 1552, "source": "regex", "metadata": {"linked_statute_text": "Municipal Council under the Travancore District Municipalities Act", "statute": "Municipal Council under the Travancore District Municipalities Act"}}, {"text": "s. 81", "label": "PROVISION", "start_char": 2462, "end_char": 2467, "source": "regex", "metadata": {"statute": null}}, {"text": "Jioneer Motors (Private) Ltd.", "label": "PETITIONER", "start_char": 2490, "end_char": 2519, "source": "ner", "metadata": {"in_sentence": "J:Jioneer Motors (Private) Ltd.\n\n\\\",\n\nCrvrL\n\nAPPELLATE JuRI8DICTION: Civil Appeals Nos."}}, {"text": "Munidpal cuncil", "label": "PETITIONER", "start_char": 2597, "end_char": 2612, "source": "ner", "metadata": {"in_sentence": "Munidpal cuncil."}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 2772, "end_char": 2784, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and G. C. Mathur, for the appelhmts (in C. A8."}}, {"text": "G. C. Mathur", "label": "LAWYER", "start_char": 2789, "end_char": 2801, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and G. C. Mathur, for the appelhmts (in C. A8."}}, {"text": "P. George", "label": "OTHER_PERSON", "start_char": 2857, "end_char": 2866, "source": "ner", "metadata": {"in_sentence": "P. George and M. R. Krishna Pil/, ai, for the appellrtnts (in C. A.No."}}, {"text": "M. R. Krishna Pil/", "label": "LAWYER", "start_char": 2871, "end_char": 2889, "source": "ner", "metadata": {"in_sentence": "P. George and M. R. Krishna Pil/, ai, for the appellrtnts (in C. A.No."}}, {"text": "T. N. Subramania Iyer", "label": "LAWYER", "start_char": 2941, "end_char": 2962, "source": "ner", "metadata": {"in_sentence": "T. N. Subramania Iyer, R. Gaiwpathy Iyer and G. Gopalakrishnan, for the respondent."}}, {"text": "R. Gaiwpathy Iyer", "label": "LAWYER", "start_char": 2964, "end_char": 2981, "source": "ner", "metadata": {"in_sentence": "T. N. Subramania Iyer, R. Gaiwpathy Iyer and G. Gopalakrishnan, for the respondent."}}, {"text": "G. Gopalakrishnan", "label": "LAWYER", "start_char": 2986, "end_char": 3003, "source": "ner", "metadata": {"in_sentence": "T. N. Subramania Iyer, R. Gaiwpathy Iyer and G. Gopalakrishnan, for the respondent."}}, {"text": "Kapur", "label": "JUDGE", "start_char": 3090, "end_char": 3095, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was _delivered by\n\nKapur J.\n\nKAPUR, J.-These four appeals are brought against the judgments and decrees of the erstwhile High Court of Travancore-Cochin.", "canonical_name": "Kapur"}}, {"text": "KAPUR", "label": "JUDGE", "start_char": 3100, "end_char": 3105, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was _delivered by\n\nKapur J.\n\nKAPUR, J.-These four appeals are brought against the judgments and decrees of the erstwhile High Court of Travancore-Cochin.", "canonical_name": "Kapur"}}, {"text": "High Court of Travancore-Cochin", "label": "COURT", "start_char": 3192, "end_char": 3223, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was _delivered by\n\nKapur J.\n\nKAPUR, J.-These four appeals are brought against the judgments and decrees of the erstwhile High Court of Travancore-Cochin."}}, {"text": "September 9, 1943", "label": "DATE", "start_char": 3527, "end_char": 3544, "source": "ner", "metadata": {"in_sentence": "On September 9, 1943, the N agercoil Municipal Council the respondent, passed a resolution under A. 78 of the Travancore District Municipalities Act (Act XX III of the Malayalam year 1116), hereinafter called the Act."}}, {"text": "N agercoil Municipal Council", "label": "ORG", "start_char": 3550, "end_char": 3578, "source": "ner", "metadata": {"in_sentence": "On September 9, 1943, the N agercoil Municipal Council the respondent, passed a resolution under A. 78 of the Travancore District Municipalities Act (Act XX III of the Malayalam year 1116), hereinafter called the Act."}}, {"text": "January 12, 1944", "label": "DATE", "start_char": 4451, "end_char": 4467, "source": "ner", "metadata": {"in_sentence": "On January 12, 1944, a reso::."}}, {"text": "s. 79", "label": "PROVISION", "start_char": 4507, "end_char": 4512, "source": "regex", "metadata": {"statute": null}}, {"text": "February 10, 1946", "label": "DATE", "start_char": 4745, "end_char": 4762, "source": "ner", "metadata": {"in_sentence": "A trust, KottarMunieipal Cou•ci Chetty Ninar Desikavinayaga Swamy filed a snit on February 10, 1946, challenging the legality of this tax."}}, {"text": "s. 78", "label": "PROVISION", "start_char": 5562, "end_char": 5567, "source": "regex", "metadata": {"statute": null}}, {"text": "Nagercoil", "label": "GPE", "start_char": 6603, "end_char": 6612, "source": "ner", "metadata": {"in_sentence": "Nagercoil\n\nKapur]."}}, {"text": "s. 79", "label": "PROVISION", "start_char": 7013, "end_char": 7018, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VI of the Act", "label": "STATUTE", "start_char": 7232, "end_char": 7253, "source": "regex", "metadata": {}}, {"text": "s. 77", "label": "PROVISION", "start_char": 7290, "end_char": 7295, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Section 78", "label": "PROVISION", "start_char": 7372, "end_char": 7382, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "S. 78", "label": "PROVISION", "start_char": 7470, "end_char": 7475, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "s. 78", "label": "PROVISION", "start_char": 8247, "end_char": 8252, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "s. 79", "label": "PROVISION", "start_char": 8360, "end_char": 8365, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 79", "label": "PROVISION", "start_char": 8387, "end_char": 8392, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 8508, "end_char": 8518, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 16", "label": "PROVISION", "start_char": 9016, "end_char": 9021, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9849, "end_char": 9859, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 10423, "end_char": 10428, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 11247, "end_char": 11252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 79", "label": "PROVISION", "start_char": 12101, "end_char": 12106, "source": "regex", "metadata": {"statute": null}}, {"text": "Maxwell", "label": "OTHER_PERSON", "start_char": 12840, "end_char": 12847, "source": "ner", "metadata": {"in_sentence": "To put it in the language used by Maxwell on Interpretation CJf Statutes, 10th Edition, p. 351 :-\n\n\" ... when ...... 'not less than ' so many days a.re to intervene, both the terminal days a.re excluded from the computation,\"\n\n3 S.C.R.\n\nSUPREME COURT.REPOR'fS 615\n\nThat does not seem to have been done in the present 1961 case."}}, {"text": "Pioneer Motors", "label": "ORG", "start_char": 13181, "end_char": 13195, "source": "ner", "metadata": {"in_sentence": "But in order to decide whether this portion of Pioneer Motors the proviso is a mandatory provision, it is convenient (PrivalC) Ltd. to see the object for which it has been enacted."}}, {"text": "PrivalC) Ltd.", "label": "ORG", "start_char": 13252, "end_char": 13265, "source": "ner", "metadata": {"in_sentence": "But in order to decide whether this portion of Pioneer Motors the proviso is a mandatory provision, it is convenient (PrivalC) Ltd. to see the object for which it has been enacted."}}, {"text": "s. 78", "label": "PROVISION", "start_char": 13324, "end_char": 13329, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 14578, "end_char": 14592, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22(2)", "label": "PROVISION", "start_char": 14678, "end_char": 14686, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 14694, "end_char": 14708, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parker", "label": "OTHER_PERSON", "start_char": 16715, "end_char": 16721, "source": "ner", "metadata": {"in_sentence": "There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in Thompsdn v. FJtimpsO'TI (') will apply."}}, {"text": "s. 91", "label": "PROVISION", "start_char": 18933, "end_char": 18938, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 91", "label": "PROVISION", "start_char": 19231, "end_char": 19236, "source": "regex", "metadata": {"linked_statute_text": "Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act", "statute": "Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act"}}, {"text": "s. 91", "label": "PROVISION", "start_char": 19574, "end_char": 19579, "source": "regex", "metadata": {"linked_statute_text": "Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act", "statute": "Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act"}}, {"text": "High\n\n(PYivate) Ltd.", "label": "COURT", "start_char": 19882, "end_char": 19902, "source": "ner", "metadata": {"in_sentence": "'96' Judge nor the High Court has given a finding on that\n\nPioneer Motors point, it is necessary to remit the case to the High\n\n(PYivate) Ltd.\n\nOourt with the direction that the appeal be reheard v. and that particular question be decided on the ."}}, {"text": "V ALLABHDAS", "label": "OTHER_PERSON", "start_char": 20513, "end_char": 20524, "source": "ner", "metadata": {"in_sentence": "V ALLABHDAS AND OTHE.RS\n\nMUNICIPAL COMMITTEE, AKO LA. ("}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 20581, "end_char": 20596, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": true}}, {"text": "J. c. SHAH", "label": "JUDGE", "start_char": 20601, "end_char": 20611, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)"}}, {"text": "Berar Municipal Act", "label": "STATUTE", "start_char": 20698, "end_char": 20717, "source": "regex", "metadata": {}}, {"text": "S. 67(2)", "label": "PROVISION", "start_char": 20752, "end_char": 20760, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipal Act", "statute": "Berar Municipal Act"}}, {"text": "Municipal Committee, Akola", "label": "ORG", "start_char": 20767, "end_char": 20793, "source": "ner", "metadata": {"in_sentence": "The Municipal Committee, Akola, passed a resolution to impose an octroi ta:: and forwarded it along with the draft rules of-assessment and collection to the State Government."}}, {"text": "s. 67(2)", "label": "PROVISION", "start_char": 21656, "end_char": 21664, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipal Act", "statute": "Berar Municipal Act"}}]} {"document_id": "1961_3_618_623_EN", "year": 1961, "text": "SUPREME COURT REPORTS [1961]\n\n'96' Judge nor the High Court has given a finding on that\n\nPioneer Motors point, it is necessary to remit the case to the High\n\n(PYivate) Ltd.\n\nOourt with the direction that the appeal be reheard v. and that particular question be decided on the . Municipal Council, materials on the record. Nothing that has been said\n\nNagerco•l in this judgment must be taken to be an expression of\n\nKapur J. opinion on the merits of this plea taken by the appellant Trust.\n\nJanuary 27.\n\nAppeal No. 502 of 1958, is therefore, allowed and the case remitted to the High Court for decision. The costs in this Court and in the High Court will abide the decision of the appeal in the High Court.\n\nAppeals nos. 499 to 501 dismissed.\n\nAppeal no. 502 allowed. Case remitted.\n\nV ALLABHDAS AND OTHE.RS\n\nMUNICIPAL COMMITTEE, AKO LA. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)\n\nOctroi Tax-Legality of imposition-:\" System of Assessment\", meaning of-C. P. & Berar Municipal Act, r922 (C. P. & Berar II of I922), S. 67(2).\n\nThe Municipal Committee, Akola_, passed a resolution to impose an octroi ta:: and forwarded it along with the draft rules of-assessment and collection to the State Government. The State Government published a notification in the Gazette which contained the articles to be taxed, the rate or rates at whicq they were to be taxed and a brief statement of objects and reasons for the imposition of the tax. This was followed by draft rules as to how taxation was to be done. Thereafter the Municipal Committee affixed on its notice board and also published in the local newspapers the said proposed _rules but the draft rules in regard to the \"system of assessment\" were not published along with other particulars. It was alleged by the appellants that the Municipality by not publishing the draft rules of tile \"system of assessment\", failed to comply in full with the mandatory requirements of s. 67(2) of the Act rendering the imposition of tax illegal.\n\nHeld, that the words\" system of assessment\" did not necessarily mean the whole procedure of taxation, i.e. imposition, collection and procedure in regard to collection and refund. The notice and not the draft rules relating to assessment and collection were required under the Rules to be affixed on the notice\n\nboard of the Municipality and at other conspicuous places of the\n\nVallabhdas town. In the instant case the publication of the Rules relating to the rates at which the tax had been imposed was sufficient compliance with the provisions of Section 67(2) of the C. P. & v.\n\nBerar Municipal Act, 1922, and the rules made thereunder.\n\nMunild not also be sustained. It was, however, urged on behalf of the appellant that the respondent's conduct precluded him from disputing the validity of the arrangement but this argument was rejected by the appeal court; likewise, the contentions that the transfer in favour of the appellant's predecessor was justified by legal necessity also failed.\n\nAs a result of these findings the respondent's appeal was allowed, the decree passed by the trial court was set aside, and the claim for possession made by the respondent was decreed. The respondent's suit was accordingly directed to go before the Official Referee for ascertainment of mesne profits\n\nclaimed by him. It is against this decree that the appellant has come to this Court in appeal.\n\nS\"1ib\" c1uuy'• '!'he principal point which has been urged before us Family C4a1i1us by Mr. R. Keshav Aiyangar on behalf of the appellant v. \"\"' is that in substance the respondent has ratified theR•c\"\"\"\"-~\"\"\" impugned transaction, has received benefit under it, Gafmd.agaakar J and by his conduct has affirmed it, and so it is not open to him to challenge its validity and binding character. In support of this argument he has canvassed for our acceptance the proposition that if a person with full knowledge of his rights assents to a transaction which may otherwise be voidable at his instance and takes benefit under it, he is s'libsequently precluded from disputing its validity. In support of this argument he has relied on a decision of this Court in Sahu Madho Das v. Pandit Mukand Ram {1). In that case this Court, has held that it is settled law that an alienation by a widow in exercise of her powers is not altogether void but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding. This Court also observed that it is a principle of general application underlying many branches of the law that a person who with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to a void it, cannot go back on that election and a void it at a later stage; having made his election he is bound by it. The argument is that though the respondent may not be a party to the impugned transaction, if by his conduct it can be said that he has elected to uphold it and has received benefit under it he cannot be allowed to go back upon the election. There is of course no doubt about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that case. That is why it is necessary to refer very briefly to the findings of fa.ct on which the decision in Sahw,\n\n(1) (1955) 2 S.C.R. 22.\n\n'96' Madho Das's case (1) rests.\n\nIn that case this Court Subbu Chetty's considered the question as to whether the plaintiff Family Cha1ities Mukand Ram had assented to the impugned family\n\n v. arrangement, and observed that as he was not a party qaghava Muda/iar t0 the arrangement his assent to the arrangPmerit\n\nG . d--dk 1 itself and not to something else must be clearlv esta.\n\n\"1'\" raga ar blished, and also his knowleJge of the facts. \"Then,\n\nhaving thus posed the question the material evidcuce\n\nwas examined, and it was held that the cumulative effect of the said evidence led to the reasonable inference that the plaintiff's assent was to the very arrangement itself, and his conduct as well as the conduct of his brother Kanhaiya Lal was consistent only with that hypothesis; in other words, the examination of the material evidence justified the inference that Mukand Ram had in fact elected to assent to the transaction and had recci yed benefit under it, and so the doctrine of election or ratification precluded him from disputing the validity of the said transaction. It is, however, significant that dealing with the case of the 1ainor sons, who were not parties either personally or through their guardians, and who did not claim title either through Pato or her daughters, this Court expressly observed that so far as they were concerned what they received were gifts pure and simple and the only assent that could be inferred from the mere acceptance of the gifts and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others.\n\nThis observation brings out in bold relief by contrast the relevant findfogs in the light of which the plaintiff was held precluded from disputing the validity of the impugned transaction.\n\nThe appellant has also relied on another decision of this Court in Dhiyan Singh v. Jugal Kishore (2 ).\n\nIn that case it was held thttt even if the impugned award was invalid the plaintiff who disputed its ~-alidity wes barred from making that claim by reason of estoppel.\n\nBrijlal against whom the plea of estoppel was effectively raised appeared to have made a claim te the estate in ws. that the parties realised that there might be hindra.nce to the trucks, if the road• was , not repaired. The finding of the Judicial Commissioner on this part of the case is, therefore, sound, though that .reason by itself might not have been sufficient for stopping the work altogether and rescinding the contract.\n\nThe case is thus covered by s. 55 of the Indian Contract Act, and Durga Datt was entitled to rescind the contract, when the very important condition of the agreement was broken by Rungta. We confirm the finding of the Judicial Commissioner on this part of the case.\n\nThis brings us to the inclusion of Rs. 7,500 on account of 3,000 tons of coal alleged to have been transported.\n\nThe evidence on this part of the case is somewhat unsatisfactory. Fortunately for Durga Datt, some of the witnesses of Rungta admitted that besides coal\n\nDurga Dalt\n\nHidayatullah J.\n\n- z96z which was loaded in the wagonR, there were three large\n\nMahabir Prash•i heaps of coal lying in the yard and tht this coal was Rungta transported by Durga Datt. The estimate of Durga\n\nDatt was 3,000 tons. That is no more than a mere Durga Da11 guess. A railway official was examined in the case, and he stated that loose coal was sufficient to fill \" 100 Hidayatul/ah ]. or 50 wagons\" From the schedule filed, it appears that a wagon carries on an average 20 tons. Taking the number of wagons as 75, the quantity could not exceed 1,500 tons. A sum of Rs. 3,750 as payment for 1,500 tons at Rs. 2-8·0 per ton ought to have been included, instead of Rs. 7 ,500. To that extent, the decree in favour of Durga Datt would be modified.\n\nThere remains the question of interest. Interest for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity. (Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji (1)).\n\nIn the present case no agreement aboqt interest was made, nor was it implied. The notice which was given did not specify the sum which was demanded, and, therefore, the Interest Act does not apply. The preserit case also does not fall within those cases in which Courts of equity grant interest. Learned counsel for Durga Datt claimed interest as damages; but it is well-settled that interest as damages cannot be awarded. Interest up to date of suit, therefore, was not claimable, and a deduction shall be made of such interest from the amount decreed. As regards interest pendente lite until the date of realisation, such interest was within the discretion of the Court. The raLe fixed is 6 per cent. which, in the circumstances and according to the practice of Courts, appears high.\n\nInterest shall be calculated at 4 per cent. per annum instead of at 6 per cent., and the decree shall be modified accordingly. • Except for reduction in the amount decreed by Rs. 3,750 and of interest up to the date of the filing of the suit which has been disallowed and of the rate of\n\n(1) (1937) L.R. 65 I.A. 66.\n\ninterest pendente lite until realisation, the appeals shall stand dismissed. In view of the substantial failure of the appeals, the appellant shall pay the costs in this Court. One hearing fee.\n\nGOVERNOR GENERAL IN COUNCIL\n\nMUSADDI LAL. (J. L. KAPUR and J. C. SHAH, J.T.)\n\nRailway-Non-delivery of goods-Suit for compensation for non-delivery, if distinct from compensation for loss, 1iestruction or deterioration-Notice of claim for compensation, if condition precedent -Limitation from when to run-Indian Railways Act,\n\nI890 (IX of z890), ss. 72 and 77-Indian Limitation Act, x<)08, Arts. 30, JI.\n\nThe respondent served on the Railway Administration a composite notice under s. 77 of the Indian Railways Act and under s. 80 of the Code of Civil Procedure and sued for price of goods and for Joss on account of non-delivery. The claim was resisted by the Railway Administration on pleas amongst others that the suit was not maintainable without an effective notice under s. 77 of the Railway Act and that. the suit was barred because at the date of the suit the period of limitation prescribed by Art. 31 of the Indian Limitation Act had expired.\n\nA full bench of the Allahabad High Court upheld the decree of the trial court in favour of the respondent holding that a claim for compensation for non-delivery Of goods was a claim distinct from the claim for compensation for loss, destruction or deteriora tion of the goods, and to the enforcement of a claim of the former variety by action in a court of law under s. 77 was not a condition precedent.\n\nHeld, thats. 77 of the Indian Railways Act imposes a restriction on the enforcement of liability declared by s. 72 of the Act and prescribes a condition precedent to the maintainability of a claim for compensation for goods lost, destroyed or deteriorated while in the custody of the railway Administration who are bailees and not insurer of goods. The section is enacted with a view to enable the railway administration to make enqniries and if possible to recover the goods and deliver them to the consignee and to prevent stale claims. Failure to deliver goods is the consequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or !IH.nt elaimed that the work done was dfockI• f. we.en the three oil companies-The Burmah Shell, the\n\nCaltex and the Standard Vacuum, and their employees in their Calcutta office the Labour Appellate Tribunal discussed the matter in Burmah-Shell Oil Co. Ltd. v.\n\nTheir Workmen (1) thus:-\n\n\"In the matter for payment of bonus for 1950, both the clerical staff and the working people got bonus at the rate of 3 months' wages, though there was an observation that the working class were on calculation entitled to 4 mbnths. The effect was, however, that both the-groups got bonus at the rate of 3 months' basic wages. During the pendency of the Tribunal proceedings, all the companies made agreements with the Union of the workers that bonus would be granted on the basis of 3l months' wages for the year 1951. We feel that there would be a serious repercussion if we allowto the clerical staff anything in excess of that amount. On the other hand, as the effect of the previous decision had been that both groups got equally, paying to the clerks less than that what has been paid to the working class would give rise to a real discontent.\" We find also that when the same question, viz., whether the same rate of bonus should be paid to clerical staff and operatives, was raised before the Industrial Tribunal, Ernakulam, in a dispute between the Burmah-SheU Co. v. Their Workmen('), learned counsel on behalf of the company conceded that he would not press the point for making a distinction .in the matter of payment of bonus. We find therefore that there is no basis for the assumption that the uniform or nearly uniform practice in the oil c?mpanies has been to pay bonus at a lesser rate to clerical staff than to operatives. There is no substance therefore in the argument that the award of bonus at\n\n!•I {1955) L.A.c. 1s7. 794. (i} (1959) (I) L.L.J. I?8•\n\n9/24ths of basic wages, to the clerical staff, is likely ' 96' to cause discontent among the labour staff, which has Burm•Jo.Sh•ll entered into an agreement to receive bonus itt the R•fi•\"'i\" Limii.d same rate. v.\n\nThe second argument is that as the pay scale of the Th•irWorkm\"' clerical staff is higher than what the labour staff receive as wages, the gap-between the living wage and DasGuptaJ. wage actually received, is less for the clerical staff, and so, it would be wrong to pay bonus, wh:ch is primarily intended to bridge this. gap, at the same rate to these two classes of workmen. This argument overlooks the important principle that the payment of bonus is based on the fact of contribution by labour to the profits of the industry, and that it has been held more than once by the court that the contribution to be taken into consideration is the contribution made by the workmen taken together as a class, and that it would not be relevant to enquire which section of the workmen has contributed to what share of profits. It was observed by this Court in Burn &: Co.,\n\nCalcutta v. Their Employees('), in setting aside an award of the Appellate Tribunal of an additional one month's basic wages :-\n\n\" The entire profits of the company are the result of the labour of all the workmen and employees in all its units. To grant a bonus to a section of them on the basis of the total profits of the company will give them a share in profits to which they have not contributed ....•. If the order of the Appellate Tribunal is to be given effect to, some of the employees of the company would get a bonus while, others not and as observed in Karam Chand Thaper & Bros.' Workmen v. The Company (1953 L.A.C. 152), that must lead to disaffection among the workers, and to further industrial disputes. \" A similar view was expressed by this Court in Barodn. Borough Municipality v. Ita Workmen(•).\n\nIt is true that in the cases mentioned above, the Court was co.nsidering the question whether one class of employees could be granted bonus, while another\n\nol&88 was being granted none at all ; and was not\n\n(1) [1956] S.C.R. 781, 793,\n\n(t) [19'7] S.C.R. 33.\n\nr96' considering the question of propriety of different rates Burm•h-Shell of bonus being paid to different classes. But the\n\nRefiries Limited basis of the decision that all the workmen, taken as v. a whole contribute to the profits, is relevant also for Their Workmen the consideration of the question whether different rates of bonus between two different classes of work- D•• Gwpla]. men are fair ; and it is necessary to remember that it is ordinarily not possible to say that one class or workmen, say clerks, contribute more to the prosperity of the industry than another class like operatives. In the absence of some overriding consideration it would not be fair to make a distinction in the rate of bonus between different classes of workmen.\n\nWe do not wish however to lay down an inflexible rule that clerical staff and labour staff must always be paid the same rate of bonus. It may happen in a particular industry that wages of labour staff are extremely low, while the pay scale of the clerical staff is many times higher. If a Tribunal in a case like this, being of opinion, that payment of bonus at the ea.me ra.te will not be fair, and may cause discontent amongst the workers awards bonus at a lower rate to the clerical staff, than to the labour staff, there would be no reason for disturbing the award. The industrial tribunals must have very wide discretion in deciding matters like this; and it is not for this Court to interfere with their exercise of discretion, unless it is plainly arbitrary.\n\nIn the present case, the Tribunal fully conscious of the difference in the wage scales of labour and clerical staff ha.a pointed out that the clerical staff ca.me from the middle class whose standard of living is higher, a.nd has stated that this class has suffered perhaps more than the operative class from rise in prices, and has in consideration of these factors, concluded, tha.t it would be appropriate not to award a lower rate of bonus to them. \" Nothing has been shown to us to justify any doubt about the correctness of the premises mentioned by the learned Tribunal; and the conclusion seems eminenty reasonable.\n\nIt was urged by the learned Attorney-Genera.I who appeared on behalf of the appellant company that\n\neven though it be true that the standard of living of 1961 the middle class from which the clerical staff comes is B II-Sh 11 higher than that of the operatives the difference bet- Reft::~;, Lii; d ween the higher average wage received by the clerical v. staff and that received by the operatives is much Their WorAm\"' more than the difference in monetary terms between the Ii ving wage of the clerical staff and that of the Das Gupta J. operatives. From the statements furnished before us it was attempted to be shown that the starting rate of remuneration of the middle grade for operatives together with what is received in shapes other than the wages was on January 1, 1958, Rs. 188·94 while similar receipts by the middle grade for clerks is Ks. 404·45, that is, the starting remuneration of clerks taking the middle grade as the type is 113·91 % more than the starting remuneration for middle grade for labour. As against this it is suggested, the living wage fo~ clerical staff should be taken only 80% more than that for the operatives.\n\nWe may assume without further investigation the correctness of the statement a.s regards the comparative remuneration received, by middle grade of operatives and middle grade of clerical staff a.s submitted on behalf of the company. We find no basis however for the assumption that the living wage of clerical staff is only 80% more than that of operatives. It is true that in connection with the determination of wages a. formula. which appears to have been initiated first by Mr. Justice Ra.ja.dhya.ksha. when he was enquiring into the cost of living of the non-gazetted employees in the Post and Telegraph Department of multiplying the figures reached on the basis of the requirements of the lower class employees by 180% has often been accepted by the industrial tribunals. Assuming however without deciding that this coefficient of 180 % may be properly adopted for arriving at the fair wage requirements of clerical staff from the fair wage requirements of operatives it does not by any means follow that the same coefficient can be usefully applied in ca.lculating the living wage of the clerical staff from the living wage of the operatives. As has\n\nbeen clearly pointed out by this Court in a recent\n\n' 96' judgment in C. A. No. 416 of 1958 (Standard Vacuum\n\nBurmalo-Shlll Refining Co., Ltd. versUIJ Its Workmen) the compo- R•ftneri\" Limil•a nents of a living wage are largely different from those v. of a fair wage. The difference in the living wage TluirWorkm\"' standards of the class to which operatives generally belong and the class to which the clerical staff belongs Das Gupta].\n\nI96z\n\nFebruary :1.\n\nmay produce much greater differences in the money value in the components of the requirement of Jiving wage as between the two classes than the difference in the money value of. the components of fair wage of the two classes. There is no justification therefore for thinking that the living wage of the clerical staff is only 80% more than the living wage of the operatives and so no conclusion that the gap between the living wage and the actual wage is less in the case of clerks than in the case of operatives can be drawn from a consideration of the comparative wages received by them.\n\nWe find nothing that would justify us in interfering with the conclusion of the Tribunal that the clerical staff should be awarded bonus at the same rate as the operatives.\n\nThe appeal is accordingly dismissed with costs.\n\nAppeal dismissed.\n\nSATINDER SINGH AND OTHERS\n\nAMRAO SINGH AND OTHERS. (P. B. GAJENDRA\\JADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)\n\nLand Acquisition-Cis-Sutlij Jagir-Inalienable Land-Compensation, apportionment of-Interest, when payable-East Punjab\n\nAcquisition and Requisition of Immovable Property (Temporary Powers) Act, x948 (E.--P . .¢of x948), s. s~Land Acquisition Act, x894 (I of x894), H, z3, 3z, 34-lnterest Act, x839 (3z oj.r839)\n\nSS.I, Z.\n\nLands in four villages forming part of the Cis-Sutlej Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers} Act, 1948. At the time of the acquisition A was the holder of the jagir. Possession over one of the villages had been given to", "total_entities": 22, "entities": [{"text": "669\n\nTHE BURMAH-SHELL REFINERIES LIMITED", "label": "PETITIONER", "start_char": 32, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "THE BURMAH-SHELL REFINERIES LIMITED", "offset_not_found": false}}, {"text": "THEIR WORKMEN. (P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 80, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOo", "label": "JUDGE", "start_char": 118, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "K. N. WANCHOo", "offset_not_found": false}}, {"text": "CIVIL .APPELL A.TE JURISDICTION", "label": "PETITIONER", "start_char": 1788, "end_char": 1819, "source": "ner", "metadata": {"in_sentence": "CIVIL .APPELL A.TE JURISDICTION : Ci vii A ppea.l No."}}, {"text": "S. D.\n\nVffhadalal", "label": "LAWYER", "start_char": 2041, "end_char": 2058, "source": "ner", "metadata": {"in_sentence": "General for India, S. D.\n\nVffhadalal a.nd I. N. Shroff, for the a.ppella.nts."}}, {"text": "Janarclan Sharma", "label": "LAWYER", "start_char": 2101, "end_char": 2117, "source": "ner", "metadata": {"in_sentence": "Janarclan Sharma, for respondent No."}}, {"text": "DAS GUPTA", "label": "JUDGE", "start_char": 2221, "end_char": 2230, "source": "ner", "metadata": {"in_sentence": "The Judgment ofthe Court was delivered by\n\nFebruary I.\n\n1961 DAS GUPTA, J.-This appeal by special leave\n\nBurmah-Shell arises out of an industrial dispute between the appel- Refineries Limited !", "canonical_name": "DAS GUPTA"}}, {"text": "Das Gupta", "label": "JUDGE", "start_char": 2526, "end_char": 2535, "source": "ner", "metadata": {"in_sentence": "The demand of the work- Their Workmen men was for bonus equivalent to 8 months' total\n\nDas Gupta J. earnings of the year.", "canonical_name": "DAS GUPTA"}}, {"text": "December 31, 1956", "label": "DATE", "start_char": 3723, "end_char": 3740, "source": "ner", "metadata": {"in_sentence": "Accordingly it awarded bonus at the rate of 9/24ths of the basic wages, to the clerical staff, for the year ending December 31, 1956."}}, {"text": "Das Guf", "label": "PETITIONER", "start_char": 7161, "end_char": 7168, "source": "ner", "metadata": {"in_sentence": "Das Guf>I• f. we.en the three oil companies-The Burmah Shell, the\n\nCaltex and the Standard Vacuum, and their employees in their Calcutta office the Labour Appellate Tribunal discussed the matter in Burmah-Shell Oil Co. Ltd. v.\n\nTheir Workmen (1) thus:-\n\n\"In the matter for payment of bonus for 1950, both the clerical staff and the working people got bonus at the rate of 3 months' wages, though there was an observation that the working class were on calculation entitled to 4 mbnths.", "canonical_name": "DAS GUPTA"}}, {"text": "Caltex", "label": "PETITIONER", "start_char": 7228, "end_char": 7234, "source": "ner", "metadata": {"in_sentence": "Das Guf>I• f. we.en the three oil companies-The Burmah Shell, the\n\nCaltex and the Standard Vacuum, and their employees in their Calcutta office the Labour Appellate Tribunal discussed the matter in Burmah-Shell Oil Co. Ltd. v.\n\nTheir Workmen (1) thus:-\n\n\"In the matter for payment of bonus for 1950, both the clerical staff and the working people got bonus at the rate of 3 months' wages, though there was an observation that the working class were on calculation entitled to 4 mbnths."}}, {"text": "Calcutta", "label": "GPE", "start_char": 7289, "end_char": 7297, "source": "ner", "metadata": {"in_sentence": "Das Guf>I• f. we.en the three oil companies-The Burmah Shell, the\n\nCaltex and the Standard Vacuum, and their employees in their Calcutta office the Labour Appellate Tribunal discussed the matter in Burmah-Shell Oil Co. Ltd. v.\n\nTheir Workmen (1) thus:-\n\n\"In the matter for payment of bonus for 1950, both the clerical staff and the working people got bonus at the rate of 3 months' wages, though there was an observation that the working class were on calculation entitled to 4 mbnths."}}, {"text": "Industrial Tribunal, Ernakulam", "label": "COURT", "start_char": 8415, "end_char": 8445, "source": "ner", "metadata": {"in_sentence": "whether the same rate of bonus should be paid to clerical staff and operatives, was raised before the Industrial Tribunal, Ernakulam, in a dispute between the Burmah-SheU Co. v. Their Workmen('), learned counsel on behalf of the company conceded that he would not press the point for making a distinction .in the matter of payment of bonus."}}, {"text": "Das Gupta", "label": "JUDGE", "start_char": 13816, "end_char": 13825, "source": "ner", "metadata": {"in_sentence": "I who appeared on behalf of the appellant company that\n\neven though it be true that the standard of living of 1961 the middle class from which the clerical staff comes is B II-Sh 11 higher than that of the operatives the difference bet- Reft::~;, Lii; d ween the higher average wage received by the clerical v. staff and that received by the operatives is much Their WorAm\"' more than the difference in monetary terms between the Ii ving wage of the clerical staff and that of the Das Gupta J. operatives.", "canonical_name": "DAS GUPTA"}}, {"text": "January 1, 1958", "label": "DATE", "start_char": 14053, "end_char": 14068, "source": "ner", "metadata": {"in_sentence": "From the statements furnished before us it was attempted to be shown that the starting rate of remuneration of the middle grade for operatives together with what is received in shapes other than the wages was on January 1, 1958, Rs."}}, {"text": "Ra.ja.dhya.ksha.", "label": "JUDGE", "start_char": 14927, "end_char": 14943, "source": "ner", "metadata": {"in_sentence": "which appears to have been initiated first by Mr. Justice Ra.ja.dhya.ksha."}}, {"text": "SATINDER SINGH", "label": "PETITIONER", "start_char": 16886, "end_char": 16900, "source": "ner", "metadata": {"in_sentence": "SATINDER SINGH AND OTHERS\n\nAMRAO SINGH AND OTHERS. ("}}, {"text": "AMRAO SINGH", "label": "RESPONDENT", "start_char": 16913, "end_char": 16924, "source": "ner", "metadata": {"in_sentence": "SATINDER SINGH AND OTHERS\n\nAMRAO SINGH AND OTHERS. ("}}, {"text": "P. B. GAJENDRA\\JADKAR", "label": "JUDGE", "start_char": 16938, "end_char": 16959, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRA\\JADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 16961, "end_char": 16974, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRA\\JADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)", "canonical_name": "K. N. WANCHOo"}}, {"text": "K. c. DAS GUPTA", "label": "JUDGE", "start_char": 16979, "end_char": 16994, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRA\\JADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)", "canonical_name": "K. c. DAS GUPTA"}}, {"text": "Land Acquisition Act", "label": "STATUTE", "start_char": 17225, "end_char": 17245, "source": "regex", "metadata": {}}]} {"document_id": "1961_3_676_697_EN", "year": 1961, "text": "SUPREME COURT REPORTS (1961]\n\n' 96' judgment in C. A. No. 416 of 1958 (Standard Vacuum\n\nBurmalo-Shlll Refining Co., Ltd. versUIJ Its Workmen) the compo- R•ftneri\" Limil•a nents of a living wage are largely different from those v. of a fair wage. The difference in the living wage TluirWorkm\"' standards of the class to which operatives generally belong and the class to which the clerical staff belongs Das Gupta].\n\nI96z\n\nFebruary :1.\n\nmay produce much greater differences in the money value in the components of the requirement of Jiving wage as between the two classes than the difference in the money value of. the components of fair wage of the two classes. There is no justification therefore for thinking that the living wage of the clerical staff is only 80% more than the living wage of the operatives and so no conclusion that the gap between the living wage and the actual wage is less in the case of clerks than in the case of operatives can be drawn from a consideration of the comparative wages received by them.\n\nWe find nothing that would justify us in interfering with the conclusion of the Tribunal that the clerical staff should be awarded bonus at the same rate as the operatives.\n\nThe appeal is accordingly dismissed with costs.\n\nAppeal dismissed.\n\nSATINDER SINGH AND OTHERS\n\nAMRAO SINGH AND OTHERS. (P. B. GAJENDRA\\JADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)\n\nLand Acquisition-Cis-Sutlij Jagir-Inalienable Land-Compensation, apportionment of-Interest, when payable-East Punjab\n\nAcquisition and Requisition of Immovable Property (Temporary Powers) Act, x948 (E.--P . .¢of x948), s. s~Land Acquisition Act, x894 (I of x894), H, z3, 3z, 34-lnterest Act, x839 (3z oj.r839)\n\nSS.I, Z.\n\nLands in four villages forming part of the Cis-Sutlej Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers} Act, 1948. At the time of the acquisition A was the holder of the jagir. Possession over one of the villages had been given to\n\nA's wife G in lieu of maintenance under a consent decree. The matter of payment of compensation was referred to an arbitrator.\n\nA claimed that he was entitled to the entire compensation amount as he was the present holder of the Jagir. A's son S claimed that the lands acquired were inalienable, that A merely had a life interest therein and that the compensation money should be deposited out of which A should get only the interest for his life.\n\nG claimed that she was entitled to the entire compensation in respect of the lands over which she was in possession. All the claimants claimed interest on the compensation amount from the date of taking of possession to the date of payment of compensation. The arbitrator held.:. (i) the acquired lands were inalienable and A merely had a life interest therein,_ (ii) S was entitled to a share in the compensation awarded, . (iii) the amount of compensation for the first three villages should not be deposited but should be divided between A and S in the proportion of 3/ 4th to 1/4th, (iv) the compensation for the fourth village should be deposited and the interest thereof be paid to G and after the deathof G the amount be divided between Aarn; j S half and half, and (v) the claimants were not entitled to anyi interest on the amount of compensation. On appeal the High Court confirmed the awards in toto. The claimants appealed to the Supreme Court by special leave. Held, that the acquired lands formed part of a Cis-Sutlej Jagir which was inalienable, that A was merely a limited owner thereof and was not entitled to the entire amount of compensation and that the reversioners were also entitled to a share therein. The compensation amount could not be permanently deposited leaving the parties the right to enjoy only its income. Even if the equitable principle of s. 32, Land Acqnisition Act, r&;4, was applied it would not justify the permanent investment of the compensation amount. Section 32(1)(b) was intended to be applied provisi9nally for short perigds, where other lands had to be, pnrchased out of the compensation money but were not immediately available and the money had to be invested as an interim measure till such lands were available. It was fair to divide the compensation money in respect of the first three villages half and half between A and S. In deciding the question of apportionment on equitable grounds it was relevant and material t_o take into account the facts that no part of the amount paid to A would reach the reversioners. that S himself had a son and that the reversionary interest had to be safeguarded.\n\nShri Somashekhar Swami v. Bapusaheb Narayanrao Patil A.I.R. 1948 Born. 176, K. C. Banerjee, Official Receiver, In re: A.I.R. 1928 Cal. 402, Mt. Gang; v. Santu A.LR. 1929 Lah. 736 and Special Deputy Collector, Ramnad v. Rajah of Ramnad A.I.R. 1935 Macj. 215, referred to.\n\nHeld, further, that the claimants were entitled to interest at 4 % per annum on the compensation amount. from the date when possession was taken by the State to the date on which it deposited\n\nSa1inder Singh\n\nAmrao Singh\n\nSatinder Singh\n\nAmrao Singh\n\nor paid the amount of compensation to the claimants. 'I:he provision in s. 5(e) of the. 1948 Act which made s. 23(1) of the Land Acquisition Act, 1894, applicable did not exclude the application of ss. 28 and 34 of the latter Act which dealt with the payment of interest. On grneral principles, the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property ; the right to receive interest took the place of the right to retain possession.\n\nThe application of this rule was not exclud.ed by s. 5 of the 1948 Act. Even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to S, l, Swift 0- Co. v. Board of Trade [1925] A.C. 520, Birch v. Joy\n\n(1852) 3 H.L.C. 565 and Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power C0mmission [1928] A.C. 429, applied.\n\nSurjan Singh v. Tile East Punjab Government A.LR. 1957 Punj. 265, approved.\n\nSeth Thawardas Pherumal v. The Union of India [1955] 2 S.C.R. 48 and Nachiappa Cheltiar v. Subramaniam Chettiar [1960] 2 S.C.R. 209, referred to.\n\nCIVIL\n\nAI'PELLATE JURISDICTION: Civil Appeals Nos. 396 to 398 and 419 to 421 of1959, and 152of1960.\n\nAppeals by special leave from the judgment and order dated November 5, 1958, of the Punjab High Court in First Appeals from Orders Nos. 42 to 44, 60 to 62 and 55 of 1955 respectively.\n\nM. 0. Betalvad, Attorney-General for India, 8. N.\n\nAndley, J.B. Dadachanji and Rameshwar Nath, for the appellants (in C. As. Nos. 396 to 398 of 59) and Respondent No. 2 (in C. As. Nos. 419 to 421 of 59 and 152 of 60).\n\nA. V. Viswanatha Bastri and G. 0. Mathur, for the appellant (In C. As. Nos. 419 to 421of59), Respondent No. 1 (In 0. As. Nos. 396 to 398 of 59) and Respondent No. 3 (In C. A. No. 152 of 60).\n\nG. 0. Mathur, for the appellant (In C. A. No. 152 of 60).\n\nr. In regard to the lands in the three other villages the arbitrator directed that the amount of compensat.ion determined by him should be paid in cash, 3/4thR to Amrao Singh and l/4th to the next sole heir Satinder Singh.\n\nThe amount originally offered by the Government and ultimately awarded by the arbitrator were as follows :\n\nV iUage Govt. Off er Mataur (Plus Rs. 93,309·00 15% acquisi-\n\nAward Rs. 1,82,813·00\n\ntion charges) Saneta Rs. 42,179·00 Rs. 55,377·00 Giddarpur Rs. 15,726·00 Rs. 27,640·00 Dhirpur Rs.1,17,912·00 Rs. 2,27,860·00 It would thus be seen that the contest made by Sa.tinder Singh in respect of the amount of compensation originally offered by the Government substantially succeeded inasmuch as the total amount offered was increased by the a.rbitrator by Rs. 2,24,564/-. . The order thus passed by the arbitrator was recorded by him in the four cases tried before him in respect of the four villages. These orders became the subject matter of several appeals in the Punjab High Court. The State of Punjab preferred four appeals 67 to 70 of 1955; Satinder Singh preferred three appeals 42 to 44 of 1955; Amrao Singh preferred four appeals 59 to 62 of 1955; and Sardarani Gurdial Kaur preferred Appeal No. 55 of 1955. In its appeal the State urged before the High Court that Satinder Singh was.not competent to object to the compensation offered by the State and so the proceedings held before the arbitrator were invalid. It was also urged alternatively that Amrao Singh and Sardarani Gurdial Kaur were not entitled to compensation at the higher rates directed by the arbitrator, and. that the benefit\n\nr96i of the award should be available only to Satinder Singh, and it was contended that the amount of com- Satinder Singh\n\nv. pensation fixed by the arbitrator was excessive. All \"\"''\"''Singh these contentions have been rejected by the High Court and the appeals preferred by the State have Gajendragadkar J. been dismiRsed.\n\nThe State has not challenged the correctness of the decision of the High Court, and so we are not concerned in the present appeals with the merits of the pleas raised by the State before the High Court.\n\nIn the appeals preferred by Satinder Singh the High Court rejected his plea that the valuation fixed by the arbitrator in respect of certain properties was inadequate. It also rejected his plea that the amount of compensation ordered to be divided between him and his father Amrao Singh should be deposited in Government Securities. The High Court held that though equitable considerntions would be relevant in deciding the question of apportionment, it would be inexpedient to direct that the amount shquld be deposited in Government Securities because in that case no one will ever be absolutely entitled to it. The High Court also thought that since the State in whose favour the estate may finally lapse owing to escheat did not object to the apportionment made by the arbitrator there was no reason to interfere with the actual order as to apportionment between father and son which the arbitrator thought was reasonable. In dealing with this question the High Court took the view that the alleged reckless extravagance of the father on which the son relied was not relevant. In the result the three appeals filed by Satinder Singh were dismissed.\n\nThe High Court then dealt with the appeal preferred by Amrao Singh, and it confirmed the finding of the arbitrator that the property acquired originally formed part of Cis Sutlej State~ and that in regard to the said States the rule is now well settled that the J agirs large or small in Cis Sutlej States are non-transferable and are even exempt from attachment as political pensions, the holder for the time being ha:vin~ only life interest in the estate, the corpus of whtch is to be\n\nkept intact so that it may pass from heir to heir and z96z lapse in favour of the Government in the absence of Satindrr Singh any legal heir. The High Court also held that even ... if the character of the property was considered from Am•ao Singh the angle of the general custom of Punjab the same conclusion followed because the property in question Gajendragadk\"' J. was undoubtedly ancestral immovable property iu the hands of the father qua his son and as such the father had no right to alienate it to . the prejudice of his son without legal necessity or any other compelling reason. That is how the principal point urged by the father against the claim set up by his son was rejected and his appeals were dismissed. The appeal preferred by Sardarani Gurdial Kaur also met the same fate and was dismissed.\n\nIt appears that all J; he three claimants urged before the High Court that they were entitled to interest at a reasonable rate on the amount of compensation from the time that the property was acquired and they lost possession of it. This contention was likewise rejected by the High Court, and it was held that under the relevant Act of 1948, it was not permissible to award interest on the amount of compensation . . The result was that the decision of the arbitrator was fully confirmed and all the appeals preferred before the High Court were dismissed. This decision of the High Court is challenged by special leave by the three claimants Amrao Singh, Satinder Singh and Sardarani Gurdial Kaur respectively. The appeals preferred by Sa.tinder Singh are Civil Appeals Nos. 396 to 398 of 1959; Amrao Singh's appeals are Civil Appeals Nos. 419 to 421 of 1959, whereas Sardarani Gurdial Ka.ur's appeal is Civil Appeal No. 152 of 1960. That is how this group of seven appeals arises from the same land acquisition proceedings taken by the State of Punjab in respect of the lands situated in the four villages already mentioned. We wonld hereafter refer to Sa.tinder Singh as the appellant, Amra.o Singh as respondent 1, the State of Punjab as respondent 2, and Sa.rdarani Gurdial Kaur as Sardarani.\n\nLogically then the first point which we must consider is the nature of the property and the tit.le of\n\nI96I respondent I in relation to it. That is the principal Point which Mr. Viswanatha Sastri sought to raise Satindtr Singh v. before us in the appeal filed by reBpondent I. This Ammo Singh question has been considered both by the arbitrator . and the High Court elaborately and they have con- Ga; end•agadkar J. curred in making a finding against respondent I. As ti1e judgment of the High Court points out the fact that the lands in question originally formed part of the domain of S. Budh Singh or of the Cis Sutlej States was not seriously dii; puted before the High Court. This implied concession naturally makes Mr. Sastri's task very difficult. Besides, we are not satisfied that there is any substance in the plea which Mr. Sastri has raised before us on this point. The history of the property has been considered by the arbitrator, and the arbitrator as well as the High Court have placed considerable reliance on the relevant statements made in the Punjab Land Administra.tion Manual compiled by Sir James McC. Douie and revised in 1931. Reliance has also been placed on the relevant statements in the compilation known aa the \"Chiefs and Families of Nate in the Punjab \" published by the Punjab Government in 1940. The pedigree table of the Singh Purian family given in this publication shows that the family was founded by S. Kapur Singh who held the title of Nawab. S. Budh Singh was his grandson and he was the head of the family in 1809.\n\nAmrao Singh is a descendant of Gopal Singh who was one of the seven sons of Budh Singh. The large J agirs owned by the families are situated in Kharar and Rupar Tehsils of Ambala District and they formed part of the area formerly known as Cis Sutlej States. Paragraphs 100, 101and102 ofDouie's Land Administration Manual give a detailed account of the families and their properties. The same is also briefly mentioned in the Punjab Gazel'teer dealing with Ambala District.\n\nIt appears from this material that the Sardars in the Cis Sutlej States were independent Rulers whose ancestors ultimately came under the protection of the British Government in about 1809.\n\nBetween 1809 to 1847 the British Government tried to enforce. good\n\ngovernment amongst the semi-independent States; in z96z order to achieve this object the British Government d 11 Id d h d\n\nSatindr Si11ih gra ua y strengthened its ho an tig tene the reins v. with a view to enforce good government. It appears Amrao Sin8h that the Government exercised the right of escheat very freely and whenever there was lapse of heirs it Gajendragadkar J. took up the management and government of the area in its own hands.\n\nAfter 1846 Government began to introduce sweeping measures of reform and with that object Government reduced the privileges and rights of the petty chieftains. In 1849 the chieftains lost their sovereign powers and were deprived of their criminal, civil and fiscal jurisi; liction so that they became no more than Jagirdars. Their rights in the lands held by them were, however, left untoached.\n\nRules regarding succession to these J agirs were framed by the Central Government from time to time and family custom was respected within reasonable limits. -One of these rules is to be found in paragraph 111 of Douie's Manual. Clause (c) of this paragraph laid down \"that alienations by a Jagirdar or pattid11.r of portions of his holding, whether to his relations or strangers, shall neither be officially recognised nor officially recorded.\" Similarly paragraph 164 emphasised the inalienable character of the J agirs and referred to the opinion expressed by the Court of Directors whereby the said character was clearly and unambiguously notified. \"We should have supposed \", said the Court of Directors, \" that there could be no necessity for notifying this as a rule, since it follows from the very nature of.a Jagir\\ which cannot be alienated and can only be attached tor the life of the holder.\" There is thus no doubt that the statements in the authorised publications to which we have just referred and on which the High Court and the arbitrator have relied conclusively show that the holder of property which was a pa.rt of Cis Sutlej\n\nStates did not own the property absolutely but held it as a limited owner. The Kaifiat Ta.Iuka. of Singh Purian family which has been produced in these proceedings supports the same conclusion, 88\n\nr961 Mr. Sastri, however, wanted to contend that the 5o1;..a., Sn•gh evidence on the record was insufficient to justify the v. conclusion that the lands under acquisition formed .dmrao Singh part of the original estate of S. Budh Singh ; but he . - fairly conceded. that respondent I had not g01Je into Ga1endragadhar J. the witness box and bad not purported to justify his plea that any of the lands in dispute have been acquired either by him or by his ancestors in such manner that they could be treated as the absolute properties of the holder. The circular issued by the Office of the Commissioner and Superintendent of Cis Sutlej States on February 26, 1857, unambiguously shows that \" all prop..rietary right to any part of the lands forming a part of the Jagir which may be held by the J agirdar will be considered as pertaining to the J agir and will go to the holder of the J agir for the time being.\" This principle was applicable even to houses and other buildings standing on the J agir which are in the nature of forts and may be conHidered tc:> appertain to the estate. The only exception made was in regard to the. shops built or acquired by the Jagirdar in a town apart from his place of residence.\n\nTherefore, on the material as it stands it is difficult to sustain the plea that the concurrent findings made by the arbitrator and the High Com; t on the question about the character of the property and the nature of the title held by the holder of the said property are wrong. Incidentally it may be added that the same conclusion has been reached by the High Court on the ground of the customary law prevailing in the Punjab. We must accordingly proceed to deal with the rest of the dispute between the parties on the basis that the respondent I is not the absolute owner of the property and that the appellant is entitled to represent the reversionary interest in the present proceedings.\n\nThat takes us to the pleas raised by the appellant in his appeals. On his behalf it has been urged by the learned Attorney-General that the whole amount of compensation in respect of the three villages Mataur, Suneta and Giddarpur should be appropriately invested and both he and respondent l should\n\nbe allowed to enjoy the income coming from the said r961 investment in the share which may ultimately be h Salinde, Silt fixed between them. In support of this rn; mtention e v. relies on the provisions of s. 32(l)(b) of the Land Amrao sinh Acquisition Act I of 1894. This provisioµ empowers the Court to direct that the compensation amountGajendragadhar ]. payable to the owners should be invested either in Government or approved securities and the payment of interest or other proceedings arising from such iuterest should be directed to the person or persons who would for the time being have been entitled to the possession of the lands under acquisition. The argument is that sinuu respondent 1 was not entitled to alienate the property and was under an obligation to keep the corpus in tact for the benefit of the reversioners the compem[ttion amount payable in respect of the acquisition of the said property should be similarly treated ii.nd saved for the benefit of the reversioners; in other words, it is urged that the compensation amount should be treated as a conversion of the corpus of lands and .the same should not be distributed as directed by the High Court. Section 32 deals with cases where the land acquired belonged to any person who had no power to alienate the same; and since respondent 1 was not entitled to alienate the property the principle. enunciated by s. 32(1) (b) is pressed into service as an equitable principle which should be applied to th'3 present case. In support of this argument the learned Attorney-General has relied on decisions of different High Courts. where this principle has been extended to watan property (Shri Somashekhar Swami\n\nv. Bapusaheb Narayanrao Patil (1)), to the property belonging to an idol (K. G. Bannerjee, Ojficial Receiver, In re (')), to the property held by a widow (Mt. Gangi\n\nv. Santu & Others (') ), or to land belonging to an impartible estate (Special Deputy Oolleetor, Ramnad v.\n\nRajah of Ramnad (') ).\n\nThis contention, however, ignores that. the provisions ofs. 32 (1) (b) are intended to be applied only provisionally and for a short period. The scheme of\n\n(1) A.l.R. 1948 Bom. 176•\n\n(•) A.LR. 1928 C&I. 402.\n\n(3) A.I.R. 1929 Lah. 736.\n\n(4) A.I.R. 1935 Mad. 215 •.\n\nx96x s. 32 is that in cases to which the said section applies the Court shall order the compensation amount to be Satinde, Singh d v. iuveste in the purchase of other lands which would Amrao .Singh be held under the right, title and conditions of ownership a.s the land in respect of which the compensation s•j•ndragadk•r J. amount has been deposited. That is the plain effect of a. 32(l)(a). Section 32 (l)(b) comes into operation if such purchase cannot be effected . forthwith; and it has to remain in operation until such purchase is made. In other words, if the compensation amount cannot be immediately invested in the purchase of other lands, as an interim measure the said amount may be invested in the prescribed securities and income thereof distributed to those who were entitled to it. Therefore, even if the principle underlying s. 32 i11 extended to the present case on equitable considerations it would not justify the appellant's claim that the compensation amount should itself be treated as corresponding to the corpus of lands acquired and should be permanently invested in suitable securities leaving to th.e parties concerned the right to enjoy only its income> uch a course is plainly inconsistent with the principle'recognised by s. 32(l)(a). There\n\nfore, we are not prepai'W. to accede to the argument that the compensation ambunt should not be divided between the parties and sho.:uld be permanently deposited iii the fund set apart in'proper investments.\n\nIf the said amount must, therefore, be divided between the appellant and respondent I how should it be divided? That is the next question which calls for our decision. The appellant contends that the fairest way to distribute this amount would be to divide it half and half between him and respondent 1. We are inclined to hold that this contention is well fQunded.\n\nAs the High Court has observed, it is not at all easy to estimate the relative value of the two interests represented by the appellant and respondent 1. The High Court thought that the ratio may be 2/3 and 1/3 or 3/4 and 1/4 there being little to choose between the two; and so it confirmed the apportionment made by the arbitrator. This decision, however, suffers from one serious infirmity. The High Court thought that\n\nthe conduct of respondent 1 which was characterised 1961 by the appellant as the conduct of a reckless spendthrift and squanderer was wholly irrelevant in sa1inder Singh ·. determining the shares to which the appellant and A,,.,.:s;.,11 respondent 1 were respectively entitled. In our opinion, in deciding the question of apportionment onGajmdr•gadk•< J. equitable grounds it is relevant and material to take into account the grievance made by the appellant that the money which would be left with responent 1 would be frittered away by him and no part of it would reach the reversioner. In support of this n amounts in law to an intention not to a.ward interest in regard. to compensatio1'hJamount determined .under it. In support of this condusion the High Court has referred to the fact that s. 5(e) of the Act specifically makes applicable the provisions of s. 23(1) of the Land Acquisition Act of 1894, and that, it JS said, inevitably leads to the inference that SS. 28 and 34 of the. Act whfoh deal with the payment of interest are .not intended to apply to the. proceedings under it. In our opinion, this oonC!usion is not well. founded. It would be legitimate to hold that by the application of s. 23(1) in terms the provisions of s. 23(2) a.re by necessary implication excluded. If the Legislature has . provided t.hat only one part of s. 23 should be applied it would be reasonable to hold that the other part of s. 23 was not intended to be applied ; but we do not see how it would. be l'easonable to hold\n\nthat by the application of s. 23(1) the principles under-\n\nI96I lying the provisions of ss. 28 and 34 are also excluded. Salinder Singh Therefore, it is necessary to examine this question. on v. general grounds and principles without assuming that Amrao Singh the application of these .general considerations is . -. excluJed by any of the provisions of the Act.\n\nGa1endragadkar J.\n\nWhat then is the contention raised by the claimants?\n\nThey contend that their immuvable property has been acquired by the State and the State has a.ken possession of it. • Thus they have been deprived of the right to receive t.he income from .the property and there is a time lag between the taking of the possession by the State and the payment of compensation by it to the claimants. During this period they have been deprived of the income of the property and t!J'ey have not been able to receive interest from the amount of compensation.\n\nStated broadly the act of taking possession of.immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. This . question has been considered on several occasions and the general principle on which the. contention is raised by the claimants has been upheld .. In Swift &, Co. v. Board of Trade(') it has been held 'by the House of Lords that \" on .a contract for the sale and purchase 9f land it is the practice of the Court of Chancery to require the purchaser to pay interest on his purchase money from the date when he took, or might safely have taken, possession of the land.\" This principle has been recognised ever since the decision in Birch v.\n\nJay('). In his speech, Viscount Cave, L.C., added that \" this practice rests upon the view that the act of taking possession is an implied agreement to pay interest \", and he points out that the said rule has been extended to cases of compulsory purchase under the Lands Clauses Coneolidaticn Act, 1845. In this connection distinction is drawn between acquisition or sales of land and requisition of goods by the State.\n\nIn regard to cases falling under the latter category this rule would not apply.\n\n(1) (r925] A.C. 5.0, 532.\n\n(2) (•852) 3 H.L.C. 565.\n\n1961 In Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission(.'), it was held by the ,_Smind:, Singh Privy Council that \"upon the expropriation of land\n\n.: Amrao Singh un_der stattory power, whether for the purpose of - private gam or of good to the public at large, the G•jeodragadkar ]. owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intenlion.\" Dea.ling with the argument that the expropriation with which the Privy Council was concerned was not effected for private gain, but for the good of the public at large, it observed \"but for all that, the owner is deprived of his property in this case as much as in the other, and the rule has long been accepted in the interpretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do so is made quite clear. The right to receive the interest takes the place of the right to retain possession and is within the rule.\" It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact thats. 5(3) of the Act makes s. 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interest. That is the view which the Punjab High Court has taken in Surjan Singh v. The East Punjab Goi•ernment (2), and we think rightly.\n\nIt is, however, urged by Mr. Gopal Singh for respondent 2 that what the claimants are entitled to receive is compensation, and since the word \"compensation \" is used by s. 5( 1) both in respect of requisition as well as acquisition it would not be fair to import the general rule about the payment of interest where property is acquired. Compensation, it is urged, should represent the price of the property and there is no\n\n(I) [1928] AC. 42Q.\n\n(2) A.LR. 1957 Punj. 265.\n\njustification for adding to the said price any amount\n\nI96I by way of damages.\n\nWe are not impressed by this Satinder Singh argument. When a claim for payment of interest is v. made by a person whose immovable property has been Amrao Singh acquired compulsorily he is not 'inaking claim for ·. damages properly or technically so called ; he is basing Ga1endragadkar l his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession _taken by compulsory acquisition interest should be paid to him on the said amount of compensation. In our opinion, therefore, the fact that s. 5(1) deals _with compensation both for requisition and acquisition cannot serve to exclude the application of the general rule to which we have just referred.\n\nMr. Gopal Singh then relied on some obseNations made by this Court in Seth Thawarilas Pherumal v. The Union of Irulia (1). Bose, J., who spoke for the Court has set out four conditions. which must be fulfilled before interest can be awarded under Interest Act of 1839, and observed that not one of those was present in the case with which the Court was concerned. That is why it was held that the arbitrator had erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable. Having come to this conclusion the learned Judge proceeded to make certain: observations . in respect of the applicability of s. 34 of the Code of Civil Procedure. He added that s. 34 does not apply because the arbitrator is not a Court within the meaning of the Code, nor does the Code apply to arbitrators, and but for s. 34 even a Court would not have the power to give interest after the suit. These observations were considered by this Court in Nachiappa Chettiar v.\n\nSubramaniam Chettiar ('), and it was pointed out that they were obviously not intended to lay down ariy broad and unqualified proposition like the one which is urged before us by Mr. Gopal Singh in the present appeal.\n\nJn this connection we may incidentally refer to Interest Act, 1839 (XXXII of 1839). Section 2 of this\n\n(1) (1955] 2 S.C.R. 48.\n\n8~.\n\n(2) [196o) 2 S.C.R. '\"9\n\nr96r Act confers power on the Court to allow interest in oases specified therein, .but the proviso to the said Satinder Singh v. section makes it clear that interest shall be payable in Amrao Singh all cases in which it is now payable by law. In other words, the operative provisions of s .. 1 of the said Act Gajemlragadkar J. do not mean that where interest was otherwise payable by law Court's power to award such interest is taken away. The power to award interest on equitable grounds or under any other provisions of the Jaw is expressly saved by the proviso to s. 1. This question was considered by the Privy Council in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji ('). Referring to the proviso to s. I of the Act the Privy Council observed \" this proviso a pp lies to cases in which the Court of equity exercises its jurisdiction to allow interest. \" We have already seen that the right to receive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right; and so, the proviso to s. I of the Interest Act saves the said right. We must accordingly hold that the High Court was in error in rejecting the claimants' case for the payment of interest on compensation amount, and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimants' lands to the date on which it deposited or paid the amount of qompensation to them.\n\nIn the appeal preferred by the Sardarani, Mr. Mathur attempted to challenge the propriety of the order passed by the High Court directing that the amount of compensation in respect of Dhirpur lands should be invested and that the Sardarani should receive her maintenance from the interest accruing from such investment. Apart from the fact thafthe order made in that behalf is fair and just, it is clear that the learned counsel for the Sardarani himself had suggested that such an order should be passed. Therefore, we cannot allow !\\Ir. Mathur to raise any contention ag, iin8t the said orrler in the prec; ent app('al.\n\n(1) (1938) L.R. 65 I.A. 66.\n\nMr. Mathur further contended that if we were to z96z award interest on the amount of compensation his client would be entitled to receive the whole of the Satinder Singh v. interest on the compensation amount ordered to be Amrao Singh paid in respect of the lands in Dhirpur village. That no doubt is true, and indeed Mr. Mathur's claim in Gojendragadkar J. that behalf is not disputed either by the appellant or by respondent 1. We would accordingly modify the decree passed by the High Court by directing that the amount of compensation payable in respect of the landg in Mataur, Saneta and Giddarpur may be divided half and half between the appellant and respondent 1, and that interest should be paid on all the items of compensation determined by the High Court at 4% per annum. The interest in regard to the compensation payable for Dhirpur lands should be paid to the Sardarani, whereas the interest in regard to the lands in the three other villages should be paid half and half to the appellant and respondent 1. In making the payments of compensation amounts to the respectiv.e parties whatever amounts may have been withdrawn by or on their behalf should be taken into account and their claims should be properly adjusted in that behalf. In the circumstarrces of this case we direct that the appellant should get half his costs from respondent 1 and the other half from respondent 2 in his three appeals. There will be only one set of hearing costs.\n\nThe costs in the remaining four appeals should be borne by the parties.\n\nC. A. Nos. 396 to 398 of 1959 and\n\nC. A. No. 152 of 1960 allowed in parf.\n\nC. A. Nos. 419 to 421 of 1959,\n\ndismissed.", "total_entities": 151, "entities": [{"text": "the class to which the clerical staff belongs Das Gupta", "label": "JUDGE", "start_char": 357, "end_char": 412, "source": "metadata", "metadata": {"canonical_name": "K.C. DAS GUPTA", "offset_not_found": false}}, {"text": "SATINDER SINGH AND OTHERS", "label": "PETITIONER", "start_char": 1269, "end_char": 1294, "source": "metadata", "metadata": {"canonical_name": "SATINDER SINGH AND OTHERS", "offset_not_found": false}}, {"text": "AMRAO SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 1296, "end_char": 1318, "source": "metadata", "metadata": {"canonical_name": "AMRAO SINGH AND OTHERS", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 1344, "end_char": 1357, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "Land Acquisition Act", "label": "STATUTE", "start_char": 1608, "end_char": 1628, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 3402, "end_char": 3415, "source": "ner", "metadata": {"in_sentence": "The claimants appealed to the Supreme Court by special leave."}}, {"text": "s. 32", "label": "PROVISION", "start_char": 3836, "end_char": 3841, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acqnisition Act", "label": "STATUTE", "start_char": 3843, "end_char": 3863, "source": "regex", "metadata": {}}, {"text": "Section 32(1)(b)", "label": "PROVISION", "start_char": 3957, "end_char": 3973, "source": "regex", "metadata": {"linked_statute_text": "Land Acqnisition Act", "statute": "Land Acqnisition Act"}}, {"text": "K. C. Banerjee", "label": "OTHER_PERSON", "start_char": 4691, "end_char": 4705, "source": "ner", "metadata": {"in_sentence": "176, K. C. Banerjee, Official Receiver, In re: A.I.R. 1928 Cal.", "canonical_name": "K. G. Bannerjee"}}, {"text": "Sa1inder Singh", "label": "PETITIONER", "start_char": 5080, "end_char": 5094, "source": "ner", "metadata": {"in_sentence": "from the date when possession was taken by the State to the date on which it deposited\n\nSa1inder Singh\n\nAmrao Singh\n\nSatinder Singh\n\nAmrao Singh\n\nor paid the amount of compensation to the claimants. '", "canonical_name": "SATINDER SINGH AND OTHERS"}}, {"text": "Amrao Singh", "label": "RESPONDENT", "start_char": 5096, "end_char": 5107, "source": "ner", "metadata": {"in_sentence": "from the date when possession was taken by the State to the date on which it deposited\n\nSa1inder Singh\n\nAmrao Singh\n\nSatinder Singh\n\nAmrao Singh\n\nor paid the amount of compensation to the claimants. '", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "Satinder Singh", "label": "PETITIONER", "start_char": 5109, "end_char": 5123, "source": "ner", "metadata": {"in_sentence": "from the date when possession was taken by the State to the date on which it deposited\n\nSa1inder Singh\n\nAmrao Singh\n\nSatinder Singh\n\nAmrao Singh\n\nor paid the amount of compensation to the claimants. '", "canonical_name": "SATINDER SINGH AND OTHERS"}}, {"text": "s. 5(e)", "label": "PROVISION", "start_char": 5210, "end_char": 5217, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 5246, "end_char": 5254, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 5262, "end_char": 5288, "source": "regex", "metadata": {}}, {"text": "ss. 28 and 34", "label": "PROVISION", "start_char": 5336, "end_char": 5349, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5693, "end_char": 5697, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Even under the Interest Act, 1839", "label": "STATUTE", "start_char": 5715, "end_char": 5748, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1955] 2 S.C.R. 48", "label": "CASE_CITATION", "start_char": 6156, "end_char": 6174, "source": "regex", "metadata": {}}, {"text": "[1960] 2 S.C.R. 209", "label": "CASE_CITATION", "start_char": 6222, "end_char": 6241, "source": "regex", "metadata": {}}, {"text": "Betalvad", "label": "OTHER_PERSON", "start_char": 6549, "end_char": 6557, "source": "ner", "metadata": {"in_sentence": "Betalvad, Attorney-General for India, 8."}}, {"text": "N.\n\nAndley", "label": "LAWYER", "start_char": 6590, "end_char": 6600, "source": "ner", "metadata": {"in_sentence": "N.\n\nAndley, J.B. Dadachanji and Rameshwar Nath, for the appellants (in C. As."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 6602, "end_char": 6617, "source": "ner", "metadata": {"in_sentence": "N.\n\nAndley, J.B. Dadachanji and Rameshwar Nath, for the appellants (in C. As."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 6622, "end_char": 6636, "source": "ner", "metadata": {"in_sentence": "N.\n\nAndley, J.B. Dadachanji and Rameshwar Nath, for the appellants (in C. As."}}, {"text": "A. V. Viswanatha Bastri", "label": "LAWYER", "start_char": 6762, "end_char": 6785, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Bastri and G. 0."}}, {"text": "G. 0. Mathur", "label": "LAWYER", "start_char": 6790, "end_char": 6802, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Bastri and G. 0."}}, {"text": "iOpaJ", "label": "PETITIONER", "start_char": 7014, "end_char": 7019, "source": "ner", "metadata": {"in_sentence": "r. In regard to the lands in the three other villages the arbitrator directed that the amount of compensat.ion determined by him should be paid in cash, 3/4thR to Amrao Singh and l/4th to the next sole heir Satinder Singh.", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "Gurdial Kaur", "label": "OTHER_PERSON", "start_char": 16398, "end_char": 16410, "source": "ner", "metadata": {"in_sentence": "He also Am•ao Singh directed that on the death of Gurdial Kaur the amount should be divided half and half between the then Gajendragadkar J. holder of the Estate and the next heir or heirs taken togeth1>r. In regard to the lands in the three other villages the arbitrator directed that the amount of compensat.ion determined by him should be paid in cash, 3/4thR to Amrao Singh and l/4th to the next sole heir Satinder Singh."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 16471, "end_char": 16485, "source": "ner", "metadata": {"in_sentence": "He also Am•ao Singh directed that on the death of Gurdial Kaur the amount should be divided half and half between the then Gajendragadkar J. holder of the Estate and the next heir or heirs taken togeth1>r. In regard to the lands in the three other villages the arbitrator directed that the amount of compensat.ion determined by him should be paid in cash, 3/4thR to Amrao Singh and l/4th to the next sole heir Satinder Singh.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "State of Punjab", "label": "ORG", "start_char": 17566, "end_char": 17581, "source": "ner", "metadata": {"in_sentence": "The State of Punjab preferred four appeals 67 to 70 of 1955; Satinder Singh preferred three appeals 42 to 44 of 1955; Amrao Singh preferred four appeals 59 to 62 of 1955; and Sardarani Gurdial Kaur preferred Appeal No."}}, {"text": "Satindrr Singh", "label": "PETITIONER", "start_char": 20462, "end_char": 20476, "source": "ner", "metadata": {"in_sentence": "The High Court then dealt with the appeal preferred by Amrao Singh, and it confirmed the finding of the arbitrator that the property acquired originally formed part of Cis Sutlej State~ and that in regard to the said States the rule is now well settled that the J agirs large or small in Cis Sutlej States are non-transferable and are even exempt from attachment as political pensions, the holder for the time being ha:vin~ only life interest in the estate, the corpus of whtch is to be\n\nkept intact so that it may pass from heir to heir and z96z lapse in favour of the Government in the absence of Satindrr Singh any legal heir.", "canonical_name": "SATINDER SINGH AND OTHERS"}}, {"text": "Gajendragadk", "label": "JUDGE", "start_char": 20701, "end_char": 20713, "source": "ner", "metadata": {"in_sentence": "The High Court also held that even ... if the character of the property was considered from Am•ao Singh the angle of the general custom of Punjab the same conclusion followed because the property in question Gajendragadk\"' J. was undoubtedly ancestral immovable property iu the hands of the father qua his son and as such the father had no right to alienate it to .", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "Amrao Singh", "label": "PETITIONER", "start_char": 21807, "end_char": 21818, "source": "ner", "metadata": {"in_sentence": "This decision of the High Court is challenged by special leave by the three claimants Amrao Singh, Satinder Singh and Sardarani Gurdial Kaur respectively.", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "Sardarani Gurdial Kaur", "label": "PETITIONER", "start_char": 21839, "end_char": 21861, "source": "ner", "metadata": {"in_sentence": "This decision of the High Court is challenged by special leave by the three claimants Amrao Singh, Satinder Singh and Sardarani Gurdial Kaur respectively.", "canonical_name": "Sardarani Gurdial Ka.ur"}}, {"text": "Sardarani Gurdial Ka.ur", "label": "PETITIONER", "start_char": 22033, "end_char": 22056, "source": "ner", "metadata": {"in_sentence": "419 to 421 of 1959, whereas Sardarani Gurdial Ka.ur's appeal is Civil Appeal No.", "canonical_name": "Sardarani Gurdial Ka.ur"}}, {"text": "Sa.tinder Singh", "label": "PETITIONER", "start_char": 22319, "end_char": 22334, "source": "ner", "metadata": {"in_sentence": "We wonld hereafter refer to Sa.tinder Singh as the appellant, Amra.o Singh as respondent 1, the State of Punjab as respondent 2, and Sa.rdarani Gurdial Kaur as Sardarani.", "canonical_name": "SATINDER SINGH AND OTHERS"}}, {"text": "Amra.o Singh", "label": "LAWYER", "start_char": 22353, "end_char": 22365, "source": "ner", "metadata": {"in_sentence": "We wonld hereafter refer to Sa.tinder Singh as the appellant, Amra.o Singh as respondent 1, the State of Punjab as respondent 2, and Sa.rdarani Gurdial Kaur as Sardarani.", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "State of Punjab", "label": "RESPONDENT", "start_char": 22387, "end_char": 22402, "source": "ner", "metadata": {"in_sentence": "We wonld hereafter refer to Sa.tinder Singh as the appellant, Amra.o Singh as respondent 1, the State of Punjab as respondent 2, and Sa.rdarani Gurdial Kaur as Sardarani."}}, {"text": "Sa.rdarani Gurdial Kaur", "label": "PETITIONER", "start_char": 22424, "end_char": 22447, "source": "ner", "metadata": {"in_sentence": "We wonld hereafter refer to Sa.tinder Singh as the appellant, Amra.o Singh as respondent 1, the State of Punjab as respondent 2, and Sa.rdarani Gurdial Kaur as Sardarani.", "canonical_name": "Sardarani Gurdial Ka.ur"}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 22641, "end_char": 22658, "source": "ner", "metadata": {"in_sentence": "That is the principal Point which Mr. Viswanatha Sastri sought to raise Satindtr Singh v. before us in the appeal filed by reBpondent I. This Ammo Singh question has been considered both by the arbitrator ."}}, {"text": "Ammo Singh", "label": "RESPONDENT", "start_char": 22745, "end_char": 22755, "source": "ner", "metadata": {"in_sentence": "That is the principal Point which Mr. Viswanatha Sastri sought to raise Satindtr Singh v. before us in the appeal filed by reBpondent I. This Ammo Singh question has been considered both by the arbitrator .", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "S. Budh Singh", "label": "OTHER_PERSON", "start_char": 23050, "end_char": 23063, "source": "ner", "metadata": {"in_sentence": "and the High Court elaborately and they have con- Ga; end•agadkar J. curred in making a finding against respondent I. As ti1e judgment of the High Court points out the fact that the lands in question originally formed part of the domain of S. Budh Singh or of the Cis Sutlej States was not seriously dii; puted before the High Court."}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 23188, "end_char": 23194, "source": "ner", "metadata": {"in_sentence": "This implied concession naturally makes Mr. Sastri's task very difficult."}}, {"text": "James McC. Douie", "label": "OTHER_PERSON", "start_char": 23577, "end_char": 23593, "source": "ner", "metadata": {"in_sentence": "The history of the property has been considered by the arbitrator, and the arbitrator as well as the High Court have placed considerable reliance on the relevant statements made in the Punjab Land Administra.tion Manual compiled by Sir James McC. Douie and revised in 1931."}}, {"text": "Punjab Government", "label": "ORG", "start_char": 23766, "end_char": 23783, "source": "ner", "metadata": {"in_sentence": "Reliance has also been placed on the relevant statements in the compilation known aa the \"Chiefs and Families of Nate in the Punjab \" published by the Punjab Government in 1940."}}, {"text": "Singh Purian", "label": "OTHER_PERSON", "start_char": 23819, "end_char": 23831, "source": "ner", "metadata": {"in_sentence": "The pedigree table of the Singh Purian family given in this publication shows that the family was founded by S. Kapur Singh who held the title of Nawab."}}, {"text": "S. Kapur Singh", "label": "OTHER_PERSON", "start_char": 23902, "end_char": 23916, "source": "ner", "metadata": {"in_sentence": "The pedigree table of the Singh Purian family given in this publication shows that the family was founded by S. Kapur Singh who held the title of Nawab."}}, {"text": "Gopal Singh", "label": "OTHER_PERSON", "start_char": 24052, "end_char": 24063, "source": "ner", "metadata": {"in_sentence": "Amrao Singh is a descendant of Gopal Singh who was one of the seven sons of Budh Singh."}}, {"text": "Budh Singh", "label": "OTHER_PERSON", "start_char": 24097, "end_char": 24107, "source": "ner", "metadata": {"in_sentence": "Amrao Singh is a descendant of Gopal Singh who was one of the seven sons of Budh Singh."}}, {"text": "Kharar", "label": "GPE", "start_char": 24165, "end_char": 24171, "source": "ner", "metadata": {"in_sentence": "The large J agirs owned by the families are situated in Kharar and Rupar Tehsils of Ambala District and they formed part of the area formerly known as Cis Sutlej States."}}, {"text": "British Government", "label": "ORG", "start_char": 24651, "end_char": 24669, "source": "ner", "metadata": {"in_sentence": "It appears from this material that the Sardars in the Cis Sutlej States were independent Rulers whose ancestors ultimately came under the protection of the British Government in about 1809."}}, {"text": "Amrao Sin8h", "label": "RESPONDENT", "start_char": 24997, "end_char": 25008, "source": "ner", "metadata": {"in_sentence": "It appears Amrao Sin8h that the Government exercised the right of escheat very freely and whenever there was lapse of heirs it Gajendragadkar J. took up the management and government of the area in its own hands.", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "Central Government", "label": "ORG", "start_char": 25659, "end_char": 25677, "source": "ner", "metadata": {"in_sentence": "Rules regarding succession to these J agirs were framed by the Central Government from time to time and family custom was respected within reasonable limits."}}, {"text": "Douie", "label": "OTHER_PERSON", "start_char": 25809, "end_char": 25814, "source": "ner", "metadata": {"in_sentence": "-One of these rules is to be found in paragraph 111 of Douie's Manual."}}, {"text": "Cis Sutlej", "label": "OTHER_PERSON", "start_char": 26732, "end_char": 26742, "source": "ner", "metadata": {"in_sentence": "There is thus no doubt that the statements in the authorised publications to which we have just referred and on which the High Court and the arbitrator have relied conclusively show that the holder of property which was a pa.rt of Cis Sutlej\n\nStates did not own the property absolutely but held it as a limited owner."}}, {"text": ".dmrao Singh", "label": "RESPONDENT", "start_char": 27120, "end_char": 27132, "source": "ner", "metadata": {"in_sentence": "of Singh Purian family which has been produced in these proceedings supports the same conclusion, 88\n\nr961 Mr. Sastri, however, wanted to contend that the 5o1;..a., Sn•gh evidence on the record was insufficient to justify the v. conclusion that the lands under acquisition formed .dmrao Singh part of the original estate of S. Budh Singh ; but he . -", "canonical_name": "AMRAO SINGH AND OTHERS"}}, {"text": "Ga1endragadhar", "label": "JUDGE", "start_char": 27245, "end_char": 27259, "source": "ner", "metadata": {"in_sentence": "that respondent I had not g01Je into Ga1endragadhar J. the witness box and bad not purported to justify his plea that any of the lands in dispute have been acquired either by him or by his ancestors in such manner that they could be treated as the absolute properties of the holder.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "February 26, 1857", "label": "DATE", "start_char": 27588, "end_char": 27605, "source": "ner", "metadata": {"in_sentence": "The circular issued by the Office of the Commissioner and Superintendent of Cis Sutlej States on February 26, 1857, unambiguously shows that \" all prop..rietary right to any part of the lands forming a part of the Jagir which may be held by the J agirdar will be considered as pertaining to the J agir and will go to the holder of the J agir for the time being.\""}}, {"text": "Suneta", "label": "GPE", "start_char": 29063, "end_char": 29069, "source": "ner", "metadata": {"in_sentence": "On his behalf it has been urged by the learned Attorney-General that the whole amount of compensation in respect of the three villages Mataur, Suneta and Giddarpur should be appropriately invested and both he and respondent l should\n\nbe allowed to enjoy the income coming from the said r961 investment in the share which may ultimately be h Salinde, Silt fixed between them."}}, {"text": "s. 32(l)(b)", "label": "PROVISION", "start_char": 29360, "end_char": 29371, "source": "regex", "metadata": {"statute": null}}, {"text": "Acquisition Act I of 1894", "label": "STATUTE", "start_char": 29395, "end_char": 29420, "source": "regex", "metadata": {}}, {"text": "Section 32", "label": "PROVISION", "start_char": 30333, "end_char": 30343, "source": "regex", "metadata": {"linked_statute_text": "Acquisition Act I of 1894", "statute": "Acquisition Act I of 1894"}}, {"text": "s. 32(1)", "label": "PROVISION", "start_char": 30541, "end_char": 30549, "source": "regex", "metadata": {"statute": null}}, {"text": "K. G. Bannerjee", "label": "OTHER_PERSON", "start_char": 30913, "end_char": 30928, "source": "ner", "metadata": {"in_sentence": "where this principle has been extended to watan property (Shri Somashekhar Swami\n\nv. Bapusaheb Narayanrao Patil (1)), to the property belonging to an idol (K. G. Bannerjee, Ojficial Receiver, In re (')), to the property held by a widow (Mt. Gangi\n\nv. Santu & Others (') ), or to land belonging to an impartible estate (Special Deputy Oolleetor, Ramnad v.\n\nRajah of Ramnad (') ).", "canonical_name": "K. G. Bannerjee"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 31407, "end_char": 31412, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 31795, "end_char": 31805, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 32244, "end_char": 32249, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32(l)(a)", "label": "PROVISION", "start_char": 32655, "end_char": 32666, "source": "regex", "metadata": {"statute": null}}, {"text": "sa1inder Singh", "label": "PETITIONER", "start_char": 33828, "end_char": 33842, "source": "ner", "metadata": {"in_sentence": "The High Court thought that\n\nthe conduct of respondent 1 which was characterised 1961 by the appellant as the conduct of a reckless spendthrift and squanderer was wholly irrelevant in sa1inder Singh ·.", "canonical_name": "SATINDER SINGH AND OTHERS"}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 34545, "end_char": 34552, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act, 1903", "label": "STATUTE", "start_char": 34564, "end_char": 34588, "source": "regex", "metadata": {}}, {"text": "Sardarani", "label": "OTHER_PERSON", "start_char": 35688, "end_char": 35697, "source": "ner", "metadata": {"in_sentence": "It is significant that the amount of compensation in respect of the fourth village which is at present charged for the maintenance of Sardarani has been ordered to be divided ha."}}, {"text": "s. 5(e)", "label": "PROVISION", "start_char": 37328, "end_char": 37335, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 37395, "end_char": 37403, "source": "regex", "metadata": {"statute": null}}, {"text": "SS. 28 and 34", "label": "PROVISION", "start_char": 37502, "end_char": 37515, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 37737, "end_char": 37745, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 37773, "end_char": 37781, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 37879, "end_char": 37884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 37957, "end_char": 37962, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 38079, "end_char": 38087, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 28 and 34", "label": "PROVISION", "start_char": 38140, "end_char": 38153, "source": "regex", "metadata": {"statute": null}}, {"text": "Ga1endragadkar", "label": "JUDGE", "start_char": 38416, "end_char": 38430, "source": "ner", "metadata": {"in_sentence": "Ga1endragadkar J.\n\nWhat then is the contention raised by the claimants?", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "Viscount Cave", "label": "JUDGE", "start_char": 39771, "end_char": 39784, "source": "ner", "metadata": {"in_sentence": "In his speech, Viscount Cave, L.C., added that \" this practice rests upon the view that the act of taking possession is an implied agreement to pay interest \", and he points out that the said rule has been extended to cases of compulsory purchase under the Lands Clauses Coneolidaticn Act, 1845."}}, {"text": "Lands Clauses Coneolidaticn Act, 1845", "label": "STATUTE", "start_char": 40013, "end_char": 40050, "source": "regex", "metadata": {}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 41785, "end_char": 41793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5( 1)", "label": "PROVISION", "start_char": 42278, "end_char": 42286, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 43246, "end_char": 43253, "source": "regex", "metadata": {"statute": null}}, {"text": "Bose", "label": "JUDGE", "start_char": 43532, "end_char": 43536, "source": "ner", "metadata": {"in_sentence": "Bose, J., who spoke for the Court has set out four conditions."}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 43656, "end_char": 43668, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 44065, "end_char": 44070, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 44074, "end_char": 44101, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 44117, "end_char": 44122, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 44260, "end_char": 44265, "source": "regex", "metadata": {"statute": null}}, {"text": "Nachiappa Chettiar", "label": "OTHER_PERSON", "start_char": 44389, "end_char": 44407, "source": "ner", "metadata": {"in_sentence": "These observations were considered by this Court in Nachiappa Chettiar v.\n\nSubramaniam Chettiar ('), and it was pointed out that they were obviously not intended to lay down ariy broad and unqualified proposition like the one which is urged before us by Mr. Gopal Singh in the present appeal."}}, {"text": "Jn this connection we may incidentally refer to Interest Act, 1839", "label": "STATUTE", "start_char": 44631, "end_char": 44697, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2", "label": "PROVISION", "start_char": 44715, "end_char": 44724, "source": "regex", "metadata": {"linked_statute_text": "Jn this connection we may incidentally refer to Interest Act, 1839", "statute": "Jn this connection we may incidentally refer to Interest Act, 1839"}}, {"text": "(1955] 2 S.C.R. 48", "label": "CASE_CITATION", "start_char": 44738, "end_char": 44756, "source": "regex", "metadata": {}}, {"text": "Gajemlragadkar", "label": "JUDGE", "start_char": 45099, "end_char": 45113, "source": "ner", "metadata": {"in_sentence": "In other words, the operative provisions of s .. 1 of the said Act Gajemlragadkar J. do not mean that where interest was otherwise payable by law Court's power to award such interest is taken away.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 45357, "end_char": 45361, "source": "regex", "metadata": {"linked_statute_text": "Jn this connection we may incidentally refer to Interest Act, 1839", "statute": "Jn this connection we may incidentally refer to Interest Act, 1839"}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 45919, "end_char": 45931, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mathur", "label": "OTHER_PERSON", "start_char": 46370, "end_char": 46376, "source": "ner", "metadata": {"in_sentence": "In the appeal preferred by the Sardarani, Mr. Mathur attempted to challenge the propriety of the order passed by the High Court directing that the amount of compensation in respect of Dhirpur lands should be invested and that the Sardarani should receive her maintenance from the interest accruing from such investment."}}, {"text": "(1938) L.R. 65 I.A. 66", "label": "CASE_CITATION", "start_char": 46951, "end_char": 46973, "source": "regex", "metadata": {}}, {"text": "Dhirpur village", "label": "GPE", "start_char": 47243, "end_char": 47258, "source": "ner", "metadata": {"in_sentence": "Mr. Mathur further contended that if we were to z96z award interest on the amount of compensation his client would be entitled to receive the whole of the Satinder Singh v. interest on the compensation amount ordered to be Amrao Singh paid in respect of the lands in Dhirpur village."}}, {"text": "Gojendragadkar", "label": "JUDGE", "start_char": 47316, "end_char": 47330, "source": "ner", "metadata": {"in_sentence": "That no doubt is true, and indeed Mr. Mathur's claim in Gojendragadkar J. that behalf is not disputed either by the appellant or by respondent 1."}}]} {"document_id": "1961_3_698_706_EN", "year": 1961, "text": "I96I\n\nJ< ebruary 3.\n\nSUPREME COURT REPORTS [1961]\n\nBANGALORE WOOLLEN, COTTON AND\n\nSILK MILLS CO. LTD., BANGALORE v.\n\nTHE CORPORATION OF THE CITY OF BANGALORE BY ITS COMMlSSIONER,\n\nBANGALORE CITY. (with connected appeal) (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)\n\nMunicipality-Octroi-Resolution intending to levy and final levy, if separate publication necessary-Notice technically defective, if can be validated-Power to specify goods not mentioned in the Schedule-Excessive delegation-Raw Cotton or Wool, nature of- City of Bangalore Municipal Corporation Act, I949 (Act LXIX of I949), SS, 38(I), 9J(e), 98(I), 98(2).\n\nThe City of Bangalore Municipal Corporation resolved to levy octroi on cotton and wool and the resolµtion was notified in the Official Gazette as required bys. 98(1) of the City of Bangalore Municipal Corporation Act. Objections were invited and the appellants filed their objections to the tax. Final resolution in regard to the tax was passed under s. 98(2) of the Act which was published in local newspapers but not in the Official Gazette.\n\nNotices were also sent to the appellants to the effect that after considering their objections the Municipality had decided to levy octroi on the goods at the rate already notified. The appellants then filed applications in the High Court under Art. 226 of the Constitution challenging the legality of the levy of octroi but the High Court dismissed the applications. On appeal with a certificate of the High Court:\n\nHeld, that publication of the resolution in the Official Gazette and invitation of objections under s. 98(1) whjch were filed, were sufficient compliance with the provisions of the Act.\n\nThe notice stating that the tax had been resolved to be levied instead of stating that it was intended to be levied was at the most only technically defective but all such defects were validated bys. 38 of the Act. It was not necessary first to pass a resolution specifying the goods and then another resolution showing the intention of the Municipality to tax those goods.\n\nThe goods and the rate of tax were specified and the resolution was passed after following the procedure laid down in s. 98(1).\n\nThis amounted to substanti~I compliance with the provisions of the Act.\n\nThe legislature has laid down the powers of the Municipality to tax various goods and enumerated certain goods; Class VIII in Part V of Schedule III read withs. 97(e) of the Act authorised the Municipality to impose tax on other articles and goods. In\n\nthe present case there was a resolution which sought to include 1961 the goods in dispute in the Schedule for the purpose of imposing -- the tax. Bangalore Woollen, Bijay Cotton Mills Ltd. v. Their Workmen [1960] 2 S.C.R.\n\nCotton and Silk 982, distinguished.\n\nMills Co. Ltd.\n\nThe conferment of power upon the Municipality to specify c • ;0 • th goods under Class VIH is in te nature of conditional delegation c:/;•ang%0,: and does not amount to excessive delegat10n.\n\nY Baxter v. Ah Way (1909) 8 C.L.R. 626, followed.\n\n\nThe High Court was right in holding that Cotton and Wool do not cease to be raw materials for the purposes of the Act, merely because they are ginned and pressed in bales. The resolution in the present case' covered the articles imported by the appellants into the limits of the Corporation of Bangalore.\n\nCIVIL APPELLATE\n\nJURISDICTION: Civil Appeals Nos. 448 and 449 of 1957.\n\nAppeals from the judgment and order dated September 27, 1956, of the Mysore High Court in Writ Petitions Nos. 44 and 45 of 1955.\n\nN. O. Chatterjee, D. N. Jl!ukherjee and B. N. Ghose, 'for the appellant in C. A. No. 448of1957.\n\nV. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No. 449 of 1957.\n\nG. R. Ethirajulu Naidu, Advocate-General, Mysore,·• B. R. G. K. Achar and K. R. Ohoy, dhuri, for the respondent.\n\n1961. February 3. The Judgment of the Court was delivered by KAPUR, J.-These are two appeals brought against two judgments and orders of the High Court of Mysore which arise out of two petitions filed by the appellants under Art. 226 challenging the legality of the imposition of octroi on wool and cotton under s. 98 of the City of Bangalore Municipal Corporation Act (Act LXIX of 1949), which for the sake of convenience, will be termed the \"Act \".\n\nOn March 31, 1954, a resolution was passed purporting to be under s. 98(1) of the Act by which it was\n\nKapur].\n\n700 SUPREME COURT REPC''.'T'f: [1961]\n\nz96r resolved to levy an octroi on cotton 1, nd wool as - follows:- Bangalore WooUen, Name oif the Articles Rate of duty Cotton and Silk\n\nMills co, Ltd,\n\nl. Raw cotton and wool Rs. 1/9/- per cent. ad valorem v, (this includes both loose Corpora1ion of the and compressed, made in City of Bangalore India or foreign)\n\nKapur J. 2. \" This was notified in the Mysore Gazette on April 3, 1954, and was' also published as required by s. 98(1) of the Act. Objections were invited and it is admitted that both the appellants filed their objections. Final resolution under s. 98(2) was passed on December 21, 1954, and the resolution in regard' to octroi came into force as from January 1, 1955. It may be mentioned that the final resolution passed under s. 98 (2) of the Act was not published in the Official Gazette but was published in the local newspapers and a notice dat.ed December 23, 1954, was also sent to the appellants to the effect that after considering their objections the Municipality had decided to levy an octroi on the goods at the rate already notified.\n\nThe appellant in C.A. 448/57, filed a petition in the High Court on March 15, 1955, under Art. 226 cha:- lenging the validity of the imposition of the octroi on the grounds :-\n\n(1) that the tax was in contravention of s. 98(2) of the Act in so far as a notice was not published in the Official Gazette ;\n\n(2) that the tax was in contravention of s. 130 of the Act and\n\n(3) that there was excessive delegation.\n\nThe appellant in C. A. 449/57, filed its petition on March 17, 1955, in which besides challenging the validity of the imposition of t!ie_ tax on grounds above set out, it also challenged the vires of the imposition on the grounds :-\n\n1. that the levy of the octroi was in contravention of Art. 276(2) of the Constitution by which a tax on trade exceeding Rs. 250/- per annum could not be imposed;\n\n2. that it was a contravention of Art. 301 which , 1961 guaranteed freedom of inter-State trade and com- Bangal,;;;-Wool1'•, merce, and Cotton and Sillc\n\n3. that it was in contravention of Art. 19(1)(g) of Mills co. Lid. the Constitutiou. v.\n\nThe High Court rejected all these objections and c ... poralion oflh• the appellant has come to this court on a certificate C•ty of Bangalore of the High Court under Art. 133(1) of the Consti- Kapur J. tution.\n\nIn order to decide the question of the legality of the tax it is necessary to refer to the relevaut provisions of the Act. Section 97 enumerates the taxes and duties which the Corporation is empoweredto levy under the Act. Section 97(e) provides:\n\n\"97. The Corporation may levy- .......................................\n\n(e) an octroi on animals or goods or both brought within the octroi limits for consumption or use therein.\" Section 98 which deals with the powers of control of 1\n\nGovernment and the procedure for the levying of the Municipal taxes provides :\n\nSection 98 (1). \"Before the Corporation passes any resolution imposing a tax or duty for the first time it shall direct the Commissioner to publish a notice in the Official Gazette and in the local newspapers of its intention and fix a reasonable period not being less than one month from the date of publication of such notice in the Official Gazette for submission of objections. The Corporation, may, after considering the objections, if any, received within the period specified, determine by resolution to levy the tax or duty. Such resolution shall specify the rate at which, the date from which and the period of levy, if any, for which such tax or duty shall be levied.\n\n(2) When the Corporation shall have determined to levy any tax or duty for the first time or at a new rate, the Commissioner shall forthwith publish a notice in the manner laid down in sub-section {l) specifying the date from which, the rate at which and the period of levy, if any, for which such tax or dut, r shall be levied.''\n\n1961 It was argued that instead of passing a resolution\n\nBangal,;;;-Woollen imposing the octroi dut, y, the Corporation should have\n\nCotton and Silk 'first published its \" resolution \" to impose the tax and Mills Co. Lid. that the Corporation could not at once pass \" a resolu- \".· tion \" by which it imposed the tax. It published that Curpora1•0• of th• resolution in the Official Gazette and also in accordance City of Bangalore 'th th · • f 98(1) d · d b\" t\" _ w1 o er prov1s10ns o s. an mv1te o iec ions Kapur J. which were filed.\n\nThe only defect, if defect it can be called at all, was that instead of saying that it \" intended \" to impose a tax, the notice which was published said the tax \" had been resolved to be levied.\" This is a technicality and is of\n\nII\") substance.\n\nThe next objection raised was that after the Corporation adopted the resolution imposing the tax which was after considering all the objections the publication was only in local newspapers and there was no publication in the Government Gazette and this, it was submitted, was such a serious defect as to make the imposition illegal and ultra vires. In support counsel for the appellants relied on certain judgments w_here\n\npublication in the Official Gazette was held to be a condition precedent to the legality of the imposition of the tax. These cases are Krishna Jute & Cotton Mills\n\nv. The Municipal Council, V izianagram (1) ; M unicipaJ, Council, Rajamundry v. Nidamarti Jaladurga Prasadarayudu (•).\n\nReference was made also to The Municipal Council, Anantapur v. Sangali Vasudeva Rao (3); Manak Chand v. Municipal Council(') and State of Kerala v. P. J. Joseph('). This question we are not considering as we are referring this c'ase to a larger Bench on certain constitutional points and shall refer this question also in the sequel.\n\nThe second objection raised was that there was no compliance with s. 130 of the Act. That section is as follows:-\n\nSection 130. \" If the corporation by a resolution determines that an octroi should be levied on animals or goods brought within the octroi limits of\n\n(1) A.LR. 1926 Mad. 152.\n\n(3) (1931) l.L.R. 55 Mad, 207.\n\n(2) A.LR. 1926 Mad. 800.\n\n(4) A.LR. 1951 Raj. 139.\n\nI,;) A.LR. 1958 S.C. 296, 299.\n\nthe city, such octroi shall be levied on such articles 1961\n\nor goods specified. in Part V _Schedule ~II at suh Bangalcw• w,, oll••· rates not exceedmg those laid down m the said cotton and Silk.\n\nPart in such manner as may be determined by the Mills Co. Lid. ' corporation.\" ~· That is not a charging section but it imposes a limita- Co'.P°\"\"\"'\" of the tion on the power of the Municipality as to the rate C\"y of Bangalore at which a tax can be imposed. It was further argued Kapur J. that before a resolution under s. 98(1) could be passed the goods sought to be taxed had to be specified under s. 130 read with Schedule III, Part V of the Act.\n\nClause 18 of that Schedule p, rovides that octroi on animals and goods shall be levied at the rates not exceeding the following.\n\nClasses I to VII specify articles on which octroi can be levied at the maximum rate. Class VIII was as follows :\n\nOctroi Maximum rate \"Other articles which are not specified above and which may be Rs. 2·0-0 per cent. approved by the Corporation ad valorem\" by an order in this behalf That class empowers the Municipal Council to impose octroi duty on other articles which are not specified but which may be approved by the Corporation. In other words the Corporation can choose other p.rticles upon which tax can be imposed and the respondent Corporation in the present case did resolve to impose tax on raw cotton and wool and also fixed the rate at Rs. 1·9-0 per cent. ad valorem. The submission that as a result of the operation of s. 130 first a resolution had to be passed specifying raw cotton and wool as goods on which octroi duty would be levied and then the procedure under s. 98(1) and (2) had to -Oe gone through is without substance. What the Corporation did was that it passed a resolution choosing these goods to be goods on which octroi duty was to be levied and by the same resolution it resolved that the goods therein specified be taxed at .the rate therein specified. There is no contravention of s. 130 even if the contention of the appellants was to be taken most strictly. The goods were specified ; the\n\n'96' rate of tax to be levied on the goods was also speci- . BM1C•lo:-woo11 fied ; the resolution was passed to that effect and the c.11 ... ••d su';'' other procedure laid down ins. 98(1) was then followed .\n\n.lllf-ill• Co. Lid • . In our opinion it is not necessary that first a resolu . .. : tion should be passed specifying the goods and then <;.r1:i''on •1111• another resolution should be passed showing the\n\n\"\" _!!':._\"lfalore intention of the Municipality to tax those goods.\n\nKafrwr J.\n\nWhR.t has been done substantially complies with the provisions of the Act.\n\n.1\n\nIt was next argued that the words of Class VI II in Part V of Schedule III where the words used are \" other articles which are not specified above \" and which may be approved by the Corporation by order in this behalf meant that the goods must be precisely defined and included by name in the Schedule and that the use of the word \" in this behalf\" meant adding to the list of articles in Schedule III. Reliance was placed on the interpretation of the word \" in t.his behalf\" as given by this Court in Bijay Cotton Mills Ltd. v. Their Workmen('). But that case has no application to the facts of the present case because the resolution was, as a matter of fact, passed for the purpose of imposing an octroi duty on the goods in dispute. The words used in Bijay Cotton Mills Ud. v.\n\nTheir Workmen(') were in another context and even there a.II that was said was that a notification had to issue making the Central Government the appropriate Government. As we have said above in the present ca.ee there was a resolution which sought to include these goods in the Schedule for the purpose of imposing the tax.\n\nThe excessive nature of delegation under Class VIII in Part V of Schedule III was also urged but this was not a. question which was raised in the High Court nor is there any substance in the matter. The argument raised was that the power of the Municipa.l Corporation to specify goods under Class VIII Wll8 excessive delegation which wa~ both uncanalised and uncontrolled and reliance was placed on a judgment of this Court in Hamdard Dawakoona v. Union of India('); but that case has no application to the facts\n\n(r) (196oj 2 S.C.R. 980.\n\n(•) [1960] 2 S C.R. 671,\n\nof the present case. In the present case the Legisla- '96~ tll'l'e has laid down the powers of the Municipality BfMfOlor• w..u..;\n\nto tax various goods. It has enumerated certain Co#o• _, s.a articles and animals and Class VIII read with s. 97(e) MiUs Co. LI& of the Act has authorised the Municipality to impose \": tax on other articles and goods. This power is more po';':.\":, t.:::. in the nature of conditional delegation as was held in •Y• __ Baxter v. Ah Way(1) where it was held thatunders. 52(g) K•Jnu J. of the (Australian) Customs Act, 1901, a power given to prohibit by proclamation the importation of certain articles was not a delegation of legislative power but conditional legislation because thP prohibition of importation was a legislative a.ct of l' trliament itself and the effect of sub-s. (g) of s. 52 was only to confer upon the Governor-General in Council the discretion to determine to which class of goods other than those specified in the section and under what conditions the prohibition shall apply. All that the Legislature has done in the present case is that it has specified certain articles on which octroi duty can be imposed and it has also given to the Municipal Corporation the discretion to determine on what other goods and under what conditions the tax should be levied. That, in our opinion, is not a case which falls under the rule laid down by this Court in Hamdard Dawakhana v.\n\nUnion of India(').\n\nIt was contended in C. A. 449/57 that the imposition of duty on raw cotton could not cover processed cotton that is cotton which had been ginned, combed and pressed. The High Court held that the cotton by being ginned or pressed in bales does not cease to be raw cotton and was to be regarded as raw for the purpose of the Act. The same would apply to wool.\n\nThe notification levying the tax specifically stated that raw cotton and wool included both loose and compressed, i.e., compressed cotton and wool whether it was Indian cotton or foreign cotton. It will not, in our opinion, be a correct meaning to give to the notification if it were \"interpreted to apply only to cotton which had been gathered from the fields and had neither been ginned nor pressed.\" We agree with\n\n(1) (1909) 8 C.L.R. 6>6.\n\n(>) [1960] • S.C.R. 671.\n\n'96' the High Court that this resolution covers the articles\n\nBangalor1 Wooll•• which the appollants in the two cases were impurt-\n\nCotto• and 5;1~ 'ing into the limits of the Corporation of Bangalore.\n\nMills Co. Ltd.\n\nThe learned Advocate-General appearing for the v: respondent also relied on s. 38 of the Act which Corporation of the provides :\n\nCity of Bangalore Section 38 (1). \"No act done, or proceeding taken\n\nKapur J. under this Act shall be questioned merely on the ground-\n\n(a) ........................................................... .\n\n(b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case.\" This section validates all defects and irregularities in in any act or proceedings which do not affect the merits of the case. It was submitted that this section is in another chapter, i.e., chapter 2 dealing with provisions common to the Corporation and the Standing Committees. It may be that it is in another chapter but the language of the section is wide and applies to all defects or irregularities in any act or proceeding done not affecting the merits of the case.\n\nIn our opinion the following points should be heard by the Constitution Bench•:-\n\n(1) Whether the imposition in the present case offends Art. 276 or 301 of the Constitution ?\n\n(2) Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax ? .\n\nIf the answer to these questions or any of them is in the affirmative the appeal will have to be allowed.\n\nBut if the two questions are answered against the appellants the appeals will fail as all other points have been decided by us against the appellants. The costs will follow the event unless the Bench hearing the reference makes other order.\n\nReferred to Constitution Bench for final disposal.\n\n\"'The decision of the Constitution Bench is reported infra.", "total_entities": 78, "entities": [{"text": "BANGALORE WOOLLEN, COTTON AND\n\nSILK MILLS CO. LTD., BANGALORE", "label": "PETITIONER", "start_char": 51, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "BANGALORE WOOLLEN, COTTON AND SILK MILLS CO. LTD., BANGALORE", "offset_not_found": false}}, {"text": "THE CORPORATION OF THE CITY OF BANGALORE BY ITS COMMlSSIONER,\n\nBANGALORE CITY. (with connected appeal", "label": "RESPONDENT", "start_char": 117, "end_char": 218, "source": "metadata", "metadata": {"canonical_name": "THE CORPORATION OF THE CITY OF BANGALORE BY ITS COMMlSSIONER, BANGALORE CITY. (with connected appeal)", "offset_not_found": false}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 224, "end_char": 232, "source": "metadata", "metadata": {"canonical_name": "J.L. KAPUR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 234, "end_char": 249, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 256, "end_char": 268, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "City of Bangalore Municipal Corporation Act", "label": "STATUTE", "start_char": 525, "end_char": 568, "source": "regex", "metadata": {}}, {"text": "Bangalore Municipal Corporation", "label": "ORG", "start_char": 640, "end_char": 671, "source": "ner", "metadata": {"in_sentence": "The City of Bangalore Municipal Corporation resolved to levy octroi on cotton and wool and the resolµtion was notified in the Official Gazette as required bys."}}, {"text": "s. 98(2)", "label": "PROVISION", "start_char": 979, "end_char": 987, "source": "regex", "metadata": {"linked_statute_text": "City of Bangalore Municipal Corporation Act", "statute": "City of Bangalore Municipal Corporation Act"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1318, "end_char": 1326, "source": "regex", "metadata": {"linked_statute_text": "City of Bangalore Municipal Corporation Act", "statute": "City of Bangalore Municipal Corporation Act"}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 1590, "end_char": 1598, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 2170, "end_char": 2178, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 2390, "end_char": 2402, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 3474, "end_char": 3491, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and order dated September 27, 1956, of the Mysore High Court in Writ Petitions Nos."}}, {"text": "N. O. Chatterjee", "label": "OTHER_PERSON", "start_char": 3535, "end_char": 3551, "source": "ner", "metadata": {"in_sentence": "N. O. Chatterjee, D. N. Jl!ukherjee and B. N. Ghose, 'for the appellant in C. A. No."}}, {"text": "D. N. Jl!ukherjee", "label": "OTHER_PERSON", "start_char": 3553, "end_char": 3570, "source": "ner", "metadata": {"in_sentence": "N. O. Chatterjee, D. N. Jl!ukherjee and B. N. Ghose, 'for the appellant in C. A. No."}}, {"text": "B. N. Ghose", "label": "LAWYER", "start_char": 3575, "end_char": 3586, "source": "ner", "metadata": {"in_sentence": "N. O. Chatterjee, D. N. Jl!ukherjee and B. N. Ghose, 'for the appellant in C. A. No."}}, {"text": "V. L. Narasimhamoorthy", "label": "OTHER_PERSON", "start_char": 3632, "end_char": 3654, "source": "ner", "metadata": {"in_sentence": "V. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 3656, "end_char": 3668, "source": "ner", "metadata": {"in_sentence": "V. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No."}}, {"text": "J.B. Dadachanji", "label": "OTHER_PERSON", "start_char": 3670, "end_char": 3685, "source": "ner", "metadata": {"in_sentence": "V. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 3687, "end_char": 3701, "source": "ner", "metadata": {"in_sentence": "V. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 3706, "end_char": 3717, "source": "ner", "metadata": {"in_sentence": "V. L. Narasimhamoorthy, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the\n\nappellant in C. A. No."}}, {"text": "G. R. Ethirajulu Naidu", "label": "LAWYER", "start_char": 3765, "end_char": 3787, "source": "ner", "metadata": {"in_sentence": "G. R. Ethirajulu Naidu, Advocate-General, Mysore,·• B. R. G. K. Achar and K. R. Ohoy, dhuri, for the respondent."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 3817, "end_char": 3834, "source": "ner", "metadata": {"in_sentence": "G. R. Ethirajulu Naidu, Advocate-General, Mysore,·• B. R. G. K. Achar and K. R. Ohoy, dhuri, for the respondent."}}, {"text": "K. R. Ohoy", "label": "LAWYER", "start_char": 3839, "end_char": 3849, "source": "ner", "metadata": {"in_sentence": "G. R. Ethirajulu Naidu, Advocate-General, Mysore,·• B. R. G. K. Achar and K. R. Ohoy, dhuri, for the respondent."}}, {"text": "KAPUR", "label": "JUDGE", "start_char": 3940, "end_char": 3945, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by KAPUR, J.-These are two appeals brought against two judgments and orders of the High Court of Mysore which arise out of two petitions filed by the appellants under Art.", "canonical_name": "KAPUR"}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 4020, "end_char": 4040, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by KAPUR, J.-These are two appeals brought against two judgments and orders of the High Court of Mysore which arise out of two petitions filed by the appellants under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4104, "end_char": 4112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98", "label": "PROVISION", "start_char": 4191, "end_char": 4196, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1954", "label": "DATE", "start_char": 4334, "end_char": 4348, "source": "ner", "metadata": {"in_sentence": "On March 31, 1954, a resolution was passed purporting to be under s. 98(1) of the Act by which it was\n\nKapur]."}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 4397, "end_char": 4405, "source": "regex", "metadata": {"statute": null}}, {"text": "Kapur", "label": "JUDGE", "start_char": 4799, "end_char": 4804, "source": "ner", "metadata": {"in_sentence": "ad valorem v, (this includes both loose Corpora1ion of the and compressed, made in City of Bangalore India or foreign)\n\nKapur J. 2. \"", "canonical_name": "KAPUR"}}, {"text": "April 3, 1954", "label": "DATE", "start_char": 4856, "end_char": 4869, "source": "ner", "metadata": {"in_sentence": "This was notified in the Mysore Gazette on April 3, 1954, and was' also published as required by s. 98(1) of the Act."}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 4910, "end_char": 4918, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98(2)", "label": "PROVISION", "start_char": 5046, "end_char": 5054, "source": "regex", "metadata": {"statute": null}}, {"text": "December 21, 1954", "label": "DATE", "start_char": 5069, "end_char": 5086, "source": "ner", "metadata": {"in_sentence": "Final resolution under s. 98(2) was passed on December 21, 1954, and the resolution in regard' to octroi came into force as from January 1, 1955."}}, {"text": "January 1, 1955", "label": "DATE", "start_char": 5152, "end_char": 5167, "source": "ner", "metadata": {"in_sentence": "Final resolution under s. 98(2) was passed on December 21, 1954, and the resolution in regard' to octroi came into force as from January 1, 1955."}}, {"text": "s. 98", "label": "PROVISION", "start_char": 5228, "end_char": 5233, "source": "regex", "metadata": {"statute": null}}, {"text": "December 23, 1954", "label": "DATE", "start_char": 5353, "end_char": 5370, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the final resolution passed under s. 98 (2) of the Act was not published in the Official Gazette but was published in the local newspapers and a notice dat.ed December 23, 1954, was also sent to the appellants to the effect that after considering their objections the Municipality had decided to levy an octroi on the goods at the rate already notified."}}, {"text": "March 15, 1955", "label": "DATE", "start_char": 5617, "end_char": 5631, "source": "ner", "metadata": {"in_sentence": "The appellant in C.A. 448/57, filed a petition in the High Court on March 15, 1955, under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 5639, "end_char": 5647, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98(2)", "label": "PROVISION", "start_char": 5767, "end_char": 5775, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 5895, "end_char": 5901, "source": "regex", "metadata": {"statute": null}}, {"text": "March 17, 1955", "label": "DATE", "start_char": 6013, "end_char": 6027, "source": "ner", "metadata": {"in_sentence": "The appellant in C. A. 449/57, filed its petition on March 17, 1955, in which besides challenging the validity of the imposition of t!ie_ tax on grounds above set out, it also challenged the vires of the imposition on the grounds :-\n\n1."}}, {"text": "Art. 276(2)", "label": "PROVISION", "start_char": 6249, "end_char": 6260, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 6392, "end_char": 6400, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)(g)", "label": "PROVISION", "start_char": 6547, "end_char": 6560, "source": "regex", "metadata": {"statute": null}}, {"text": "Bangalore", "label": "GPE", "start_char": 6733, "end_char": 6742, "source": "ner", "metadata": {"in_sentence": "v.\n\nThe High Court rejected all these objections and c ... poralion oflh• the appellant has come to this court on a certificate C•ty of Bangalore of the High Court under Art."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 6767, "end_char": 6778, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 97", "label": "PROVISION", "start_char": 6935, "end_char": 6945, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 97(e)", "label": "PROVISION", "start_char": 7035, "end_char": 7048, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 98", "label": "PROVISION", "start_char": 7240, "end_char": 7250, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 98", "label": "PROVISION", "start_char": 7376, "end_char": 7386, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 10278, "end_char": 10284, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 130", "label": "PROVISION", "start_char": 10327, "end_char": 10338, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 1961", "label": "PROVISION", "start_char": 10665, "end_char": 10678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 11136, "end_char": 11144, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 11216, "end_char": 11222, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 11233, "end_char": 11245, "source": "regex", "metadata": {"statute": null}}, {"text": "Part V of the Act", "label": "STATUTE", "start_char": 11247, "end_char": 11264, "source": "regex", "metadata": {}}, {"text": "Clause 18", "label": "PROVISION", "start_char": 11267, "end_char": 11276, "source": "regex", "metadata": {"linked_statute_text": "Part V of the Act", "statute": "Part V of the Act"}}, {"text": "s. 130", "label": "PROVISION", "start_char": 12132, "end_char": 12138, "source": "regex", "metadata": {"linked_statute_text": "Part V of the Act", "statute": "Part V of the Act"}}, {"text": "s. 98(1)", "label": "PROVISION", "start_char": 12281, "end_char": 12289, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 12614, "end_char": 12620, "source": "regex", "metadata": {"statute": null}}, {"text": "Kafrwr", "label": "JUDGE", "start_char": 13210, "end_char": 13216, "source": "ner", "metadata": {"in_sentence": "Kafrwr J.\n\nWhR.t has been done substantially complies with the provisions of the Act."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 13363, "end_char": 13375, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 13690, "end_char": 13702, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 14206, "end_char": 14224, "source": "ner", "metadata": {"in_sentence": "v.\n\nTheir Workmen(') were in another context and even there a.II that was said was that a notification had to issue making the Central Government the appropriate Government."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 14474, "end_char": 14486, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipa.l Corporation", "label": "ORG", "start_char": 14654, "end_char": 14676, "source": "ner", "metadata": {"in_sentence": "The argument raised was that the power of the Municipa.l Corporation to specify goods under Class VIII Wll8 excessive delegation which wa~ both uncanalised and uncontrolled and reliance was placed on a judgment of this Court in Hamdard Dawakoona v. Union of India('); but that case has no application to the facts\n\n(r) (196oj 2 S.C.R. 980."}}, {"text": "[1960] 2 S C.R. 671", "label": "CASE_CITATION", "start_char": 14953, "end_char": 14972, "source": "regex", "metadata": {}}, {"text": "s. 97(e)", "label": "PROVISION", "start_char": 15213, "end_char": 15221, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1901", "label": "STATUTE", "start_char": 15508, "end_char": 15525, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 52", "label": "PROVISION", "start_char": 15792, "end_char": 15797, "source": "regex", "metadata": {"linked_statute_text": "Customs Act, 1901", "statute": "Customs Act, 1901"}}, {"text": "s. 38", "label": "PROVISION", "start_char": 17542, "end_char": 17547, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 38", "label": "PROVISION", "start_char": 17614, "end_char": 17624, "source": "regex", "metadata": {"statute": null}}, {"text": "Constitution Bench•:-", "label": "COURT", "start_char": 18432, "end_char": 18453, "source": "ner", "metadata": {"in_sentence": "In our opinion the following points should be heard by the Constitution Bench•:-\n\n(1) Whether the imposition in the present case offends Art."}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 18510, "end_char": 18518, "source": "regex", "metadata": {"statute": null}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 19107, "end_char": 19125, "source": "ner", "metadata": {"in_sentence": "\"'The decision of the Constitution Bench is reported infra."}}]} {"document_id": "1961_3_707_717_EN", "year": 1961, "text": "a S.C.R.\n\nSUPREME COURT REPORTS 707\n\nBANGALORE WOOLLEN, COTTON AND\n\nSILK MILLS CO. LTD., BANGALORE v.\n\nCORPORATION OF THE CITY OE' BANGALORE,\n\nBY ITS COMMISSIONER, BANGA~ORE CITY.\n\n(with connected appeal and petitions) (S. K. Das, J. L. KAPUR, M. HrnAYATULLAH, J.C. SHAH\n\nand T. L. VENKATARAMA AYYAB, JJ.)\n\nM unicipality-Octroi-Constitutionality of-Final resolution for levying not published in Official Gazette-Defect, if can be validated-City of Bangalore Municipal Corporation Act, r949 (69 of r949), ss. 38(I)(b), 98, IOJ, Sch. Ill, Part V, Classes I to Vlll- Constitution of India, Arts. 276, 3or-Goverilment of India Act, r935 (26 Geo. V, Ch. 2), s. r42-A.\n\nThe appellants in the two appeals and petitioners under Art. 32 of the Constitution challenged the constitutionality of the imposition of octroi duty on cotton and wool on the grounds that\n\n(1) the failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by s. 98(2) of the City of Bangalore Municipal Corporation Act was fatal to the tax, and that (2) the imposition of the tax offended Art. 276 or 301 of the Constitution.\n\nHeld, that the impugned octroi duty did not contravene the provisions of Arts. 276 and 301 of the Constitution.\n\nHamdard Dawakhana (Wakf) v. The Union of India [1960] 2 S.C.R. 671, held inapplicahle.\n\nAtiabari Tea Co. Ltd. v. The State of Assam [1961] l S.G.R. 809, referred to.\n\nSection 38(1)(b) of the Act validated any defect or irregularity in proceedings taken under the Act which did not afiect the merits of the case. The failure to publish the final resolution did not affect 'the merits of the imposition of the tax and was therefore not fatal to it.\n\ni• The mere fact that s. 38(1)(b) occurred in a chapter dealing with Municipal Authorities or the other parts of the Section dealt with another subject was no reason for confining its operation to those subjects only.\n\nHarla v. State of Rajasthan [1952] S.C.R. no and State of Kera/av. P. ]. Joseph A.I.R. 1958 S.C. 296, referred to.\n\n'fhe contention that the impugned tax contravened the provisions of Art. 276 of the Constitution was not sustainable. Entry 52 in List II of the Constitution and entry 49 in the Government of India Act, 1935, which relate to taxes on entry of goods into a local area are not afiected by Art. 272 of the Constitution and\n\n.I96I\n\nApril 5.\n\nz96z s. r42-A of the Government of India Act, which are similar to - each other and relate only to a distinct head of taxation i.e.,\n\nangalore Woollen, taxes on professions, trades and callings etc.\n\nCotton and Sllh The Municipality of Chopda v. M otilal M anekchand I.L.R.\n\nMills Co. Ltd. [r958] Born. 483, Gajadhar Hiralal Ginning and Pressing Factory v. v.\n\nThe Municipal Committee, Washim I.L.R. [r958] Born. 628 and COYptwation of the Secretary, Municipal Committee, Karanja v. The New East India\n\nCity 01 Bangalore Press Co. Ltd., Bombay A.LR. r949 Nag. 2r5, distinguished.\n\nKapur].\n\nClasses I to VII in Schedule III of Part V make certain specified articles taxable and Class VIII makes \"other articles which\n\nre not specified\" taxable if approved by the Corporation. The qombined effect of ss. 97 and r30 and Part V of Schedule III including Class VIII is that the words used are of very general nature and would have the same effect as if all articles were intended to be and were included.\n\nAnwarkhan Mahboob Co. v. The State of Bombay [r96r] I S.C.R. 709, followed. . /\n\nCIVIL\n\nAPPELLATE\n\nJURISDICTION: Civil Appeals Nos. 448 and 449of1957 with Writ Petitions Nos. 97 and 107 of 1961.\n\nAppeals from the judgment and order dated September 27, 1956, of the Mysore High Court in Writ Petitions Nos. 44 and 45 of 1955.\n\nM. C. Setal, vad, Attorney-General for India, N. C.\n\nChatterjee, D. N. Mukherjee and B. N. Ghose, for the appellant in C. A. No. 448/57 and Petitioner in Writ Petition No. 97/1961.\n\nM. C. Setalvad, Attorney-General for India, V. L.\n\nNarasimhamoorty, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for appellant in C. A. No. 449/57 and Petitioners in W. P. No. 107 of 1961.\n\nA. V. Viswanatha Sastri and K. R. Choudhri, for respondents in C. As. Nos. 448 and 449 of 57 and W. Ps. Nos. !'7 and 107/1961.\n\n1961. April 5. The Judgment of the Court was delivered by\n\nKAPUR, J.-A Divisional Bench of this Court made a reference* under the proviso to cl. (3) of Art. 145 on. the following two points :- .\n\n(1) Whether the imposition in the present C8IMl offends Art. 276 or 301 of the Constitution?\n\n•See p. 698 \"\"''.\n\n(2) Whether t.he failure to notify the final resolution of the imposition of the tax in the Government Bangaz,,., Wooll.,., Gazet.te is fatal to the tax ?\n\nCotton and Silh The facts of the case are set out in the order of the Mills Co. Ltd.\n\nDivisional Bench and it is unnecessary to restate them. v: 1\n\nh Th II . h l d. h , Corporat1ono le e appe ants mt e two appea s an mt e two peti- City of Bangalore tions under Art. 32 are challenging the constitutionality of. the octroi duty on cotton and wool imposed by the respondent Corporation within its octroi limits. The procedure for levying municipal taxes\n\nand the power of control of Government in regard to\n\n, those taxes is laid down in s. 98 of the City of Bangalore Municipal Corporation Act (Act 69 of 1949) hereinafter tl'rmed the Act. The.procedure is that a resolution intending to impose a tax has to be passed by the Corporation and that resolution is required to be published in the Official Gazette and in the local newspapers. The rate payers can then submit objections and after considering such objections received during the specified time the Corporation may by resolution determine to levy the tax or duty. When such a resolution has been passed the Commissioner is required to publish forthwith a notification in the Official Gazette and in the newspapers as set out in Auh-s. (1) of s. 98 of the Act. This notification is to specify the date from which, the rate at which and the period of levy, if any, for which such tax is levied.\n\nAs has been stated in the order of the Divisional Bench all other requirements of s. 98 were complied with except that the notification in the Government Gazette as required by sub-s. (2) was not published.\n\nThis, it was submitted, was a defect which was fatal to the legality of the imposition of the tax. To support this submission reliance was placed on two judgments of this Court in Harla v. State of Rajasthan (1) and State of Kerala v. P. J. Joseph(•). In the former case the Jaipur Opium Act was enacted by a resolution of the Council of Ministers appointed by the then Crown Representative but this law was neither promulgated nor published in the Gazette nor made known to the public. The mere passing of the resolution by the\n\n(•) [to, i] s.c.R. 110. (•) A.I.R. 1958 s.c. •96\n\nKapur ].\n\n' 96' Council of Ministers without publication was held not Bangalore woollen, to be sufficient. to make the law operative. At p. 114,\n\nCollon and Silk it was observed that reasonable publication of some Mills Co. Ltd. sort was necessary and that natural justice required\n\nC \".· ,, h that before a law could operate it had to be promu!- orpo1at•on o, I e d bl' h d d . b b d .\n\nCity of Bangalore gate or pu IS e an it must e roa cast m some recognisable way. Similarly in the latter case there Kapu1 J. was no publication in the Gazette of the Order of the Government made in the exercise of the power con ferred by an Act nor was there any communication of the order to the person affected thereby and it was held that not having been published in the Gazette it was not valid and could not have the force of law.\n\nBut the respondent relied upon s. 38(l)(b) of the Act which cures defects or irregularities not affecting the merits of the case. That section provides :-\n\nS. 38(1). \"No act done, or proceeding taken under this Aet shall be questioned merely on the ground- ( a.) 0 O IO O 0 O IO IO O O O O O O O • O O • O O O •' O I• O • O • O O O O • O IO I I I Io 0 0 O I I IO O 0 O O 0 O\n\n(b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case. \" Thus under that provision any defect or irregularity not affecting the merits of the case saves any act done or proceeding taken under the Act on the ground of such irregularity or defect. The appellants contended that the section has no application to defects in regard to procedure under s. 98 of the Act for the imposition of taxes because s, 38 read as a whole refers to a different situation and that there was internal evidence in the section itself to show that it has no relevance to the objection taken by the appellants.\n\nThe section, it was argued, is in Chapter II dealing with Municipal Authorities and this particular provision is in that Part of the Chapter which d1:1als with provisions common to the Corporation and its Standing Committees and the marginal note shows that the object of enacting it was the validation of proceedings of the Corporation and its Standing Committees and that the whole section should be read in that context.\n\nSo read, it was submitted, the section must be taken to be a saving provision for the validity of proceedings\n\nof the Municipal Authorities which was clear from z96z\n\ncl. (a) of sub-s. (1) which deals with defects on the Bangalo~-Woollen, ground of vacancy or defect in the constitution of the cotton and Silk Corporation or of any Standing Committee and sub- Mills co. Ltd. s. (2) of that section also has reference to the meetings v: of the Corporation and therefore, it was contended, Corporation of the th d c .\n\nI . . d . l (b) f b City of Bangalore e eiect or irregu anty ment10ne m c . o su - _ section (I) in any act done or proceeding taken also Kapur J. must have reference to that kind of defect which is referred to in other parts of the section. It was further submitted that the words \"not affecting the merits of the case\" showed that the reference was not to any defect in regard to the procedure for imposition of taxes but defects etc. which might arise in the proceedings of the Corporation and which have reference to a defect in the constitution of the Corporation or its Standing Committees. Reference was also made to the marginal note in the section.\n\nI, t is unnecAssary in this case to discuss the relevance of marginal notes in the construction of s. 38(l)(b) because in our opinion the language is unambiguous and clear and it validates any defect in any act done or proceedings taken under the Act and makes it immune fron1 being questioned on the ground of any defect or irregularity in suoh act or proceedings not affecting the nwrit s of the case and merely because it is in a chapter dr>aling with Municipal Authorities or other parts of the section dealing with another subject is no re11son for confining its operation to the defects contenxtent of the punishment that is stated after it. That expression is really equivalent to the words \"up to\" and can be easily. substituted by them without affecting the Hentence in any way.\n\nThere is really no negative in the sentence anrl what we have, is a purely affirmative provision laying down two alternative penalties to choose from, with a maximum for each.\n\nThe distinction between affirmative and negative sentences may be illustrated by the case of The Metropolitan Board of Works v. Steed (1). The provision there considered was, \"No existing road, being of less width than forty feet, 'hall be ... formed ...... as a street for the purposes\" of carriage traffic, unless such road be widened to the full width of forty feet ...... or for the purposes of foot traffic only, unless such road ...... be widened to the foll width of twenty feet or unless such\n\n(1) (1881) L.R. 8 Q.B.D. 44.1-\n\nRanchhoddas\n\nA.tmaram\n\nUnion of India\n\nSarilar ].\n\nRanchhoddas\n\nAtmaram\n\nUnion of India\n\nSarkar J.\n\nstreets respectively shall be open at both ends.\" It was held that both the conditions had to be fulfilled and the street had to be of the prescribed width and also open at both ends.\n\nOne of the reasons given for this view was that the sentence was a negatiYe one and the word \"or\" (being the one underlined by us*) in it carried forward the negative influence and made it necessary to fulfil both the conditions. It was said\n\nat pp. 447.48:\n\n\"We might have referred to authorities by good writers, shewing that where the word 'or' is preceded by a negative or prohibitory provision, it frequently has a different sense from that which it has when it is preceded by an affirmative provision.\n\nFor instance, suppose an order that 'you must have your house either drained or ventilated. ' The word '.or' would be clearly used in the alternative.\n\nSuppose again, the order was that ' you must have your house drained or ventilated,' that conveys the idea to my mind that you must have your house either drained or ventilated. But supposing the order were that 'you must not have your house undrained or unventilated.' The second negative words are coupled by the word 'or', and the negative in the preceding sentence governs both. In s. 98 there is a negative preceding a sentence ; 'no existing road ' shall be formed.\" It is obvious that the sentence before us contains no negative or prohibitory provision. It only contains a positive provision empowering one of the two alternative penalties laid down to be imposed. The fact that the penalties are dirl)cted not to exceed a certain limit does not change the sentence from affirmative to negative; the sentence remains permissive and does not become prohibitory. It follows that any of the alternative penalties provided may be imposed though the amount of it exceeds the amount of the maximum in the other alternative.\n\nA cousideration of the object of the Act also supports that view. The Act is vital for the country's economic stability.\n\nIt is intended to prevent smuggling in goods and such goods may be of large value, A Rmall fine of Bs. 1,000/- would\n\n• Here printed in italics.\n\noften be quite inadequate to serve these objects. It would be in consonance with such objects if power is given to the authorities concerned to impose a higher penalty when the occasion requires it.\n\nTh~ learned counsel for the petitioner and the appellant then referred us to Webster's New International Dictionary (2nd ed.) where one of the meanings of the word \" nor \" has been given as \"or not \". The )earned counsel sav that the word \"or\" and the word \" not\" following it have to be read together and on the authority of Webster, ask us to substitute for them the word \" nor \" in order to get at the inteution of the Legislature.\n\nBut we do not have here the word \"nor\". Nor are we able to find anything in Webster's Dictionary authorising the substitution of \"nor\" in all places for the words\" or not\". We are clear that here no \"or not~· occurs which can be substituted by \"nor\" without doing violence to the sentence. The word \"not \", following the word \" or\", is really joined to and qualifies the word \"exceeding\" which comes after it and cannot be joined to the preceding word \"or\"\n\nat all. To read the words \"or not \" as joined to each other, and to substitute them by \"'nor\" would be to change the structure of the whole sentence and, therefore, its meaning. An interpretation which so radically alters the meaning of the clause, cannot be accepted.\n\nThese were the main arguments advanced by the learned counsel. for the petitioner and the appellant.\n\nThere remain, however, certain other points raised by them to deal with. It was said that the fact that two alternative penalties had been provided would indicate that one of them was the maximum. It is somewhat difficult to comprehend this argument.\n\nBy itself it does not show that the maximum penalty would be Rs. 1,000/- and that is what the learned counsel want us to hold. We have earlier held that either of the two penalties provided may be chosen by the authorities concerned as they consider fit.\n\nSuppose three times the value of the goods with which the offence is concerned, exceeds Rs. 1,0(10/-.\n\nThen that would be larger of the two penalties that can be awarded in that case and the present argument does\n\nRanchhoddas\n\nAtmaram\n\nUnion of India\n\nSarkar].\n\nrj16Z\n\nRanc; hlsoddtis\n\nAtmMam\n\nUnion of Jnditi\n\nSarkar].\n\nSUPREME COURT REPORT.3 [1961]\n\nnot establish that this larger penalty cannot be imposed. Which is the maximum in a particular case, would depend on the value of the goods. Further, there seems to us to be gQod reason why two alterna. tive penalties were provided. Where the value of the goods is very large, it may be that a penalty of Rs. 1,000/- would be too inadequate a punishment.\n\nAgain, it may be that three times the value of the goods may be much smaller than Rs. 1,000/-. It may conceivably be necessaiy in such a case by reason, for example, of the person concerned having on earlier occasions committed the same offence or having shown a determined state of mind to commit the offence, to inflict a penalty higher than three times that value. Then it. may also happen that the value of the thing concerned may, in conceivable circum. stances, not be properly ascertainable. In such a case the alternative penalty up to Rs. 1,000/· has to be adopted if any penalty at all is to be awarded.\n\nThe learned counsel then said that if both the alternatives were available to the authorities concerned to choose from, hen the provision would give them\n\na very arbitrary discretion which, whether it offended Art. 14 or not, there is no reason to think was intend~ ed by the Legislature. We do not think that this argument is of force.\n\nEach of the alternative penalties provided, has a limit attached to it. Therefore the discretion is neither unlimited nor arbitrary. It may be that three times the value may amount to an enormous sum but that will be so only when the value of the goods with which the offence is concerned, is high. If goods of high value are the subject matter of the offence, then there is no reason for. saying that the provision for imposing a penalty of three times\n\nthat value, is not intended by the Legislature •\n\n. Another argument advanced on behalf of the petitioner and the appellant was that no other item in s. 167 provided for a penalty in money, as distinguished from confiscation, in excess of Rs. 1,000/· and this indicated the intention of the Legislature not to impose a higher penalty. It was therefore said that item S should be co11strued in accordance with this\n\nintention as not enabling the imposition of a pecuni- 1961 ary penalty higher than Rs. 1,000/-. The first answer Ranchhoddas to this contention is that the intention in item 8 has Atmaram to be gathered from the language used in it. If that v. language is clear, that must be given effect to what- unionof India ever may have been the intention in other provisions.\n\nIn our view, the language in item 8 is clear and it Sarkar J. permits the imposition of a penalty in excess of Rs. 1,000/-. No question of gathering the intention of the Legislature from the other items arises. The second answer is that the learned counsel are not right when they say that the other items do not provide for a pecuniary penalty in excess of Rs. 1,000/-. Thus under item 29 when goods are found in a boat without a boat-note as required by s. 76 of the Act, the person in charge of the boat hall be liable to a penalty not exceeding twice the amount of the duty leviable on \"\" the goods.\n\nNow it is conceivable that such duty may be in excess of Rs. 1,000/-. Provisions for similar penalty will be found in items 17, 29, 31, 38, 48 and others. There are also several items which permit the imposition of a penalty calculated at large sums like Rs. 500/- and Rs. 1,000/- per package. In these the amount of the penalty might easily exceed Rs. 1,000/-: see items 17, 36, 49, 56. There is another group of items which permits the imposition of penalty calculated on the value of the goods, and such penalty may, of course, be far in excess of Rs. 1,000/-: ee items 58, 59 and 73. It would indeed be strange if a statute like the Sea Customs Act, on the proper working of whioh the finances and commerce of the country largely depend, considered!!- pecuniary penalty of Rs. 1,000/- enough for a breach of any of its provisions. We feel no doubt that the Act did not intend this.\n\nIt was also argued that a penal statute like the one before us, must be construed in favour of a citizen and therefor\" item 8 should be construed as permitting the imposition of a penalty up to Rs. 1,000/- and no more. This rule of construction of a penal statute is applicable only where the meaning of the statute is ·\n\nnot clear. This is not the case with the present statute. The appellant and the petitioner can therefore derive no assistance from this rule.\n\nRanchhoddas At1naram v.\n\nUnion of India\n\nSarkar].\n\nThe learned counsel for the petitioner and the appellant also said that the Sea Customs Act was modelled on 39 and 40 Viet., Ch. 36, an English statute to consolidate the Customs laws, s. 186of which corresponds to s. 167 of our Act. They said that the English section expressly provided that the authority concerned would have the option to choose any of the punishments specified, but our statute deliberately departed from this and did not use the words \"at the election of\" which occur in the English statute. In our view, even without these words the meaning in our provision is plain. It also seems to us that the English statute used the words \"at the election of\" by way of abundant caution. The effect of that statute wrrnld have been the same even without those words. It may be that in our statute similar words were not used because it is somewhat differently framed; the nse of them may have been considered inappropriate. The English statute gives a choice between two fixed penalties of \"treble the value of the goods \" and \" one hundred pounds.\" In our statute, each of the two alternative penalties is flexible ; each penalty is not to exceed a certain limit.\n\nThe last argument was based on the word \"extent\" appeariug in the main part of s. 167 which, it is said, indicated that the third column laid down the extent of the punishment that could be awarded. This argument does not carry the matter further at all for, whichever of the two competing interpretations is accepted, in each case there w.ould be the extent of the punishment specified and that word cannot\" help in deciding what the correct interpretation is.\n\nFor these reasons it seems to us that under item 8 ins. 167 a penalty in excess of Rs. 1,000/- can be imposed and so the orders that the Customs authorities had made in these cases are not open to any challenge. It is not in dispute that the penalties imposed did not excePd three times the ralue of the goods concerned.\n\nThe petit.ion nncl the a p1wal are accordingly dismissed. There will be no order for costs.\n\nPetition and appeal dismissed.", "total_entities": 88, "entities": [{"text": "RANCHHODDAS ATMARAM", "label": "PETITIONER", "start_char": 42, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "RANCHHODDAS ATMARAM", "offset_not_found": false}}, {"text": "THE UNION OF INDIA", "label": "RESPONDENT", "start_char": 66, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "THE UNION OF INDIA", "offset_not_found": false}}, {"text": "B. P. SINHA, C.J.", "label": "JUDGE", "start_char": 96, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "BHUVNESHWAR PRASAD SINHA*", "offset_not_found": false}}, {"text": "s. K. DAS", "label": "JUDGE", "start_char": 115, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "S.K. DAS", "offset_not_found": false}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 126, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "A.K. 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"PETITIONER", "start_char": 8476, "end_char": 8487, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\nAtHIOJ'Otn\n\nUniox of India\n\nSarhar J.\n\nRanchhoddas\n\nAtmaraw\n\nv, Union of India\n\nSarkar].", "canonical_name": "RANCHHODDAS ATMARAM"}}, {"text": "Sarhar", "label": "JUDGE", "start_char": 8517, "end_char": 8523, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\nAtHIOJ'Otn\n\nUniox of India\n\nSarhar J.\n\nRanchhoddas\n\nAtmaraw\n\nv, Union of India\n\nSarkar].", "canonical_name": "SARKAR"}}, {"text": "s. 167", "label": "PROVISION", "start_char": 8943, "end_char": 8949, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 8959, "end_char": 8966, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 167", "label": "PROVISION", "start_char": 9151, "end_char": 9157, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 9177, "end_char": 9188, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 9205, "end_char": 9212, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 10223, "end_char": 10230, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 167", "label": "PROVISION", "start_char": 10348, "end_char": 10354, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 10986, "end_char": 10993, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 167(8) and 1", "label": "PROVISION", "start_char": 11558, "end_char": 11573, "source": "regex", "metadata": {"statute": null}}, {"text": "F. N. Roy", "label": "OTHER_PERSON", "start_char": 11750, "end_char": 11759, "source": "ner", "metadata": {"in_sentence": "This would show that this Court had taken notice of the fact that the High Courts were interpreting the judgment in F. N. Roy's case(') and the other cases in a manner which was not intended and desired to strike a note of warning against the misconception."}}, {"text": "S. 167", "label": "PROVISION", "start_char": 12270, "end_char": 12276, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections of Offences this Act", "label": "STATUTE", "start_char": 12470, "end_char": 12499, "source": "regex", "metadata": {}}, {"text": "Chapter IV of this Act", "label": "STATUTE", "start_char": 12674, "end_char": 12696, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 12732, "end_char": 12737, "source": "ner", "metadata": {"in_sentence": "8, If any goods, the impor tation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction."}}, {"text": "Ranchhoddas", "label": "RESPONDENT", "start_char": 13054, "end_char": 13065, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\n.4 lmarani\n\nUnion of India\n\nSarka\"].", "canonical_name": "RANCHHODDAS ATMARAM"}}, {"text": "lmarani", "label": "RESPONDENT", "start_char": 13070, "end_char": 13077, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\n.4 lmarani\n\nUnion of India\n\nSarka\"]."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 13079, "end_char": 13093, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\n.4 lmarani\n\nUnion of India\n\nSarka\"]."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 17588, "end_char": 17594, "source": "ner", "metadata": {"in_sentence": "Ranchhoddas\n\nAtmaram\n\nUnion of India\n\nSarkar J.\n\nstreets respectively shall be open at both ends.\"", "canonical_name": "SARKAR"}}, {"text": "s. 98", "label": "PROVISION", "start_char": 18831, "end_char": 18836, "source": "regex", "metadata": {"statute": null}}, {"text": "Ranchhoddas", "label": "JUDGE", "start_char": 21928, "end_char": 21939, "source": "ner", "metadata": {"in_sentence": "Then that would be larger of the two penalties that can be awarded in that case and the present argument does\n\nRanchhoddas\n\nAtmaram\n\nUnion of India\n\nSarkar].", "canonical_name": "RANCHHODDAS ATMARAM"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 23247, "end_char": 23254, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 167", "label": "PROVISION", "start_char": 23980, "end_char": 23986, "source": "regex", "metadata": {"statute": null}}, {"text": "Ranchhoddas", "label": "PETITIONER", "start_char": 24358, "end_char": 24369, "source": "ner", "metadata": {"in_sentence": "The first answer Ranchhoddas to this contention is that the intention in item 8 has Atmaram to be gathered from the language used in it.", "canonical_name": "RANCHHODDAS ATMARAM"}}, {"text": "s. 76", "label": "PROVISION", "start_char": 25068, "end_char": 25073, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 25858, "end_char": 25869, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 26700, "end_char": 26711, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 186", "label": "PROVISION", "start_char": 26805, "end_char": 26811, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 167", "label": "PROVISION", "start_char": 26835, "end_char": 26841, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 167", "label": "PROVISION", "start_char": 27877, "end_char": 27883, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1961_3_731_746_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREME COURT REPORTS\n\nTHE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY\n\nDHARAMDAS HARGOVINDAS. (P. B. GAJENDRAGADKAR, A. K. SARKAR and\n\nK. N. WANCHOO, JJ.)\n\nIncome Tax-Income already recehed outside taxable territory- Brought into or received in taxable territory--Liability to tax-If must be first receipt in taxable territory-Income-tax Act, I922 (II of I922). S. 4 (I)(b){iii).\n\nThe assessee, resident in British India, had some money in deposit with a concern in Bhavnagar, outside British India. On April 7, r947, he transferred part of it to a concern in Bombay.\n\nHe was assessed to tax on this amount under s. 4(1)\\b)(iii) of the Income-tax Act. The assessee contended that to attract the application of s. 4(1)(b)(lii) the receipt in the taxable tefritory\n\nmust be the first receipt of income.\n\nHeld, th•t the assessee was liable to tax on this amount.\n\nPer Gajendragadkar and Wanchoo, JJ.-Where a person, resident in the taxable territories, has already received, outside the taxable territories, any income etc. accruing or arising to him outside the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable to income-tax thereon. Though for the purposes of cl. (a) of s. 4 the receipt must be the first receipt of income in the taxable territories, for the purposes of cl. (b)(iii) the receiving in the taxable territories need not be the first receipt.\n\nKeshav Mills ltd. v. Commissioner of Income-tax [1953] S.C.R 9 50, referred to.\n\nPer Sarkar, J.-The income could not be said to have been \"received\" in the taxable territory within the meaning of cl. (b)(iii) as income could be received only once. But it is clear that the assessee \"brought into\" Bombay that income. It was immaterial in what shape he received the income in Bhavnagar and in what shape he brought it in Bombay.\n\nKeshav Mills Ltd. v. Commissioner of Income-tax [1953] S.C.R. 950, Board of Revenue v. Ripon Press (1923) I.L.R. 46 Mad. 706 and _Sundar Das v. Collector of Gujrat (1922) l.L.R. 3 Lah. 349, applied.\n\nGresham Life Assurance Society ltd. v. Bishop [1902] A.C. 2 87 and Tennant v. Smith [18<)2] A.C. 150, referred to.\n\nCIVIL APP]jJLLATE JURISDICTION: Civil Appeal No. 240 of 1955.\n\n196r\n\nFebruary 3\n\nr96r Appeal by special leave from the judgment and\n\nC --:-- \"order dated September 3, 1953, of the Bombay High ommissioner o1 C\n\n. I R c Income-tax, ourt Ill ncome-tax eierence No. 15 of 1953.\n\nBombay Hardayal Hardy and D. Gupta, for the appellant.\n\nDha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent.\n\n1961. February 3. The Judgment of Gajendragadkar and Wanohoo, JJ. was delivered by\n\nWanehoo J.\n\nWANCHOO, J.-In this matter by our order made on April 24, 1958, we had referred the case back to the Tribunal to submit a further statement of case on certain questions. That statement of case has now been drawn up by the Tribunal and sent to this Court.\n\nThe matter is now ready for decision.\n\nThis is an appeal by the Commissioner of Incometax, Bombay, against the judgment of the High Court\n\nat Bombay given on a reference under s. 60(2) of the Income-tax Act answering the question referred, in the negative. That question was, \"Whether, in any event, on the facts found by the Tribunal, there was any remittance by the petitioner to Bombay within the meaning of and assessable under s. 4(1) (b) (iii) of the Income-tax Act.\" The assessment year concerned was 1948-49, the accounting year being 2003 Sambat.\n\nThe facts found may now be stated. At the relev. ant time, Bhavnagar was a ruling State and therefore outside British India. There was a mill there which we shall, for brevity, call the Bhavnagar Mills. The assessee and his brother Gordhandas had large sums in deposit with the Bhavnagar Mills. These sums were profits earlier earned by the assessee and his brother in Bhavnagar. The amounts deposited belonged to the assessee and his brother in equal shares.\n\nThe Bhavnagar Mills kept an account of these deposits. This account showed that on April 7, 1947, a sum of Rs. 50,000/- had been paid out to Harkisondas Ratilal and another sum of the same amount to Dilipkumar Trikamlal. There is another mill in Bombay which we shall call the Bombay Mills. The account of the Bombay Mills showed that on April 3,\n\n1947, Rs. 50,000/- had been received from each of Harkisondas Ratilal and Dilipkumar Trikamlal.\n\nHarkisondas Ratilal and Dilipkumar Trikamlal were the benamidars for the assessee and his brother and the entries indicated that the moneys had been withdrawn from the Bhavnagar Mills by the assessee and his brother and advanced to the Bombay Mills'.\n\nThe assessee and his brother were in full control of both the Bhavnagar Mills and the Bombay Mi!ls.\n\nOn these facts the Tribunal had come to t.he conclusion that there had been a remittance of the a.ssessee's profits from Bhavnagar to Bombay, namely, Rs. 50,000/- being half of the amounts mentioned a.hove, on account of his share and such remittance was taxable under s. 4(1) (b) (iii). The assessee raised the question with which we a.re concerned in view of this decision.\n\nThe.High Court held that under the section income is taxable only when it is brought into or received in the taxable territory by the a.ssessee himself and not when it is so brought into or received on behalf of the assessee and that all that the facts found by the Tribunal showed was that the a.ssessee disposed of his accumulated income in Bha.vna.ga.r by directing his debtor, the Bha.vnaga.r Mills, to pay an a.mount not to himself but to a third party, namely, the Bombay Mills. According to the High Court, \"The result wa.s that only one debtor was substituted for another. This did not amount to a receipt of the money by the assessee himself in Bombay or to a. bringing of it into Bombg.y by him.\" In this view of the matter, the High Court answered the question referred in the negative.\n\nWhen the appeal wa.s heard by us on the earlier occasion, the learned .Advocate for the appellant contended that even on the ha.sis on which the High Court had proceeded, pa.mely, that there was only a substitution of one debtor for another, it has to be sa.ro that the money wa.s received by the assessee himself in Bombay. The contention was that the respondent could not become a. creditor of the Bombay Mills unless he advanced the moneys to them.\n\nCommissioner of\n\nIncome-tax,\n\nBombay v.\n\nDharamdas Hargovindas\n\nWanchoo ].\n\n'96r His point was that even assuming that the receipt\n\nComm-;;:, nerof of the cheque by the Bombay Mills drawn in its Income-tax, favour by the Bhavnagar Mills did not amount to Bombay receipt of moneys by the respondent, as soon as the v.\n\nBombay Mills credited the amount of it to the respond- Dharamdas ent, there was notionally a receipt of the money by Hargovindas h t e assessee and an advance of it by him to the Bom- Wanchoo J. bay Mills to create the debt. The learned advocate for the assessee said in answer to this contention that there was nothing to show that the agreement for the advance of the money by the assessee to the Bombay Mills had not been made at Bhavnagar. He also said that there was nothing to show as to how the money or the cheque came from Bhavnagar to Bombay and that it might have been that it was agreed between the assessee and the Bombay Mills at Bhavnagar that the money would be deposited in the Bombay Mills to the credit of the assessee and the cheque or the money might have been delivered to the Bombay Mills or its agent at Bhavnagar. His contention was that if such was the case-and on the evidence it could not be said that it was not-then tlie notional receipt of the money by the assessee and its advance by him to the Bombay Mills, if any, would have taken place in Bhavnagar and when the money was thereafter brought to ombay, it was the Bombay Mills' own money. In this view of the matter, according te the learned advocate for the assessee, the moneys could not be subject to tax under the section.\n\nIn this position of the arguments then advanced, we observed as follows :-\n\n\"It seems to us that this contention of the learned advocate for the respondent has to be dealt with before this appeal can be finally disposed of.\n\nWe therefore think it fit to refer the case back to the Tribunal to submit a further stement of case, after taking such evidence as may be necessary, as to show how the cheque was brought from Bhavnagar to Bombay and what agreement had been made between the parties concerned as a result of which the amount of the cheque was credited in the names\n\nof Harkison Ratilal and Dilipkumar Trikamlal in the accounts of the Bombay Mills. The Tribunal will submit its report within four months.\n\nIn view of this order we refrain from expressing any opinion on any of the points argued at the bar.\" It is pursuant to this order that the further state. ment of case has been submitted by the Tribunal. In its statement of case now submitted the Tribunal found the following facts: The Bhavnagar Mills had an account in the Bank of India Limited at one of its Bombay Branches. A cheque book in respect of this account was with the assessee who had power to operate it on behalf of the Bhavnagar Mills. The assessee acting on behalf of the Bhavnagar Mills drew a cheque on the Bhavnagar Mills aforesaid account in the Bank of India Limited on April 3, 1947, in favour of self. This was done in Bombay. This cheque was handed over by the assessee to the Bombay Mills in Bombay for being credited in the account of the Bombay Mills in the names of Harkison Ratilal and Dilipkumar Trikamla.l which were really the benami names of the assessee and his brother. The Bombay Mills on the same date presented this cheque to another branch of the Bank of India Ltd. in Bombay where they had an account, for deposit in that account. The actual entries in the books of the different branches of the Bank were made on April 5,\n\n1947. The Bombay Mills also made entries in their own books crediting the moneys received on the cheque, to Harkison Ratilal and Dilipkumar Trikamlal.\n\nThe assessee in his turn instructed the Bhavnagar Mills to debit the joint account of himself and his brother with it in the sum of Rs. 1 lac as having been paid to Harkison Ratilal and Dilipkumar Trikamlal.\n\nThis entry was actually made a little later, namely on April 7, 1947. The facts now found would show that nothing had been done at Bhavnagar. It was also found that as the Bombay Mills needed moneys and the assessee had m being made by him out of it to the Bombay Mills.\n\nI')6I\n\nCommissioney of Income-tax, Bombay v.\n\nDharamdas Har govindas\n\ni-vanchoo ].\n\nCommissiomr of\n\nIneome-tax~\n\nBt\"Oboy\n\nDlsar.,,.das Hargoviadas\n\nWancboo ].\n\nAs will appear from our earlier order hereinhefore set out, none of the points a.rising in the appeal ha.d been decided by us on that occasion. The question that we have to decide is whether on these facts it can be said that income ha.d been brought into or received in Bombay by the a.ssessee. The relevant portion of the section is in these terms :-\n\n\" 4. (1) Subject to the provisions of this Act, the total income of a.ny previous year of any person includes all income, profits and gains from what. ever source derived which-\n\n(a) are received or are deemed to be received in the ta.xa.ble territories in such year by or on behalf of such person, or\n\n(b) if such person is resident in the taxable territories during such year,-\n\n(i) accrue or arise or are deemed to accrue or a.rise to him in the ta.xa.ble territories during such year, or\n\n(ii) accrue or a.rise to him without the taxable territories during such year, or\n\n(iii) having accrued or arisen to him without the taxable territories before the beginning of such year and after the 1st da.y of April, 1933, a.re brought into or received in the taxable territories by him during such year, or\n\n(o) if such person is not resident in the taxable territories during such year, accrue or a.rise or a.re deemed to accrue or a.rise to him in the taxable territories during such year.\" In the present case we a.re concerned with cl. (b).\n\nIn order however to understand what the words \"brought into or received in the taxable territories by\n\nhim\" mean we have to consider the whole scheme of this sub:11ection. The sub-section ma.inly deals with the total income of any previous year which is charge. able to income-tax under s. 3 of the Act. It is divided into three parts. The first pa.rt, which is cl. (a.) provides that a.11 income, profits a.nd gains received or deemed to be received in the taxable territories in such year by or on behalf of such person will be included in the taxable income. So far as cl. (a.) is\n\nconcerned, it is immaterial whether the person is resident in the taxable territories or is not resident therein; as long as income etc. is received in the taxable territories by or on behalf of such person in the previous year, it is liable to be included in the computation of total income. Under this clause therefore it is the receipt in the previous year that is material and the residence of the person to be taxed is immaterial.\n\nIt has been held under this clause that receipt must be the first receipt in the taxable territories and if income etc. has been received elsewhere in the same year and is then brought into the taxa.ble territories it should not be considered to be income etc. received in such year in the taxable territories: (see Keshav ,'!fills Ltd. v. Commissioner of Income-tax(')). The basis of this decision obviously i11 that cl. (a.) is dealing with the receipt of income etc. in the, taxable territories in the year in which it has\n\naccrued or arisen and in those circumstances it is the first receipt of such income in the taxable territories that gives rise to liability of the charge of income-tax.\n\nIf such income etc. accruing or arising in the previous year has already been received outside the taxable territories it cannot be said to be received again as such in the taxable territories, if it is brought from the place where it was received as such into the taxable territories.\n\nThe second part which is cl. (b) deals with the case of a person who is resident in the taxable territories during such year. In his case all income which accrues or a.rises or is deemed to accrue or arise to him in the taxable territories during such year is chargea.ble to income-tax ; besides, all income etc. which accrues or a.rises to him without the taxable territories during such year is also chargeable to income-tax.\n\nThen comes the part with which we are directly concerned and which provides that all income etc. which having accrued or, arisen to such person with. out the taxable territor.ies before the beginning of such year and after the first day of April 1933 is brought\n\n(l) [1953[5.C.R.950.\n\nzg6z\n\nCommissi01Ur uj\n\nImom#-111.x,\n\nBoinbay\n\nDharamdM H argovindas\n\nWandiooj.\n\n738 SUPREME COURT REPOR'rS [1961]\n\nx96x into or received in the taxable territories by him -. -. during such year will be chargeable to income-tax.\n\nCommsssioner of '.I'h' · 1 · 1 t' t t 1 1 is 1s a speCia prov1s1on re a. mg o mcome e c.\n\n';:~:;\" which has accrued or arisen not in the previous year v. but in years previous to that though after April 1, Dhar•mdas\n\n1933. This special provision relating to a. person Hargovindas resident in the taxable territories must be distinguished from the provision in cl. (a.) in connection with which IVanclloo J. it has been held that the receipt there meant must be the first receipt, for cl. (a) applies irrespective of whether the person is resident in the territories or not to income etc. of the previous year received in the tax' able territories in the same year. Clause (b)(iii) on the other hand refers to inco:ne etc. which accrued before the previous year and is brought into or received in the taxable territories in such year by a person resident therein, and obviously the considerations which led this Court to hold in Keshav Mills case(') thatthe receipt in cl. (a) means the first receipt would not apply to this special provision in cl. (b)(iii).\n\nMr. Pathak for the respondent however argues that the words in cl. (b)(iii) are the same as in cl. (a), namely, \"are received\" and therefore the receipt in\n\ncl. (b)(iii) must also be the first receipt. These words however are not terms of a.rt and in our opinion their meaning must receive colour from the context in which they are used. In the context of cl. (a) these words could only refer to the first receipt ; but it does not follow from this that in the context of cl. (b)(iii) also they refer only to the first receipt.\n\nLet us see what cl. (b)(iii) is meant to provide for.\n\nIt will be noticed that cl. (a), cl. (b)(i) and (ii) and cl. (c) deal only with income etc. which has arisen in the previous year while cl. (b)(iii) deals with a. special class of cases where a person resident within the taxable territories had income etc. accruing or a.rising to him without the taxable territories and which he did not bring in the taxable territories as and when it arose but does so many years later. In such a case it stands to reason that the income etc. having arisen to such person, may be years before the previous year, must\n\n(1) [1953) S.C.R. 950.\n\n3 S.C.R.\n\nSUPHEME COURT HEPOR'rS 739\n\nhave been received by him outside the taxable territories; but it is urged that cl. (b)(iii) docs not speak of receipt outside the taxable territories but only speaks of incbme etc. having accrued or arisen to him without the taxable territories and that it is possible that though the income etc. might have accrued Jong ago it might not have been received ovn outside the taxable territories. This is theoretically possible; but in our opinion it is clear that when cl. (b)(iii) speaks of income etc. having accrned or arisen without the taxable territories it is implicit in it further that such income etc. having accrued or arisen without the taxable territories had already been received there. Considering that cl. (b)(iii) applies to all income having accrued or arisen after the first day of April 1933 (that is more than 27 years ago now) it does not seem reasonable to hold that the words \"having accrued or arisen\" usPd in that clause have no reference to its receipt also outside the taxable territories. It seems to us therefore that what cl. (b)(iii) provides is that if any income etc. had arisen or accrued outside the taxable territories and had been received there sometime before the previous year and if such income etc. is brought into or received in the taxable territories by such person in the previous year it will be liable to be charged under s. 3. In the circumstances, looking to the special provision of cl. (b)(iii) it would be reasonable to infer that what it contemplates is bringing into or receipt in the taxable territories in the previous year of income etc. which had already accrued or arisen without the taxable territories earlier than the previous year and may have also been received there. Any other interpretation would really make that part of cl. (b)(iii) which refers to \"received in the taxable territories\" more or less useless, for it is not likely that income having accrued or arisen outside the taxable territories before the previous year should not have been received also outside the taxable territories. Therefore, the reasonable interpretation of cl. (b)(iii) is that if a person resident in the taxable territories has already received without the taxable territories any income etc. accruing or arising to him without the taxable territories\n\nIg6I\n\nCo1nmissi (1953J s.c.R. 950, 90,.\n\nConnnissionerof\n\nIncome-tax,\n\nBombay v.\n\nDharamdas Hargovindas\n\nSarkar].\n\nCommissioner of\n\nIncome-lax,\n\nBombay v.\n\nDharamdas Hargovindas\n\nSarkar ].\n\n744,\n\nSUPREME COURT REPORTR [1961]\n\n\"the first receipt after the accrual of the income\", because of anything in the context in which the word occurred but because, in the nature of things, income can be \"received\" only once and not more than once, and a subsequent dealing with income after it has been received, can never be a \"receipt\" of income.\n\nIt seems to me that what was said in connection with the Act as it then stood, in Board of Revenue v. Ripon\n\nPress (1), namely, \"that you cannot receive the same sum of money qua income twice over, once outside British India and once inside it\" expresses the inherent nature of receipt of income and still holds good and unless the context compels a different meaning, which I do not find the present con text to do, income can be received only once.\n\nAs, in the present case, it seems fairly clear that the a.ssessee had received the income in Bhavnagar, . I do not think he can be taxed on it on the basis that he \"received\" it in Bombay over again.\n\nIf, however, the assessee did not \"receive\" the income in Bombay, it seems clear to me that he \" brought into\" Bombay that income. He got in Bombay an amount which he had earlier received in Bhavnagar a.s income, for he advanced it to a concern in Bombay and this he could not do if he had not got it. The getting of the income in Bombay may not have been the receipt of it but how could he get it if he did not bring it in ?\n\nAfter the assessee received the income in Bhavnagar, it remained all the time under his control and that is why he could not receive it again: see Sundar Das v.\n\nCollector of Gujrat (•).\n\nAn assessee might, however, change the shape of the income received. Section 4(1) (b)(iii) does not require that in order that income may be brought into the taxable territories it is necessary that the shape of the income should not have been changed since it was first recflived. Indeed; it has not been contended to t.he contrary. Sub-clause (iii) of s. 4(l)(b) would have completely defeated itself if it required that the income had to be kept in the same shape in which it had been received. Whatever shape\n\n(1) (1923) l.L.R. 46 Mad 706, 7II.\n\n(2) (•922) !.L.R 3 Lah. 349.\n\nthe income had assumed, the a.ssessee had it with him all the time as incoue and for the purpose of sub-cl. (iii) it could be brought into the taxable territories in that\n\nshape.\n\nNow what the a.ssessee had done with the income in this case was to put it with a party in Bha.vnagar.\n\nThe income then took the shape of a debt dne to him.\n\nIt became a right to receive money or moneys worth.\n\nWhen he had that debt discharged in Bombay, he must have had it brought into Bombay. Therefore he had brought the income into Bombay.\n\nSuppose he had received the income in the shape of coins and had kept it in his safe at Bhavnagar and brought the coins in_to Bombay. There would have been no doubt that he had brought the income into Bombay. Suppose a.gain, he had put the income originally received by him at Bhavnagar in a bank there and then he obtained a draft from the bank payable in Bombay and brought the draft from Bha.vnagar to Bombay and cashed it there. Again, there would be little doubt that he had, by this process, brought the income into Bombay. It is well known that though income in income-tax law is generally contemplated in terms of money, it may be conceived in other forms. In fa.ct anything which represents and produces money and is treated as such by businessmen, would be income : see per Lord Lindley in GreslUlm Li/ e Assurance Society Ltd. v. Bishop (1) and per Lord Hals. bury L.C. in Tennant v. Smith('). If the bringing of the bank draft would be bringing of income, I am unable to see why the bringing of a right to receive the money would not be bringing of income when that right has been exercised and turned into moneys worth. Such a right would be based on a promise by the debtor to pay and though verbal, would be considered by businessmen to represent money.\n\nThe assessee in Bombay used that right and obtained moneys worth. He accepted the Bhavnagar concern's cheque in Bombay, gave it a pro tanto discharge for the debt owing by it to him. He used the cheque in acquiring a new asset, namely, a promise by the\n\n11) (19<>1) A.C. z87, •96,\n\n(2) (189•] A.C. 150, 156.\n\nCOf'9tmissiotur of\n\nIneo,,, e--ta#.\n\nBombay\n\nDha,.amdos Hargovi1'das\n\ns.,~., J.\n\nCommissioner of\n\nIncome-ta~,\n\nBombay v.\n\nDharamd1Js Ha1govindas\n\nSarkar ].\n\nSUPREME COURT RFPORTS [1961]\n\nBombay concern to pay money. Therefore, in my view, the respondent aesessee was liable under s. 4(l)(a), (b)(iii) to be taxed on the amount of the cheque as income which he had brought into the taxable territories.\n\nI would hence allow the appeal and answer the question referred, in the affirmative.\n\nAppeal allowed.\n\n' •\n\n. ,", "total_entities": 79, "entities": [{"text": "THE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY", "label": "PETITIONER", "start_char": 33, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, BOMBAY", "offset_not_found": false}}, {"text": "DHARAMDAS HARGOVINDAS. (P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 74, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 120, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR", "offset_not_found": false}}, {"text": "K. N. WANCHOO, JJ.", "label": "JUDGE", "start_char": 138, "end_char": 156, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 330, "end_char": 344, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 4", "label": "PROVISION", "start_char": 365, "end_char": 369, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 616, "end_char": 623, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 639, "end_char": 653, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4(1)(b)(lii)", "label": "PROVISION", "start_char": 713, "end_char": 728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1267, "end_char": 1271, "source": "regex", "metadata": {"statute": null}}, {"text": "Per Sarkar", "label": "JUDGE", "start_char": 1535, "end_char": 1545, "source": "ner", "metadata": {"in_sentence": "Per Sarkar, J.-The income could not be said to have been \"received\" in the taxable territory within the meaning of cl. ("}}, {"text": "Bombay", "label": "GPE", "start_char": 1751, "end_char": 1757, "source": "ner", "metadata": {"in_sentence": "But it is clear that the assessee \"brought into\" Bombay that income."}}, {"text": "Bhavnagar", "label": "GPE", "start_char": 1829, "end_char": 1838, "source": "ner", "metadata": {"in_sentence": "It was immaterial in what shape he received the income in Bhavnagar and in what shape he brought it in Bombay."}}, {"text": "Bombay Hardayal Hardy", "label": "LAWYER", "start_char": 2474, "end_char": 2495, "source": "ner", "metadata": {"in_sentence": "Bombay Hardayal Hardy and D. Gupta, for the appellant."}}, {"text": "D. Gupta", "label": "LAWYER", "start_char": 2500, "end_char": 2508, "source": "ner", "metadata": {"in_sentence": "Bombay Hardayal Hardy and D. Gupta, for the appellant."}}, {"text": "mdas G. S. Pathak", "label": "LAWYER", "start_char": 2534, "end_char": 2551, "source": "ner", "metadata": {"in_sentence": "Dha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 2566, "end_char": 2578, "source": "ner", "metadata": {"in_sentence": "Dha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "J.B. Dada- H••govindas chanji", "label": "LAWYER", "start_char": 2580, "end_char": 2609, "source": "ner", "metadata": {"in_sentence": "Dha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 2611, "end_char": 2625, "source": "ner", "metadata": {"in_sentence": "Dha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 2630, "end_char": 2641, "source": "ner", "metadata": {"in_sentence": "Dha:mdas G. S. Pathak, S. P: Mehta, S. N. Andley, J.B. Dada- H••govindas chanji, Rameshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "Wanohoo", "label": "JUDGE", "start_char": 2717, "end_char": 2724, "source": "ner", "metadata": {"in_sentence": "The Judgment of Gajendragadkar and Wanohoo, JJ."}}, {"text": "Wanehoo", "label": "JUDGE", "start_char": 2748, "end_char": 2755, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nWanehoo J.\n\nWANCHOO, J.-In this matter by our order made on April 24, 1958, we had referred the case back to the Tribunal to submit a further statement of case on certain questions.", "canonical_name": "Wanehoo"}}, {"text": "WANCHOO", "label": "JUDGE", "start_char": 2760, "end_char": 2767, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nWanehoo J.\n\nWANCHOO, J.-In this matter by our order made on April 24, 1958, we had referred the case back to the Tribunal to submit a further statement of case on certain questions.", "canonical_name": "Wanehoo"}}, {"text": "High Court\n\nat Bombay", "label": "COURT", "start_char": 3143, "end_char": 3164, "source": "ner", "metadata": {"in_sentence": "This is an appeal by the Commissioner of Incometax, Bombay, against the judgment of the High Court\n\nat Bombay given on a reference under s. 60(2) of the Income-tax Act answering the question referred, in the negative."}}, {"text": "s. 60(2)", "label": "PROVISION", "start_char": 3192, "end_char": 3200, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3208, "end_char": 3222, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 3448, "end_char": 3455, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3473, "end_char": 3487, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "British India", "label": "GPE", "start_char": 3683, "end_char": 3696, "source": "ner", "metadata": {"in_sentence": "ant time, Bhavnagar was a ruling State and therefore outside British India."}}, {"text": "Bhavnagar Mills", "label": "ORG", "start_char": 3759, "end_char": 3774, "source": "ner", "metadata": {"in_sentence": "There was a mill there which we shall, for brevity, call the Bhavnagar Mills."}}, {"text": "Gordhandas", "label": "OTHER_PERSON", "start_char": 3805, "end_char": 3815, "source": "ner", "metadata": {"in_sentence": "The assessee and his brother Gordhandas had large sums in deposit with the Bhavnagar Mills."}}, {"text": "April 7, 1947", "label": "DATE", "start_char": 4117, "end_char": 4130, "source": "ner", "metadata": {"in_sentence": "This account showed that on April 7, 1947, a sum of Rs."}}, {"text": "Harkisondas Ratilal", "label": "OTHER_PERSON", "start_char": 4175, "end_char": 4194, "source": "ner", "metadata": {"in_sentence": "50,000/- had been paid out to Harkisondas Ratilal and another sum of the same amount to Dilipkumar Trikamlal.", "canonical_name": "Harkisondas Ratilal"}}, {"text": "Dilipkumar Trikamlal", "label": "OTHER_PERSON", "start_char": 4233, "end_char": 4253, "source": "ner", "metadata": {"in_sentence": "50,000/- had been paid out to Harkisondas Ratilal and another sum of the same amount to Dilipkumar Trikamlal.", "canonical_name": "Dilipkumar Trikamla.l"}}, {"text": "Bombay Mills", "label": "ORG", "start_char": 4311, "end_char": 4323, "source": "ner", "metadata": {"in_sentence": "There is another mill in Bombay which we shall call the Bombay Mills."}}, {"text": "April 3,\n\n1947", "label": "DATE", "start_char": 4372, "end_char": 4386, "source": "ner", "metadata": {"in_sentence": "The account of the Bombay Mills showed that on April 3,\n\n1947, Rs."}}, {"text": "Bombay Mi!ls", "label": "ORG", "start_char": 4817, "end_char": 4829, "source": "ner", "metadata": {"in_sentence": "The assessee and his brother were in full control of both the Bhavnagar Mills and the Bombay Mi!ls."}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 5101, "end_char": 5108, "source": "regex", "metadata": {"statute": null}}, {"text": "Bha.vnaga.r Mills", "label": "ORG", "start_char": 5594, "end_char": 5611, "source": "ner", "metadata": {"in_sentence": "High Court held that under the section income is taxable only when it is brought into or received in the taxable territory by the a.ssessee himself and not when it is so brought into or received on behalf of the assessee and that all that the facts found by the Tribunal showed was that the a.ssessee disposed of his accumulated income in Bha.vna.ga.r by directing his debtor, the Bha.vnaga.r Mills, to pay an a.mount not to himself but to a third party, namely, the Bombay Mills."}}, {"text": "Dharamdas Hargovindas\n\nWanchoo ].\n\n'96r", "label": "RESPONDENT", "start_char": 6502, "end_char": 6541, "source": "ner", "metadata": {"in_sentence": "Commissioner of\n\nIncome-tax,\n\nBombay v.\n\nDharamdas Hargovindas\n\nWanchoo ].", "canonical_name": "Dharamdas Hargovindas\n\nWanchoo ].\n\n'96r"}}, {"text": "Harkison Ratilal", "label": "OTHER_PERSON", "start_char": 8668, "end_char": 8684, "source": "ner", "metadata": {"in_sentence": "We therefore think it fit to refer the case back to the Tribunal to submit a further stement of case, after taking such evidence as may be necessary, as to show how the cheque was brought from Bhavnagar to Bombay and what agreement had been made between the parties concerned as a result of which the amount of the cheque was credited in the names\n\nof Harkison Ratilal and Dilipkumar Trikamlal in the accounts of the Bombay Mills.", "canonical_name": "Harkisondas Ratilal"}}, {"text": "Bank of India Limited", "label": "ORG", "start_char": 9129, "end_char": 9150, "source": "ner", "metadata": {"in_sentence": "In its statement of case now submitted the Tribunal found the following facts: The Bhavnagar Mills had an account in the Bank of India Limited at one of its Bombay Branches."}}, {"text": "April 3, 1947", "label": "DATE", "start_char": 9447, "end_char": 9460, "source": "ner", "metadata": {"in_sentence": "The assessee acting on behalf of the Bhavnagar Mills drew a cheque on the Bhavnagar Mills aforesaid account in the Bank of India Limited on April 3, 1947, in favour of self."}}, {"text": "Dilipkumar Trikamla.l", "label": "OTHER_PERSON", "start_char": 9671, "end_char": 9692, "source": "ner", "metadata": {"in_sentence": "This cheque was handed over by the assessee to the Bombay Mills in Bombay for being credited in the account of the Bombay Mills in the names of Harkison Ratilal and Dilipkumar Trikamla.l which were really the benami names of the assessee and his brother.", "canonical_name": "Dilipkumar Trikamla.l"}}, {"text": "Bank of India Ltd.", "label": "ORG", "start_char": 9842, "end_char": 9860, "source": "ner", "metadata": {"in_sentence": "The Bombay Mills on the same date presented this cheque to another branch of the Bank of India Ltd. in Bombay where they had an account, for deposit in that account."}}, {"text": "April 5,\n\n1947", "label": "DATE", "start_char": 10010, "end_char": 10024, "source": "ner", "metadata": {"in_sentence": "The actual entries in the books of the different branches of the Bank were made on April 5,\n\n1947."}}, {"text": "Dharamdas Har govindas", "label": "RESPONDENT", "start_char": 10777, "end_char": 10799, "source": "ner", "metadata": {"in_sentence": "I')6I\n\nCommissioney of Income-tax, Bombay v.\n\nDharamdas Har govindas\n\ni-vanchoo ].", "canonical_name": "Dharamdas Hargovindas\n\nWanchoo ].\n\n'96r"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12575, "end_char": 12579, "source": "regex", "metadata": {"statute": null}}, {"text": "DharamdM H argovindas", "label": "JUDGE", "start_char": 15054, "end_char": 15075, "source": "ner", "metadata": {"in_sentence": "zg6z\n\nCommissi01Ur uj\n\nImom-111.x,\n\nBoinbay\n\nDharamdM H argovindas\n\nWandiooj.", "canonical_name": "Dharamdas Hargovindas\n\nWanchoo ].\n\n'96r"}}, {"text": "IVanclloo", "label": "JUDGE", "start_char": 15631, "end_char": 15640, "source": "ner", "metadata": {"in_sentence": "a.) in connection with which IVanclloo J. it has been held that the receipt there meant must be the first receipt, for cl. ("}}, {"text": "Keshav Mills", "label": "ORG", "start_char": 16165, "end_char": 16177, "source": "ner", "metadata": {"in_sentence": "which accrued before the previous year and is brought into or received in the taxable territories in such year by a person resident therein, and obviously the considerations which led this Court to hold in Keshav Mills case(') thatthe receipt in cl. ("}}, {"text": "Pathak", "label": "OTHER_PERSON", "start_char": 16301, "end_char": 16307, "source": "ner", "metadata": {"in_sentence": "Mr. Pathak for the respondent however argues that the words in cl. ("}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18867, "end_char": 18871, "source": "regex", "metadata": {"statute": null}}, {"text": "Dharamdas Hargouindas", "label": "RESPONDENT", "start_char": 19849, "end_char": 19870, "source": "ner", "metadata": {"in_sentence": "accruing or arising to him without the taxable territories\n\nIg6I\n\nCo1nmissi (1953J s.c."}}, {"text": "Dharamdas Hargovindas", "label": "RESPONDENT", "start_char": 28564, "end_char": 28585, "source": "ner", "metadata": {"in_sentence": "Connnissionerof\n\nIncome-tax,\n\nBombay v.\n\nDharamdas Hargovindas\n\nSarkar].", "canonical_name": "Dharamdas Hargovindas\n\nWanchoo ].\n\n'96r"}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 30359, "end_char": 30371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(l)(b)", "label": "PROVISION", "start_char": 30644, "end_char": 30654, "source": "regex", "metadata": {"statute": null}}, {"text": "Lindley", "label": "OTHER_PERSON", "start_char": 32185, "end_char": 32192, "source": "ner", "metadata": {"in_sentence": "In fa.ct anything which represents and produces money and is treated as such by businessmen, would be income : see per Lord Lindley in GreslUlm Li/ e Assurance Society Ltd. v. Bishop (1) and per Lord Hals."}}, {"text": "Bhavnagar concern", "label": "ORG", "start_char": 32748, "end_char": 32765, "source": "ner", "metadata": {"in_sentence": "He accepted the Bhavnagar concern's cheque in Bombay, gave it a pro tanto discharge for the debt owing by it to him."}}, {"text": "Dha,.amdos Hargovi1'das", "label": "JUDGE", "start_char": 33020, "end_char": 33043, "source": "ner", "metadata": {"in_sentence": "Bombay\n\nDha,.amdos Hargovi1'das\n\ns.,~., J.\n\nCommissioner of\n\nIncome-ta~,\n\nBombay v.\n\nDharamd1Js Ha1govindas\n\nSarkar ]."}}, {"text": "Dharamd1Js Ha1govindas\n\nSarkar ].\n\nSUPREME COURT RFPORTS [1961]", "label": "RESPONDENT", "start_char": 33097, "end_char": 33160, "source": "ner", "metadata": {"in_sentence": "Bombay\n\nDha,.amdos Hargovi1'das\n\ns.,~., J.\n\nCommissioner of\n\nIncome-ta~,\n\nBombay v.\n\nDharamd1Js Ha1govindas\n\nSarkar ]."}}, {"text": "s. 4(l)(a)", "label": "PROVISION", "start_char": 33255, "end_char": 33265, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1961_3_747_754_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREME COUH.T H.EPORTS 747\n\nTHE STATE OF BOMBAY\n\nFAKIR UMAR DHANSE. (J. L. KAPUR and J. C. SHAH, J, J.)\n\nUnalienable agricultural land-Occupant-If could alter the user to non-agricultural purposes-Unauthorised structures-Nature of right of Revenue Authorities to evict-Words \"eviction\" and \" Vacation\" meaning of-The Bombay Land Revenue Code, r879 (V of r879), s. 66.\n\nThe respondent who was the occupant of an unalienated land had erected several structures on it without obtaining the prior permission of the Collector and became liable to be evicted. The Collector served a notice of eviction on the respondent under s. 66 of the Bombay Land Revenue Code and called upon him to remove the unau.thorisedstructures. On the respondent not having complied with the notice, he was evicted from the land and some of the buildings were demolished.\n\nThe High Court held that the order directing the removal of the structures was ultra vires of s. 66 of the Bombay Land Revenue Code and though the order of eviction was legal and intra vires but in spite of the eviction, the land or the buildings did not vest in the Government and the occupant continued to be the owner of the building and the land and the only consequence of eviction was physical removal of the occupant from the land.\n\nThe question was whether the occupier who had been evicted was required to remove the building and in default could the collector demolish the building and was liable to damage for such demolition.\n\nHeld, that on a true construction of ss. 65 and 66 of the Bombay Land Revenue Code an occupant was only entitled to the use and occupation of unalienated land for the purpose of agriculture, and could not alter the user to non-agricultural purposes except with the permission of the Revenue Authorities, and any such altered user entitled the Revenue Authorities to summarily evict the occupant from the land and once evicted the right of user and occupation could not be exercised by him.\n\nThe words \"eviction\" and \"vacation \" did not mean mere physical removal of the occupant, they meant that his rights came to an end. For the purpose of \"vacation\" it was necessary that any unauthorised construction put up must also be removed, and no specific powers were necessary for such removal, the power to remove them was incidental and ancillary to the powers to evict and to get the land.vacated.\n\nThe true effect of eviction was physical removal of the c.ccupant from the land with all the Gonsequences, i.e., demolition of all unauthorised superstructure,\n\nFebruary 3.\n\n1961 The word \" eviction \" as used in s. 66 of the Code meant that on eviction, land had to be restored to the original position Stat• of Bombay so as to be used for the purpose for which it was given to the v. occupant.\n\nFakir Umar Dhans1 C A\n\n!VIL\n\nPPELLATE JURISDIOTION: Civil Appeal No. 377 ofl957.\n\nAppeal from the judgment and decree dated September 24, 1954, of the Bombay High Court in First Appeal No. 355of1950.\n\nR. Ganapathy Iyer, K. L. Hathi and D. Gupta, for the appellant.\n\nB. D. Sharma, for the respondent. 1961. February 3. The Judgment of the Court was delivered by\n\nKapur J.\n\nKAPUR, J.-This is an appeal against the judgment and decree of the High Court of Judicature at Bombay.\n\nThe appellant wa.s the defendant in a suit brought by the respondent who was the plaintiff and the facts giving rise to the appeal are these: The respondent was the occupant of unalienated land, Survey No. 145, Hissa No. 2 of Maha.d in the district of Cola.ha. He applied on November 1, 1941, to the Collector for permission to construct a temporary shed for one year on the above mentioned land and permission wa.s granted on January 9, 1942. The respondent ma.de another application for extension of the period of the permission by two yea.rs.\n\nenuiry it wa.s found that the respondent ha.d constructed permanent structures without leaving a.n open space of 20 feet between the road a.nd the building a.nd when asked to lea. ve this space open he refused to do so and therefore the application dated September 9, 1942, was dismissed. On March 28, 1943, the respondent made another applica.tioll stating that he was prepared to remove the building which was within 20 feet of the road. The Collector accepted this request a.nd asked the respondent to remove that portion of the building which wa.s within 20 feet from the road. While the correspondence was going on between the respondent and the Collector, the respondent put up several structures which, for some re!lSOQ\n\nor another, the Collector knew nothing about a.nd it 1961 wa.s in March, 1947, that the Collector asked the Siok 1 Bomb respondent to stop further building. On April 21,\n\nv. <¥ 1947, the respondent ma.de another application tOFahirU_D......., the Collector stating that he had begun to construct another building and asked for permission to complete Kapur J. it. It was then that the Collector ma.de an inquiry and found that several buildings had been constructed deliberately without any permission. The Collector then asked the permission of the Government to take further action and on September 23, 1947, the Government accorded sanction in pursuance of which the Collector directed the Ma.mla.tda.r to evict the respondent. On October 19, 1947, the Ma.mla.tda.r served a. notice upon the respondent for evicting him.\n\nThe rcs~)ondent thereupon appealed to the Bombay Revenue Tribuna.I and his appeal was dismissed on April 2, 1941. Another notice was served on the respondent ca.Hing upon him to remove the unauthorised structures. As he did not comply with the notice, he was evicted from the land and some of the buildings were demolished.\n\nThe respondent in August, 1948, filed a. petition in the High Court and obtained an order of sta.y of the order of the Government and in execution of that order obtained possession of the land and then did not prosecute his petition. Thus in spite of his having flouted the orders ma.de by the Revenue authorities, the respondent managed to get the possession of the land from which he had been evicted. On November 23, 1948, the respondent filed a suit for declaration that the order passed by the Government directing his eviction was illegal and void and for injunction restraining the Government from ta.king any action pursuant to that order and for recovery '}f Rs. 7,000 as damages for the portion of the building demolished by the Revenue authorities. The Civil Judge held that the buildings erected were unauthorised as the respondent had not obtained the permission of the Collector but he held that the Collector had no power under s. 66 of the Bombay Land Revenue Code (hereinafter termed the Code) to demolish he building. He\n\nr961 decreed the suit in regard to the eviction holding the order of the Government and by the Collector as uUra State of Bombay . d v. vires an inoperative and issued an injunction against Faki. Um•• Dhansethe appellant and also decreed the suit for Rs. 7,000 as\n\ndamages for demolition of the structures. The appel- Kapur f. !ant then took an appeal to the High Court and it was there held that the orders ; directing removal of structures wasultravires of s. 66 of the Code and the injunction was therefore confirmed as also the decree as to the award of damages. The High Court further held that the order of eviction was legal and intra vires but in spite of the eviction, the land or the buildings did not vest in the Government and the occupant continued to be the owner of the buildings and the land and the only consequence of eviction was the physical removal of the occupant from the land. To put it in the language of the High Court it was held:-\n\n\" The legal consequences of eviction therefore will be to deprive the occupant of his possession of the land but not of his ownership or proprietary rights, which will continue to vest in him. As a corollary it must follow that the building erected by the occupant on the land will also continue to belong to him. We are also of the opinion that the power given to the Collector to evict the occupant does not include the power to remove a building erected by him.\" It is against this judgment and decree that the appellant has come in appeal to this Court on a certificate of fitness by the High Court.\n\nThere is no dispute in this appeal as to the order of eviction. The question which was debated was the consequences of this eviction. Was the respondent required to •. remove the building and in default can the a.ppella.nt demolish the building and (2) is the appellant liable to dama.ges for the demolition of the portion which it had already demolished ? This would depend upon the interpretation to be put on some of the provisions of the Code. The Collector, after getting the permission of the Government directed, by his order dated October 10, 1947, the removal of\n\nthe structures unauthorisedly erected by the respon- '96' dent and the action purported to have been taken SJale of Bombay under s. 66 of the Code. Section 45 of the Code v. provides that all land whether used for purposes of Fakir Umar Dhans<, agriculture or other purposes and wherever situated is liable to payment of land revenue to Government Kapur J. and under s. 56 failure to pay land revenue makes the occupancy liable to forfeiture.\n\nSections 65 and 66 of the Code provide :\n\nS. 65.\" An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives to erect farm buildings, construct wells or tanks or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid.\n\nBut if any occupant wishes to use his holding or any part thereof for any other purpose, the Collector's permission shall in the first place be applied for by the occupant ....................................... \"\n\nS. 66. \" If any such land be so used without the permission of the Collector being first obtained or before the expiration of the period prescribed by section 65 the occupant and any tenant or other person holding under or through him shall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used such fine as the Collector may subject to the general orders of the State Government direct.\n\nAny tenant or any occupant or any other person holding under or through an occupant who shall without the occupant's consent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid, shall be responsible to the said occupant in damages.\" It has been found that the respondent erected several structures without obtaining the prior permi88ion of\n\nL96x the Collector and he was liable to be evicted, and\n\n51 1\n\nB ba therefore the order passed by the Collector directing ate\n\n0 v. om Y the eviction of the respondent was legal and intra vires .\n\n.Fakir uma• D/saH\" Under s. 65 an occupant of land held for the purpose of agriculture may erect farm buildings, construct wells Kapu• J. or tanks or make other improvements for the better cultivation of the land or for its more convenient use for the purpose of agriculture but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authoritioo. This shows that any user unconnected with agriculture is unlawful and under s. 66 therefore any such altered user entitles the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow. Therefore on a true construction of ss. 65 and 66 an occupant is only entitled to the use and occupation of una.lienated land subject to the limitation above mentioned and if he is once evicted under the provi. sions of s. 66 of the Code the right of user and occupation cannot be exercised by him.\n\nSection 202 of the Code lays down the procedure for evicting any person unla. wfully in possession of the land and provides as follows : S. 202. \"Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be ma.de in the following manner, viz. : by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land,\n\n\" ·····•········••••········· This section therefore shows that eviction requires vacation of the land and vacation does not mean that &nything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful a.ct is to be removed from the la.nd. That the words \"eviction\" and\" vacation\" do not mean mere physical removal of the occupant is clear from the very nature of the right which th~ respondent in the present case had. His right was\n\nconfined to the use a.ad occupation of the land for the '96' purpose for which he held it from Government, i.e., s1111, of Bombay for a.gricultura.l purposes a.nd when he is 'evicted a.nd v. is asked to vacate the land, it must mean that his Fakir Um•r Dbt111 rights come to an end. For the purpose of va.ca.tion it is necessary that any unauthorised construction put Kapur J. up must also be removed otherwise there cannot be a.ny vacation of the land nor ca.n the land be put to effective use for the purpose for which a.gricultura.l lands a.re normally accepted to be used. It is not necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the superstructure but it would be a misinterpretation of the words \" eviction \" and \" vacation \" of the land if it were held that although the occupant is evicted the structures erected by him cannot be removed a.nd if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pa.in of being mulcted in damages. It is, in our opinion, not necessary to have any specific power to have the land vacated of all unauthorised superstructures; the power to remove them is incidental a.nd ancillary to the power to evict and to get the land vacated. It a.ppea.rs to us that the nature of the right of occupancy a.nd the limitation placed upon it by the provisions of the Code contained in ss. 40 and 41 by which the right to certain trees on una.liena.ted land is reserved to the State; in ss. 65 and 66 which have been quoted above a.nd ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the consequences, i.e., demolition of all unauthorised superstructures. The High Court relied upon the difference in the language used illJ!s. 61 and 66 of the Code and to the amendment ma.de in the former section in 1919 by which the words \"or to summary removal\" were added in s. 61 and t.he relevant portion of the section now reads~\n\nunde~;~\n\nr961\n\nSlate of Bombay\n\nFakir Umar Dhanse\n\n/(apur. J.\n\nr96I\n\nS. 61. \"The person unauthorisedly occupying any such land may be summarily evicted by the Collector\" and any crop raised in the land shall be liable to forfeiture, and any building, or other construction erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture or to summary removal.\" From the addition of these words it was sought to be argued that these words were added to authorise the Collector to remove any building or other construction put up on that land by a person in unauthorised occupation an1 it was argued that those words were specifically added for the purpose. It is wholly unnecessary for us to go into the question as to why that particular power was given to the Collector. In this case we are concerned with the meaning of the word \" eviction \" as used in s. 66 and in our opinion the meaning of those words is that on eviction land has to be restored to the original position so as to be used for the purpose for which it was given to the occupant.\n\nFor the reasons given above this appeal is allowed and the decree of the High Court affirming that of the trial court is set aside. The appellant will have its costs throughout.\n\nA ppeaJ, allowe.d.\n\nM/S. JETHAN AND AND SONS\n\nTHE STATE OF UTTAR PRADESH.\n\n(J. L. KAPUR and J. C. SHAH, JJ.)\n\nAppeal to Supreme Court-Certificate of fitness by High Court -Remand order, if and when final order-Substantial question of. law-Power of High Court-Constitution of India, Art. r33-Code of Cioil Pra 757\n\nPradesh and that the awards were validly made.\n\nAgainst the orders passed by the Civil Judge, Lucknow, three appeals were preferred by the appellants to the High Court of Judicature at Allahabad.\n\nThe H, igh Court set aside the orders passed by the Civil Judge and remanded the cases to the Trial Judge with a direction that he do allow the appellants and if need be, the respondent to amend their pleadings, and frame all is8ues that arise out of the pleadings and allow the parties an opportunity to place such evidence as they desire and decide the case on such evidence. In the view of the High Court no proper notice of the filing of the awards was served upon the appellants and that they were \"seriously handicapped in their reply by the course which had been adopted both by the court and the arbitrator in the conduct of the proceedings in court.\" On the applications filed by the appellants, the High Court granted leave to appeal to this court under Art. 133(l)(c) of the Constitution, certifying that the cases were fit for appeal to this court.\n\nCounsel for the respondent has urged that the High Court was incompetent to grant certificate under Art. 133(1) (c) of the Constitution.\n\nThe order passed by the High Court was manifestly passed in exercise of the inhen, nt power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Undel\n\nArt. 133 of the Constitution, an appeal lies to thi~ court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that:\n\n(a) ........... .\n\n(b) ............ or\n\n(c) \"the case is a fit one for appeal to the Supreme Court.\" In our view, the order remanding the cases under s. 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute.\n\nThe High Court merely\n\nIy6I\n\nMfs. }61hanan4\n\nantl Sons v.\n\nStat• of U1ta1 PYadesA\n\nShah].\n\nM /s. ]ethanand\n\nand Sons v.\n\nStale of Uttar Pradesh\n\nShah ].\n\nremanded the cases for retrial holding that\" there was no proper trial of the petitions filed by the appellants for sett.jug aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(l)(c).\n\nAn order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a fihal order within the meaning of Art. 133. The High Court assumed that a certificate of fitness to appeal to this court may be issued under s. 109(l)(c) of the Code of Civil Procedure, even if the order is not final, and in support of that view, they relied upon the judgment of the Judicial Committee of the Privy Council in V. M.\n\nAbdul Rahman v. D. K. Oassim & Sons (1). Buts. 109 of the Code is now made expressly subject to Ch. IV, Part V of the Constitution and Art. 133 (1) (c) which occurs in that chapter authorises the grant of a certificate by the High Court 011ly if the order is a final order. The inconsistency between s. 109 Civil Procedure Code and Art. 133 of the Constitution has now been removed by the Code of Civil Procedure (Amendment) Act 66 of 1955. But even before the amending Act, the power under s. 109(1) (c) being expressly made subject to the Constitution, an appeal lay to this Court only against judgments, decrees and final orders.\n\nAgain, the orders passed by the High Court did not raise any question of great public or private importance. In the view of the High Court, the applications for setting aside the awards filed by the appellants were not properly tried and therefore the cases deserved t.o be remanded to the court of first instance for trial de nova.\n\nThe High Court granted leave to the parties to amend their pleadings; they al;; o directed the Civil Judge to frame \" all the is.mes that arise and allow the parties an opportunity of adducing such evidence as they desired.\" It was an order for trial de nova on frtlsh pleadings and 011 all iss:ues that may\n\n(1) (1933) L.R. 60 I.A. 76.\n\narise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de nova be binding and the cases will have to be tried afresh by the Civil Judge. The High\n\nCourt. was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act rnised a substautbl question of law. But by the direction of the High Court, this quest.ion was also left open to be tried before the Civil Judge.\n\nWe fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private. importance justifying grant of a certificate under Art. 133 (1) (c) of. the Constitution.\n\nWe accordingly vacate the certificate granted by the High Court and dismiss these appeals with costs.\n\nOne hearing fee.\n\nAppeals dismissed.\n\nHAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI\n\nTHE COMMISSIONER OF W AKFS,\n\nWEST BENGAL. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)\n\nM utawalli - Temporary. appointment-II' hen can be made by the Commissioner-Delegation of powers-Duty interwoven rvith power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),\n\nSS. 29, 40.\n\nDuring controversy between two brothers each of \\Vhom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed a third brother as a temporary Mutawalli under s. 40 of the Bengal Wakf Act, which appointment was challenged on the ground that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the rules framed by the Government of West Bengal the Board constituted under Bengal Wakf Act could alone make the appointment and the Commissioner could only make a report and recommendation to the Board.\n\nHeld, that under the provisions of s. 40 read with s. 29 of the Bengal Wakf Act, a temporary Mutawalli can be appointed by the Commissioner to whom the powers and duties have been\n\nIV! /s. f ethanand\n\nand Sons\n\nState of littar Pradesh\n\nShah J.\n\nIg61\n\nFebruary 6.", "total_entities": 60, "entities": [{"text": "S. 61", "label": "PROVISION", "start_char": 90, "end_char": 95, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 950, "end_char": 955, "source": "regex", "metadata": {"statute": null}}, {"text": "M/S. 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"statute": "Constitution of India"}}, {"text": "s. 109", "label": "PROVISION", "start_char": 9931, "end_char": 9937, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 9938, "end_char": 9958, "source": "regex", "metadata": {}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 9963, "end_char": 9971, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 10016, "end_char": 10043, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 109(1)", "label": "PROVISION", "start_char": 10122, "end_char": 10131, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "(1933) L.R. 60 I.A. 76", "label": "CASE_CITATION", "start_char": 10912, "end_char": 10934, "source": "regex", "metadata": {}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 11627, "end_char": 11635, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "HAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI", "label": "JUDGE", "start_char": 11808, "end_char": 11851, "source": "ner", "metadata": {"in_sentence": "HAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI\n\nTHE COMMISSIONER OF W AKFS,\n\nWEST BENGAL. ("}}, {"text": "COMMISSIONER OF W AKFS,\n\nWEST BENGAL", "label": "RESPONDENT", "start_char": 11857, "end_char": 11893, "source": "ner", "metadata": {"in_sentence": "HAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI\n\nTHE COMMISSIONER OF W AKFS,\n\nWEST BENGAL. ("}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 11909, "end_char": 11924, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)"}}, {"text": "J.C. SHAH", "label": "JUDGE", "start_char": 11929, "end_char": 11938, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)"}}, {"text": "M utawalli", "label": "PETITIONER", "start_char": 11946, "end_char": 11956, "source": "ner", "metadata": {"in_sentence": "M utawalli - Temporary."}}, {"text": "SS. 29, 40", "label": "PROVISION", "start_char": 12129, "end_char": 12139, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 12314, "end_char": 12319, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 12509, "end_char": 12534, "source": "ner", "metadata": {"in_sentence": "During controversy between two brothers each of \\Vhom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed a third brother as a temporary Mutawalli under s. 40 of the Bengal Wakf Act, which appointment was challenged on the ground that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the rules framed by the Government of West Bengal the Board constituted under Bengal Wakf Act could alone make the appointment and the Commissioner could only make a report and recommendation to the Board."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 12727, "end_char": 12732, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 12743, "end_char": 12748, "source": "regex", "metadata": {"statute": null}}, {"text": "State of littar Pradesh", "label": "ORG", "start_char": 12903, "end_char": 12926, "source": "ner", "metadata": {"in_sentence": "f ethanand\n\nand Sons\n\nState of littar Pradesh\n\nShah J.\n\nIg61\n\nFebruary 6."}}, {"text": "Shah", "label": "JUDGE", "start_char": 12928, "end_char": 12932, "source": "ner", "metadata": {"in_sentence": "f ethanand\n\nand Sons\n\nState of littar Pradesh\n\nShah J.\n\nIg61\n\nFebruary 6.", "canonical_name": "SHAH"}}]} {"document_id": "1961_3_759_763_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREME COURT R.EPORTS 759\n\narise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de nova be binding and the cases will have to be tried afresh by the Civil Judge. The High\n\nCourt. was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act rnised a substautbl question of law. But by the direction of the High Court, this quest.ion was also left open to be tried before the Civil Judge.\n\nWe fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private. importance justifying grant of a certificate under Art. 133 (1) (c) of. the Constitution.\n\nWe accordingly vacate the certificate granted by the High Court and dismiss these appeals with costs.\n\nOne hearing fee.\n\nAppeals dismissed.\n\nHAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI\n\nTHE COMMISSIONER OF W AKFS,\n\nWEST BENGAL. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)\n\nM utawalli - Temporary. appointment-II' hen can be made by the Commissioner-Delegation of powers-Duty interwoven rvith power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),\n\nSS. 29, 40.\n\nDuring controversy between two brothers each of \\Vhom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed a third brother as a temporary Mutawalli under s. 40 of the Bengal Wakf Act, which appointment was challenged on the ground that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the rules framed by the Government of West Bengal the Board constituted under Bengal Wakf Act could alone make the appointment and the Commissioner could only make a report and recommendation to the Board.\n\nHeld, that under the provisions of s. 40 read with s. 29 of the Bengal Wakf Act, a temporary Mutawalli can be appointed by the Commissioner to whom the powers and duties have been\n\nIV! /s. f ethanand\n\nand Sons\n\nState of littar Pradesh\n\nShah J.\n\nIg61\n\nFebruary 6.\n\n1961 delegated by the Board. The Rules cannot affect the powers of - the Board to delegate its functions under s. 29 of the Act to the Hazrat Syed Shah Commissioner, and once the delegation is made the rules cease\n\nMastershid Ali to apply.\n\nAl Quadari f .\n\nHeld, urther, that where power and duty are rnterv.\n\nCtnnmissioner of\n\nWakfs, Wesl Bengal\n\nconnected and it is not possible to separate one from the other in such wise that power can be delegated while duty is retained and vice versa, the delegation of powers takes with it the duties.\n\nCIVIL APPELLATE JuRisDlC'l'ION: Civil Appeal No. 237 of 1956.\n\nAppeal by special leave from the judgment and order dated December 13, 1954, of the Ca.Jcutta High Court in Appeal from Original Order No. 117 of 1954.\n\nB. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the appellant.\n\nB. 0. Mitter and D. Mukherjee, for respondent No. l.\n\n1961. February 6. The Judgment of the Court was delivered by\n\nHidayat1tllah J.\n\nHIDAYATULLAH, J.-This appeal is as much without subRtance, as it was unnecessary.\n\nHazrat Syed Mastershid Ali Al Quadctri (the appellant) is the eldest son of one Hazrat Sahib Sved Shah l\\Iastershid Ali Al Quadari (shortly, Hazrnt Sn.bib), the first Mut.awalli of a wakf created on August 9, 1931, for the maintenance of the shrine of a Muslim Pir in the town of Midnapur.\n\nAfter the death of Hazrat Sahib, the appellant, claiming to succeed to his fath1.lcutta High Court under Art. 226 ofthe Constitution against the appointment, which was allowed by Sinha, J. and the order of the Commissioner was set aside. On appeal to the Divisional Bench, consisting of Chakrava.rti, C. J. and Lahiri, J. (as he then\n\nwas), the order of Sinha, J. was reversed, and the I96z petition was dismissed. This appeal has been filed H - · h ' 1 azrat Syed Shah wit spema leave.\n\nMa•tershid Ali It is contended in this appeal that the order of the Al Quadari Commissioner appointing a temporary Mutawalli was v. illegal, because under the Rules framed by the Govern- Commissioner of ment, ouly the Board constituted under the Bengal Wakfs, Wakf Act could make the appointment. This argu- West Bengal ment, in our opinion, is wholly unsound. The learned Hidayatullah J.\n\nChief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass.\n\nWe are concerned with sections 40 and 29 of the Bengal Wakf Act. Section 40 reads as follows:\n\n\"In the case of any Wakf of which there is no Mutwalli or where there appears to the Board to be an impediment to the appointment. of a Mutwalli the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as Mutwa!li.\" Section 29 provides :\n\n\"The Board may, from time tu time, authorize the Commissioner to exercise and perform, subject to the control of the Board, any of the powers and duties conferred or imposed on the Board by or under this Act.\" On April 24, 1936, the Board adopted the following resolution :\n\n\" (2). In exercise of the powers vested in them under Section 29 of the At, this Board resolve that the Commissioner of Wakfs be authorised to exercise and perform, subject to the control and approval of this Board, the following powers and duties conferred or imposed on this Board by the sectionsof the Act mentioned against each case:- * • •\n\n(c) The powers of this Board under section 40 to appoint a temporary mutwalli.\" These two provisions of the Act show only too plainly that a temporary Mutawalli can be appointed either by the Board, or, if the powers and duties be\n\nr96r delegated to the Commissioner, by the Commissioner.\n\nH azrae-;-;, d Shah The appellant contends that the Cum missioner can 1• Mas!ershidAli only make a report to the Board, and the Board alone\n\nAIQuadan can make the appointment, and refers to two Hules v. framed by Government. These Rules are : Ccmmissioner of \"l. If it appears to the Commissioner that there\n\nWakfs, is no mutwalli, in the ease of any wakf~ or that a IVest Bengal a vacancy in the office of the mutwtions under s. 29, and harmonious construction requires that the Iiules should give way, when there is a delegation of the powers of the Board. The Commissioner was thus competent to make the appointment.\n\nMr. Sen, however, contencls that the appointment of a temporary Mutawalli could only be made if there was an\" impediment\" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but \"a challenge to the appellant as a canclida.te.\" The word \" impediment\" means hindrance or obstruction, and there was certainly an obstruction to th\" appointment of a perooanent\n\nMutawalli, while the dispute remained undecided. r96r This point has no force whatever. - The question which seemed to have largely engaged HaMzrat Syedd sh.ah t . . h H. h C 1 h h th d 1 as Im hi Ali a tent10n m t e 1g ourt, name y, w et er e e e- Al Quad•ri gation was only of powers or also of duties of the v.\n\nBoard, was not argued before us, though it formed the Commissioner of subject of considerable discussion in the statements of Wakfs. the case. It is without substance. Where powers and West Bengal duties are interconnected and it is not possible to Hidayatullah f separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with i\\ the duties.\n\nThe proposition hardly needs authority ; but if one were necessary, reference may be made to Mungoni\n\nv. Attorney-General of Northern Rhodesia (1).\n\nIn our opinion, the appeal has no force whatever.\n\nThe appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now. The appeal fails, and is dismissed. The appellant shall pay the costs of the respondents, who have entered appearance.\n\nAppeal dismissed.\n\nMAHANTH RAM DAS\n\nGANGA DAS. (J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)\n\nCourt Jee-Appeal to stand dismissed if court Jee not paid within time granted-Extension of time, if can be granted-Code of Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.\n\nThe High Court passed a peremptory order that \"the appeal will stand dismissed \" if a certain amount of court fee was not paid within the time granted by the court. The appellant being unable to find money made an application for extension of time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was\n\n(r) [1060) A.C. 336 g8\n\nI96I\n\nFebruary 7,", "total_entities": 54, "entities": [{"text": "Art. 133", "label": "PROVISION", "start_char": 728, "end_char": 736, "source": "regex", "metadata": {"statute": null}}, {"text": "HAZRAT SYED SHAH MASTERSHlD ALI\n\nAL QUADARI", "label": "PETITIONER", "start_char": 909, "end_char": 952, "source": "metadata", "metadata": {"canonical_name": "HAZRAT SYED SHAH MASTERSHlD ALI AL QUADARI", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF W AKFS,\n\nWEST BENGAL", "label": "RESPONDENT", "start_char": 954, "end_char": 994, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF W AKFS, WEST BENGAL", "offset_not_found": false}}, {"text": "L. 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Sen", "label": "LAWYER", "start_char": 2817, "end_char": 2823, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the appellant."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 2825, "end_char": 2841, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the appellant."}}, {"text": "S. N. Jlfukherjee", "label": "LAWYER", "start_char": 2846, "end_char": 2863, "source": "ner", "metadata": {"in_sentence": "B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the appellant."}}, {"text": "Mitter", "label": "OTHER_PERSON", "start_char": 2891, "end_char": 2897, "source": "ner", "metadata": {"in_sentence": "Mitter and D. Mukherjee, for respondent No."}}, {"text": "D. Mukherjee", "label": "LAWYER", "start_char": 2902, "end_char": 2914, "source": "ner", "metadata": {"in_sentence": "Mitter and D. Mukherjee, for respondent No."}}, {"text": "Hidayat1tllah", "label": "JUDGE", "start_char": 3001, "end_char": 3014, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayat1tllah J.\n\nHIDAYATULLAH, J.-This appeal is as much without subRtance, as it was unnecessary.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "HIDAYATULLAH", "label": "JUDGE", "start_char": 3019, "end_char": 3031, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayat1tllah J.\n\nHIDAYATULLAH, J.-This appeal is as much without subRtance, as it was unnecessary.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Hazrat Syed Mastershid Ali Al Quadctri", "label": "PETITIONER", "start_char": 3102, "end_char": 3140, "source": "ner", "metadata": {"in_sentence": "Hazrat Syed Mastershid Ali Al Quadctri (the appellant) is the eldest son of one Hazrat Sahib Sved Shah l\\Iastershid Ali Al Quadari (shortly, Hazrnt Sn.bib), the first Mut.awalli of a wakf created on August 9, 1931, for the maintenance of the shrine of a Muslim Pir in the town of Midnapur."}}, {"text": "Hazrat Sahib", "label": "OTHER_PERSON", "start_char": 3412, "end_char": 3424, "source": "ner", "metadata": {"in_sentence": "After the death of Hazrat Sahib, the appellant, claiming to succeed to his fath1.lcutta High Court", "label": "COURT", "start_char": 3976, "end_char": 3997, "source": "ner", "metadata": {"in_sentence": "The appellant then moved a petition in the C>1.lcutta High Court under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4004, "end_char": 4012, "source": "regex", "metadata": {"statute": null}}, {"text": "Sinha", "label": "JUDGE", "start_char": 4078, "end_char": 4083, "source": "ner", "metadata": {"in_sentence": "226 ofthe Constitution against the appointment, which was allowed by Sinha, J. and the order of the Commissioner was set aside."}}, {"text": "Chakrava.rti,", "label": "JUDGE", "start_char": 4186, "end_char": 4199, "source": "ner", "metadata": {"in_sentence": "On appeal to the Divisional Bench, consisting of Chakrava.rti, C. J. and Lahiri, J. (as he then\n\nwas), the order of Sinha, J. was reversed, and the I96z petition was dismissed."}}, {"text": "Lahiri", "label": "JUDGE", "start_char": 4210, "end_char": 4216, "source": "ner", "metadata": {"in_sentence": "On appeal to the Divisional Bench, consisting of Chakrava.rti, C. J. and Lahiri, J. (as he then\n\nwas), the order of Sinha, J. was reversed, and the I96z petition was dismissed."}}, {"text": "azrat Syed Shah", "label": "JUDGE", "start_char": 4353, "end_char": 4368, "source": "ner", "metadata": {"in_sentence": "This appeal has been filed H - · h ' 1 azrat Syed Shah wit spema leave.", "canonical_name": "HAZRAT SYED SHAH"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4760, "end_char": 4772, "source": "ner", "metadata": {"in_sentence": "The learned Hidayatullah J.\n\nChief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "sections 40 and 29", "label": "PROVISION", "start_char": 4968, "end_char": 4986, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 5011, "end_char": 5021, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 5315, "end_char": 5325, "source": "regex", "metadata": {"statute": null}}, {"text": "April 24, 1936", "label": "DATE", "start_char": 5551, "end_char": 5565, "source": "ner", "metadata": {"in_sentence": "On April 24, 1936, the Board adopted the following resolution :\n\n\" (2)."}}, {"text": "Section 29", "label": "PROVISION", "start_char": 5667, "end_char": 5677, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 5994, "end_char": 6004, "source": "regex", "metadata": {"statute": null}}, {"text": "AIQuadan", "label": "OTHER_PERSON", "start_char": 6390, "end_char": 6398, "source": "ner", "metadata": {"in_sentence": "H azrae-;-;, d Shah The appellant contends that the Cum missioner can 1• Mas!ershidAli only make a report to the Board, and the Board alone\n\nAIQuadan can make the appointment, and refers to two Hules v. framed by Government."}}, {"text": "section 40", "label": "PROVISION", "start_char": 7152, "end_char": 7162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 7360, "end_char": 7365, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 7518, "end_char": 7523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 7746, "end_char": 7751, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 7944, "end_char": 7947, "source": "ner", "metadata": {"in_sentence": "Mr. Sen, however, contencls that the appointment of a temporary Mutawalli could only be made if there was an\" impediment\" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but \"a challenge to the appellant as a canclida.te.\""}}, {"text": "HaMzrat Syedd", "label": "OTHER_PERSON", "start_char": 8486, "end_char": 8499, "source": "ner", "metadata": {"in_sentence": "The question which seemed to have largely engaged HaMzrat Syedd sh.ah t . ."}}, {"text": "Wakfs", "label": "OTHER_PERSON", "start_char": 8787, "end_char": 8792, "source": "ner", "metadata": {"in_sentence": "h H. h C 1 h h th d 1 as Im hi Ali a tent10n m t e 1g ourt, name y, w et er e e e- Al Quad•ri gation was only of powers or also of duties of the v.\n\nBoard, was not argued before us, though it formed the Commissioner of subject of considerable discussion in the statements of Wakfs."}}, {"text": "West Bengal", "label": "GPE", "start_char": 8846, "end_char": 8857, "source": "ner", "metadata": {"in_sentence": "Where powers and West Bengal duties are interconnected and it is not possible to Hidayatullah f separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with i\\ the duties."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 8910, "end_char": 8922, "source": "ner", "metadata": {"in_sentence": "Where powers and West Bengal duties are interconnected and it is not possible to Hidayatullah f separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with i\\ the duties.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "MAHANTH RAM DAS\n\nGANGA DAS", "label": "JUDGE", "start_char": 9695, "end_char": 9721, "source": "ner", "metadata": {"in_sentence": "MAHANTH RAM DAS\n\nGANGA DAS. ("}}, {"text": "J. L. KAPUR", "label": "JUDGE", "start_char": 9724, "end_char": 9735, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)"}}, {"text": "M. HrnAYATULLAH", "label": "JUDGE", "start_char": 9737, "end_char": 9752, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 9889, "end_char": 9912, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]} {"document_id": "1961_3_763_769_EN", "year": 1961, "text": "3 S.C.R.\n\nSUP.REME COURT REPORTS 763\n\nMutawalli, while the dispute remained undecided. r96r This point has no force whatever. - The question which seemed to have largely engaged HaMzrat Syedd sh.ah t . . h H. h C 1 h h th d 1 as Im hi Ali a tent10n m t e 1g ourt, name y, w et er e e e- Al Quad•ri gation was only of powers or also of duties of the v.\n\nBoard, was not argued before us, though it formed the Commissioner of subject of considerable discussion in the statements of Wakfs. the case. It is without substance. Where powers and West Bengal duties are interconnected and it is not possible to Hidayatullah f separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with i\\ the duties.\n\nThe proposition hardly needs authority ; but if one were necessary, reference may be made to Mungoni\n\nv. Attorney-General of Northern Rhodesia (1).\n\nIn our opinion, the appeal has no force whatever.\n\nThe appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now. The appeal fails, and is dismissed. The appellant shall pay the costs of the respondents, who have entered appearance.\n\nAppeal dismissed.\n\nMAHANTH RAM DAS\n\nGANGA DAS. (J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)\n\nCourt Jee-Appeal to stand dismissed if court Jee not paid within time granted-Extension of time, if can be granted-Code of Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.\n\nThe High Court passed a peremptory order that \"the appeal will stand dismissed \" if a certain amount of court fee was not paid within the time granted by the court. The appellant being unable to find money made an application for extension of time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was\n\n(r) [1060) A.C. 336 g8\n\nI96I\n\nFebruary 7,\n\n1961 heard after the expiry of the time and was dismissed on the ground that the appeal had already \"stood dismissed \" owing to Mahanth Ram Das non-payment within the time allowed. The appellant's applicav. tions under s. r5r and 0. 47, r. r of the Code of Civil Procedure Ganga Das were also dismissed on the same ground although the court expressed sympathy for the appellant. On appeal with a certificate of High Court : Held, that such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed and time should have been extended in the circumstances of the case and the court was not powerless to deal with events happening after the peremptory order.\n\nLachmi Narain Marwari v. Balmakund Marwari (r925) I.L.R. 4 Pat. 6r (P.C.). referred to.\n\nSection 148 of the Code of Civil Procedure, in terms, allows extension of time, even if the original period fixed expired and s. r49 is equally liberal; the High Court had ample power to apply those sections and to exercise its inherent powers under s. r5r in order to do justice to a litigant for whom it had expressed considerable sympathy.\n\nLatham v. f ohnson [r9r3] r K.B. 39$, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 432 of 1957.\n\nAppeal from the judgment and order dated September 27, 1955, of the Patna High Court in Civil Revision No. 24 of 1954.\n\nR. C. Prasad, for the appellant.\n\nThe respondent did not appear.\n\n1961. February 7. The Judgment of the Court was delivered by\n\nHidayatul/ah J.\n\nHrnAYATULLAII, J.-The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of hissuit by the High Court at Patna, with a certificate from that Court. In the suit he had asked for a declaration that he was nominated Mahant of Moghal Juan Sangat by his Guru, Mahanth Guiab Das, by a registered deed dated October 21, 1944, and that he had thus the right to manage the Sangat and other off-shoots thereof.\n\nHis suit was dismissed by the trial Judge on May 31,\n\n1947. He then appealed to the High Court at Patna, and on November 26, 1951, the appeal was decided in\n\n\" •\n\n1961 his favour on condition that he paid court fee on the amended relief of possession of properties involved in Mahanlh Ram n.. the suit, for which purpose the case was sent to te v.\n\nCourt of First Instance for determining the value of GMlga Das the properties and for fixing the amount of court fee to be paid. After the report from the Subordinate Hidayatullah J.\n\nJudge was received, the case was placed for final orders before the High Court. V. Rama&wami, J. and C. P. Sinha, J. (as they then were) held that the valuation for the purpose of the suit was Rs. 12,178-4-0, and that ad valorem court fee was payable on it. They, therefore, made a direction as follows :\n\n\" The High Court office will calculate the amount of .court fee payable on the valuation we have given all(! communicate to the counsel for plaintiff-appellan t what is the amount of the court-fee he has got to pay both on the plaint and on the memorandum of appeal. We grant the plaintiff three months' time to pay the court-fee for the Trial Court and also for the High Court. The time will be computed from the date counsel for appellant is informed of the calculation by the Deputy Registrar of the High Court. If the amount is not paid within the time given, the appeal will stand dismissed. If the court fee is paid within the time given, the appeal will be allowed with costs and the suit brought by the plaintiff will stand decreed with costs and the plaintiff will be granted a decree declaring ...... \" The office of the High Court gave intimation on April 8, 1954, that the deficit court fee payable was Rs. 1,987-8-0. The time was to expire on July 8, 1954; but the appellant was not able to find the money. It appears that the appellant's advocate in the High Court asked the case to be mentioned before the Vacation Judge on July 8, 1954, so that a request for extension of time could be made. No Division Bench, however, was sitting on that date, and the appellant filed an application on July 8, 1954, requesting that he be allowed to pay Rs. 1,400 immediately, and the balance, within a month thereafter. This application was placed before a Division Bench consisting of Ramaswami and Ahmad, JJ ., when the following order was passed:\n\nz96I \" This application for extension of time must be\n\nMahantk Ram Das dismissed; By virtue of the order of the Bench dated the 30th March, 1954, the appeal has already stood dismissed as the. a.mount was not pa.id within the time given.\"\n\nGanga Das\n\nHidayatullah J. The appellant then moved an application under s. 151, which was rejected by Imam, C.J. and Narayan, J:, on September 2, 1954. They, however, felt that the proper remedy was review. The appellant then filed another petition under s. 151, read with 0. 47, R. 1 of the Code of Civil Procedure, setting out the reasons why he was unable to find the money .. He stated that he was seriously ill, and though he had attempted to raise a loan, he was unable to get sufficient money, as the grain market had slumped suddenly, and people were unable to advance money. He offered to pay the deficit court fee within such further time as the High Court might fix.\n\nThis application for review was heard on September 27, 1955, by Rama.swami and Sinha, J, J. They first considered it from the viewpoint of 0. 4 7, R. 1 of the Code of Civil Procedure, and held that the application did not fall within the Order. The argument of counsel that time could have been extended under s. 148 or s. 149 of the Code of Civil Procedure was also not accepted. The learned Judges held that these sections applied only , to cases which were not finally disposed of, and that time under them could be extended only before the final order was actually ma.de. The request to extend the time under the inherent powers of the Court was also rejected for the same reµ.son.\n\nRama.- swami, J., concluded his order by saying:\n\n\" I have considerable sympathy towards the plaintiff petitioner who ha.s placed himself in an unfortunate position, but we must be careful not to allow our sympathy to affect our judgment. To quote the language of Fa.rweft, J. in another context 'sentinient is a dangerous will-o-the wisp to take as a guide in the search for legal principles ' (Latham v. Johnsan(')).\"\n\n(1) (1913) xK. B .. ~98.\n\nIn the result, the petition was dismissed, but without z96z costs. .\n\nM ahanth Ram Das The appellant then moved the High Court for a v. certificate, a.nd the case was heard by K. K. Banerji Gang• Das and R. K. Chaudha.ry, JJ. Though the decree wa.s one . - of a.ffirma.nce, the learned Judges fortunately found it Hidayatullah J. possible to grant a certificate, and the present appeal has been filed.\n\nThe case is an unfortunate and unusual one.\n\nThe application for extension of time was ma.de before the time fixed by the High Court for payment of deficit court fee had actually run out.\n\nTha.t application appears not to ha.ve been considered a.t a.II, in view of the peremptory order which ha.d been passed earlier by the Division Bench hearing the appeal, mainly because on the da.te of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circum 11ta.nces of the case, was powerless to enlarge the time, even though it ha.d peremptorily fixed the period for payment. If the Court had considered the application a.nd rejected it on merits, other.considerations might have a.risen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, a.Hows extension of time, even if the original period fixed has expired, and s. 149 is equally libero.I. .A fortiori, those sections could be invoked by the a.pplica.nt, when the time ha.d not a.ctua.Ily expired.\n\nTha.t the application was filed in the va.ca.tion when a Division Bench wa.s not sitting should ha.ve been considered in dee.ling with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a. futw:e happening which leaves the Court powerless to deal with evenj; s tha.t might a.rise in between, it is not necessary to decide in this a.ppea.l. These orders turn out, often enough to be inexpedient. Such procedure.I orders, though peremptory (conditional decrees a.pa.rt) a.re, in essence, in terrorem, so tha.t dilatory litigants might\n\nz96x put themselves in order and avoid delay. They do not,\n\nM 114 IA R D however, completely estop a Court from taking note- • n v. am as of events and circumstances which happen within the\n\nGanga Das time fixed. For example, it cannot he said that, if the appellant had started with the full money ordered to HidayatullaA J. he paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari (').\n\nNo doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers,. when the two petitions under s. 151 of the Code of Civil Procedure were filed. If the High Court had f(llt disposed to take action on any of these occasions, ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.\n\nIn our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient gause was made out and again, when the petitions were made for the exercise of the inherent powers. We, therefore, set aside the order of July 13, 1954, and the orders made subsequently. We need not send the case back for the\n\ntrial of the petition made on July 8, 1954, because that would be only productive of more delay. Non..e has appeared to contest the appeal in this Court. We have\n\nperused the application and the affidavit, and we are satisfied that sufficient cause had been made out for\n\n(1) (19z5) 1.1 .. R. 4 Patna 61 (P.C.).\n\nextension of time.\n\nWe, accordingly, set aside the r96r dismissal of the appeal and the suit, and grant the - appellant two months' time from today for payment Mahanth Ram Das of the defi_cit court fee.\n\nWe only hope that,. after the Gan;~ Das lesson whrnh the appellant has learnt, he will not ask the Court perhaps vainly, to show him any more Hidayatullah J. indulgence. There will be no order about costs in this Court as the appeal was heard ex parte.\n\nAppeal allowed.\n\nKAUSHALYA DEVI AND OTHERS\n\nBAIJNATH SAYAL AND OTHERS. (P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)\n\nSuit against Minor-Preliminary decree on consent by guardian without leave of court-If a nullity-If can be set aside in appeal against final decree-Code of Civil Procedure, r908 (Act V of r908),\n\ns. 97, 0. 32, r. 7.\n\nOrder 32, r. 7(2) of the Code of Civil Procedure, which is intended to protect the interest of the minor, really means that an agreement or compromise entered into on behalf of the minor in contravention of 0. 32, r. 7(1) is voidable only at the instance of the minor and not at the instance of any other party to it.\n\nSuch contravention does not render the agreement or decree a nullity and the same has to be avoided in an appropriate proceeding.\n\nManohar Lal v. Jadu Nath Singh (19o6) L.R. 33 I.A. 128, referred to.\n\nChhabba Lal v. Kallu Lal (1946) L.R. 73 I.A. 52, Jamna Bai\n\nv. Vasanta Rao (1916) L.R: 43 I.A. 99 and Khiarajmal v. Daim\n\n(1904) L.R. 32 I.A. 23, held inapplicable.\n\nWhere a preliminary decree is passed in non-compliance with the provision of 0. 32, r. 7(1), the remedy of the minor is by way of an appeal against that decree and not against the final decree since s. 97 of the Code is a bar to the challenging of the preliminary decree in an appeal against the final decree.\n\nConsequently, in a suit for the partition where preliminary decree by consent was passed against the minor in contravention o't.O. 32, r .. 7(1) and that decree having been sought to be set aside in an appeal from the final decree the High Court held that s. 97 of the Code precluded the appellant from doing so.\n\nHeld, that the decision of the High Court was correct and inust be affirmed. ·\n\nFebruaf'y 9.", "total_entities": 71, "entities": [{"text": "HaMzrat Syedd", "label": "OTHER_PERSON", "start_char": 178, "end_char": 191, "source": "ner", "metadata": {"in_sentence": "The question which seemed to have largely engaged HaMzrat Syedd sh.ah t . ."}}, {"text": "it is not possible to Hidayatullah", "label": "JUDGE", "start_char": 580, "end_char": 614, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "MAHANTH RAM DAS", "label": "PETITIONER", "start_char": 1387, "end_char": 1402, "source": "metadata", "metadata": {"canonical_name": "Mahanth Guiab Das", "offset_not_found": false}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 1419, "end_char": 1427, "source": "metadata", "metadata": {"canonical_name": "J.L. KAPUR*", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 1451, "end_char": 1463, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 1581, "end_char": 1604, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 7,\n\n1961", "label": "DATE", "start_char": 2057, "end_char": 2074, "source": "ner", "metadata": {"in_sentence": "The appellant being unable to find money made an application for extension of time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was\n\n(r) [1060) A.C. 336 g8\n\nI96I\n\nFebruary 7,\n\n1961 heard after the expiry of the time and was dismissed on the ground that the appeal had already \"stood dismissed \" owing to Mahanth Ram Das non-payment within the time allowed."}}, {"text": "Mahanth Ram Das", "label": "PETITIONER", "start_char": 2198, "end_char": 2213, "source": "ner", "metadata": {"in_sentence": "The appellant being unable to find money made an application for extension of time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was\n\n(r) [1060) A.C. 336 g8\n\nI96I\n\nFebruary 7,\n\n1961 heard after the expiry of the time and was dismissed on the ground that the appeal had already \"stood dismissed \" owing to Mahanth Ram Das non-payment within the time allowed.", "canonical_name": "Mahanth Guiab Das"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2315, "end_char": 2342, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 148", "label": "PROVISION", "start_char": 3046, "end_char": 3057, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 3061, "end_char": 3088, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "R. C. Prasad", "label": "LAWYER", "start_char": 3623, "end_char": 3635, "source": "ner", "metadata": {"in_sentence": "R. C. Prasad, for the appellant."}}, {"text": "Hidayatul/ah", "label": "JUDGE", "start_char": 3751, "end_char": 3763, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatul/ah J.\n\nHrnAYATULLAII, J.-The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of hissuit by the High Court at Patna, with a certificate from that Court.", "canonical_name": "Hidayatullah"}}, {"text": "HrnAYATULLAII", "label": "JUDGE", "start_char": 3768, "end_char": 3781, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatul/ah J.\n\nHrnAYATULLAII, J.-The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of hissuit by the High Court at Patna, with a certificate from that Court."}}, {"text": "Subordinate Judge II, Gaya", "label": "COURT", "start_char": 3854, "end_char": 3880, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatul/ah J.\n\nHrnAYATULLAII, J.-The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of hissuit by the High Court at Patna, with a certificate from that Court."}}, {"text": "High Court at Patna", "label": "COURT", "start_char": 3935, "end_char": 3954, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatul/ah J.\n\nHrnAYATULLAII, J.-The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of hissuit by the High Court at Patna, with a certificate from that Court."}}, {"text": "Moghal Juan Sangat", "label": "OTHER_PERSON", "start_char": 4067, "end_char": 4085, "source": "ner", "metadata": {"in_sentence": "In the suit he had asked for a declaration that he was nominated Mahant of Moghal Juan Sangat by his Guru, Mahanth Guiab Das, by a registered deed dated October 21, 1944, and that he had thus the right to manage the Sangat and other off-shoots thereof."}}, {"text": "Mahanth Guiab Das", "label": "PETITIONER", "start_char": 4099, "end_char": 4116, "source": "ner", "metadata": {"in_sentence": "In the suit he had asked for a declaration that he was nominated Mahant of Moghal Juan Sangat by his Guru, Mahanth Guiab Das, by a registered deed dated October 21, 1944, and that he had thus the right to manage the Sangat and other off-shoots thereof.", "canonical_name": "Mahanth Guiab Das"}}, {"text": "May 31,\n\n1947", "label": "DATE", "start_char": 4291, "end_char": 4304, "source": "ner", "metadata": {"in_sentence": "His suit was dismissed by the trial Judge on May 31,\n\n1947."}}, {"text": "November 26, 1951", "label": "DATE", "start_char": 4358, "end_char": 4375, "source": "ner", "metadata": {"in_sentence": "He then appealed to the High Court at Patna, and on November 26, 1951, the appeal was decided in\n\n\" •\n\n1961 his favour on condition that he paid court fee on the amended relief of possession of properties involved in Mahanlh Ram n.. the suit, for which purpose the case was sent to te v.\n\nCourt of First Instance for determining the value of GMlga Das the properties and for fixing the amount of court fee to be paid."}}, {"text": "Mahanlh Ram", "label": "PETITIONER", "start_char": 4523, "end_char": 4534, "source": "ner", "metadata": {"in_sentence": "He then appealed to the High Court at Patna, and on November 26, 1951, the appeal was decided in\n\n\" •\n\n1961 his favour on condition that he paid court fee on the amended relief of possession of properties involved in Mahanlh Ram n.. the suit, for which purpose the case was sent to te v.\n\nCourt of First Instance for determining the value of GMlga Das the properties and for fixing the amount of court fee to be paid.", "canonical_name": "Mahanth Guiab Das"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4762, "end_char": 4774, "source": "ner", "metadata": {"in_sentence": "After the report from the Subordinate Hidayatullah J.\n\nJudge was received, the case was placed for final orders before the High Court.", "canonical_name": "Hidayatullah"}}, {"text": "V. Rama&wami", "label": "JUDGE", "start_char": 4859, "end_char": 4871, "source": "ner", "metadata": {"in_sentence": "V. Rama&wami, J. and C. P. Sinha, J. (as they then were) held that the valuation for the purpose of the suit was Rs."}}, {"text": "C. P. Sinha", "label": "JUDGE", "start_char": 4880, "end_char": 4891, "source": "ner", "metadata": {"in_sentence": "V. Rama&wami, J. and C. P. Sinha, J. (as they then were) held that the valuation for the purpose of the suit was Rs."}}, {"text": "April 8, 1954", "label": "DATE", "start_char": 5946, "end_char": 5959, "source": "ner", "metadata": {"in_sentence": "If the court fee is paid within the time given, the appeal will be allowed with costs and the suit brought by the plaintiff will stand decreed with costs and the plaintiff will be granted a decree declaring ...... \" The office of the High Court gave intimation on April 8, 1954, that the deficit court fee payable was Rs."}}, {"text": "July 8, 1954", "label": "DATE", "start_char": 6041, "end_char": 6053, "source": "ner", "metadata": {"in_sentence": "The time was to expire on July 8, 1954; but the appellant was not able to find the money."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 6573, "end_char": 6582, "source": "ner", "metadata": {"in_sentence": "This application was placed before a Division Bench consisting of Ramaswami and Ahmad, JJ .,", "canonical_name": "Rama.swami and"}}, {"text": "Ahmad", "label": "JUDGE", "start_char": 6587, "end_char": 6592, "source": "ner", "metadata": {"in_sentence": "This application was placed before a Division Bench consisting of Ramaswami and Ahmad, JJ .,"}}, {"text": "Mahantk Ram Das", "label": "PETITIONER", "start_char": 6693, "end_char": 6708, "source": "ner", "metadata": {"in_sentence": "when the following order was passed:\n\nz96I \" This application for extension of time must be\n\nMahantk Ram Das dismissed; By virtue of the order of the Bench dated the 30th March, 1954, the appeal has already stood dismissed as the.", "canonical_name": "Mahanth Guiab Das"}}, {"text": "30th March, 1954", "label": "DATE", "start_char": 6766, "end_char": 6782, "source": "ner", "metadata": {"in_sentence": "when the following order was passed:\n\nz96I \" This application for extension of time must be\n\nMahantk Ram Das dismissed; By virtue of the order of the Bench dated the 30th March, 1954, the appeal has already stood dismissed as the."}}, {"text": "Ganga Das", "label": "JUDGE", "start_char": 6878, "end_char": 6887, "source": "ner", "metadata": {"in_sentence": "Ganga Das\n\nHidayatullah J. The appellant then moved an application under s. 151, which was rejected by Imam, C.J. and Narayan, J:, on September 2, 1954.", "canonical_name": "Ganga Das"}}, {"text": "s. 151", "label": "PROVISION", "start_char": 6951, "end_char": 6957, "source": "regex", "metadata": {"statute": null}}, {"text": "Imam", "label": "JUDGE", "start_char": 6981, "end_char": 6985, "source": "ner", "metadata": {"in_sentence": "Ganga Das\n\nHidayatullah J. The appellant then moved an application under s. 151, which was rejected by Imam, C.J. and Narayan, J:, on September 2, 1954."}}, {"text": "Narayan", "label": "JUDGE", "start_char": 6996, "end_char": 7003, "source": "ner", "metadata": {"in_sentence": "Ganga Das\n\nHidayatullah J. The appellant then moved an application under s. 151, which was rejected by Imam, C.J. and Narayan, J:, on September 2, 1954."}}, {"text": "September 2, 1954", "label": "DATE", "start_char": 7012, "end_char": 7029, "source": "ner", "metadata": {"in_sentence": "Ganga Das\n\nHidayatullah J. The appellant then moved an application under s. 151, which was rejected by Imam, C.J. and Narayan, J:, on September 2, 1954."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 7134, "end_char": 7140, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7167, "end_char": 7194, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 27, 1955", "label": "DATE", "start_char": 7599, "end_char": 7617, "source": "ner", "metadata": {"in_sentence": "This application for review was heard on September 27, 1955, by Rama.swami and Sinha, J, J. They first considered it from the viewpoint of 0."}}, {"text": "Rama.swami and", "label": "JUDGE", "start_char": 7622, "end_char": 7636, "source": "ner", "metadata": {"in_sentence": "This application for review was heard on September 27, 1955, by Rama.swami and Sinha, J, J. They first considered it from the viewpoint of 0.", "canonical_name": "Rama.swami and"}}, {"text": "Sinha", "label": "JUDGE", "start_char": 7637, "end_char": 7642, "source": "ner", "metadata": {"in_sentence": "This application for review was heard on September 27, 1955, by Rama.swami and Sinha, J, J. They first considered it from the viewpoint of 0."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7713, "end_char": 7740, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 148", "label": "PROVISION", "start_char": 7868, "end_char": 7874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 7878, "end_char": 7884, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7888, "end_char": 7915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rama.- swami", "label": "JUDGE", "start_char": 8245, "end_char": 8257, "source": "ner", "metadata": {"in_sentence": "Rama.- swami, J., concluded his order by saying:\n\n\" I have considerable sympathy towards the plaintiff petitioner who ha.s placed himself in an unfortunate position, but we must be careful not to allow our sympathy to affect our judgment.", "canonical_name": "Rama.swami and"}}, {"text": "Fa.rweft", "label": "JUDGE", "start_char": 8509, "end_char": 8517, "source": "ner", "metadata": {"in_sentence": "To quote the language of Fa.rweft, J. in another context 'sentinient is a dangerous will-o-the wisp to take as a guide in the search for legal principles ' (Latham v. Johnsan(')).\""}}, {"text": "M ahanth Ram Das", "label": "OTHER_PERSON", "start_char": 8762, "end_char": 8778, "source": "ner", "metadata": {"in_sentence": "M ahanth Ram Das The appellant then moved the High Court for a v. certificate, a.nd the case was heard by K. K. Banerji Gang• Das and R. K. Chaudha.ry, JJ."}}, {"text": "K. K. Banerji Gang• Das", "label": "JUDGE", "start_char": 8868, "end_char": 8891, "source": "ner", "metadata": {"in_sentence": "M ahanth Ram Das The appellant then moved the High Court for a v. certificate, a.nd the case was heard by K. K. Banerji Gang• Das and R. K. Chaudha.ry, JJ."}}, {"text": "R. K. Chaudha.ry", "label": "JUDGE", "start_char": 8896, "end_char": 8912, "source": "ner", "metadata": {"in_sentence": "M ahanth Ram Das The appellant then moved the High Court for a v. certificate, a.nd the case was heard by K. K. Banerji Gang• Das and R. K. Chaudha.ry, JJ."}}, {"text": "Section 148", "label": "PROVISION", "start_char": 9980, "end_char": 9991, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 10092, "end_char": 10098, "source": "regex", "metadata": {"statute": null}}, {"text": "July 13, 1954", "label": "DATE", "start_char": 10375, "end_char": 10388, "source": "ner", "metadata": {"in_sentence": "Tha.t the application was filed in the va.ca.tion when a Division Bench wa.s not sitting should ha.ve been considered in dee.ling with it even on July 13, 1954, when it was actually heard."}}, {"text": "Ganga Das", "label": "JUDGE", "start_char": 11133, "end_char": 11142, "source": "ner", "metadata": {"in_sentence": "They do not,\n\nM 114 IA R D however, completely estop a Court from taking note- • n v. am as of events and circumstances which happen within the\n\nGanga Das time fixed.", "canonical_name": "Ganga Das"}}, {"text": "HidayatullaA", "label": "JUDGE", "start_char": 11252, "end_char": 11264, "source": "ner", "metadata": {"in_sentence": "For example, it cannot he said that, if the appellant had started with the full money ordered to HidayatullaA J. he paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it.", "canonical_name": "Hidayatullah"}}, {"text": "Phillimore", "label": "OTHER_PERSON", "start_char": 11811, "end_char": 11821, "source": "ner", "metadata": {"in_sentence": "No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 12213, "end_char": 12219, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12223, "end_char": 12250, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 148 and 149", "label": "PROVISION", "start_char": 12342, "end_char": 12357, "source": "regex", "metadata": {"statute": null}}, {"text": "Das", "label": "OTHER_PERSON", "start_char": 13438, "end_char": 13441, "source": "ner", "metadata": {"in_sentence": "after the Gan;~ Das lesson whrnh the appellant has learnt, he will not ask the Court perhaps vainly, to show him any more Hidayatullah J. indulgence."}}, {"text": "KAUSHALYA DEVI", "label": "JUDGE", "start_char": 13673, "end_char": 13687, "source": "ner", "metadata": {"in_sentence": "KAUSHALYA DEVI AND OTHERS\n\nBAIJNATH SAYAL AND OTHERS. ("}}, {"text": "BAIJNATH SAYAL", "label": "RESPONDENT", "start_char": 13700, "end_char": 13714, "source": "ner", "metadata": {"in_sentence": "KAUSHALYA DEVI AND OTHERS\n\nBAIJNATH SAYAL AND OTHERS. ("}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 13728, "end_char": 13748, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 13753, "end_char": 13766, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 13921, "end_char": 13944, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 97, 0", "label": "PROVISION", "start_char": 13969, "end_char": 13977, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14011, "end_char": 14038, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "L.R. 33 I.A. 128", "label": "CASE_CITATION", "start_char": 14478, "end_char": 14494, "source": "regex", "metadata": {}}, {"text": "(1946) L.R. 73 I.A. 52", "label": "CASE_CITATION", "start_char": 14535, "end_char": 14557, "source": "regex", "metadata": {}}, {"text": "(1904) L.R. 32 I.A. 23", "label": "CASE_CITATION", "start_char": 14632, "end_char": 14654, "source": "regex", "metadata": {}}, {"text": "s. 97", "label": "PROVISION", "start_char": 14875, "end_char": 14880, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 15243, "end_char": 15248, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1961_3_779_792_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREi\\IE COURT REPORTS 779\n\nMALLESAPP A BAN DEPP A DESAI AND OTHERS\n\nDESAI MALLAPPA AND OTHERS. (P. B. GA.TENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)\n\nHindu Law-Doctrine of blending-If applies fv property held by female in limited riRht.\n\nThe rule of blending in Hindu Law as ernlved by judicial decisions can have no application to a property held by a Hindu female as a limited owner. That rule p0stulates a coparcener deliberately and intentionally throwing his independently acquired property into the joint family stock so as to form a part of it.\n\nAlthough it is unnecessary now to investigate whether there is any other text on which that rule could be founded, it is quite clear that the text of Yagnavalkya in a different context and the commentary thereupon by Vijnyaneshwara, relied on by the Privy Council in this connection, can have no relation to the said rule.\n\nShiba Prasad Singh v. Rani Prayag Kumari Debi (1932) L.R. 59 I.A. 331, disapproved.\n\nRajanikanta Pal v. ]aga Mohan Pal (1923) L.R. 50 I.A. 173, relied on. Consequently, where in a partition suit certain immovable properties acquired by a Hindu female from her father as a limited owner were claimed to form part of the joint family property of her husband by virtueof the said rule : Held, that the claim must fail.\n\nHeld, further, that a Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the-members of her husband's family to treat her limited estate as part of the joint family property of her husband.\n\nBefore the said rule can be invoked, it must be shown that the owner wanted to extinguish his title to the property in question and impress upon it the character of joint family property.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 263 of 1956.\n\nAppeal from the judgment and decree dated January 6, 1953, of the Madras High Court in A. S. Appeal No. 7 of 1949.\n\nM. C. Setalvad, Attorney.General of Jndia and Naunit Lal, for the appellants,\n\nz96r\n\nFebruary 9.\n\nA. V. Viswanatha Sastri and B. K. B. Naidu, for\n\nMallesappa respondent No. 1.\n\nBandeppa Desai M. R. K. Pillai, for respondent No. 2. v.\n\nDesai Mallappa\n\n1961. February 9. The Judgment of the Court was delivered by Gajendragadkar J.\n\nGAJENDRAGADKAR, J.--This appeal has been brought to this Court with a certificate granted by the_ Madras High Court and it arises from a suit filed by the ::Lppellants l\\fallesappa and Chenna Basappa ::1gainst their uncle Mallappa, respondent 1 and grnndunck Honnappn., respondent 2, for partition. According to the plaint, the family of the appellants and respondent 1 was an undivir!ed Hindu family until the d111 e of the suit, and respondent I was its manager.\n\nTbn inccstor of thn family was Desai M,.,, Jiappa.\n\nHe h:i, d three sons, Kari l{amappa who died in 1933, Virupalrnhapp::L who ondent 1 by this compromise decree. The question which has been argued before us in respect of theve properties is whether or not the appellants\n\nare entitled to a share in these properties. The z96z appellants contend that respondent 1 had joined respondent 2 in the said suit as representing their MoUuof>P• undivided family and the properties acquired by him B•tiMppo Dei•i under the compromise decree passed in the said suit Duai ;~Uappa has been allotted to him as representing the whole of the family. On the other hand, respondent 1 con- Gajerulragadl.., J. tends that he joined respondent 2 in his individual character and the decree must enure for his individual benefit. .\n\nIt is clear that at the time when the said suit was filed respondent 2 was a presumptive reversioner and not respondent 1 ; but it appears that respondent 2 wanted the help of respondent 1 to fight the litigation, and both of them joined in bringing the said suit. It is common ground that respondent 2 asked Neelamma whether she would like to join he litigation. Respondent 2 has stated in his evicfence that N eelamma was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1.\n\nThat is one of the main reasons why the High Court held that the decree passed in the said suit did not enure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : \"Defendants 1 and 2 came to me at the time of filing their suit and said that the expenses are likely to be heavy and that minors' properties would not be wasted. I said I had no objection and gave my consent.\" The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors' properties should not be wasted, whereas according to the witness the said statement was that the minors' properties \" would \" not be wasted. It would be noticed that it makes substantial difference whether the words used were \"would not\" or \"should not.\"\n\n790 SUPREME COURT REPOR'i'S tl!l61]\n\nt96z We have no doubt that on the evidence as it stands the inference is wholly unjustified that N eelamma Mallesappa refused to i\"oin respondents 1 and 2.\n\nBesides, as we B'nideppa Desai\n\nv. have already pointed out, the evidence of respond.\n\nDesai Mallappa ents 1 and 2 have been disbelieved by both the courts, -- and in fact the conduct of respondent 1 whereby he Gajondraga951) I L.R. 31 Pat. 686.\n\n(3) A.I. R. 1951 Mad. 458.\n\n(2) A.l.R. 1960 And. Pia. 59.\n\n(4) l.L.R. Ll959] Raj. 515.\n\n(s) l.L.R. (1949] Mad. III.\n\nShah].\n\n806 SUPREM~ cotJR'l' R~POR'l'S [1961]\n\nsetting forth an award which had been fully performed by him but which was not filed in Court under s. 14 Kashinathsa. h h Yamosa Kabadi and on w ic a judgment was not pronounced or a\n\nv. decree given under s. 17 of the Act,. in answer to the Narsingsa plaintiff's claim which was the subject inatter of the Bhaskars• K•b•di reference and the award. That view was accepted in\n\nShah].\n\nRajamanickam Pillai v. Swaminatha Pillai (died) (1). It is not necessary in this appeal to express a considered opinion on this disputed question. It may be sufficient to observe that where an award made in arbitration out of cortrt is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. By setting up a defence in the present case that there has been a division of the property and the parties have entered into possession of the properties allotted, defendant No. 1 is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up a plea that the property was divided by consent of parties. Such a plea is in our judgment not precluded by anything contained in the Arbitration Act.\n\nThe records made by the Panchas about the division of the properties, it is true, were. not stamped nor were they registered. It is however clear that if the record made by the Panchas in so far as it deals with immoveable properties is regarded as a non-testamentary instrument purporting or operating to create, declare, assign, limit or extinguish any right, title or interest in immoveable property, it was compulsorily registrable under s. 17 of the Registration Act, and would not in the absence of registration be admissible in evidence. But in our judgment, the true effect of what are called awards is not by their own force to create any interest in immoveable property ; they recorded\n\n(1) A.I.R. 1952 Mad .. •4\n\ndivisions already made and on the facts proved ' 96' in this case, their validity depends upon the accept- J(., hinathsa ance by the parties. The records made by the Panchas Yamos• Kab\"4i were documents which merely acknowledged partitions v. already made and were not by law required to be Narsingsa . regist.ered. On a perusal of Ex. 456A which is a Bh., karsa Kabadi\n\ntranslation of the tip pan book in which are recorded Shah]. the decisions which are signed by the parties, it is evident that the Panchas were merely recording what had been actually divided and they were not seeking to set out their decisions relating to division of pro\n\nperty to be made. The question whether the various decisions recorded in Ex. 456A and in the books of account were required by law to be stamped need not be decided. The documents were admitted \"in evidence by the trial court and no question of admissibility 9f\n\nthose documents can be raised at a later stage of the suit or in appeal (see s. 36, Stamp Act).\n\nWe are unable to agree with the view of the High Court that the decisions dated October 12, 1946, October 20, 1946, and November 10, 1946, were not intended to be final decisions: There is no reliable evidence to support the view of the High Court. Even if the divisions are not.strictly in conformity with the shares declared in the decision dated September 23, 1946, the parties having accepted those divisions and having reduced the shares allotted to their possession, it is not open to them to seek to reopen the same on the ground that the division was unequal.\n\nDefendant No. 3 contended in the trial courts and the High Court that he had not taken possession of the property allotted to his share. The trial court held that he had taken possession of all the properties which had fallen to his share and the plea that he has not obtained possession was untrue. The High Court has accepted that view.\n\nTo sum up : on a consideration of the materials placed before the court, the reference to Panchas is proved to be made voluntarily by all the parties, that the Panchas had in the first instance decided that each branch was to get a fourth share in the properties and that decision was accepted by the parties, that division\n\nof properties made from time to tie was also accepted by the parties, and subsequently, when the Panchas Kashinathsa b Yamosa Kabadi were una le to proceed with the division, the matter v. was referred by consent of the parties to Godkhindi Narsingsa and Godkhindi divided with the consent of the Bhaskarsa Kabadi parties the outst.andings, but he was unable to divide\n\nShah]. the remaining properties. For reasons we have already stated, the division made by the Panchas and by Godkhindi is binding upon the parties. Such properties as are not partit.ioned must of course be ordered to be divided and the division will be made consistently with the rules of Hindu law. To the division of such properties which have not been divided, the decision of the Panchas dated September 23, 1946, will not apply.\n\nWe may now turn to the second question whether on October 19, 1946, the amount of Rs. 3,20,000/- which was the \"unaccounted cash with the family\" was partitioned. It was the plea of defendant No. 1 that on that day after dividing the amount of Rs. 64,000/- the\" unaccounted cash\" which was found to be Rs. 3,20,000/- was actually divided and each branch was given Rs. 80,000/-. Defendant No. 1 relied upon his own testimony besides the testimony of Parappa (one of the Panchas) and of Huchappaclerk of the family shop. Defendant No. 3 examined the other Panch Devendrasa.\n\nThe trial court held that the testimony of Huchappa and Parappa was unreliable. Defendant No. 1 did admit that the family possessed Rs. 3,20,000/- as \" unaccounted cash \"; and the burden of proving that division was in fact made lay on him. The trial court observed that there was no writing evidencing the division of Rs. 3,20,000/-, no receipt was taken from any person for payment of a share in that amount, and that it was highly improbable that a person like defendant No. 1 would part with substantial amounts without taking receipts.\n\nThe High Court disagreed with this view. They pointed out that there was no entry made in the books of account of this large amount of cash, and apprehending that a division of the property with a\n\nformal record which ma.y ultim&tely be produced in 1961 court was likely to involve the members of the family Kashinaihsa in proceedings for concealment of income, no record Yamosa Kabadi was maintained of the division thereof. The High v.\n\nCourt also relied upon the testimony of Parappa, Narsingsa Huchappa and defendant No. I and upon the circum- Bhaskatsa Kabad;, st.ance that neither in the plaintiffs' plaint nor in the\n\nplaint of defendant No. 3 was any specific reference made to the refusal of defendant No. I to divide this amount. In our view, the High Court was right in the conclusion to which it arrived.\n\nIt is true that it is difficult to rely upon the oral testimony of either side. Defendant No. I and defendant No. 3 are evidently interested persons and their testimony may not carry much weight. . Parappa one of the Panchas deposed that the amount of Rs. 3,20,000/- was divided on August 19, 1947, and each branch received its share. He stated that the amount was not entered in the books of account. He further stated that after the safes were opened, the Tippan book was found together with the money and that the cash was bounted but it was not compared . with the Tippan book, that thereafter the amount was divided .. According to this witness, . there was no documentary evidence about that amount and he did not know. whether. the defendants had knowledge of the. extent thereof. He explained that no receipts were taken because defendant No. 1 did not demand the same, that he did not press for a writing as the parties said that it was a \"secret arrangement\", and as the division was \" with complete concord \", he did not think it necessary to take a writing or to record it in the books.\n\nThe testimony of Huchappa was similar. The other Panch Devendrasa stated that plaintiff No. 1 and defendant No. 2 had pressed the Panchas to give them their share in the \"unaccounted cash\", saying that defendant No. l was \" indefinitely postponing \" it, that the Panchas advised defendant No. 1 to divide this amount, but he stated that he would be \"reduced to equality \" with others when he had a lare family\n\nand that he had made reat etforts and that qe s)loulq\n\nShah].\n\nx96x be given more property, otherwise he would not allow division of the \" unaccounted cash \" and the other Kashinathsa Yamosa Kabadi property. The Panchas then told him that they had\n\nv.. decided upon the share each should be given and no Narsingsa . further proposal would be entertained by plaintiff Bhaskarsa Kabadi No. 1. The witness then said that he left for Gadag.\n\nShah J.\n\nIn cross-examination, he stated that he and the other Panchas had told defendant No. I to give the shares of the unaccounted cash to the other sharers.\n\nThe evidence of the witnesses clearly shows that the question relating to the division of the \"unaccounted cash \" was expressly discussed and the plaintiffs as well as defendant No. 3 were fully aware of the existence of this amount lying in the safe which was not entered in the books of account.. It is the case of defendant No. I that the amount was divided on October 19, 1947. The first plaintiff and defendant No. 3 have denied this on oath; defendant No. 2 did not enter the witness box. The .burden certainly did lie upon defendant o. I to establish the division of the amount but there are several important circumstances which go to prove that a partition must have been effected as alleged by defendant No. 1. From the sequence in which various properties were partitioned, it is clear that in the first instance the principle of division was decided and then the valuable properties like the immovable properties, the cash, stock in trade of the shops, were divided and then the division of properties of comparatively sm~Jl value like the agricultural implements, pots and furniture was taken in hand. If there was a large amount of Rs. 3,20,000/- in cash lying undivided before dividing pots, pans and furniture, the other parties would have insisted upon the division of that amount. It is difficult to believe especially having regard to the plea that defendant No. 1 had adopted a refractory attitude with the other parties that defendant No. 3 accepted the division of properties of comparatively small value without insisting upon division of this large amount. There is also the circumstance that even though plaintiff No. 1 knew about the existence of the \" unaccountp, n cash \" in the safe, it was not\n\nexpressly mentioned in the plaint. We would have 1961 expected the plaintiffs to state expressly that on or Kashinathsa about October 19, 1947, \"unaccounted cash\" was yamosa Kabadi found in the safe and that even though defendant v.\n\nNo. 1 was asked to divide the same by the remaining Narsing:• . parties as well as the Panchas, he declined to accede Bhaskarsa J, abadi to that demand. The conduct of defendant No. 3 in not setting out this item in his plaint renders the story that defendant No. 1 refused to divide this amount somewhat improbable. There is again no reference in the plaint filed by defendant No. 3 that the amount that was divisible was not divided on account of the attitute adopted by defendant No. 1.\n\nCounsel for defendant No. 3 relied upon the averments in para. 9 of the plaint that it was not possible for defendant No. 3 to give a description of the remaining properties and the movable articles belonging to the family and the money lending dealings.\n\nBut there is in the plaint no reference to any cash amount.\n\nSchedules appended to the plaint are very detailed and it is difficult to believe that defendant No. 3 did not mention that this amount of Rs. 3,20,000/- was not divided even after demands were made and ignored. The plea that he apprehended that he might be called upon to pay court fee ad valorem on the amount if he specified it in the plaint is futile. Consistently with the practice prevailing in the courts in the Bombay Province, defendant No. 3 had paid Rs. 18-12-0 as court fee under Art. 17, cl. VII, on the plea that he and the other parties were in constructive possession of the entire property belonging to the family.\n\nProperties worth lakhs of rupees were described in the schedules annexed to the plaint and if court fee ad valorem was not payable according to defendant No. 3 in respect of those properties, we fail to appreciate why he should have apprehended that court fee ad valorem would still be payable if he claimed a share in the cash amount of Rs. 3,20,000/-.\n\nThere is also the other circumstances that with consent of the parties reference was made to Godkhindi by the three Panchas of all the matterA which had\n\nShah].\n\n'96' remained to be settled, and in the statement made .Kashinathsa before him which was recorded in writing, there Yamosa Kabodi was no reference to the claim that the amount of v: Rs. 3,20,000/- had remained to be divided. Plaintiff Namngsa N 1 d 'l d t f h .\n\nBh k K b d' o. gave a eta1 e sta ement o t e properties as • • ' which remained to be divided and that document is Sh•hf. dated December 5, 1947: Ex. D-482. Item 5 is \"cash balance in the Dalali shops and in the house should be divided \", and again in cl. ( 12) it was stated \" an account of the amounts in suspense (parabhare) account should be taken and the total of the said amount should be divided.\" Counsel for the plaintiffs and the third defendant submitted that the original of this list was in Kannad which was translated into Marathi and the Marathi word which is translated into English as \"suspense\" was \"parabhare \". That word according to the plaintiffs and the third defendant meant \"unaccounted for\". It is difficult for us to express any opinion on this argument. It may be observed that the learned Judge of the High Court who deliveted the judgment was himself conversant with the Marathi language and he was not prepared to accept that interpretation. But that by itself may not be sufficient to reject the plea of the plaintiffs. What is material is that in a detailed statement consisting of as many as 24 items the plaintiffs have not set out that this amount of Rs. 3,20,000/- which was found in the family safe and which the Panchas wanted to divide, was on account of the uncompromising attitude of the first defendant not divided. If the amount had not been divided, we have not the slightest doubt that in the statement this amount would have been expressly included.\n\nGodkhindi was examined as a. witness in these ') suits. The trial court found him to be a person who was wholly disinterested. It appears from the evidence of Godkhindi that no question about the division of Rs. 3,20,000/· was mooted. If the amount had not been divided, we have no doubt that this question would have been prominently brought to his notice; but no such plea was even raised. We are of the view having regard to these circumstances that\n\n3 s.c.R.\n\nSUPREME COURT HEPORTS 813\n\nthe amount of Rs. 3,20,000/- must have been divided. '96' In that view of the case, the decree passed by the Kashuiaths• High Court will be modified as follows: - Yamosa Kabadi The properties of the joint family except the prov. perties divided on September 23, 1946, October 12, Narsings• . 1946, October 19, 1946, including the amount of Bhask•rs• K•b•d• Rs. 3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties. The partition will be made on the footing that defendant No. 3 is entitled to a half share and defendant No. l, the\n\nplainWfs collectively and defenda.nt No. 2 are each entitled to a 1/6 share. Defendant No. l will be entitled to his costs in Appeals Nos. 218 of 1959 and 219 of 1959. The other appeals filed by the plaintiffs and defendant No. 3 will be dismissed. One hearing fee.\n\n0. As. Nos. 218 and 219 of 1959 allowed.\n\n0. As. Nos. 220 to 223 of 1959 dismissed.\n\nGANGA DUTT MURARKA v.\n\nKARTIK CHANDRA DAS AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)\n\nTenant, Eviction of-Determination of lease by efflux of time-Tenant continuing in possession on payment of rent fixed bi'. rent control Acts-Landlord accepting the same-Nelli tenartey, if created-Transfer of Property Act, z882 (4 of z882), ss. zo6, IC6.\n\nThe appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners. The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration of the perioJ of tenancy but possession was not delivered and the respondents were unable to obtain possession in view of the protection afforded to the tenants by the successive rent control Acts passed by the State. In the meantime the\n\nx96z\n\nFebruary zo.", "total_entities": 127, "entities": [{"text": "Schedule C", "label": "PROVISION", "start_char": 231, "end_char": 241, "source": "regex", "metadata": {"statute": null}}, {"text": "KASHINATHSA YAMOSA KABADI, ETC", "label": "PETITIONER", "start_char": 455, "end_char": 485, "source": "metadata", "metadata": {"canonical_name": "KASHINATHSA YAMOSA KABADI, ETC", "offset_not_found": false}}, {"text": "NARSINGSA BHASKARSA KABADI, ETC", "label": "RESPONDENT", "start_char": 488, "end_char": 519, "source": "metadata", "metadata": {"canonical_name": "NARSINGSA BHASKARSA KABADI, ETC", "offset_not_found": false}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 525, "end_char": 533, "source": "metadata", "metadata": {"canonical_name": "J.L. KAPUR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 535, "end_char": 550, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 558, "end_char": 570, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "s. 3", "label": "PROVISION", "start_char": 880, "end_char": 884, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 886, "end_char": 902, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhaskaisa Kaba", "label": "JUDGE", "start_char": 3049, "end_char": 3063, "source": "ner", "metadata": {"in_sentence": "The Narsingsa d. proceedings taken by the Panchas were not revoked by the order Bhaskaisa Kaba 1 of the trial Court revoking the reference as they had been accepted and acted upon by the parties.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 3678, "end_char": 3683, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3981, "end_char": 3998, "source": "ner", "metadata": {"in_sentence": "Appeals from the Judgment and Decree dated August 9, 1953, of the Bombay High Court in Appeals Nos."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 4073, "end_char": 4085, "source": "ner", "metadata": {"in_sentence": "R. B. Kotwal, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant (In C. As."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 4087, "end_char": 4103, "source": "ner", "metadata": {"in_sentence": "R. B. Kotwal, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant (In C. As."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4105, "end_char": 4119, "source": "ner", "metadata": {"in_sentence": "R. B. Kotwal, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant (In C. As."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 4124, "end_char": 4135, "source": "ner", "metadata": {"in_sentence": "R. B. Kotwal, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant (In C. As."}}, {"text": "W. S. Barlingay", "label": "LAWYER", "start_char": 4335, "end_char": 4350, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and A.G. Ratnaparkhi, for the appellants (In C. As."}}, {"text": "A.G. Ratnaparkhi", "label": "LAWYER", "start_char": 4355, "end_char": 4371, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and A.G. Ratnaparkhi, for the appellants (In C. As."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 4552, "end_char": 4562, "source": "ner", "metadata": {"in_sentence": "Naunit Lal, for the appellants (In C. As."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 4762, "end_char": 4779, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan, for Respondents Nos."}}, {"text": "Kashinathsa", "label": "PETITIONER", "start_char": 5031, "end_char": 5042, "source": "ner", "metadata": {"in_sentence": "223 of 59),\n\nKashinathsa\n\n1961.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Yamosa Kabadi SHAH", "label": "JUDGE", "start_char": 5107, "end_char": 5125, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nYamosa Kabadi SHAH, J.-These six appeals are filed with certifi.", "canonical_name": "Yamosa Kabadi SHAH"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 5187, "end_char": 5195, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashinathsa", "label": "PETITIONER", "start_char": 5566, "end_char": 5577, "source": "ner", "metadata": {"in_sentence": "47 of 1948 explains the relationship between the parties:\n\nKashinathsa\n\n(D 1)\n\nYamosa\n\nI Bhaskarsa\n\nDongarsa\n\nMurarsa\n\n(0 2)\n\nI I I I Narsingsa Pandurangsa Benakosa Hanmantsa\n\n(P1)\n\n(P2)\n\n(P3)\n\n(P4)\n\nRamaknsbnasa\n\nI Hanmantsa\n\nI Bhimasa\n\nID 3)\n\nThe principal contesting party in the suits was Kashinathsa, eldest son of Yamosa, and he was the first defendant in both the suits.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Yamosa", "label": "PETITIONER", "start_char": 5586, "end_char": 5592, "source": "ner", "metadata": {"in_sentence": "47 of 1948 explains the relationship between the parties:\n\nKashinathsa\n\n(D 1)\n\nYamosa\n\nI Bhaskarsa\n\nDongarsa\n\nMurarsa\n\n(0 2)\n\nI I I I Narsingsa Pandurangsa Benakosa Hanmantsa\n\n(P1)\n\n(P2)\n\n(P3)\n\n(P4)\n\nRamaknsbnasa\n\nI Hanmantsa\n\nI Bhimasa\n\nID 3)\n\nThe principal contesting party in the suits was Kashinathsa, eldest son of Yamosa, and he was the first defendant in both the suits.", "canonical_name": "Yamosa"}}, {"text": "Ramaknsbnasa", "label": "RESPONDENT", "start_char": 5707, "end_char": 5719, "source": "ner", "metadata": {"in_sentence": "47 of 1948 explains the relationship between the parties:\n\nKashinathsa\n\n(D 1)\n\nYamosa\n\nI Bhaskarsa\n\nDongarsa\n\nMurarsa\n\n(0 2)\n\nI I I I Narsingsa Pandurangsa Benakosa Hanmantsa\n\n(P1)\n\n(P2)\n\n(P3)\n\n(P4)\n\nRamaknsbnasa\n\nI Hanmantsa\n\nI Bhimasa\n\nID 3)\n\nThe principal contesting party in the suits was Kashinathsa, eldest son of Yamosa, and he was the first defendant in both the suits.", "canonical_name": "Ramakrishnasa"}}, {"text": "Bhimasa", "label": "PETITIONER", "start_char": 5992, "end_char": 5999, "source": "ner", "metadata": {"in_sentence": "Bhimasa-the plaintiff in Suit No."}}, {"text": "Dongarsa", "label": "OTHER_PERSON", "start_char": 6135, "end_char": 6143, "source": "ner", "metadata": {"in_sentence": "At a partition in 1893 between Dongarsa's branch and the other branches, the former branch received property of the aggregate value of Rs."}}, {"text": "Kashinathsa Kabadi", "label": "PETITIONER", "start_char": 6441, "end_char": 6459, "source": "ner", "metadata": {"in_sentence": "1 started a cloth shop in the name of Kashinathsa Kabadi.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Bhaskarsa", "label": "JUDGE", "start_char": 6875, "end_char": 6884, "source": "ner", "metadata": {"in_sentence": "Before 1946, Bhaskarsa father of thP plaintiffs and Ramakrishnasa and\n\n38.C.R.\n\nSUPREME COURT REPORTR 795\n\nz96r Hanmantsa grandfather and father respectively of defendant No.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "Ramakrishnasa", "label": "PETITIONER", "start_char": 6914, "end_char": 6927, "source": "ner", "metadata": {"in_sentence": "Before 1946, Bhaskarsa father of thP plaintiffs and Ramakrishnasa and\n\n38.C.R.\n\nSUPREME COURT REPORTR 795\n\nz96r Hanmantsa grandfather and father respectively of defendant No.", "canonical_name": "Ramakrishnasa"}}, {"text": "Hanmantsa", "label": "OTHER_PERSON", "start_char": 6974, "end_char": 6983, "source": "ner", "metadata": {"in_sentence": "Before 1946, Bhaskarsa father of thP plaintiffs and Ramakrishnasa and\n\n38.C.R.\n\nSUPREME COURT REPORTR 795\n\nz96r Hanmantsa grandfather and father respectively of defendant No."}}, {"text": "Kashinathsa", "label": "RESPONDENT", "start_char": 7078, "end_char": 7089, "source": "ner", "metadata": {"in_sentence": "3 had expired, and the first defendant f Kashinathsa was the senio-rmoot member o the family.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Yainosa Kabadi", "label": "JUDGE", "start_char": 7140, "end_char": 7154, "source": "ner", "metadata": {"in_sentence": "In 1946, Yainosa Kabadi disputes arose between the members of the family and v. defendant No.", "canonical_name": "Yamosa Kabadi SHAH"}}, {"text": "Narsiugsa", "label": "PETITIONER", "start_char": 7266, "end_char": 7275, "source": "ner", "metadata": {"in_sentence": "3 declined to continue in jointness with Narsiugsa the other members of the family and demanded that Bhaskarsa Kabadi he be given his half share after dividing the properties by metes and bounds.", "canonical_name": "Narsingsa Huchappa"}}, {"text": "Bhaskarsa Kabadi", "label": "JUDGE", "start_char": 7326, "end_char": 7342, "source": "ner", "metadata": {"in_sentence": "3 declined to continue in jointness with Narsiugsa the other members of the family and demanded that Bhaskarsa Kabadi he be given his half share after dividing the properties by metes and bounds.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "August 17, 1946", "label": "DATE", "start_char": 7730, "end_char": 7745, "source": "ner", "metadata": {"in_sentence": "On August 17, 1946, the disputes were referred under a deed in writing to three persons -Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv and to determine the extra shares to be given to\" defendant No."}}, {"text": "-Vithaldas Devidas Vajreshwari", "label": "OTHER_PERSON", "start_char": 7815, "end_char": 7845, "source": "ner", "metadata": {"in_sentence": "On August 17, 1946, the disputes were referred under a deed in writing to three persons -Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv and to determine the extra shares to be given to\" defendant No."}}, {"text": "Betegiri", "label": "GPE", "start_char": 7860, "end_char": 7868, "source": "ner", "metadata": {"in_sentence": "On August 17, 1946, the disputes were referred under a deed in writing to three persons -Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv and to determine the extra shares to be given to\" defendant No."}}, {"text": "Devindrasa Tuljansa", "label": "OTHER_PERSON", "start_char": 7870, "end_char": 7889, "source": "ner", "metadata": {"in_sentence": "On August 17, 1946, the disputes were referred under a deed in writing to three persons -Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv and to determine the extra shares to be given to\" defendant No."}}, {"text": "Parappa Nagappa Jagalur", "label": "OTHER_PERSON", "start_char": 7927, "end_char": 7950, "source": "ner", "metadata": {"in_sentence": "On August 17, 1946, the disputes were referred under a deed in writing to three persons -Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv and to determine the extra shares to be given to\" defendant No."}}, {"text": "September 23, 1946", "label": "DATE", "start_char": 8590, "end_char": 8608, "source": "ner", "metadata": {"in_sentence": "On September 23, 1946, the Panchas decided that each of the four parties--defendant No."}}, {"text": "September 24, 1946", "label": "DATE", "start_char": 9339, "end_char": 9357, "source": "ner", "metadata": {"in_sentence": "On September 24, 1946, it v. is the case of defendant No."}}, {"text": "Bhaskarsa K•badi", "label": "JUDGE", "start_char": 9477, "end_char": 9493, "source": "ner", "metadata": {"in_sentence": "1 that the Panchas decided Namngsa to give him an additional share of the value of Bhaskarsa K•badi Rs.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "October 12, 1946", "label": "DATE", "start_char": 9899, "end_char": 9915, "source": "ner", "metadata": {"in_sentence": "On October 12, 1946, the Panchas divided the residential houses and a record of this division was entered in five separate books hereinafter referred to as \" partition books. \""}}, {"text": "October 19, 1946", "label": "DATE", "start_char": 10301, "end_char": 10317, "source": "ner", "metadata": {"in_sentence": "On October 19, 1946, the Pancha~ divided an amount of Rs."}}, {"text": "Y amosa Dongarsa Kabadi", "label": "OTHER_PERSON", "start_char": 10525, "end_char": 10548, "source": "ner", "metadata": {"in_sentence": "16,000/- and this division was entered in the account books of Y amosa Dongarsa Kabadi and the entry was duly signed in token of acknowledgment of the correctness by all the parties."}}, {"text": "October 20, 1946", "label": "DATE", "start_char": 11092, "end_char": 11108, "source": "ner", "metadata": {"in_sentence": "On October 20, 1946, the \"four empty safes\" and the warehouses and fands at Betgiri were divided."}}, {"text": "Betgiri", "label": "GPE", "start_char": 11165, "end_char": 11172, "source": "ner", "metadata": {"in_sentence": "On October 20, 1946, the \"four empty safes\" and the warehouses and fands at Betgiri were divided."}}, {"text": "October 21, 1946", "label": "DATE", "start_char": 11190, "end_char": 11206, "source": "ner", "metadata": {"in_sentence": "On October 21, 1946, the stock-in-trade of the silk shop was divided in four equal shares and on November IO, 1946, miscellaneous gold and pearl ornaments and the houses at Gadag and plots of land in the Hubli Cotton Market were similarly divided."}}, {"text": "November IO, 1946", "label": "DATE", "start_char": 11284, "end_char": 11301, "source": "ner", "metadata": {"in_sentence": "On October 21, 1946, the stock-in-trade of the silk shop was divided in four equal shares and on November IO, 1946, miscellaneous gold and pearl ornaments and the houses at Gadag and plots of land in the Hubli Cotton Market were similarly divided."}}, {"text": "Gadag", "label": "GPE", "start_char": 11360, "end_char": 11365, "source": "ner", "metadata": {"in_sentence": "On October 21, 1946, the stock-in-trade of the silk shop was divided in four equal shares and on November IO, 1946, miscellaneous gold and pearl ornaments and the houses at Gadag and plots of land in the Hubli Cotton Market were similarly divided."}}, {"text": "Hubli Cotton Market", "label": "ORG", "start_char": 11391, "end_char": 11410, "source": "ner", "metadata": {"in_sentence": "On October 21, 1946, the stock-in-trade of the silk shop was divided in four equal shares and on November IO, 1946, miscellaneous gold and pearl ornaments and the houses at Gadag and plots of land in the Hubli Cotton Market were similarly divided."}}, {"text": "February 7, 1947", "label": "DATE", "start_char": 11438, "end_char": 11454, "source": "ner", "metadata": {"in_sentence": "On February 7, 1947,\n\nthe agricultural lands, cattle and agricultural imple- '96' ments were divided."}}, {"text": "February 22, 1947", "label": "DATE", "start_char": 11540, "end_char": 11557, "source": "ner", "metadata": {"in_sentence": "On February 22, 1947, Rs."}}, {"text": "October 20, 1946, October 21, Narsings• 1946, February 7 and February 22, 1947", "label": "DATE", "start_char": 11722, "end_char": 11800, "source": "ner", "metadata": {"in_sentence": "v.\n\nDivisions made on October 20, 1946, October 21, Narsings• 1946, February 7 and February 22, 1947, were duly BhaskarsaKabaai entered in the \" partition books \" and the entries 5;;;;:1, were signed by the Panchas and were also by the parties in acknowledgment of the correctness of the divisions."}}, {"text": "BhaskarsaKabaai", "label": "JUDGE", "start_char": 11812, "end_char": 11827, "source": "ner", "metadata": {"in_sentence": "v.\n\nDivisions made on October 20, 1946, October 21, Narsings• 1946, February 7 and February 22, 1947, were duly BhaskarsaKabaai entered in the \" partition books \" and the entries 5;;;;:1, were signed by the Panchas and were also by the parties in acknowledgment of the correctness of the divisions.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "February 24, 1947", "label": "DATE", "start_char": 12002, "end_char": 12019, "source": "ner", "metadata": {"in_sentence": "On February 24, 1947, acknowledgments were obtained from the junior members of the family to the reference to the Panchas and to the decision of the Panchas dated September 23, 1946, whereby each branch was given a four annas share and also to the subsequent divisions made from time to time !"}}, {"text": "February 25, 1947", "label": "DATE", "start_char": 12352, "end_char": 12369, "source": "ner", "metadata": {"in_sentence": "Between February 25, 1947, and April 10, 1947, cotton bales belonging to the family of the value of Rs."}}, {"text": "April 10, 1947", "label": "DATE", "start_char": 12375, "end_char": 12389, "source": "ner", "metadata": {"in_sentence": "Between February 25, 1947, and April 10, 1947, cotton bales belonging to the family of the value of Rs."}}, {"text": "Bhim Rao Godkhindi", "label": "OTHER_PERSON", "start_char": 12965, "end_char": 12983, "source": "ner", "metadata": {"in_sentence": "To resolve the disputes about these properties and the outstandings of the family, the Panchas, with the consent of the parties referred them for decision to one Bhim Rao Godkhindi, a senior pleader of the Gadag Bar."}}, {"text": "Gadag Bar", "label": "ORG", "start_char": 13009, "end_char": 13018, "source": "ner", "metadata": {"in_sentence": "To resolve the disputes about these properties and the outstandings of the family, the Panchas, with the consent of the parties referred them for decision to one Bhim Rao Godkhindi, a senior pleader of the Gadag Bar."}}, {"text": "November 3, 1947", "label": "DATE", "start_char": 13023, "end_char": 13039, "source": "ner", "metadata": {"in_sentence": "On November 3, 1947, the Panchas executed a writing in favour of Godkhindi authorising him to complete the work of partition of the estate."}}, {"text": "Godkhindi", "label": "OTHER_PERSON", "start_char": 13085, "end_char": 13094, "source": "ner", "metadata": {"in_sentence": "On November 3, 1947, the Panchas executed a writing in favour of Godkhindi authorising him to complete the work of partition of the estate."}}, {"text": "December 5, 1947", "label": "DATE", "start_char": 13199, "end_char": 13215, "source": "ner", "metadata": {"in_sentence": "On December 5, 1947, Godkhindi asked the parties to \"state\n\nclearly\" what according to them were the properties which remained to be partitioned, and the plaintiffs gave a list to Godkhindi of such properties."}}, {"text": "February 5 and February 9, 1948", "label": "DATE", "start_char": 13414, "end_char": 13445, "source": "ner", "metadata": {"in_sentence": "Between February 5 and February 9, 1948, outstandings of the value of Rs."}}, {"text": "February 9, 1948", "label": "DATE", "start_char": 13639, "end_char": 13655, "source": "ner", "metadata": {"in_sentence": "On February 9, 1948, the first plaintiff served a notice cancelling the authority of the Panch&a to\n\n798 SUPREME COURT REPOR'rS [1961]\n\n'96' divide the properties of the family and on August ."}}, {"text": "August . 19, 1948", "label": "DATE", "start_char": 13820, "end_char": 13837, "source": "ner", "metadata": {"in_sentence": "On February 9, 1948, the first plaintiff served a notice cancelling the authority of the Panch&a to\n\n798 SUPREME COURT REPOR'rS [1961]\n\n'96' divide the properties of the family and on August ."}}, {"text": "Kashinathsa Yamos• Kabadi Civil Judge, Senior Division, Dharwar", "label": "JUDGE", "start_char": 13888, "end_char": 13951, "source": "ner", "metadata": {"in_sentence": "47 of 1948 in the court of the Kashinathsa Yamos• Kabadi Civil Judge, Senior Division, Dharwar, for partition of v. the properties remaining to be divided and for accounts\n\nNasings• of the joint family properties."}}, {"text": "Bhasharsa Kabadi", "label": "PETITIONER", "start_char": 14092, "end_char": 14108, "source": "ner", "metadata": {"in_sentence": "Bhasharsa Kabadi plaintiffs admitted that the parties had agreed to divide the property into four equal shares.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "Kashinathsa Yamosa Kabadi", "label": "PETITIONER", "start_char": 14406, "end_char": 14431, "source": "ner", "metadata": {"in_sentence": "The plaintiffs claimed that they be awarded a fourth share in the outstarnlings of the assets of \"Kashinathsa Yamosa Kabadi\" and \"H. R. Kabadi\" shops, and in \"a considerable amount of money that has been there\" since the time of the ancestors the Tippan in respect of which it was alleged was with defendants Nos.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "H. R. Kabadi", "label": "OTHER_PERSON", "start_char": 14438, "end_char": 14450, "source": "ner", "metadata": {"in_sentence": "The plaintiffs claimed that they be awarded a fourth share in the outstarnlings of the assets of \"Kashinathsa Yamosa Kabadi\" and \"H. R. Kabadi\" shops, and in \"a considerable amount of money that has been there\" since the time of the ancestors the Tippan in respect of which it was alleged was with defendants Nos."}}, {"text": "August 19, 1948", "label": "DATE", "start_char": 14727, "end_char": 14742, "source": "ner", "metadata": {"in_sentence": "On August 19, 1948, the plaintiffs also filed a petition in the court of the Civil Judge for leave to revoke the authority of the Panchas."}}, {"text": "August 16, 1949", "label": "DATE", "start_char": 15086, "end_char": 15101, "source": "ner", "metadata": {"in_sentence": "36 of 1949 on August 16, 1949, for partition and separate possession of a half share in all the properties of the joint family."}}, {"text": "High Court at Bombay", "label": "COURT", "start_char": 17993, "end_char": 18013, "source": "ner", "metadata": {"in_sentence": "In the two appeals, the High Court at Bombay by a common judgment modified the decrees passed by the court of first instance."}}, {"text": "Yamosa Kabadi", "label": "JUDGE", "start_char": 20721, "end_char": 20734, "source": "ner", "metadata": {"in_sentence": "Kashinathsa To appreciate the contentions, it is necessary to Yamosa Kabadi follo\"'.'", "canonical_name": "Yamosa Kabadi SHAH"}}, {"text": "Narsingsa", "label": "PETITIONER", "start_char": 20841, "end_char": 20850, "source": "ner", "metadata": {"in_sentence": "The decision of the Panchas to Narsingsa allot to each branch a fourth share was accepted by Bhaskarsa Kabadi all the panies.", "canonical_name": "Narsingsa Huchappa"}}, {"text": "Shah", "label": "JUDGE", "start_char": 20972, "end_char": 20976, "source": "ner", "metadata": {"in_sentence": "Thereafter the Panchas proceeded to Shah J. allot shares in the properties moveable and immoveable."}}, {"text": "23-9.1946", "label": "DATE", "start_char": 21373, "end_char": 21382, "source": "ner", "metadata": {"in_sentence": "In accordance therewith all the Panchas heard all the information (placed below them) and all .the Panchas unanimously decided on 23-9.1946 that Kashinathsa Yamosa Kabadi should be given a t share, that N arasingsa Bhaskarsa Kabadi should be given a t share, and that Bhimasa Hanumantasa Kabadi should be given a t share, and we all having consented to the said decision of the Panchas, we all and all the Panchas have put our respective signatures to the said decision of the Panchas."}}, {"text": "N arasingsa Bhaskarsa Kabadi", "label": "OTHER_PERSON", "start_char": 21446, "end_char": 21474, "source": "ner", "metadata": {"in_sentence": "In accordance therewith all the Panchas heard all the information (placed below them) and all .the Panchas unanimously decided on 23-9.1946 that Kashinathsa Yamosa Kabadi should be given a t share, that N arasingsa Bhaskarsa Kabadi should be given a t share, and that Bhimasa Hanumantasa Kabadi should be given a t share, and we all having consented to the said decision of the Panchas, we all and all the Panchas have put our respective signatures to the said decision of the Panchas."}}, {"text": "Bhimasa Hanumantasa Kabadi", "label": "OTHER_PERSON", "start_char": 21511, "end_char": 21537, "source": "ner", "metadata": {"in_sentence": "In accordance therewith all the Panchas heard all the information (placed below them) and all .the Panchas unanimously decided on 23-9.1946 that Kashinathsa Yamosa Kabadi should be given a t share, that N arasingsa Bhaskarsa Kabadi should be given a t share, and that Bhimasa Hanumantasa Kabadi should be given a t share, and we all having consented to the said decision of the Panchas, we all and all the Panchas have put our respective signatures to the said decision of the Panchas."}}, {"text": "Kashinathsa b Yamosa Kabadi", "label": "PETITIONER", "start_char": 22871, "end_char": 22898, "source": "ner", "metadata": {"in_sentence": "If thereafter the\n\nSUPREME GOURT REPORTS [1961]\n\n1961 assets of the family were divided and that division was accepted by the parties, the properties reduced Kashinathsa b Yamosa Kabadi Y the parties to their possession must be deemed to v. be of the individual ownership of the parties to whom .", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Kashinatbsa", "label": "PETITIONER", "start_char": 25115, "end_char": 25126, "source": "ner", "metadata": {"in_sentence": "The learned trial judge reject- Kashinatbsa ed this plea holding that Defendant No.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Pa.nch Devendrasa", "label": "OTHER_PERSON", "start_char": 26454, "end_char": 26471, "source": "ner", "metadata": {"in_sentence": "15 of 1948 for an\n\norder revoking the reference and as the Pa.nch Devendrasa was found unwilling to proceed with the work of dividing the property, the arbitration was cancelled."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 26580, "end_char": 26585, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 27528, "end_char": 27533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 28553, "end_char": 28558, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 28586, "end_char": 28591, "source": "regex", "metadata": {"statute": null}}, {"text": "Before the Arbitration Act, 1940", "label": "STATUTE", "start_char": 28939, "end_char": 28971, "source": "regex", "metadata": {}}, {"text": "Since the enactment of the Arbitration Act, 1940", "label": "STATUTE", "start_char": 29450, "end_char": 29498, "source": "regex", "metadata": {}}, {"text": "Section 31", "label": "PROVISION", "start_char": 29839, "end_char": 29849, "source": "regex", "metadata": {"linked_statute_text": "Since the enactment of the Arbitration Act, 1940", "statute": "Since the enactment of the Arbitration Act, 1940"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 30311, "end_char": 30316, "source": "regex", "metadata": {"linked_statute_text": "Since the enactment of the Arbitration Act, 1940", "statute": "Since the enactment of the Arbitration Act, 1940"}}, {"text": "Patna High Court", "label": "COURT", "start_char": 30698, "end_char": 30714, "source": "ner", "metadata": {"in_sentence": "K. Kuer v. B. N. Sinha('), the Patna High Court held that by virtue of s. 32 of the Arbitration Act, 1940, an award made on a private reference to arbitration is not operative of its own force; it only becomes operative on being made a rule of the court."}}, {"text": "s. 32", "label": "PROVISION", "start_char": 30738, "end_char": 30743, "source": "regex", "metadata": {"statute": null}}, {"text": "Arbitration Act, 1940", "label": "STATUTE", "start_char": 30751, "end_char": 30772, "source": "regex", "metadata": {}}, {"text": "ss. 32 and 33", "label": "PROVISION", "start_char": 31360, "end_char": 31373, "source": "regex", "metadata": {"linked_statute_text": "the Arbitration Act, 1940", "statute": "the Arbitration Act, 1940"}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 31381, "end_char": 31409, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 31742, "end_char": 31747, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 31849, "end_char": 31854, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "Narsingsa", "label": "PETITIONER", "start_char": 31885, "end_char": 31894, "source": "ner", "metadata": {"in_sentence": "in answer to the Narsingsa plaintiff's claim which was the subject inatter of the Bhaskars• K•b•di reference and the award.", "canonical_name": "Narsingsa Huchappa"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 33608, "end_char": 33613, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 33621, "end_char": 33637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 36", "label": "PROVISION", "start_char": 34875, "end_char": 34880, "source": "regex", "metadata": {"statute": null}}, {"text": "November 10, 1946", "label": "DATE", "start_char": 35015, "end_char": 35032, "source": "ner", "metadata": {"in_sentence": "We are unable to agree with the view of the High Court that the decisions dated October 12, 1946, October 20, 1946, and November 10, 1946, were not intended to be final decisions: There is no reliable evidence to support the view of the High Court."}}, {"text": "Kashinathsa b Yamosa Kabadi", "label": "WITNESS", "start_char": 36234, "end_char": 36261, "source": "ner", "metadata": {"in_sentence": "To sum up : on a consideration of the materials placed before the court, the reference to Panchas is proved to be made voluntarily by all the parties, that the Panchas had in the first instance decided that each branch was to get a fourth share in the properties and that decision was accepted by the parties, that division\n\nof properties made from time to tie was also accepted by the parties, and subsequently, when the Panchas Kashinathsa b Yamosa Kabadi were una le to proceed with the division, the matter v. was referred by consent of the parties to Godkhindi Narsingsa and Godkhindi divided with the consent of the Bhaskarsa Kabadi parties the outst.andings, but he was unable to divide\n\nShah]."}}, {"text": "Godkhindi Narsingsa", "label": "OTHER_PERSON", "start_char": 36360, "end_char": 36379, "source": "ner", "metadata": {"in_sentence": "To sum up : on a consideration of the materials placed before the court, the reference to Panchas is proved to be made voluntarily by all the parties, that the Panchas had in the first instance decided that each branch was to get a fourth share in the properties and that decision was accepted by the parties, that division\n\nof properties made from time to tie was also accepted by the parties, and subsequently, when the Panchas Kashinathsa b Yamosa Kabadi were una le to proceed with the division, the matter v. was referred by consent of the parties to Godkhindi Narsingsa and Godkhindi divided with the consent of the Bhaskarsa Kabadi parties the outst.andings, but he was unable to divide\n\nShah]."}}, {"text": "Parappa", "label": "WITNESS", "start_char": 37383, "end_char": 37390, "source": "ner", "metadata": {"in_sentence": "1 relied upon his own testimony besides the testimony of Parappa (one of the Panchas) and of Huchappaclerk of the family shop."}}, {"text": "Huchappaclerk", "label": "OTHER_PERSON", "start_char": 37419, "end_char": 37432, "source": "ner", "metadata": {"in_sentence": "1 relied upon his own testimony besides the testimony of Parappa (one of the Panchas) and of Huchappaclerk of the family shop."}}, {"text": "Huchappa", "label": "WITNESS", "start_char": 37550, "end_char": 37558, "source": "ner", "metadata": {"in_sentence": "The trial court held that the testimony of Huchappa and Parappa was unreliable."}}, {"text": "Kashinaihsa", "label": "PETITIONER", "start_char": 38357, "end_char": 38368, "source": "ner", "metadata": {"in_sentence": "They pointed out that there was no entry made in the books of account of this large amount of cash, and apprehending that a division of the property with a\n\nformal record which ma.y ultim&tely be produced in 1961 court was likely to involve the members of the family Kashinaihsa in proceedings for concealment of income, no record Yamosa Kabadi was maintained of the division thereof.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Narsingsa Huchappa", "label": "PETITIONER", "start_char": 38537, "end_char": 38555, "source": "ner", "metadata": {"in_sentence": "The High v.\n\nCourt also relied upon the testimony of Parappa, Narsingsa Huchappa and defendant No.", "canonical_name": "Narsingsa Huchappa"}}, {"text": "August 19, 1947", "label": "DATE", "start_char": 39149, "end_char": 39164, "source": "ner", "metadata": {"in_sentence": "3,20,000/- was divided on August 19, 1947, and each branch received its share."}}, {"text": "Bhaskarsa Kabadi", "label": "PETITIONER", "start_char": 40745, "end_char": 40761, "source": "ner", "metadata": {"in_sentence": "further proposal would be entertained by plaintiff Bhaskarsa Kabadi No.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "October 19, 1947", "label": "DATE", "start_char": 41342, "end_char": 41358, "source": "ner", "metadata": {"in_sentence": "I that the amount was divided on October 19, 1947."}}, {"text": "Bhaskarsa", "label": "JUDGE", "start_char": 43055, "end_char": 43064, "source": "ner", "metadata": {"in_sentence": "parties as well as the Panchas, he declined to accede Bhaskarsa J, abadi to that demand.", "canonical_name": "Bhaskarsa Kabadi"}}, {"text": "Bombay", "label": "GPE", "start_char": 44164, "end_char": 44170, "source": "ner", "metadata": {"in_sentence": "Consistently with the practice prevailing in the courts in the Bombay Province, defendant No."}}, {"text": "Art. 17", "label": "PROVISION", "start_char": 44237, "end_char": 44244, "source": "regex", "metadata": {"statute": null}}, {"text": ".Kashinathsa", "label": "PETITIONER", "start_char": 44950, "end_char": 44962, "source": "ner", "metadata": {"in_sentence": "'96' remained to be settled, and in the statement made .Kashinathsa before him which was recorded in writing, there Yamosa Kabodi was no reference to the claim that the amount of v: Rs.", "canonical_name": "KASHINATHSA YAMOSA KABADI, ETC"}}, {"text": "Yamosa Kabodi", "label": "JUDGE", "start_char": 45011, "end_char": 45024, "source": "ner", "metadata": {"in_sentence": "'96' remained to be settled, and in the statement made .Kashinathsa before him which was recorded in writing, there Yamosa Kabodi was no reference to the claim that the amount of v: Rs.", "canonical_name": "Yamosa Kabadi SHAH"}}, {"text": "Namngsa", "label": "PETITIONER", "start_char": 45130, "end_char": 45137, "source": "ner", "metadata": {"in_sentence": "Plaintiff Namngsa N 1 d 'l d t f h ."}}, {"text": "Godkhindi", "label": "WITNESS", "start_char": 46656, "end_char": 46665, "source": "ner", "metadata": {"in_sentence": "Godkhindi was examined as a. witness in these ') suits."}}, {"text": "November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947", "label": "DATE", "start_char": 47633, "end_char": 47727, "source": "ner", "metadata": {"in_sentence": "3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties."}}, {"text": "July 13, 194 7", "label": "DATE", "start_char": 47832, "end_char": 47846, "source": "ner", "metadata": {"in_sentence": "3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties."}}, {"text": "February 5, 1948", "label": "DATE", "start_char": 47885, "end_char": 47901, "source": "ner", "metadata": {"in_sentence": "3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties."}}, {"text": "February 9, Hl48", "label": "DATE", "start_char": 47907, "end_char": 47923, "source": "ner", "metadata": {"in_sentence": "3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties."}}, {"text": "J.C. SHAH", "label": "JUDGE", "start_char": 48524, "end_char": 48533, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 48737, "end_char": 48761, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Calcutta", "label": "GPE", "start_char": 48870, "end_char": 48878, "source": "ner", "metadata": {"in_sentence": "The appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners."}}]} {"document_id": "1961_3_813_820_EN", "year": 1961, "text": "3 s.c.R.\n\nSUPREME COURT HEPORTS 813\n\nthe amount of Rs. 3,20,000/- must have been divided. '96' In that view of the case, the decree passed by the Kashuiaths• High Court will be modified as follows: - Yamosa Kabadi The properties of the joint family except the prov. perties divided on September 23, 1946, October 12, Narsings• . 1946, October 19, 1946, including the amount of Bhask•rs• K•b•d• Rs. 3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties. The partition will be made on the footing that defendant No. 3 is entitled to a half share and defendant No. l, the\n\nplainWfs collectively and defenda.nt No. 2 are each entitled to a 1/6 share. Defendant No. l will be entitled to his costs in Appeals Nos. 218 of 1959 and 219 of 1959. The other appeals filed by the plaintiffs and defendant No. 3 will be dismissed. One hearing fee.\n\n0. As. Nos. 218 and 219 of 1959 allowed.\n\n0. As. Nos. 220 to 223 of 1959 dismissed.\n\nGANGA DUTT MURARKA v.\n\nKARTIK CHANDRA DAS AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)\n\nTenant, Eviction of-Determination of lease by efflux of time-Tenant continuing in possession on payment of rent fixed bi'. rent control Acts-Landlord accepting the same-Nelli tenartey, if created-Transfer of Property Act, z882 (4 of z882), ss. zo6, IC6.\n\nThe appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners. The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration of the perioJ of tenancy but possession was not delivered and the respondents were unable to obtain possession in view of the protection afforded to the tenants by the successive rent control Acts passed by the State. In the meantime the\n\nx96z\n\nFebruary zo.\n\nI '\n\n'•. r!i6r • .. appellant continued to pay every month. amo,; nts equal to the - ' . contractual rent, and later the rent declared to be the statutory\n\n~GaniaDull rt!nt and the respondent' acCepted. the same .. The _question Mu,-arAa arising for decision \\Vas whether the-acceptance of the amounts v. by the respondents conferred upon the appellant the right of a •. Karlik .• tenant holding over within the meaning of s. n6 of the Transfer ClaaNdr0 Das . of ~operty Act. , t , • 1. . . Held, that where a contractual tenancy to which.the rent . ; control legislation applied, had expired by efflux of time. _or by .'determination by notice to quit and th~, tenant continued 'in possession of .the premises, acceptance of rent from the tenant by . -· . '. the landlord. after the. expiration' or determination of the con- ' tractual 'tenancy will not' afford ground for holding that the .. landlord had assented to a new contractual tenancy. . . · Kai' Khushroo v. Bai ]erbai [r949] F.C.R. 262, followed .... / ._.: :• . Acceptance by the landlord from the. tenant of amounts\n\n1 : equivalent. to rent after the contractual tenancy had expired or\n\n'amountswhich were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of s. n6 of -. the. Transfer of Property Act. · ! :· ·.· Occupation of• the 'appellant after the determination of . tenancy was not in pursuance of any contract express or implied . buL:was by virtue .. of protection granted. by the successive\n\n. , statutes and such occupation was not required to be determined in themanner prescribed by s. 106 of. the Transfer of Property\n\n-\"-A.Ct~\"·· '; . ·. ·~ 1 • • ;, ' ,- - ..\n\n,.•: , ... \"J.\n\nCIVIL APPELLATE JURISDICTION: Civil. Appeal No. 82 of 1957. .. ·\n\n.· . \"Appe'.11 fro~ ; the judgment and'. decree dated April 4, 1955, ?.f te. Calcutta High Court in Appeal from Appellate Decree No. 1224 of 1953.\n\nG. S. Pathak flond D. N. , Jf ukherjee, for the appellant.\n\nH. N. Sanyal,. Additional \"Solicitor-General of India and P. K. Chatterjee, for the respondents. ·: . , , 1961. February IO .. The Judgment of the Court was_delivered by .. . ; ' . ·\n\nShah J. SHAH, J . .:_ar the premises relating to which this dispute arises-No. 5, Raja Rajkissen Street, Calcutta .-t_he respondents are the owners ; J.nd .. the appellant __\n\nwas, a contractual tenant from Junec 15, 1917, till · June 15,-l 9i 7, under three successive tenancies for '10 years each. Under the first tenancy, the 'appellant · paid rent at the rate of Rs: 84-15;0 per month, under the seco_nd-tenancy at therate_of, R.s. 180 per month\n\n~-.;._._-_ ..\n\nand undPr the third tenancy at the rate of Rs. 225 per month. The tenancy was in respect of buildings used for manufacturing \" tin canisters \" and open land. On September 30, 1946, the Governor of Bengal issued the Calcutta Rent Ordinance, V of 1946, making certain provisions for control of rent of premises in the town of Calcutta. Bys. 12 of the Ordinance, it was provided in so far as it. is material that notwithstanding, anything contained in the Transfer of Property Act, the Presidency Small Cause Courts Act or the Indian Contract Act, no order or decree for the recovery of posse; sion of any premises shall be made as long as the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy. By the proviso, the landlord was, notwithstanding the protection gra11ted entitled, if the conditions specified therein were fulfilled, to obtain possession of the premises. This Ordinance was replaced by Act I of 1947 which contained suustantially the same provisions. By the West Bengal Act V of 1948, the provisions of Ordinance V of 1946 and Act I of 1948, were continued.\n\nThereafter on December l,\" 1948, the West Bengal Premiseo Rent Control (Temporary Provisions) Act XXXVIII of 1948 was brought into operation and by this Act, the West Bengal Act V of 1948 was repealed, but the protection granted to the tenants was continued. This Act was repealed by the West Bengal Premises Rent Control Act, 1950, and by s. 12 of the latter Act protection to tenants, including tenants whose tenancies had expired, against eviction was granted by prohibiting courts from passing decrees or orders for recovery of possession of any premises in favour of landlords. It was provided by that Act that the landlord shall be entitled to obtain a decree in ejectment, inter alia, where the premises are reasonably required by him either for the purpose of building or re building or for his own occupation.\n\nBy letter dated May 15, 1957, the respondents called upon the appellant to vacate and deliver possession on the expiry of the period of tenancy . .Possession was however not delivered by the appellant\n\nIg6I\n\nGanga Duti\n\nMura,.ka\n\nJ(artik Chand1a Das\n\nShah].\n\nGanga Dutt\n\nMurarka v.\n\nKarlik Chandra Das\n\nShah].\n\nand he continued to pay the stipulated amouut and the same was accepted by the respondents. In an application under s. 9 of the West Bengal l:'remises Rent Control (Temporary Provisions) Act, 1948, the Controller fixed the standard rent of the premises at Rs. 455 per month. After the enactment of the West Bengal Premises Rent Control Act, 1950, another application was submitted by the appellant and the standrad rent was reduced to Rs. 247-8-0. On October 10, 1950, the respondents served a notice upon the appellant requiring him \"to quit, vacate and deliver possession of'the premises occupied\", which the appellant was described ii.s holding as \"monthly tenant\", on the expiry of the 31st of Chaitra, 1357 B. S., i.e., April 14, 1951. The ground for eviction, it wa.s claimed, was that the premises were reasonably required by the landlords for putting up new buildings thereon. The appellant having failed to vacate the premises, the respondents sued in the Court of Sm11ll Causes, Calcutta, for a decree in ejectment. The Court of Small Causes decreed the suit filed by the respondents. In appeal to the Special Bench, Court of Small Causes, the decree passed by the court of first instance was reversed. The appellate court held that by acceptanlJe of rent after determination of the tenancy in June, 1947, the appellant continued to be \" a tenant holding over\" and as the purpose of the tenancy was manufacturing, it could be determined only by a notice of six months, expiring with the year of tenancy and as no such notice was served, the tenancy wa's not determined and the suit was liable to fail. In appeal to the High Court of J ndicature at Calcutta, the decree passed by the Special Bench was reversed and the decree passed by the court of first instance was restored.\n\nWith certificate of fitness under Art. 133(1Xc) of the Constitution this appeal is\n\npreferred by the appellant against the order of the High Court. The contractual tenancy in favour of the appellant was determined by effiux of time on June 15, 1947, and since that date there has been between the parties no fresh contractual tenancy. The respondents were,\n\nit appears, anxious to obtain possession of the premises let out to the appellant, but they were unable to obtain assistance of the court in view of the protection afforded to the appellant by the successive rent contrnl Acts. In the meanwhile, the appellant continued to pay every month amounts equal to the contractual rent, and later the rent declared to be the statutory rent. Does the acceptance of the amounts paid by the appellant confer upon him the right of a tenant holding over within the meaning of s. 116 of the Transfer of Property Act?\n\nSection 116 of the Transfer of Property Act in so far as it is material provides that if a lessee of pro. perty rmains in possession thereof after the determination of the lease granted to .him and the lessor accepts rent from the lessee or otherwise assen ts to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased as specified in s. 106. It is, however, well settled that where a contractual tenancy to which the rent controllegislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contract11al tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. It was observed by B. K. Mukherjea, J. (as he then was), in Kai Khushroo v. Bai Jerbai ('):\n\n\"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession. even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on\n\nhi~ part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to\n\n(I) [1949] F.C.R. 262. 170. 27\"-\n\nGanga Dutt Murarka v.\n\nKarlik Chandra Das\n\nShah f\n\nr961\n\nGanga Dutt Murarka v.\n\nKartik Chandra Das\n\nShah j.\n\nthe land but holds it merely through the ]aches of the landlord. If now the landlord accepts rent from such person or otherwise expreRses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated bys. 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from m\"n th to month in accordance with the provisions of s. 106 of the Act.\" It was further observed :\n\n\" .................. in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him exeept on specified grounds mentioned in the Acts them'rders.\n\nThe", "total_entities": 74, "entities": [{"text": "Kashuiaths• High Court", "label": "COURT", "start_char": 146, "end_char": 168, "source": "ner", "metadata": {"in_sentence": "96' In that view of the case, the decree passed by the Kashuiaths• High Court will be modified as follows: - Yamosa Kabadi The properties of the joint family except the prov."}}, {"text": "Yamosa Kabadi", "label": "OTHER_PERSON", "start_char": 200, "end_char": 213, "source": "ner", "metadata": {"in_sentence": "96' In that view of the case, the decree passed by the Kashuiaths• High Court will be modified as follows: - Yamosa Kabadi The properties of the joint family except the prov."}}, {"text": "Shah J.", "label": "JUDGE", "start_char": 446, "end_char": 453, "source": "metadata", "metadata": {"canonical_name": "Shah J. 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S., i.e., April 14, 1951."}}, {"text": "Court of Sm11ll Causes, Calcutta", "label": "COURT", "start_char": 8023, "end_char": 8055, "source": "ner", "metadata": {"in_sentence": "The appellant having failed to vacate the premises, the respondents sued in the Court of Sm11ll Causes, Calcutta, for a decree in ejectment."}}, {"text": "High Court of J ndicature at Calcutta", "label": "COURT", "start_char": 8687, "end_char": 8724, "source": "ner", "metadata": {"in_sentence": "In appeal to the High Court of J ndicature at Calcutta, the decree passed by the Special Bench was reversed and the decree passed by the court of first instance was restored."}}, {"text": "Art. 133(1Xc)", "label": "PROVISION", "start_char": 8880, "end_char": 8893, "source": "regex", "metadata": {"statute": null}}, {"text": "June 15, 1947", "label": "DATE", "start_char": 9081, "end_char": 9094, "source": "ner", "metadata": {"in_sentence": "The contractual tenancy in favour of the appellant was determined by effiux of time on June 15, 1947, and since that date there has been between the parties no fresh contractual tenancy."}}, {"text": "s. 116", "label": "PROVISION", "start_char": 9715, "end_char": 9721, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 9729, "end_char": 9753, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 116", "label": "PROVISION", "start_char": 9756, "end_char": 9767, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 9775, "end_char": 9799, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 106", "label": "PROVISION", "start_char": 10234, "end_char": 10240, "source": "regex", "metadata": {"statute": null}}, {"text": "B. K. Mukherjea", "label": "JUDGE", "start_char": 10705, "end_char": 10720, "source": "ner", "metadata": {"in_sentence": "It was observed by B. K. Mukherjea, J. (as he then was), in Kai Khushroo v. Bai Jerbai ('):\n\n\"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor."}}, {"text": "[1949] F.C.R. 262", "label": "CASE_CITATION", "start_char": 11303, "end_char": 11320, "source": "regex", "metadata": {}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 11689, "end_char": 11713, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 106", "label": "PROVISION", "start_char": 11882, "end_char": 11888, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "Rent Restriction Act", "label": "STATUTE", "start_char": 12542, "end_char": 12562, "source": "regex", "metadata": {}}, {"text": "Calcutta Rent Ordinance, 1946", "label": "STATUTE", "start_char": 12684, "end_char": 12713, "source": "regex", "metadata": {}}, {"text": "West Bengal Premises Rent Control Act, 1950", "label": "STATUTE", "start_char": 12770, "end_char": 12813, "source": "regex", "metadata": {}}, {"text": "Section 12", "label": "PROVISION", "start_char": 12928, "end_char": 12938, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Rent Control Act, 1950", "statute": "the West Bengal Premises Rent Control Act, 1950"}}, {"text": "West Bengal Premises Rent Control Act, 1950", "label": "STATUTE", "start_char": 12946, "end_char": 12989, "source": "regex", "metadata": {}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 13395, "end_char": 13419, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 10,\n\n1950", "label": "DATE", "start_char": 15085, "end_char": 15102, "source": "ner", "metadata": {"in_sentence": "It is true that in the notice dated October 10,\n\n1950, the appellant is described as a \"monthly tenant\", but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence."}}, {"text": "Within the meaning of the West Bengal Premises Rent Control Act, 1950", "label": "STATUTE", "start_char": 15274, "end_char": 15343, "source": "regex", "metadata": {}}, {"text": "s. 106", "label": "PROVISION", "start_char": 16049, "end_char": 16055, "source": "regex", "metadata": {"linked_statute_text": "Within the meaning of the West Bengal Premises Rent Control Act, 1950", "statute": "Within the meaning of the West Bengal Premises Rent Control Act, 1950"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 16063, "end_char": 16087, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "JUTE AND GUNNY BROKERS LTD", "label": "PETITIONER", "start_char": 16183, "end_char": 16209, "source": "ner", "metadata": {"in_sentence": "JUTE AND GUNNY BROKERS LTD."}}, {"text": "UNION OF INDIA", "label": "RESPONDENT", "start_char": 16232, "end_char": 16246, "source": "ner", "metadata": {"in_sentence": "AND ANOTHER v.\n\nTHE UNION OF INDIA AND OTHERS."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 16285, "end_char": 16305, "source": "ner", "metadata": {"in_sentence": "(and connected appeals) (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.) '"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 16307, "end_char": 16320, "source": "ner", "metadata": {"in_sentence": "(and connected appeals) (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.) '"}}, {"text": "K. c. DAS GUPTA", "label": "JUDGE", "start_char": 16325, "end_char": 16340, "source": "ner", "metadata": {"in_sentence": "(and connected appeals) (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.) '"}}, {"text": "Estoppel-Defence of India Act", "label": "STATUTE", "start_char": 16507, "end_char": 16536, "source": "regex", "metadata": {}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 16602, "end_char": 16625, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 16669, "end_char": 16682, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 2(zz)", "label": "PROVISION", "start_char": 16702, "end_char": 16711, "source": "regex", "metadata": {"linked_statute_text": "Estoppel-Defence of India Act", "statute": "Estoppel-Defence of India Act"}}, {"text": "Indian Sale of Goods Act", "label": "STATUTE", "start_char": 16719, "end_char": 16743, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Government of India", "label": "ORG", "start_char": 16775, "end_char": 16794, "source": "ner", "metadata": {"in_sentence": "The Government of India entered into an agreement with the President of Argentine Institute for Promotion of Trade to supply hessian in return for licences for shipment to India of food-stuff purchased there and with a view to implement that agreement issued orders under r. 75A(1) of the Defence of India Rules, 1939, on the managing agents of certain jute mills on September 30, 1946, requisitioning hessian and directing them and any other person in possession of the said goods to deliver them to the Director of Supplies, Calcutta."}}, {"text": "Defence of India Rules, 1939", "label": "STATUTE", "start_char": 17060, "end_char": 17088, "source": "regex", "metadata": {}}]} {"document_id": "1961_3_820_845_EN", "year": 1961, "text": "I961\n\nGa11ga DuU\n\nMuYarka\n\nKartik Chandra Das\n\nShah].\n\nFebruary r7.\n\nSUPREME COURT REPORTS [1961)\n\nwas not in pursuance of any contract express or implied, but was by virtue of the protection given by the successive statutes. This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by s. 106 of the Transfer of Property Act.\n\nIn that view of the case, this appeal fails and is dismissed with costs.\n\nAppeal dismissed.\n\nJUTE AND GUNNY BROKERS LTD.\n\nAND ANOTHER v.\n\nTHE UNION OF INDIA AND OTHERS.\n\n(and connected appeals) (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.) '\n\nRequisition and Acquisition of Property-Orders by Government of India-Notice on managing agents-Validity-Holders of Pucca delivery order, if owners of goods-Estoppel-Defence of India Act, z939 (35 of z939)-Defence of India R.11les, z939, rr. 75A, zz9- Code of Civil Procedure, z908 (Act V of z908), 0. XXIX, r. 2lndian Companies Act, z9z3 (7 of I9z3), ss. 2(zz), z,,.S-Indian Sale of Goods Act, z930 (3 of z930), s. z8.\n\nThe Government of India entered into an agreement with the President of Argentine Institute for Promotion of Trade to supply hessian in return for licences for shipment to India of food-stuff purchased there and with a view to implement that agreement issued orders under r. 75A(1) of the Defence of India Rules, 1939, on the managing agents of certain jute mills on September 30, 1946, requisitioning hessian and directing them and any other person in possession of the said goods to deliver them to the Director of Supplies, Calcutta. Although 'in the heading of the notices after the names of the managing agents it was not stated that they were being addressed as managing agents of such and such mills, the schedules attached to them made it clear that they were addressed as managing agents of such and such mills. On the same day notices of acquisition under r. 75A(2) were served on the said managing agents and they were further informed that under r. 75A(3) the goods would vest in the Government at the beginning of the same day free from any mortgage, pledge, lien and other similar encumbrance.\n\nThe notices of acquisition were also accompanied by schedules similar to those accompanying the requisition <;>rders.\n\nThe\n\nGovernment of India tried to take possession of the hessian but was resisted by the mills and the holders of pucca delivery orders and brought the suit, out of which th~ present appeals arose, for enforcing the said orders of requisition and acquisition.\n\nThe Defence of India Act, 1939, and the Rules made thereunder, had in the meantime come to an end and the question before the\n\ncourt~ below was whether the orders of requisition and acquisition as served were effective in law. The trial judge held that as there were no valid orders of requisition as the mills had not been properly served and since the goods were subject to pucca delivery orders, the mills as well as the Government were estopped from challenging the ownership of the holders of the said delivery orders. The appeal court held that the orders of requisition were valid and binding, that the mills, and not the holders of the delivery orders, were the owners of the goods but that the notices of acquisition had not been served as required by r. 75A(2) of the Rules and,. therefore, there was no valid acquisition under r. 75A(3J of the Rules.\n\nHeld, that the requisition of the goods C, Juld. be effected either by taking possession of them or by requiring them to be placed at the disposal of the requisitioning authority. Since in the present case, the mills and not the holders of the delivery orders were admittedly in possession of the goods on the date of the requisition, the proper persons to be served with the orders were the mills.\n\nSince the Rules did not expressly provide as to the manner in which orders of requisition in writing under r. 75A had to be served, r. n9(1) must apply and as the orders in the present case concerned an individual corporation, they had to be served in the. manner prescribed by 0. XXIX, r. 2 of the Code of Civil Procedure.\n\nThe word \"officer\" as defined by s. 2(ii) of the Indian Companies Act, 1913, includes a managing agent and such definition can be utilised for the purpose of the Code and regard being had to the nature of his duties there can be no doubt that a managing agent would be within the expression \" other principal officer\" in 0. XXIX, r. 2(a) of the Code.\n\nThere was no basis for the contention that service under r. 2 must be on some human being or that there could be no effective service on a corporation by serving another corporation which might be its principal officer.\n\nThe service of the orders of requisition on the managing agents obviously meant for the mills in the instant case, was, therefore, good service under 0. XXIX, r. 3 of the Code.\n\nSince r. 75A(2) itself did not provide for any mode of service of notice under it, either the one or the other of the modes specified in s. 148 of the Indian Companies Act, 1913, or '\n\n0. XXIX, r. 2 of the Code would be a reasonable mode of effecting service thereunder.\n\nIn the instant case the notices of\n\nJ \"'' & Gunny\n\nBroh1rs Ltd. v.\n\nUni°\" of I11dia\n\n] ute · ·:f.ute&Gunny wrote to the Secretary, Indian Jute Mills Association JJ;~, Ltd. that shipping inst.ructions would be issued in due , \"' course by the Director of Supplies, Calcutta, with Union of India respect to hessian requisitioned and acquired under the orders and notices already referred to. The Government then tried to take possession of the hessian requisitioned and acquired but the mills and the holders of delivery orders resisted the Government's attempt cin the ground that the orders of requisition and acquisition were invalid. The Government of India then filed the suit, out of which the present appeals have arisen, on December 11, 1946, for enforcing the orders of requisition and acquisition and also applied for a receiver to be appointed. This application was resisted and it became apparent that it would take some time before it could be disposed of.\n\nAs ships which were to carry the hessian to Argentine were ready and shipment could not be delayed, the Government on January 7, 1947, promulgated an Ordinance, being Ordinance No. 1 of 1947, whereby notwithstanding the pendency of the suit the title and possession of the goods requisitioned and acquired were made to vest in the Government. The Government thei; t took possession of the hessian and shipped the same to Argentine. The suit however did not become infructuous or unnecessary after this because s. 3 of the Ordinance provided that the suit should be proceeded with in regard to one question involved in it and decision thereon obtained. Under s. 3 it was provided that if in the suit it was finally decided that the said goods were not validly requisitioned or acquired by the Central Government on the 30th day of September, 1946, each of the several previous owners of the said goods would be entitled to receive as compensation from the Central Government the market price prevailing on the date of the institution of the aforesaid suit; but if no such de.cision was made in the suit, the said goods would be deemed to have been validly requisitioned and acquired by the Central Government on the 30th September, 1946, and the\n\nWanchoo ].\n\nI96I\n\njuJe (\" ..... Gunny Brokers Ltd.\n\nv, Union of India\n\nH'anchoo J.\n\namount of compensation to be paid by the Central Government to the several previous owners of the said goods would be determined in accol'dance with the provisions of law in force on September 30, 1946, relating to the requisition and acquisition of movable property uuder the rules made under the Defence of India Act, 1939. It mav bo mentioned that tho Defonce of India Act, 1939, and the Rules rnade theretddressecl and the names\n\n3 8.G:l{.\n\nSUPREME COUl{T REPORTS 837\n\nof the mills whose managing agents the addressed corporation was, were also mentioned in the schedule.\n\nIt is clear therefore that the notice of the decision to acquire was given to the various managing agents of the. various mills in their capacity as managing agents of the mills specified in the schedule and the question is whether the notice was in accordance with r. 75-A (2).\n\nRule 75-A(2) provides that after the property has been requisitioned the Government may acquire it by serving on the owner thereof a notice stating thattthe Government has decided to acquire it.\n\nFurther sub-r. (3) of r. 75-A lays down that where a notice of acquisition has been served on the owner, then at the beginning of the day on which the notice is so served the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance and the period of the requisition thereof shall _end.\n\nSub-rule (2) therefore requires that there should be a service of the notice of acquisition on the owner of the property requisitioned. Two questions therefore immediately arise in view of the provisions of r. 75-A (2), namely, (1) that there should be a service of the notice on the owner, and (2) that this service should be in accordance with r. 75-A (2). If both these conditions are satisfied, r. 75-A (3) comes into play and the property vests in the Government as provided therein.\n\nThe first question therefore that arises is whether the notice in this case was served on the owner of the requisitioned goods. The argument on behalf of the defendants is that the requisitioned goods did not belong to the mills and that the real owners were the holders of the pucca delivery orders, and as there was no service of notice on them, there could be no acquisition under r. 75-A (3). Reliance in this connection is placed on Anglo-India Jute Mills Co.'s case (1).\n\nIn that case it was held that \" by the usage of the jute trade in Calcutta, pucca deli very orders are issued only on cash payment, are passed from hand to hand by endorsement and are sold arid dealt with in the market as absolutely representing the goods to which\n\n(I) (1910) l.L.R. 38 Cal. 127.\n\nJute & Gun'ly\n\nBrokers Ltd. v.\n\nUnion of India\n\nWanc; hoo ].\n\nz96z\n\njute & Gunny\n\nBrokers Ltd. v.\n\nUnion of India\n\nWanchoo].\n\n838 SUPREME COUR'f REPORTS [1961]\n\nthey relate.\" Therefore, it is urged that the owners of the goods were the holders of the pucca delivery orders and not the mills even though the goods were in the possession of the mills at the time when notices of acquisition were issued. Now it is not in dispute so far as these pucca delivery orders with which we are concerned in these appeals are concerned that though holders thereof pay for the goods specified therein, at no time till actual delivery is given is there any appropriation of the goodR either to the contract or the delivery orders.\n\nIn spite however of the absence of such appropriation, the holders of pucca delivery orders are regarded by the trade as the owners of the goods specified therein and as held in The Anglo-India Jute Mills Co.'s case (1) these pucca delivery orders are passed from hand to hand by endorsement and are sold and dealt with in the market as absolutely representing the goods to which they relate. The question therefore that arises is whether the property in the goods represented by the pucca delivery orders can be said to have passed to the holders thereof, when they receive them.\n\nThe contention on behalf of the U' nion of India is that property in the goods cannot pass in law to the holders of the pucca delivery orders till the goods are actually appropriated to the particular order; therefore, as in this case it is not in dispute that no goods were actually appropriated towards the pucca delivery orders concerned, the property in the goods did not pass to the holders thereof but was still in the mills.\n\nReliance in this connection is placed on s. 18 of the Indian Sale of Goods Act, No. III of 1930.\n\nThat. section lays down that \"where there is a contract ror the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained.\" In the present case, as we have already said it is not in dispute that the goods covered by the pucca delivery orders are not ascertained at the time such orders are issued and ascertainment takes place in the shape of appropriation when the goods are actually delivered in compliance\n\n(1) (1910) I.L.R. 38 Cal. 127.\n\n3 S.C.R.\n\nSUPREJ\\1E COURT HEPORTS 839\n\ntherewith. Therefore, till appropriation takes place and goods are actually delivered, they are not ascertained. The contract therefore represented by the pucca delivery orders is a contract for the sale of unascertained goods and no property in the goods is transferred to the buyer in view of s. 18 of the Indian Sale of Goods Act till the g'oods are ascertained by appropriation, which in this case takes place at the time only 0f actual delivery. The appeal court in our opinion was therefore right in holding that the property in the goods included in the pncca delivery orders did not pass to the holders thereof in view of s. 18 of the Sale of Goods Act in spite of the decision in the case of the Anglo-India Jute Mills Co. (1). What that case decided was that in a suit between a holder of a pucca delivery order-be he the first holder or a subsequent holder who has purchased the pucca delivery order in the market-and the mills, there will be an estoppel and the mill will be estopped from denying that cash had been paid for the goods to which the delivery order related and that they held the goods for the holder of the pucca delivery order .\n\nThat case therefore merely lays down the rule of estoppel as between the mill and the holder of the pucca delivery order and in a suit between them the mill will be estopped from denying the title of the holder of pucca delivery orders; but that does not mean that in law the title passed to the.holder of the pucca delivery order as soon as it was issued even though it is not disputed that there was no ascertainment of goods at that time and that the ascertainment only takes place when the goods are appropriated to the pucca delivery orders at the time of actual delivery.\n\nThe appeal court was in our opinion right in holding that the effect of the decision in the case of Anglo-India Jute }.fills Go. (1) was not that the property in the goods passed by estoppel and that that case only decided that as between the seller and the bolder of the pucca delivery order, the seller will-not be heard to say that there was no title in the bolder of the delivery order.\n\nThat case was not dealing with the question of title\n\n(1) (1910) I.L.R. 38 Cal. 127.\n\njute & Gunny Brokers Ltd.\n\nUnivn of India\n\nll\"unchoo J.\n\njute &- Gunny Brokers Ltd. v. ll nion of India\n\nWanchoo ].\n\nat all as was made clear by Jenkins C.J. but was merely concerned with estoppel. In the present case the question whether the Government of India will be estopped is a matter which we shall consider later; but so far as the question of title is concerned there can be no doubt in view of s. 18 of the Sale of Goods Act that title in these cases had not passed to the holders of the pucca delivery orders on September 30,\n\n1946, for the goods were not ascertained till then, whatever may be the position of the holders of the pucca delivery orders in a suit between them and the mills to enforce them.\n\nThe next question then is whether the Government of India is also estopped from challenging that the title passed to the holders of the pucca delivery orders as soon as they got the delivery orders. Sarkar J. seems to have taken the view that as the Government of India was claiming under the mills and had stepped into the place of the mills by acquisition and was claiming ownership through the mills, it would also be estopped from denying the title of the holders of pucca delivery orders in the same way as the mills through whom it was claiming. The appeal court ou the other hand held that the Goverument of India was not claiming through the mills and therefore would not be estopped like the mills from disputing the title of the holders of the pucca delivery orders.\n\nWe are of opinion that the view of the appeal court is correct. The Government was not acquiring the property through the owners but under the power given to it by the statute, namely, the Defence of Ii,1dia Act and the .Rules made thereuiider, . It did not acquire merely the rights of the owners of the property bu.t the whole property. This is clear from r. 75-A\n\n(3) which lays down that \"where a notioe of acquisition is served on the owner of the property then at the beginning of the day on which the notice is so served, the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance.\" This shows clearly that what the Government is acquiring under the statute is a kind of paramount title. and not any title derived from any owner, for\n\n)::\n\n• . fl\n\ntitle deriv:ed from the owner would not be (for example) free from mortgage, etc. Therefore when Government takes action to acquire the requisitioned property under sub-r. (2) of r. 75.A by Aerving a notice of its decision to do so, it is acquiring the whole property under the statute and is not making any claim to the property through the mills.\n\nThus it is not merely the rights of the owners that the Government acquires; it acquires the whole property free from all kinds of encumbrances. What is thus acquired under the Defence of India Rules is no particular person's right but the totality of the rights in the property. It cannot therefore be said that the Govern me.lit of India . when it takes action under r. 75-A (2) is claiming through anybody; it acquires the totality of. the rights in the property by virtue of the power vested in it by the statute, eliminating all subsisting private rights. There can in such a case be no estoppal against the Government of India qua the holders of the pucca . deli very orders, for the Government of India is not stepping into the shoes of the mills but is acquiring title which is paramount in nature. Therefore even though there may be an estoppel against the mills in view of the decision of The Anglo-India Jute Mills Co. (1 ), there can be no estoppel against the Govern .. ment of India. Further as in law the property had not passed to the holders of the pucca delivery orders in the circumstances of this case, it was not necessary to serve them with notices under r. 75-A (2), for in law the owners were the mills and it was sufficient if notices were served on them. We may incidentally make it clear that the decision in the case of Anglo.\n\nIndia Jute Mills Co.(•) would still be good law in an appropriate case where the question of estoppel can rightly arise.\n\nIn view of the foregoing discussion, the conclusion at which we arrive is that on September 30, 1946, the mills were in law the owners of the property which had been requisitioned and with respect to which notices of acquisition were given on the same day.\n\nTherefore the notice required under r. 75-A (2) had to be given only to the mills.\n\n(1) (1910) r.r,.R. ~8 Cal. 127.\n\nI961\n\njute 0-- Gunny Brokers Ltd. v.\n\nUnion of India_\n\nWanchoo ].\n\nJule 6' Gunny\n\nJ3rokers Lid.\n\nv. /Inion of India\n\nrvam.:/loo ].\n\nThe question then which arises is whether due notice was given to the mills under r. 75-A (2).\n\nThe appeal court held that strict compliance with the provisions of the rule by which such transfer of ownership can be effected was necessary. It further held that as notices were not addressed in so many words to the managing agents as managing agent~ of the various mills, there was no due service as required by r. 75-A (2) and therefore there was no acquisition following on the service of the notices in this case.\n\nThe first question that arises in this connection is the manner in which notice bas to be served under r. 75-A (2).\n\nNow all that r. 75-A (2) says is that notice of the decision to acquire the property has to be served on the owner thereof (except in certain circumstances with which we are not concerned). The contention of the learned Attorney-General on behalf of the Union of India is that a notice under r. 75-A (2) has also to be served in the manner provided in r. 119 and that therefore the provisions of r. 119 (l-B) would also apply to service of such a notice. Ori the other hand it has been contended on behalf of the defendants that r. 119 refers to service of orders in writing and r. 75-A(2) does not speak of an order in writing as is the case in r. 75-A(l). We do not think it necessary for purposes of this case to decide whether a notice stating that the Government has decided to acquire the requisitioned property is an order in writing as\n\ncontemplated under r. 119.\n\nAssuming that it is not so, it still remains to be seen how a notice of the kind envisaged in r. 75-A (2) has to be served on a corporation. The appeal court was of the view that as r. 75-A (2) did not provide for the manner of service and as in. its opinion r. 119 did not apply, the service of a notice under r. 75-A (2) must be in a reasonable manner. Proceeding on the assumption that r. 119 does not apply, it seems to us that the view of the appeal court that a notice under r. 75-A (2) must be served ill'a reasonable manner is correct. What then is this reasonable manner of service of notice under r. 75-A (2)? In. this connection reference may be made to two provisions iu two other Acts. The first\n\nis a provision in s. 148 of the Indian Companies Act, 1913, which was then in force. That section provides that-\n\n\"a document may be served on a company by leaving it at, or sending it by post to, the registered office of the company.\" The other provision is 0. XXIX, r. 2 of the Code of Civil Procedure, which we have already considered.\n\nWe may however read the opening words of this rule for this purpose. They a.re as follows:~\n\n\" Subject to any statutory provision regulating P-ervice of process, where the suit is against a corporation the summons may be served ... \" It will be seen that r. 2 of 0. XXIX of the Code of Civil Procedure is subject to any statutory provision regulating service of process and where there is any specific statutory provision r. 2 would not be applicable. The only other statutory provision is in s. 148 ibid. But that provision, as the words themselves show, is merely an enabling provision and it nowhere lays down that the method mentioned in s. 148 is the only method of serving all documents on a company.\n\nThe section lays down that a document may be served on a company by leaving it or sending it by post at the registered office of the company. But the language sho')l'S that that is not the only provision, nor is it imperative that service can be effected in the way mentioned in that section, and in no other way. If that were the intention this section of the Companies Act would have been very differently worded. We therefore find that there is one enabling provision in s. 148 of the Companies Act as to the manner in which documents may be served on a company or a corporation. Order XXIX, r. 2 lays down another method\n\nalso in addition which courts may employ in effecting service on a corporation. To our mind either of the modes specified in s. 148 of the Indian Companies Act or 0. XXIX, r. 2 of the Code of Civil Procedure is a reasonable mode of effecting service on a company. It is said that 0. XXIX, r. 2 applies to a case of a suit by or against a corporation. That is undoubtedly so.\n\nBut what is good service in suits would in our opinioll\n\nto8\n\njute & Gunny\n\nBrokers Ltd.\n\nUnion of India\n\nWane/zoo ].\n\nI96I\n\njutP. &- Gunny\n\nBrolers Ltd. v.\n\nUnion of ludia\n\n1'Vanchoo J.\n\nbe reasonable service for the purpose of r. 75-A (2).\n\nTherefore, notices under r. 75-A (2) could be served on the mills either in the manner provided in s. 148 of the Companies Act or in the manner provided in\n\n0. XXIX, r. 2 of the Code of Civil Procedure. In this case the manner employed for the service of notices under r. 75-A (2) is that provided in 0. XXIX, r. 2 (a), namely, by effecting service on the principal officer of the mills, namely, the managing agents. We have\n\nalready considered whether the orders of requisition on the various managing agents were duly served and have held that it was so.\n\nWe fail to see why wh11-t was good service under 0. XXIX, r. 2 in the. case of orders of requi8ition would not be good service or a reasonable way of service in the case of notices rif acquisition, for it is not in dispute that the two were served on the same day one after the other and were substantially the same. There was the same defrct in the two communications, namely, the heading where. the name of the managing agent was mentioned did not contain in so many words that it was being addressed as the managing agent of such and such mill, but the schedule attached made it clear that it was addressed as managing agent of those mills both for the purpose of requisition as well as for the purpose of acquisition. The appeal court seems to think that though this kind of service was good for the purpose of requisition it was not good for the purpose of acquisition, because where acquisition was concerned, it wiis necessary that there must be strict compliance with the manner of service, that is, the heading shpuld have also contained that the managing agents were being addressed as managing agents of particular mills.\n\nWe are of opinion that this view of the appeal court is not correct and that what was good service i.n the case of orders of requisition was also good service in the matter of notices of acquisition, for in substance the two services were effected exactly in the same manner on the principal officer of the mills, which in one case we.re in possession of the goods and in other were owners of the goods. We are therefore of opinion that service of the notices of acquisition in this case\n\n' 3 S.C.l{.\n\nSUPREME COUltT nEPOR'l'S 845\n\non the managing agents of the mills was effective service on the mills as owners for the purpose of r. 75-A (2).\n\nIn conseciuence r. 75.A (3) would apply and the property in the goods passed to the Government of India on September 30, 1946.\n\nThe appeal of the Union of India therefore is allowed and a declaration is granted that the goods were vali· ·:f.ute&Gunny wrote to the Secretary, Indian Jute Mills Association JJ;~, Ltd. that shipping inst.ructions would be issued in due , \"' course by the Director of Supplies, Calcutta, with Union of India respect to hessian requisitioned and acquired under the orders and notices already referred to."}}, {"text": "Union of India", "label": "ORG", "start_char": 11820, "end_char": 11834, "source": "ner", "metadata": {"in_sentence": "the Deputy Director of Supplies, Governnient of India>· ·:f.ute&Gunny wrote to the Secretary, Indian Jute Mills Association JJ;~, Ltd. that shipping inst.ructions would be issued in due , \"' course by the Director of Supplies, Calcutta, with Union of India respect to hessian requisitioned and acquired under the orders and notices already referred to."}}, {"text": "December 11, 1946", "label": "DATE", "start_char": 12271, "end_char": 12288, "source": "ner", "metadata": {"in_sentence": "The Government of India then filed the suit, out of which the present appeals have arisen, on December 11, 1946, for enforcing the orders of requisition and acquisition and also applied for a receiver to be appointed."}}, {"text": "January 7, 1947", "label": "DATE", "start_char": 12628, "end_char": 12643, "source": "ner", "metadata": {"in_sentence": "As ships which were to carry the hessian to Argentine were ready and shipment could not be delayed, the Government on January 7, 1947, promulgated an Ordinance, being Ordinance No."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13020, "end_char": 13024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13168, "end_char": 13172, "source": "regex", "metadata": {"statute": null}}, {"text": "30th day of September, 1946", "label": "DATE", "start_char": 13328, "end_char": 13355, "source": "ner", "metadata": {"in_sentence": "Under s. 3 it was provided that if in the suit it was finally decided that the said goods were not validly requisitioned or acquired by the Central Government on the 30th day of September, 1946, each of the several previous owners of the said goods would be entitled to receive as compensation from the Central Government the market price prevailing on the date of the institution of the aforesaid suit; but if no such de.cision was made in the suit, the said goods would be deemed to have been validly requisitioned and acquired by the Central Government on the 30th September, 1946, and the\n\nWanchoo ]."}}, {"text": "H'anchoo", "label": "JUDGE", "start_char": 13827, "end_char": 13835, "source": "ner", "metadata": {"in_sentence": "I96I\n\njuJe (\" ..... Gunny Brokers Ltd.\n\nv, Union of India\n\nH'anchoo J.\n\namount of compensation to be paid by the Central Government to the several previous owners of the said goods would be determined in accol'dance with the provisions of law in force on September 30, 1946, relating to the requisition and acquisition of movable property uuder the rules made under the Defence of India Act, 1939."}}, {"text": "Defence of India Act, 1939", "label": "STATUTE", "start_char": 14138, "end_char": 14164, "source": "regex", "metadata": {}}, {"text": "mav bo mentioned that tho Defonce of India Act, 1939", "label": "STATUTE", "start_char": 14169, "end_char": 14221, "source": "regex", "metadata": {}}, {"text": "Government of Indht", "label": "ORG", "start_char": 14577, "end_char": 14596, "source": "ner", "metadata": {"in_sentence": "If a clcclaration was granted to the Government of Indht as prayed, the compensa."}}, {"text": "S11", "label": "PROVISION", "start_char": 15747, "end_char": 15750, "source": "regex", "metadata": {"statute": null}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 17116, "end_char": 17122, "source": "ner", "metadata": {"in_sentence": "The appeal court reversed the view of Sarkar J. on the question of requisition."}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 17822, "end_char": 17839, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18343, "end_char": 18370, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18561, "end_char": 18588, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Union of India", "label": "PETITIONER", "start_char": 19354, "end_char": 19368, "source": "ner", "metadata": {"in_sentence": "Appeal o. 778 is by the Union of India challenging the view of the appeal court that the notices of ac<1nisition were not properly served and therefore there was no acquisition of property on September 30, 1946, as provided by r. 75-A (3).", "canonical_name": "Union of India"}}, {"text": "Central or Provincial Government", "label": "ORG", "start_char": 21062, "end_char": 21094, "source": "ner", "metadata": {"in_sentence": "(2) \\Vhere the Central Government or the Provincial Government has requisitioned any property under sub-rule (I), that Government may use or deal\n\nwith the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the Official Gazette, a notice stating that the Central or Provincial Government, as the case may be, bas decided to acquire it in pursuance of this rule."}}, {"text": "Order XXX as the case may be in the First Schedule to the Code", "label": "STATUTE", "start_char": 22216, "end_char": 22278, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "British India", "label": "GPE", "start_char": 23870, "end_char": 23883, "source": "ner", "metadata": {"in_sentence": "The scheme of r. 75-A(lj which provides for requisitioning is that the Government has to form an opinion whether it is necessary or expedient to make a requisition for securing the defence of British India, public safety, the maintenance of public order or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community."}}, {"text": "WaHchvo", "label": "JUDGE", "start_char": 26655, "end_char": 26662, "source": "ner", "metadata": {"in_sentence": "WaHchvo J.\n\n]ut1 & Gunny\n\nBroker' L, d.\n\nU•i earlier in the printed portion of the contract the Mills Ud. parties took care, after specifying \"October/Novemk d fi nas.r.\"pta ]. ber, 1950\" as the date of shipment to ma e a e nite. condition in the remarks column, on the important question whether the shipment date was being guaraT!teed or not and if so, to what extent. The words are: \"This contract is subject to import licence, and therefore the shipment date is not guaranteed.\" Remembering, as we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word \" therefore \" its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment Optober/November, 1950, was guaranteed. It has been strenuously contended by the learned Attorney- General, that the parties were mentioning only one of the many reasons which might cause delay in shipment and the conjunction \"therefore\" was used onlJ to show the connection between one of the many\n\nres?ns-by way of illustration and a general agreement that the shipment date was not guaranteed. We '.,_do not consider this explanation of the use of \" there-\n\n. fore \" acceptable. If the parties intended that quite\n\napart from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention-an intention contrary to the usual intention in comnwrcial contracts of treating time as the essence of the ctintract-would be to say : \"This contract is subject to import licence and the shipment date is not guaranteed.\" There might be other ways of expressing the same intention, but it is only reasonable to expect that anybody following the ordinar, r rules of grammar would not µse \"thereforp \"\n\nSUPRE~E COURT REPORTS [1961)\n\nr~6r in such a context except to mean that only to the extent that delay was due to delay in obtaining import China C(l/fnn F.xpa''\"\" licence shipment time was not guaranteed. v.\n\nAs we have already mentioned, the remarks column neha.ilal was filled in manuscript and consequently even if the llamch\"a\" Catton terms in print by themselves might have justified a\n\nMil/, Ud. conclusion that the parties intended that the shipment date was not guaranteed, the intention expresed in , r\"(I,<; r:11pJa }. the manuscript should prevail. We are not satisfied however that the terms in print would justify any such conclusion.\n\nThe learned Attorney.General tried to persuade us that the printed term 2 was inconsistent with shipment date being guaranteed at all. The term 2 is in two parts. The first part provides that subject to provisions of els. 7 and 9, \" if the goods or any portion of them are not shipped for any reason or reasons other tha.n those specified in cl. 9, within the shipment time with the fifteen days latitude provided for in the said clause 7, the sellers shall not be responsible but shall give notice to the buyers of such non-shipment and the buyers shall have option to cancel the portion so overdue without claiming any allowance or compensation or grant such extension of time for shipment from time to time as may be required by the sellers \" at allowance as mentioned in the second paragraph. The second paragraph of term 2 lays down graduated rates of allowance for different periods of delay: at I!% for delay up to a month; at 2!% for delay from one month to two months; 3!% for delay of two to three months and 7!% for delay of more than three months.\n\nDifferent rates were mentioned as regards the woollen goods.\n\nIt may be mentioned here that cl. 7 of the contract provides for a latitude of 15 days after the shipment while cl. 9 contains the special exemption clause where shipment is delayed by, force rnajeµre, war or warlike operations, strikes, lock-outs, etc. The learned AttOf\n\nnay-General contends that provisions of term 2 show that the parties agreed that the time will not be of the essence of the contract and shipment time will not be guaranteed. It appears to us that these provisions show just the contrary. The proviHions in the first •\n\nparagraph give the seller a right to give notice to the '96' buyer of non-s11ipment and give the buyer an option Chi•• Cotton on such notice either to cancel the portion not shipped Exporters or to grant extension of time at allowances mentioned •. in the second pttragraph. Unless time was of the Beharilal essence of the contract and shipment time was Ramcharan Collon guaranteed there would be no need for making such Mills Lid. provisions for an option for extension of time, or for Das Gupta J. these allowances.\n\nThe provisions of els. 7 and 9 do not affect the question.\n\nWe are therefore of opinion that the courts below were right in thinking that the shipment time was guaranteed, and time was of the essence of the contract. , This brings us to the question whether the defendant firm had any adequate contract with their Italian suppliers which if not broken would have put them in a position to supply the goods in question. It is not disputed that if there was any such adequate contract the defendant will not be liable for damages. It is equally clear that if there was no such contract, the defendant cannot escape liability.\n\nThe learned Attorney-General sought to argue that even if the contract was such that there was a chance of the defendant obtaining the supplies in good time that would be sufficient to exonerate it. We think that this proposition is not sound. Before the seller could be heard to say that the non-supply was due to default on the part of his suppliers or some other cause beyond his control the seller is bound to show that he himself did all in his power to ensure timely supply.\n\nHe could do so by showing that he had made a contract under which he was entitled to obtain the supplies in good time. If under his contract with his own suppliers he was not so entitled but there was merely a chance of his getting the supplies in time to enable him to honour his contract the non-supply would clearly be due to his own default in not making a contract which would have so entitled him and not to a default on the part of the supplier or to a circumstance beyond his control,\n\nr96r Turning now to the facts of the case we find that the defendant had made two contracts with its China Cotton Italian suppliers-one contract for 200,000 lbs. of Exporlers\n\nv. cotton for August, 1950, shipment whfoh it is said was Beha, ilal later extended to September, 1950; another contract Ramcha.an Cotton of August 4, 1950, for 300,000 lbs. for November J Mills Ltd.\n\nDecember, 1950. The defendant had also a contract Das;;;;,. 1. with the plaintiff company of July 22, 1950, for sale of 40,000 lbs. August shipment-later converted to November/December shipment. In October, 1950, 50,000 lbs. out of the first contract with the Italian suppliers arrived ; out of this 40,000 was delivered to the plaintiff company in satisfaction of the earlier contract and 10,000 was delivered in satisfaction of this second contract-the contract now in suit. Under the contract for 300,000 lbs. the buyer (the defendant) received 70,000 lbs. of goods. Of this nothing was given to the plaintiff company and so 40,000 lbs. remained undelivered. The question is had the defendant a contract under which it could, provided the contract was not broken, obtain the goods in time to honour its agreement to sell October/November shipment of goods.\n\nThe learned Attorney-General complains that the courts below totally left out of consideration the sellers' (the appellants') earlier contract with Italian suppliers and says that that, at least, was an adequate contract. There would be force in this argument if at the time the breach took place, that is, the last date under which shinment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September; so that at the time of the breach the seller was not entitled to receive any goods under that contract.\n\nWe come next to the seller's November/December shipment contract with its Italian suppliers. The courts below have pointed out that under Ruch a contrnct, the Italian suppliers were entitled to delay shipmeut till the last day of December .. If that, be the position the seller would not, on the last day by which\n\nthe goods under its contract ought to have been suprlied, viz., December 15, 1950, after adding 15 days China cotton under clause 7, have any contract under which it Exporters would have been entitled to receive goods in sufficient v •. time. The learned Attorney-General has however Beharilacl . d ,, d Ramcharan olloK conte'IJ.ded that under the contract w h1ch the eien - Mills Lid. ant had with its Italian suppliers the Italian suppliers would be bound to spread the supply over the period, Das Gupta J.\n\nNovember/December and thus bound to ship 40,000 lbs. at least well before the December, 15.\n\nThe great difficulty in the way of this argument is that the defendants' contract with its Italian suppliers has not been produced and we do not know the terms of that contract. In Bilasiram Thakurdas v. Gubbay (') from which the learned counsel sought assistance the terms of shipment in the contract was \"shi{}ment.s to be made by steamers during July-December 1914 -shipment in any month by one or more steamers.\" This was clearly an instalment contract and on the construction of that contract the court held that the buyer had the right to demand delivery of goods by separate shipments spread over the months from July to December. In Phoenix Mills Ltd. v. Madhavdas Rupchand (')the question arose whether the plaintiffssellers had committed a breach by not giving delivery where the terms of deli very were : \" 200 bales No. 20s and 20!s Ring October-November 1913 and 50 bales No. 6!sMule yarn as manufactured\". It was further mentioned in the contract that the buyers agreed to take delivery of the bales from time to time as they are ready. It was in view of these terms that Mr.\n\nJustice Macleod held that \" the Court can only consider the parties to have intended, when they signed that contract, that delivery should be asked for and given during October-November of two hundred bales, delivery being asked for of reasonable quantities at a time during the period of delivery.\"\n\nThese decisions are in line with the English law in this matter as stated by Benjamin on Sale, 8th Edition, at P- 724 thus:-\n\n\" Where the amount of instalments is not specified, the prima facie rule would seem to be that the\n\n(I) (1915) I.L.R. 43 Ca!.305\n\n(2) (1916) 24 Born. L.R. 142.\n\n1961 deliveries should be rateably distributed over the contra.ct period.\" China Colton\n\nExp°'''\" The learned author goes on to say that \"if it can v. be gathered from the terms of the contract or the cir-\n\nB•1••rilal cumstances that rateable deliveries were not intended,\n\namch_aran Cotton it then becomes a question for the jury whether the\n\nMill! Ltd. d f d d ,. d }' . bl ten er o or eman ior, e 1 very 1s a reason a e\n\nDas Gupta].\n\nOne.,,\n\nQuite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendant's contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendant's Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendant's Italian suppliers would be bound to spread the supply over the period October/November, 1950.\n\nThere is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.\n\nThe defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.\n\nThe appeal is accordingly dismissed with costs.\n\nAppeal dismissed.", "total_entities": 35, "entities": [{"text": "S 845", "label": "PROVISION", "start_char": 36, "end_char": 41, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 241, "end_char": 260, "source": "ner", "metadata": {"in_sentence": "In conseciuence r. 75.A (3) would apply and the property in the goods passed to the Government of India on September 30, 1946."}}, {"text": "September 30, 1946", "label": "DATE", "start_char": 264, "end_char": 282, "source": "ner", "metadata": {"in_sentence": "In conseciuence r. 75.A (3) would apply and the property in the goods passed to the Government of India on September 30, 1946."}}, {"text": "Union of India", "label": "ORG", "start_char": 303, "end_char": 317, "source": "ner", "metadata": {"in_sentence": "The appeal of the Union of India therefore is allowed and a declaration is granted that the goods were valir a claim to the Custodian on the ground that the property was not evacuee property or his interest in the property had not been affected by th.e provisions of that Act. It was further provided that the Custodian was to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order (stating the reasons therefor) either rejecting the claim or allowing it wholly or in part. Finally, s. 30 provided for an appeal to the High Court where the original order under s. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.\n\nOn September 21, 1949, the Custodian issued a notification by which he declared the properties of the two respondents as evacuee properties which had vested in him, as the respondents had become evacuees. Thereupon two claims were filed under s. 8 of the first Mysore Act separately by the two respondents. These claims were investigated by the Deputy Custodian who dismissed the same on April 17, 1950, declaring that the properties were evacuee properties.\n\nIt may be mentioned that in the meantime, the second Mysore Act had come into force by which the first Mysore Act was repealed. But s. 53(2) of the second Mysore Act provided that. anything done or any action taken in the exercise of any power conferred by the first Mysore Act shall be deemed to have been done\n\nor taken in the exercise of the powers conferred by the '96' second Mysore Act. It was also provided that any Custodian of penalty incurred or proceeding commenced under the Evacu\" Proporty, first Mysore Act shall be deemed to be a penalty incur- Bangalore red or proceeding commenced under the second Mysore v.\n\nAct as if the latter Act were in force on the day on Khan Saheb Abdul which such thing was done, action taken, penalty Shukoor incurred or proceeding commenced. There was howwanchoo J. ever one difference in the two Mysore Acts.\n\nThe first Mysore Act had provided by s. 5 for the vesting of all evacuee property situate in Mysore ipso facto in the Custodian; s. 6 then provided for notific.ation by the Custodian and s. 8 for preferring claims. The second Mysore Act however made a departure from this and s. 5 thereof provided that-\n\n\" where the Custodian is of opinion that any property is evacuee property within the meaning of this Act he may, after causing not ice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit,. pass an order declaring any such property to be evacuee property.\" Section 6 then provided for vesting of any property declared to be evacuee property in the Custodian.\n\nThus while under the first Mysore Act the evacuee property vested in the Custodian and the person who claimed that it was not evacuee property had to make an application under s. 8 and to get it declared that it was not evacuee property, under the second Mysore Act there was no vesting in the Custodian and the Custodian had to give a notice in the manner prescribed (if he thought any property to be evacuee property) and after hearing the persons interested to declare the property to be evacuee property ; and it was only thereafter that the property vested in him as evacuee property. Further, the second Mysore Act also defineq the \"Custodian-General \" as the Custodian-General of Evacuee Property in India appointed by the Government of India under s. 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No. XXVII of 1949), which h11d come\n\ni96r into force on October 18, 1949. Further there was a\n\nC d . ' change in the forum of appeals and instead of the usto ian o1 H\" l .\n\nEvacuee Proputy, 1gh Court the appeal ay to the Custodian-General Bangolore from an order passed under s. 5 of the second Mysore v.\n\nAct where the original order had been passed by the Khan Saheb Abdul Custodian, Additional Custodian or Authorised Deputy\n\nShukonr Custodian and in some cases lo the District J ndge\n\nWanchoo J. designated in this behalf by the Government under ss .. 22 and 23 of the second Mysore Act. In addition, provision was made by s. 25 of the second Mysore Act for revision by the Custodian-General of orders passed by the District , Judge or the Custodian on appeal.\n\nIt may be mentioned that the Administration of Evacuee Property Act, No. XXXI of 1950 (hereinafter called the Act), came into force on the day the Deputy Custodian passed the order dated April 17,\n\n1950. It may also be mentioned that in the meantime the Constitution of India had come into force on January 26, 1950, and tho former. State of Mysore had become the new Part B State of Mysore under the Constitntion. The Act was to apply to the whole of India except the States of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir. Thus the Act applied to the Part B State of Mysore on April 17, 1950, and though there was no specific provision then in the Act repealing the second Mysore Act it is not seriously disputed that the Act by necessary implication repealed the second Mysore Act, as the Act substantially enacted . all that was contained in the second Mysore Act. However that may be, appeals were filed against the order of April 17, 1950, before the Custodian. These appeals were allowed on August 22, 1950. The Custodian held that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated aR evacuee properties. On October 3, 1950, the Custodian.\n\nGeneral gave notices to the respondents under s. 27 of the Act in respect of the order of the Custodian dated August 22, 1950, and asked them to show cause why the said order of the Custodian be not revised. On December 7, 1950, the Administration of Evacuee\n\n3 S.C.R.\n\nSUPRBME COURT REPOI:tTS 861\n\nProperty (Amendment) Act, No. LXVI of 1950, was 1961\n\npassed ?Y which ier alias. _5_8_ of the_ Act was amend- Custodia• of ed and 1t w11s provided that ii unmed1ately before the Eva'\"\" p,0perty,\n\ncommencement of the Act there was in force in any Bangalo\" State to which the Act extended any law which corresv. ponded to the Act and which was not repealed by Khan _Saheb Abdul sub-s. (1) it shall stand repealed.\n\nThis was made Shukoo' retrospective from the date from which the Act came Wan, hoo J. into force (namely, April 17, 1950) and so the repeal of evacuee property laws which were in force in those States to which the Act applied which was implicit in it was made explicit from December 7, 1950, so that frvm April 17, 1950, only the Act held the field~· .,.,., .\n\nOn February 11, 1952, the Custodian-General set aside the order of the Custodian dated August 22, '\n\n1950, ttnd ordered that further prnceedings in these cast\"s should be taken before the Custodian as an original matter and he was directed to dispose of the cases afresh in the light of the. evidence already recorded and such other evidence as might be produced before him by the two respondents. When the matter thus came back to the Custodian he ordered the Deputy Custodian on April 7, 1952, to record the evidence and then submit the record to him for final disposal. Eventually, the matter came before the Custodian for final disposal on December 2, 1952. He held that the two respondents were evacuees and their properties were evacuee properties. This was followed by two appeals to the High Cllowed by an inquiry after which the Custodian decides to declare. the property evacuee if he finds it to be so under the law. Further under the second Mysore Act when an order was passed declaring property to be evacuee property under s. 5 it was open to the person aggrieved by such order to file an appeal to the Custodian where the original order had been passed by the Deputy Custodian or Assistant Custodian and to the Custodian-General where the original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian.\n\nT.here was also in certain cases appeal to the District Judge; but we a.re not concerned with that in the c\n\n1961 present appeals.\n\nThe position under the Act was\n\nCuslolian of also the same as under the second Mysore Act and Evacuee Pyop .. 1y, the right of appeal was also similar.\n\nBangalor< It is thus true that there has been a change in the v. procedure by which evacuee property is finally\n\n\"nan5 ahkeb Abdu1declared to be evacuee property. Under the first\n\nnu OOY M A h b __ ysore ct t e property ecame evacuee property wanchoo J. and the person had to go and file a claim and establish that it was not. That claim was investigated and after investigation the Custodian had to come to a final conclusion whether the property was evacuee or not. lf he came to the conclusion that it was evacuee property, the vesting under s. 5 was confirmed. If on the other hand he came to the conclusion that the property was not evacuee property the legal effect was that there was no vesting under s. 5 of the first Mysore Act.\n\nUnder the second Mysore Act the property did not ipso facto vest in the Custodian as evacuee property but he formed a tentative opinion as to whether it was evacuee property and then gave notices to the persons interested. They appeared before him and the matter was investigated. He then had to come to a final conclusion whether the property was evacuee property or not. If he came to the conclusion that it was evacuee property he declared it to be such; if on the other hand he ca.me to the conclusion that it was not evacuee property the proceedings came to an. end. It will be seen therefore on a comparison of the two procedures that though there is difference between the two, the difference is not of a\n\nvital or substantial nature. In the one case the law started w!th the presumption that the property was evacuee property and the person interested had to go and make a claim and establish that it was not evacuee property and the matter had to be investigated and the Custodian finally had to come to the conclusion one way or the other. In the other case the law did not start with the presumption but only a tentative opinion was to be formed by the Custodian who gave notice to the person interested and the matter was then investigated and thereafter the Custodian had to decide finally one way or the other.\n\nBut in both cases the question whether the property tf/61\n\nwas evacuee property or not was investigated and it Custodian of was only after investigation that it could be finally Ev01dat 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.\n\nSection 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.\n\nBy 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\n\no 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.\n\nThe court is invested with the power of reopening\n\nta.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\n\n'96' is subject to the provisos which are not material for\n\nHaridas 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 as\n\n0 \" 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 :\n\n\" 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.\n\nThe plea that in the previous suit it was not open to Mittra to make a claim for reopening the\n\n'-{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\n\n\"\". : 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\n\npassing 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\n\n- decrees; • We are iiriable io agree with the High Court\n\nthat 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\n\n1 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. . - , -\n\nHidayaMla'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.·. ·\n\nThe 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.\n\nOn May. 17, 1939, the four properties were sold for\n\nRs. 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;_ . . .\n\nOn 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\n\n•• a s.c.:R.\n\nSUPREME GOURT REPORTS\n\nSS7\n\nrilspolldellt 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.\n\nBengal 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 :\n\n\"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,\n\na.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.\n\nThe 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\n\nunder s. 36 of the Bengal Money-lenders Act for reopening the pteliminaty, final and personal decrees.\n\nThis 1mit was dismissed as barred by (lonstructive res judicata and the principle of 0. 2, r. 2 of the Code of\n\nCivil 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\n\ni96i depend .upon the desire or claim of the borrower. They\n\nHMidas Mondal further pointed out that even Mitter, J. was of the\n\nv. opinion that the relief to be given was incumbent bath N••h Miltra upon the Court and independent of the wishes of the borrower.\n\nHidayatullah J.\n\nIn 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.\n\nThe 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\n\nwas 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-\n\n( 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, . ·\n\n(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,\n\n(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\n\" 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)-\n\n(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;\n\nHaridas Mondal v.\n\nAnath Nath Mittra\n\nHidayat\"4llak J.\n\n(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 :\n\n\"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;\n\n(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\n\n(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.\n\nThe effect of these provisions may be summed up: The reopening of transactions and decrees could be achieved: -\n\n(a) in any suit to which the Ac.t applied;\n\n(b) in a suit brought by the borrower for relief under s.-36;\n\n( c) in any proceeding in execution of decrees ;\n\n(d) by an application for review of'Thdecree made within qne year of the d&te of oommencement of the Act; and\n\n•••\n\n(e) by a.ppella.te Courts a.t a.II the above stages. r96L.\n\nOnoe 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.\n\nThe 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 :\n\n\"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.\n\nThe 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. ·\n\nThus, 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 \",\n\n1961 and they are apt to put out of consideration both\n\nHaridas Mondal: s. 11 and O. 2, r. 2 of the Code of Civil Procedure. v.\n\nWaiver and the equitable doctrine of approbation and Anath Nath Mittra reprobation can apply only if a right were give up.\n\nThey 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\n\nCourt 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.\n\nThe 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.\n\nIn 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\n\n(z) (194(_1) I.. H, 7~' I.A. 131.\n\n3 S.U.R.\n\nSUl'RElllE COCRT HEPOHTS 893\n\nHarida5 .J!Ondal\n\nfavour 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.\n\nAnath ,, Vath 1.llittra I .would, therefore, dismiss the appeal with costs.\n\nBY 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.\n\nTHE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY\n\nM/s. FILMISTAN LTD. (J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)\n\nfocome-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),\n\n46(I).\n\nAgainst 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.\n\nHeld, that the expression \"t-1y High Court in I.T.H.. Ko. 8 of 1957.\n\n/{. N. Rujar; opol s,1,1n: a11d /J. Unpta. fu,. the appell as\n\n0 \" 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.", "canonical_name": "Anath N\":.ih Miura"}}, {"text": "District Judge, Midnapore", "label": "COURT", "start_char": 12223, "end_char": 12248, "source": "ner", "metadata": {"in_sentence": "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 :\n\n\" 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."}}, {"text": "s. 36", "label": "PROVISION", "start_char": 12362, "end_char": 12367, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 12786, "end_char": 12791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 12829, "end_char": 12834, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 13137, "end_char": 13142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 13222, "end_char": 13227, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 13852, "end_char": 13857, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 14067, "end_char": 14072, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14484, "end_char": 14511, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "HidayaMla'ttj", "label": "JUDGE", "start_char": 14854, "end_char": 14867, "source": "ner", "metadata": {"in_sentence": "HidayaMla'ttj. ."}}, {"text": "Hii>AYATULLAH", "label": "JUDGE", "start_char": 14871, "end_char": 14884, "source": "ner", "metadata": {"in_sentence": "Hii>AYATULLAH, J.-I have had the advantage of reading the judgment .", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "November 13, 1937", "label": "DATE", "start_char": 15234, "end_char": 15251, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "February 25; 1938", "label": "DATE", "start_char": 15375, "end_char": 15392, "source": "ner", "metadata": {"in_sentence": "decree was made final on February 25; 1938."}}, {"text": "May. 17, 1939", "label": "DATE", "start_char": 15398, "end_char": 15411, "source": "ner", "metadata": {"in_sentence": "On May. 17, 1939, the four properties were sold for\n\nRs."}}, {"text": "August I, 1940", "label": "DATE", "start_char": 15863, "end_char": 15877, "source": "ner", "metadata": {"in_sentence": "into force on August I, 1940."}}, {"text": "s. 36", "label": "PROVISION", "start_char": 15930, "end_char": 15935, "source": "regex", "metadata": {"statute": null}}, {"text": "SS7", "label": "PROVISION", "start_char": 16036, "end_char": 16039, "source": "regex", "metadata": {"statute": null}}, {"text": "rilspolldellt", "label": "RESPONDENT", "start_char": 16041, "end_char": 16054, "source": "ner", "metadata": {"in_sentence": "The\n\n•• a s.c.:R.\n\nSUPREME GOURT REPORTS\n\nSS7\n\nrilspolldellt 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.\n\nBengal M:oney, Jenders Act and by the amount realised Anath Naih Mitt• by sale of the four properties; and asked that a decree . _ . -- ."}}, {"text": "Bengal M", "label": "RESPONDENT", "start_char": 16228, "end_char": 16236, "source": "ner", "metadata": {"in_sentence": "The\n\n•• a s.c.:R.\n\nSUPREME GOURT REPORTS\n\nSS7\n\nrilspolldellt 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.\n\nBengal M:oney, Jenders Act and by the amount realised Anath Naih Mitt• by sale of the four properties; and asked that a decree . _ . -- ."}}, {"text": "Anath Naih Mitt•", "label": "RESPONDENT", "start_char": 16282, "end_char": 16298, "source": "ner", "metadata": {"in_sentence": "The\n\n•• a s.c.:R.\n\nSUPREME GOURT REPORTS\n\nSS7\n\nrilspolldellt 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.\n\nBengal M:oney, Jenders Act and by the amount realised Anath Naih Mitt• by sale of the four properties; and asked that a decree . _ . -- .", "canonical_name": "Anath N\":.ih Miura"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 16421, "end_char": 16433, "source": "ner", "metadata": {"in_sentence": "66-13,2, should be passed against Hidayatullah J; him •. The application was partly allowed, and a fresh decree for Rs.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "R. C. Mitter", "label": "JUDGE", "start_char": 17036, "end_char": 17048, "source": "ner", "metadata": {"in_sentence": "On appeal to the High Court by the present respondent, R. C. Mitter, J. allowed the appeal."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 17296, "end_char": 17302, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Mittra"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 17421, "end_char": 17426, "source": "regex", "metadata": {"statute": null}}, {"text": "K. C. Das Gupta", "label": "JUDGE", "start_char": 17761, "end_char": 17776, "source": "ner", "metadata": {"in_sentence": "On further appeal to the High Court, K. C. Das Gupta, J. (as he then wa.s) and Guha, J. allowed the appeal."}}, {"text": "Guha", "label": "JUDGE", "start_char": 17803, "end_char": 17807, "source": "ner", "metadata": {"in_sentence": "On further appeal to the High Court, K. C. Das Gupta, J. (as he then wa.s) and Guha, J. allowed the appeal."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17875, "end_char": 17902, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "HMidas Mondal", "label": "JUDGE", "start_char": 18281, "end_char": 18294, "source": "ner", "metadata": {"in_sentence": "They\n\nHMidas Mondal further pointed out that even Mitter, J. was of the\n\nv. opinion that the relief to be given was incumbent bath N••h Miltra upon the Court and independent of the wishes of the borrower."}}, {"text": "N••h Miltra", "label": "OTHER_PERSON", "start_char": 18406, "end_char": 18417, "source": "ner", "metadata": {"in_sentence": "They\n\nHMidas Mondal further pointed out that even Mitter, J. was of the\n\nv. opinion that the relief to be given was incumbent bath N••h Miltra upon the Court and independent of the wishes of the borrower."}}, {"text": "N. C. Chatterjee", "label": "PETITIONER", "start_char": 18552, "end_char": 18568, "source": "ner", "metadata": {"in_sentence": "Hidayatullah J.\n\nIn 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.", "canonical_name": "N. C. Chatterjee"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 19220, "end_char": 19225, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 19538, "end_char": 19543, "source": "regex", "metadata": {"statute": null}}, {"text": "Haridas Mondal", "label": "PETITIONER", "start_char": 20410, "end_char": 20424, "source": "ner", "metadata": {"in_sentence": "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 ]. {", "canonical_name": "HARIDA8 MONDAL"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 20575, "end_char": 20587, "source": "ner", "metadata": {"in_sentence": "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 ]. {", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Order XL VII of the First Schedule to the Code", "label": "STATUTE", "start_char": 22058, "end_char": 22104, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order XLI of the First Schedule to the Code", "label": "STATUTE", "start_char": 22742, "end_char": 22785, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1st day of January, 1939", "label": "DATE", "start_char": 22967, "end_char": 22991, "source": "ner", "metadata": {"in_sentence": "The words \"suit to which this Act applies\" were defined to mean :\n\n\"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;\n\n(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\n\n(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. \""}}, {"text": "s. 36", "label": "PROVISION", "start_char": 23693, "end_char": 23698, "source": "regex", "metadata": {"linked_statute_text": "Order XLI of the First Schedule to the Code", "statute": "Order XLI of the First Schedule to the Code"}}, {"text": "Anath Nath Mitt••", "label": "JUDGE", "start_char": 24372, "end_char": 24389, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Anath N\":.ih Miura"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 25931, "end_char": 25936, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25954, "end_char": 25981, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 36", "label": "PROVISION", "start_char": 26200, "end_char": 26205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 26369, "end_char": 26374, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 26393, "end_char": 26420, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Anath Nath Mittra", "label": "RESPONDENT", "start_char": 26479, "end_char": 26496, "source": "ner", "metadata": {"in_sentence": "v.\n\nWaiver and the equitable doctrine of approbation and Anath Nath Mittra reprobation can apply only if a right were give up.", "canonical_name": "Anath N\":.ih Miura"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27933, "end_char": 27960, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 28258, "end_char": 28277, "source": "ner", "metadata": {"in_sentence": "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\n\n(z) (194(_1) I.. H, 7~' I.A. 131."}}, {"text": "S.U.R.", "label": "RESPONDENT", "start_char": 28453, "end_char": 28459, "source": "ner", "metadata": {"in_sentence": "3 S.U.R.\n\nSUl'RElllE COCRT HEPOHTS 893\n\nHarida5 .J!Ondal\n\nfavour of borrowers an'.!"}}, {"text": ".J!Ondal", "label": "RESPONDENT", "start_char": 28499, "end_char": 28507, "source": "ner", "metadata": {"in_sentence": "3 S.U.R.\n\nSUl'RElllE COCRT HEPOHTS 893\n\nHarida5 .J!Ondal\n\nfavour of borrowers an'.!"}}, {"text": "COMMISSIONER OF INCOME-TAX,\n\nBOMBAY", "label": "PETITIONER", "start_char": 28929, "end_char": 28964, "source": "ner", "metadata": {"in_sentence": "THE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY\n\nM/s. FILMISTAN LTD. ("}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 29001, "end_char": 29016, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": true}}, {"text": "SHAH", "label": "JUDGE", "start_char": 29026, "end_char": 29030, "source": "ner", "metadata": {"in_sentence": "J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)", "canonical_name": "Shah"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 29171, "end_char": 29185, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 30", "label": "PROVISION", "start_char": 29206, "end_char": 29212, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "s. 46(1)", "label": "PROVISION", "start_char": 29284, "end_char": 29292, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 29307, "end_char": 29321, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30(2)", "label": "PROVISION", "start_char": 29651, "end_char": 29659, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 29674, "end_char": 29688, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 29851, "end_char": 29856, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "N. Rujar", "label": "PETITIONER", "start_char": 30278, "end_char": 30286, "source": "ner", "metadata": {"in_sentence": "N. Rujar; opol s,1,1n: a11d /J. Unpta."}}, {"text": "Hidayatullah", "label": "PETITIONER", "start_char": 30339, "end_char": 30351, "source": "ner", "metadata": {"in_sentence": "Hidayatullah j.\n\nFebYuary 21,", "canonical_name": "M. HIDAYATULLAH"}}]} {"document_id": "1961_3_893_896_EN", "year": 1961, "text": "3 S.U.R.\n\nSUl'RElllE COCRT HEPOHTS 893\n\nHarida5 .J!Ondal\n\nfavour 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.\n\nAnath ,, Vath 1.llittra I .would, therefore, dismiss the appeal with costs.\n\nBY 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.\n\nTHE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY\n\nM/s. FILMISTAN LTD. (J. L. l(APUR, M. HIDAYATULLAH and J. c:SHAH, JJ.)\n\nfocome-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),\n\n46(I).\n\nAgainst 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.\n\nHeld, that the expression \"t-1y High Court in I.T.H.. Ko. 8 of 1957.\n\n/{. N. Rujar; opol s,1,1n: a11d /J. Unpta. fu,. the appell-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.\n\nThe 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.\n\nThe 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.\n\nHeld: (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 ;\n\n(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.\n\n(1) (1955) 28 l.T.R. 189\n\n(2) (1955127 l.T.R. 176,", "total_entities": 42, "entities": [{"text": "Mittra", "label": "OTHER_PERSON", "start_char": 410, "end_char": 416, "source": "ner", "metadata": {"in_sentence": "BY COURT.-In view of the majority judgment of the Court, this appeal will be allowed and Mittra's Suit No."}}, {"text": "THE COMMISSIONER OF INCOME-TAX,\n\nBOMBAY", "label": "PETITIONER", "start_char": 474, "end_char": 513, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, BOMBAY", "offset_not_found": false}}, {"text": "s. FILMISTAN LTD.", "label": "RESPONDENT", "start_char": 517, "end_char": 534, "source": "metadata", "metadata": {"canonical_name": "M/s. FILMISTAN LTD", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 550, "end_char": 565, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "c:SHAH, JJ.", "label": "JUDGE", "start_char": 573, "end_char": 584, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 720, "end_char": 734, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 30", "label": "PROVISION", "start_char": 755, "end_char": 761, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "s. 46(1)", "label": "PROVISION", "start_char": 833, "end_char": 841, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 856, "end_char": 870, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30(2)", "label": "PROVISION", "start_char": 1200, "end_char": 1208, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1223, "end_char": 1237, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1400, "end_char": 1405, "source": "regex", "metadata": {"linked_statute_text": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act", "statute": "Appeal within time -Tax due paid after the period of Limitation--Appral if barred- Indian Income-tax Act"}}, {"text": "Hidayatullah", "label": "RESPONDENT", "start_char": 1888, "end_char": 1900, "source": "ner", "metadata": {"in_sentence": "Hidayatullah j.\n\nFebYuary 21,\n\nz96I\n\nCommissioner of\n\nlncomela~.\n\nBombay\n\nSUPREME COURT REPOUTS ' [1961]\n\nBishan Narain, S. N .", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Bishan Narain", "label": "JUDGE", "start_char": 1994, "end_char": 2007, "source": "ner", "metadata": {"in_sentence": "Hidayatullah j.\n\nFebYuary 21,\n\nz96I\n\nCommissioner of\n\nlncomela~.\n\nBombay\n\nSUPREME COURT REPOUTS ' [1961]\n\nBishan Narain, S. N ."}}, {"text": "S. N . .Andley", "label": "JUDGE", "start_char": 2009, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "Hidayatullah j.\n\nFebYuary 21,\n\nz96I\n\nCommissioner of\n\nlncomela~.\n\nBombay\n\nSUPREME COURT REPOUTS ' [1961]\n\nBishan Narain, S. N ."}}, {"text": "B. Dadaehanji", "label": "LAWYER", "start_char": 2028, "end_char": 2041, "source": "ner", "metadata": {"in_sentence": ".Andley, J. B. Dadaehanji, Rqmeshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "Rqmeshwar Nath", "label": "LAWYER", "start_char": 2043, "end_char": 2057, "source": "ner", "metadata": {"in_sentence": ".Andley, J. B. Dadaehanji, Rqmeshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 2062, "end_char": 2073, "source": "ner", "metadata": {"in_sentence": ".Andley, J. B. Dadaehanji, Rqmeshwar Nath and P. L. Vohra, for the respondent."}}, {"text": "Filmistan°Ltd.", "label": "JUDGE", "start_char": 2163, "end_char": 2177, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nM/s.Filmistan°Ltd.\n\nKAPUR, J.-This iR an appeal pursuant to a certi-\n\nKapur]."}}, {"text": "s. 66A(2)", "label": "PROVISION", "start_char": 2278, "end_char": 2287, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2302, "end_char": 2316, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29", "label": "PROVISION", "start_char": 2513, "end_char": 2518, "source": "regex", "metadata": {"statute": null}}, {"text": "March 20,\n\n1955", "label": "DATE", "start_char": 2743, "end_char": 2758, "source": "ner", "metadata": {"in_sentence": "30,646/14/- was payable on or before March 20,\n\n1955."}}, {"text": "March 31, 1955", "label": "DATE", "start_char": 2843, "end_char": 2857, "source": "ner", "metadata": {"in_sentence": "As there was a default in the payment of this instalment the Income-tax Officer ou March 31, 1955 imposed a penalty of Rs."}}, {"text": "s. 46(1)", "label": "PROVISION", "start_char": 2896, "end_char": 2904, "source": "regex", "metadata": {"statute": null}}, {"text": "April 20, 1955", "label": "DATE", "start_char": 2920, "end_char": 2934, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "May 16, 1955", "label": "DATE", "start_char": 3080, "end_char": 3092, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 3399, "end_char": 3428, "source": "ner", "metadata": {"in_sentence": "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~\n\nAct, only the remedy is barred."}}, {"text": "s. 30(1)", "label": "PROVISION", "start_char": 3482, "end_char": 3490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(2)", "label": "PROVISION", "start_char": 3527, "end_char": 3535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 4856, "end_char": 4861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(1)", "label": "PROVISION", "start_char": 4897, "end_char": 4905, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 5044, "end_char": 5054, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(1)", "label": "PROVISION", "start_char": 6423, "end_char": 6431, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 6456, "end_char": 6461, "source": "regex", "metadata": {"statute": null}}, {"text": "DEVIDAS", "label": "RESPONDENT", "start_char": 6832, "end_char": 6839, "source": "ner", "metadata": {"in_sentence": "DEVIDAS AND OTHERS\n\nSHRISHAILAPPA AND OTHERS. ("}}, {"text": "SHRISHAILAPPA", "label": "RESPONDENT", "start_char": 6852, "end_char": 6865, "source": "ner", "metadata": {"in_sentence": "DEVIDAS AND OTHERS\n\nSHRISHAILAPPA AND OTHERS. ("}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 6882, "end_char": 6890, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)"}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 6915, "end_char": 6922, "source": "ner", "metadata": {"in_sentence": "J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 7143, "end_char": 7157, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22", "label": "PROVISION", "start_char": 8336, "end_char": 8341, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 8349, "end_char": 8376, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]} {"document_id": "1961_3_896_906_EN", "year": 1961, "text": "SUPHEME COURT REPORTS [1961]\n\n1961 and that in our opinion is the effect of the proviso to\n\nCommissio\"\" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is\n\nIncome-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(').\n\nKa-;::; J.\n\nThe appeal is without force and is therefore dismissed with costs.\n\nFbruary 2I.\n\nAppeal dismissed.\n\nDEVIDAS AND OTHERS\n\nSHRISHAILAPPA AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)\n\nMortgage-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.\n\nThe 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.\n\nThe 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.\n\nHeld: (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 ;\n\n(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.\n\n(1) (1955) 28 l.T.R. 189\n\n(2) (1955127 l.T.R. 176,\n\nIn 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.\n\nGuruvayya Gowda and Others v. Daltatraya Anant and Others\n\n(1904) I.L.R. 28 Born. rr, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 112of1957.\n\nAppeal by special leave from the judgment and decree dated Januarv 28, 1954, of the Bombay High Comt in :First Appeal No. 69 of 1950.\n\nPur8hottam T1ikamdM and Nanni! Lal for .the appellants.\n\nC. K. Daphtary, Solicitor.General of India, S. N.\n\nAndley, J.B. Dadachanji and P. L. Vohra for respondents Nos. 1 and 2.\n\nB. R. L. Iyengar for respondents Nos. 6 to 9.\n\n1961. February 21. The , Judgment of the Court was delivered by\n\nSHAH, J.-The genealogy which sets out the relationship bet\\\\een some of the principal parties in this litigation is as follows:\n\nI Balappa\n\nI I I Rachappa Ba!!a\\inga ppa deft. 9 (adopted by l Basavanappa) Chanamalappa\n\nI Malappa (deft. 5)\n\nI Chanabasappa (deft, 6)\n\nMallappa\n\nI I Shivappa\n\nI Basavanappa\n\nI Basalingappa\n\n(Parvatewa\n\nrespdt. 12)\n\nI I Shrisbailappa (plaintiff 1)\n\nI I Balappa Basavanappa (adopted by (deft. 7) Cbanamalappa\n\nI Chanamalappa\n\nI Balappa\n\nI Sbivappa (plaintiff :z)\n\nShrishadappa\n\n(deft. 8)\n\nMallappa 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\n\nDeuidtJs\n\nSllrJshailappa\n\nShah ].\n\n r96r\n\nDevidas\n\nv. Shrishailappa\n\nShah I\n\n898 StJPREME COURT REPORTS [1961]\n\nafter the death of Mallappa. Shivappa died in 1928 and Rachappa became the Manager of the family.\n\nThe 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\n\nNo. 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.\n\nA 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 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\n\nplea that the amount due under the mortgage from Bashettappa was not the property of the joint family.\n\nAt the material time .when the mortgage deed was executed by .Bashettappa, Rachappa was the manager of the joint family.\n\nIn 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 hainager 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.\n\nAccording 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.\n\nThe High Court accordingly held agreeing with the trial Judge that the mort.gagee right was left undivided.\n\nPrima 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.\n\nBefore 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.\n\nBut 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.\n\n[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.\n\nnevidas\n\nSiu ishailappa\n\nShah].·\n\nDtvidas\n\nShrishailappa\n\nSlush J.\n\n904 cl.'Pl:lEME ()JUKT l:lEPORfc l Hl61 J\n\nIt 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.\n\nAfter 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.\n\nParvatewa 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.\n\nAfter 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.\n\nPlaintiff\" No. 1 was the manager of the branch of\n\n(I) (1875) L.R. 3 l.A. 85.\n\n3 s.e.Ri.\n\nSUPREME COURT REPORTS 005'\n\nBM!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.\n\nIn 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.\n\nIt 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.\n\nThe 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\n\n(1) (190•) I.L.R. 28 Bo111. p.\n\nShiidai)appu\n\nShdJ.\n\n,~,\n\nBevidfis\n\nSArislu!iltV>J>•\n\nLimitation Act does not in itself purport to determine directly whether the joinder of the parties after the\n\nilllltitution 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.\n\nPie.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.\n\nAddition to the suit of any member of the branch to whillh the plaintiffs belonged would only mean setting\n\nout the nanw of such a person eo nomine. _\n\nAll the objections raised by the appellants theEefove fail and the appeal is dismissed with costs.\n\nAppeal diamiaaed, -", "total_entities": 76, "entities": [{"text": "s. 30(1)", "label": "PROVISION", "start_char": 107, "end_char": 115, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 140, "end_char": 145, "source": "regex", "metadata": {"statute": null}}, {"text": "DEVIDAS AND OTHERS", "label": "PETITIONER", "start_char": 516, "end_char": 534, "source": "metadata", "metadata": {"canonical_name": "DEVIDAS AND OTHERS", "offset_not_found": false}}, {"text": "SHRISHAILAPPA AND OTHERS", "label": "RESPONDENT", "start_char": 536, "end_char": 560, "source": "metadata", "metadata": {"canonical_name": "SHRISHAILAPPA AND OTHERS", "offset_not_found": false}}, {"text": "L. KAPUR", "label": "JUDGE", "start_char": 566, "end_char": 574, "source": "metadata", "metadata": {"canonical_name": "J.L. KAPUR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 576, "end_char": 591, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "c. SHAH, JJ.", "label": "JUDGE", "start_char": 599, "end_char": 611, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 827, "end_char": 841, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22", "label": "PROVISION", "start_char": 2020, "end_char": 2025, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 2033, "end_char": 2060, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Pur8hottam T1ikamdM", "label": "LAWYER", "start_char": 2932, "end_char": 2951, "source": "ner", "metadata": {"in_sentence": "Pur8hottam T1ikamdM and Nanni!"}}, {"text": "Nanni! Lal", "label": "LAWYER", "start_char": 2956, "end_char": 2966, "source": "ner", "metadata": {"in_sentence": "Pur8hottam T1ikamdM and Nanni!"}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 2989, "end_char": 3003, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Solicitor."}}, {"text": "S. N.\n\nAndley", "label": "LAWYER", "start_char": 3033, "end_char": 3046, "source": "ner", "metadata": {"in_sentence": "General of India, S. N.\n\nAndley, J.B. Dadachanji and P. L. Vohra for respondents Nos."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 3048, "end_char": 3063, "source": "ner", "metadata": {"in_sentence": "General of India, S. N.\n\nAndley, J.B. Dadachanji and P. L. Vohra for respondents Nos."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 3068, "end_char": 3079, "source": "ner", "metadata": {"in_sentence": "General of India, S. N.\n\nAndley, J.B. Dadachanji and P. L. Vohra for respondents Nos."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 3111, "end_char": 3127, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar for respondents Nos."}}, {"text": "SHAH", "label": "JUDGE", "start_char": 3223, "end_char": 3227, "source": "ner", "metadata": {"in_sentence": "The , Judgment of the Court was delivered by\n\nSHAH, J.-The genealogy which sets out the relationship bet\\\\een some of the principal parties in this litigation is as follows:\n\nI Balappa\n\nI I I Rachappa Ba!!a\\inga ppa deft."}}, {"text": "I Balappa Basavanappa", "label": "RESPONDENT", "start_char": 3604, "end_char": 3625, "source": "ner", "metadata": {"in_sentence": "12)\n\nI I Shrisbailappa (plaintiff 1)\n\nI I Balappa Basavanappa (adopted by (deft."}}, {"text": "Shrishadappa", "label": "RESPONDENT", "start_char": 3716, "end_char": 3728, "source": "ner", "metadata": {"in_sentence": "7) Cbanamalappa\n\nI Chanamalappa\n\nI Balappa\n\nI Sbivappa (plaintiff :z)\n\nShrishadappa\n\n(deft.", "canonical_name": "SHRISHAILAPPA AND OTHERS"}}, {"text": "Mallappa", "label": "PETITIONER", "start_char": 3741, "end_char": 3749, "source": "ner", "metadata": {"in_sentence": "8)\n\nMallappa had four sons Bala.ppa, Shiva.ppa, Basava.nappa.", "canonical_name": "Mallappa"}}, {"text": "Chanamalappa", "label": "PETITIONER", "start_char": 3803, "end_char": 3815, "source": "ner", "metadata": {"in_sentence": "and Chanamalappa."}}, {"text": "Shivappa", "label": "OTHER_PERSON", "start_char": 3998, "end_char": 4006, "source": "ner", "metadata": {"in_sentence": "Shivappa was the Manager of the joint family\n\nDeuidtJs\n\nSllrJshailappa\n\nShah ]."}}, {"text": "Devidas", "label": "PETITIONER", "start_char": 4086, "end_char": 4093, "source": "ner", "metadata": {"in_sentence": "r96r\n\nDevidas\n\nv. Shrishailappa\n\nShah I\n\n898 StJPREME COURT REPORTS [1961]\n\nafter the death of Mallappa.", "canonical_name": "Devidas"}}, {"text": "Shrishailappa", "label": "RESPONDENT", "start_char": 4098, "end_char": 4111, "source": "ner", "metadata": {"in_sentence": "r96r\n\nDevidas\n\nv. Shrishailappa\n\nShah I\n\n898 StJPREME COURT REPORTS [1961]\n\nafter the death of Mallappa.", "canonical_name": "SHRISHAILAPPA AND OTHERS"}}, {"text": "Mallappa. Shivappa", "label": "OTHER_PERSON", "start_char": 4175, "end_char": 4193, "source": "ner", "metadata": {"in_sentence": "r96r\n\nDevidas\n\nv. Shrishailappa\n\nShah I\n\n898 StJPREME COURT REPORTS [1961]\n\nafter the death of Mallappa."}}, {"text": "Rachappa", "label": "RESPONDENT", "start_char": 4211, "end_char": 4219, "source": "ner", "metadata": {"in_sentence": "Shivappa died in 1928 and Rachappa became the Manager of the family.", "canonical_name": "Racha.ppa was"}}, {"text": "Khanapur", "label": "GPE", "start_char": 4329, "end_char": 4337, "source": "ner", "metadata": {"in_sentence": "The joint family possessed lands in seventeen villages and many houses in Khanapur."}}, {"text": "July 29, 1929", "label": "DATE", "start_char": 4501, "end_char": 4514, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Bashettappa", "label": "RESPONDENT", "start_char": 4516, "end_char": 4527, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Basliettappa"}}, {"text": "Gurappa", "label": "OTHER_PERSON", "start_char": 4840, "end_char": 4847, "source": "ner", "metadata": {"in_sentence": "To one Gurappa, Bashettappa owed Rs.", "canonical_name": "Gurappaonly"}}, {"text": "Frst Class Subordinate Judge, Dharwar", "label": "COURT", "start_char": 5669, "end_char": 5706, "source": "ner", "metadata": {"in_sentence": "84of1932 against Rachappa and other members of his family in the court of the Frst Class Subordinate Judge, Dharwar, for a decree for Rs."}}, {"text": "February 28, 1933", "label": "DATE", "start_char": 6011, "end_char": 6028, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "July 23, 1939", "label": "DATE", "start_char": 6121, "end_char": 6134, "source": "ner", "metadata": {"in_sentence": "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 J>•\n\nLimitation Act does not in itself purport to determine directly whether the joinder of the parties after the\n\nilllltitution of a suit in all oases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired."}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 22042, "end_char": 22056, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 22848, "end_char": 22862, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "theEefove", "label": "PETITIONER", "start_char": 24167, "end_char": 24176, "source": "ner", "metadata": {"in_sentence": "All the objections raised by the appellants theEefove fail and the appeal is dismissed with costs."}}]} {"document_id": "1961_3_907_912_EN", "year": 1961, "text": "3 S.C.R.\n\nSUPREME COURT REPORTS\n\nSMT. PADMINI KUNWAR JU SAHIBA\n\n!!.\n\nSTATE OF VINDHYA PRADESH.\n\n(now Madhya Pradesh) (P. B. G AJENDRAGADKAR, K. N. W ANCHOO and K. c. DAS GUPTA, JJ.)\n\nJagif 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).\n\nIn 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).\n\nHeld, 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).\n\nThakur Amar Singhji v. State of Rajasthan (1955] 2 S.C.R. 303, applied.\n\nClvIL APPELLATE JURISDICTION: Civil Appeal No. 250of1956.\n\nAppeal 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.\n\nG. 8. Pathak and G. 0. Mathur for the appellant.\n\nB. Ganapathy Iyer and B. H. Dhebar for the respondent.\n\n1961. February 21. The Judgment of the Court WM delivered by\n\nx96x W ANCHOO, J.-This is an appeal on a certificate . . granted by the Judicial Commissioner of Vindhya.\n\nSmt.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.\n\nThe 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.\n\nThe 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.\n\nThe 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\n\ngranted and that is how the appeal has come up before us.\n\nThe only q uestiou that falls for our decision is whether the appellant can be said to be an Ijareda, r\n\nwithin 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.\n\nIt 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.\n\nFor 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\n\n1961 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\n\nsia: 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.\n\nThe 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.\n\nLa.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\n\na.rea. is a petty village official for the purpose of collecting rents a.nd has no interest in the la.nd from which\n\n3 S.C.R.\n\nSUPREME COURT BEPORTS 911\n\nhe 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.\n\nWanckoo J.\n\nThis 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.\n\nThe 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.\n\nThe 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.\n\nThe 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.\n\nThe 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.\n\nReading therefore the lease as a whole it does not\n\nappear that it is a mere lease of land revenue or other proprietary right. It is something more and actually\n\niy61 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\n\nI!.. 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.\n\nWa•choo f.\n\nIt 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).\n\nWe therefore allow the ap}>t; lal and set aside the order of the Deputy Comm{ssioner\n\nresuming 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.\n\nAppeal allowed.\n\n\\I) [l9j$] a S C.R. 303, ~07.", "total_entities": 38, "entities": [{"text": "PADMINI KUNWAR JU SAHIBA", "label": "PETITIONER", "start_char": 38, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "PADMINI KUNWAR JU SAHIBA", "offset_not_found": false}}, {"text": "STATE OF VINDHYA PRADESH.\n\n(now Madhya Pradesh", "label": "RESPONDENT", "start_char": 69, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "STATE OF VINDHYA PRADESH. (now Madhya Pradesh)", "offset_not_found": false}}, {"text": "K. c. DAS GUPTA, JJ.", "label": "JUDGE", "start_char": 160, "end_char": 180, "source": "metadata", "metadata": {"canonical_name": "K.C. DAS GUPTA", "offset_not_found": false}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 297, "end_char": 313, "source": "regex", "metadata": {}}, {"text": "s. 2(I)(c)", "label": "PROVISION", "start_char": 334, "end_char": 344, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952", "label": "STATUTE", "start_char": 499, "end_char": 561, "source": "regex", "metadata": {}}, {"text": "s. 2(1)(c)", "label": "PROVISION", "start_char": 881, "end_char": 891, "source": "regex", "metadata": {"linked_statute_text": "the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952", "statute": "the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952"}}, {"text": "Jagirdar and her right under the Lambardari lease could not be resumed under the Abolition Act", "label": "STATUTE", "start_char": 929, "end_char": 1023, "source": "regex", "metadata": {}}, {"text": "s. 2(1)(c)", "label": "PROVISION", "start_char": 1478, "end_char": 1488, "source": "regex", "metadata": {"linked_statute_text": "Jagirdar and her right under the Lambardari lease could not be resumed under the Abolition Act", "statute": "Jagirdar and her right under the Lambardari lease could not be resumed under the Abolition Act"}}, {"text": "(1955] 2 S.C.R. 303", "label": "CASE_CITATION", "start_char": 1533, "end_char": 1552, "source": "regex", "metadata": {}}, {"text": "G. 0. Mathur", "label": "LAWYER", "start_char": 1811, "end_char": 1823, "source": "ner", "metadata": {"in_sentence": "Pathak and G. 0."}}, {"text": "B. Ganapathy Iyer", "label": "LAWYER", "start_char": 1844, "end_char": 1861, "source": "ner", "metadata": {"in_sentence": "B. Ganapathy Iyer and B. H. Dhebar for the respondent."}}, {"text": "B. H. Dhebar", "label": "LAWYER", "start_char": 1866, "end_char": 1878, "source": "ner", "metadata": {"in_sentence": "B. Ganapathy Iyer and B. H. Dhebar for the respondent."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2230, "end_char": 2238, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 2405, "end_char": 2412, "source": "ner", "metadata": {"in_sentence": "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.", "canonical_name": "Wanchoo"}}, {"text": "January l, 1954", "label": "DATE", "start_char": 2458, "end_char": 2473, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Government of Vindhya Pradesh", "label": "ORG", "start_char": 2515, "end_char": 2544, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "December 20, 1953", "label": "DATE", "start_char": 2551, "end_char": 2568, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2576, "end_char": 2580, "source": "regex", "metadata": {"statute": null}}, {"text": "Panna", "label": "GPE", "start_char": 2907, "end_char": 2912, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "December 7, 1945", "label": "DATE", "start_char": 2916, "end_char": 2932, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 3845, "end_char": 3849, "source": "regex", "metadata": {"statute": null}}, {"text": "s.2", "label": "PROVISION", "start_char": 4183, "end_char": 4186, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 4236, "end_char": 4240, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4865, "end_char": 4869, "source": "regex", "metadata": {"statute": null}}, {"text": "Panua", "label": "GPE", "start_char": 5386, "end_char": 5391, "source": "ner", "metadata": {"in_sentence": "It is not in dispute that the lands were not granted to the appellant by the Ruler of Panua as a. jagir."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5726, "end_char": 5730, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Revenue and Tenancy Code", "label": "STATUTE", "start_char": 5972, "end_char": 6001, "source": "regex", "metadata": {}}, {"text": "Ilakedar", "label": "OTHER_PERSON", "start_char": 6044, "end_char": 6052, "source": "ner", "metadata": {"in_sentence": "Pawaidar and Ilakedar who is a big Pawaidar."}}, {"text": "Vindhya Pradesh", "label": "GPE", "start_char": 6272, "end_char": 6287, "source": "ner", "metadata": {"in_sentence": "of Vindhya Pradesh, though the word \"Ubarida.r\" appears to be somewhat uncommon and must have Rome special local significance."}}, {"text": "J. E. Goudge", "label": "OTHER_PERSON", "start_char": 8329, "end_char": 8341, "source": "ner", "metadata": {"in_sentence": "State prepared by J. E. Goudge, Settlement Officer, Bundelkha.nd States, in 1907."}}, {"text": "Ju Sahiba", "label": "GPE", "start_char": 8982, "end_char": 8991, "source": "ner", "metadata": {"in_sentence": "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."}}, {"text": "Wanckoo", "label": "JUDGE", "start_char": 9217, "end_char": 9224, "source": "ner", "metadata": {"in_sentence": "Wanckoo J.\n\nThis brings us to the terms of the lease.", "canonical_name": "Wanchoo"}}, {"text": "s. 2(l)(c)", "label": "PROVISION", "start_char": 12352, "end_char": 12362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(l)(c)", "label": "PROVISION", "start_char": 12570, "end_char": 12580, "source": "regex", "metadata": {"statute": null}}, {"text": "Reforms and Resumption of Jagirs Act", "label": "STATUTE", "start_char": 12935, "end_char": 12971, "source": "regex", "metadata": {}}, {"text": "State of Madhya Pradesh", "label": "ORG", "start_char": 13329, "end_char": 13352, "source": "ner", "metadata": {"in_sentence": "The appellant will get her costs from the State of Madhya Pradesh, which is the successor to the State of Vindhya Pradesh."}}, {"text": "State of Vindhya Pradesh", "label": "ORG", "start_char": 13384, "end_char": 13408, "source": "ner", "metadata": {"in_sentence": "The appellant will get her costs from the State of Madhya Pradesh, which is the successor to the State of Vindhya Pradesh."}}]} {"document_id": "1961_3_913_922_EN", "year": 1961, "text": "3 S.C; R.\n\nSUPREME COURT REPOR'fS 913\n\nPRATAP CHAND\n\nRAM NARAYAN AND ANOTHER. (P. B. GAJENDRAGADKAR, and K. N. WANOHoo, JJ.)\n\nMo1tgoge-Entire proprietary rights mortgaged-Sir lands not mentioned-If included in the mortgage-Other londs of the mortgagor coming ifltn mo•tgagee's posI A.LR. 1944 P.C. 46,\n\nPratap Ch\"11d\n\nRam Narayan\n\nU'anchoo J.\n\nPratap Chand v.\n\nRani ~\\'arayan\n\nlVa1'lchoo ].\n\n922 SUPRE.\\fE COURT REPORTS [1961]\n\nthe present case the respondents' suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it was made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the snit was for the sale of the entire -/5/4 share and that would inclurle khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. II, r. 2, on the ground that these plots entered in the name of the mother of H.amchandar were not pecifically mentioned in the plaint.\n\nThis leaves certain lands which came into the possession of the appellant as a lambardar in the ordinary conrne of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.\n\nThe appeal, -therefore, fails and is hereby dismissed with costs.\n\nAppeal di.qmissed.", "total_entities": 63, "entities": [{"text": "913\n\nPRATAP CHAND", "label": "PETITIONER", "start_char": 34, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "913\n\nPRATAP CHAND", "offset_not_found": false}}, {"text": "ANOTHER. (P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 69, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "s. 70", "label": "PROVISION", "start_char": 364, "end_char": 369, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramr.handar", "label": "PETITIONER", "start_char": 376, "end_char": 387, "source": "ner", "metadata": {"in_sentence": "One Ramr.handar e]iecuted a simple mortgage deed without possession of his share in the property in dispute in favour of the respondents and others the relevant portion of which ran thus:-\n\n\"I do hereby mortgage without possession half share.", "canonical_name": "Ramchanda.r became"}}, {"text": "Ramchandar", "label": "PETITIONER", "start_char": 1085, "end_char": 1095, "source": "ner", "metadata": {"in_sentence": "After the mortgage Ramchandar's share was sold to the appellants and certain other lands recorded in Ramchandar's mother's name also came into the possession of the appellant.", "canonical_name": "Ramchanda.r became"}}, {"text": "s. 50", "label": "PROVISION", "start_char": 1800, "end_char": 1805, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 49 and 50", "label": "PROVISION", "start_char": 1897, "end_char": 1915, "source": "regex", "metadata": {"statute": null}}, {"text": "Pratap Chand", "label": "PETITIONER", "start_char": 2615, "end_char": 2627, "source": "ner", "metadata": {"in_sentence": "Pratap Chand\n\nRam Narayan\n\nAs the appellant had purchased the entire share of Ram.", "canonical_name": "913\n\nPRATAP CHAND"}}, {"text": "Ram Narayan", "label": "PETITIONER", "start_char": 2629, "end_char": 2640, "source": "ner", "metadata": {"in_sentence": "Pratap Chand\n\nRam Narayan\n\nAs the appellant had purchased the entire share of Ram.", "canonical_name": "flam Narayan"}}, {"text": "Ram. chandar", "label": "PETITIONER", "start_char": 2693, "end_char": 2705, "source": "ner", "metadata": {"in_sentence": "Pratap Chand\n\nRam Narayan\n\nAs the appellant had purchased the entire share of Ram.", "canonical_name": "Ramchanda.r became"}}, {"text": "s. 70", "label": "PROVISION", "start_char": 2959, "end_char": 2964, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2972, "end_char": 2996, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ramchadar", "label": "PETITIONER", "start_char": 3146, "end_char": 3155, "source": "ner", "metadata": {"in_sentence": "The lands recorded nominally in the name of Ramchadar's mother but in the actual possession of the former having also came into the possession of the appellant as lambardar were held by him for the entire body of proprietors and the respondent would be entitled to a share in them.", "canonical_name": "Ramchanda.r became"}}, {"text": "CIVIL Al'PELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3690, "end_char": 3719, "source": "ner", "metadata": {"in_sentence": "CIVIL Al'PELLATE JURISDICTION: Civil AppPal No."}}, {"text": "M. O. Betalvad", "label": "LAWYER", "start_char": 3873, "end_char": 3887, "source": "ner", "metadata": {"in_sentence": "M. O. Betalvad, Attmmy-General for lrul, ia, Purslwtfam Trikamdas, 8."}}, {"text": "Purslwtfam Trikamdas", "label": "LAWYER", "start_char": 3918, "end_char": 3938, "source": "ner", "metadata": {"in_sentence": "M. O. Betalvad, Attmmy-General for lrul, ia, Purslwtfam Trikamdas, 8."}}, {"text": "T. Kkirwadkar", "label": "LAWYER", "start_char": 3943, "end_char": 3956, "source": "ner", "metadata": {"in_sentence": "T. Kkirwadkar and I. N. Shroff for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 3961, "end_char": 3973, "source": "ner", "metadata": {"in_sentence": "T. Kkirwadkar and I. N. Shroff for the appellant."}}, {"text": "Achhru Ram", "label": "LAWYER", "start_char": 3994, "end_char": 4004, "source": "ner", "metadata": {"in_sentence": "Achhru Ram, A. R. Okaubey and N aunit Lal for the respondents."}}, {"text": "A. R. Okaubey", "label": "LAWYER", "start_char": 4006, "end_char": 4019, "source": "ner", "metadata": {"in_sentence": "Achhru Ram, A. R. Okaubey and N aunit Lal for the respondents."}}, {"text": "N aunit Lal", "label": "LAWYER", "start_char": 4024, "end_char": 4035, "source": "ner", "metadata": {"in_sentence": "Achhru Ram, A. R. Okaubey and N aunit Lal for the respondents."}}, {"text": "Won.Ano J.\n\nW ANOHOO", "label": "JUDGE", "start_char": 4123, "end_char": 4143, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by ·\n\nWon."}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 4199, "end_char": 4216, "source": "ner", "metadata": {"in_sentence": "Ano J.\n\nW ANOHOO, J,:_This is an appeal on a certificate granted by the Nagpur High Court."}}, {"text": "Ram. chandar Jat", "label": "PETITIONER", "start_char": 4280, "end_char": 4296, "source": "ner", "metadata": {"in_sentence": "One Ram.", "canonical_name": "Ramchanda.r became"}}, {"text": "July 27, 1920", "label": "DATE", "start_char": 4434, "end_char": 4447, "source": "ner", "metadata": {"in_sentence": "Ramchandar executed a simple motgage deed on July 27, 1920, in favour of Seth ltam Jiwan and two minors Ram Narain and Radhey Sham."}}, {"text": "Seth ltam Jiwan", "label": "OTHER_PERSON", "start_char": 4462, "end_char": 4477, "source": "ner", "metadata": {"in_sentence": "Ramchandar executed a simple motgage deed on July 27, 1920, in favour of Seth ltam Jiwan and two minors Ram Narain and Radhey Sham."}}, {"text": "Ram Narain", "label": "PETITIONER", "start_char": 4493, "end_char": 4503, "source": "ner", "metadata": {"in_sentence": "Ramchandar executed a simple motgage deed on July 27, 1920, in favour of Seth ltam Jiwan and two minors Ram Narain and Radhey Sham.", "canonical_name": "flam Narayan"}}, {"text": "Radhey Sham", "label": "OTHER_PERSON", "start_char": 4508, "end_char": 4519, "source": "ner", "metadata": {"in_sentence": "Ramchandar executed a simple motgage deed on July 27, 1920, in favour of Seth ltam Jiwan and two minors Ram Narain and Radhey Sham."}}, {"text": "August 27, 1926", "label": "DATE", "start_char": 4596, "end_char": 4611, "source": "ner", "metadata": {"in_sentence": "On August 27, 1926, the defendant-appellant purchased\n\n~11&8 ./5/4 share belonging to the other shareholders in the village, Thereafter, the appellant brought a\n\nsuit against Ramchanda.r who was lamba.rda.r of the village for profits, in which a decree was passed against Ra.mchanda.r."}}, {"text": "Ramchanda.r who", "label": "RESPONDENT", "start_char": 4768, "end_char": 4783, "source": "ner", "metadata": {"in_sentence": "On August 27, 1926, the defendant-appellant purchased\n\n~11&8 ./5/4 share belonging to the other shareholders in the village, Thereafter, the appellant brought a\n\nsuit against Ramchanda.r who was lamba.rda.r of the village for profits, in which a decree was passed against Ra.mchanda.r.", "canonical_name": "Ramchanda.r became"}}, {"text": "July 27, 1932", "label": "DATE", "start_char": 5158, "end_char": 5171, "source": "ner", "metadata": {"in_sentence": "On July 27, 1932, the respondents sued Ra.mchandar on the ha.sis of their mortgage-deed and a preliminary decree for sale was passed in March, 1937."}}, {"text": "Ra.mchandar", "label": "PETITIONER", "start_char": 5194, "end_char": 5205, "source": "ner", "metadata": {"in_sentence": "On July 27, 1932, the respondents sued Ra.mchandar on the ha.sis of their mortgage-deed and a preliminary decree for sale was passed in March, 1937.", "canonical_name": "Ramchanda.r became"}}, {"text": "March 1, 1940", "label": "DATE", "start_char": 5487, "end_char": 5500, "source": "ner", "metadata": {"in_sentence": "The preliminary decree was followed by a final decree and thereafter the property was put to sale and was purchased by the respondents on March 1, 1940."}}, {"text": "April 12, 1940", "label": "DATE", "start_char": 5529, "end_char": 5543, "source": "ner", "metadata": {"in_sentence": "This sale was confirmed on April 12, 1940, and a. sale certificate was granted to the respondents."}}, {"text": "Ramchanda.r became", "label": "PETITIONER", "start_char": 5923, "end_char": 5941, "source": "ner", "metadata": {"in_sentence": "On the sale of Ramchandar's share to the appellant, Ramchanda.r became an ex-proprietary tenant of his sir land.", "canonical_name": "Ramchanda.r became"}}, {"text": "Ramcha.ndar was", "label": "PETITIONER", "start_char": 5996, "end_char": 6011, "source": "ner", "metadata": {"in_sentence": "Thereafter Ramcha.ndar was ejected from his exproprietary tenancy sometime in 1936 and the .Jands came into possession of the appellant.", "canonical_name": "Ramchanda.r became"}}, {"text": "Ramchanda.r's", "label": "PETITIONER", "start_char": 6217, "end_char": 6230, "source": "ner", "metadata": {"in_sentence": "There were certain other lands which were nominally recorded as Mua.fi Khairati in the name of Ramchanda.r's mother but were actually in the possession of Ramcha.ndar.", "canonical_name": "Ramchanda.r became"}}, {"text": "Ram Na1aya", "label": "PETITIONER", "start_char": 6911, "end_char": 6921, "source": "ner", "metadata": {"in_sentence": "Their 9ase was that these lands w.ere\n\nJl1\n\n•I96t\n\nPratap ChaN4\n\nRam Na1aya\n\nWanchooj.", "canonical_name": "flam Narayan"}}, {"text": "flam Narayan", "label": "RESPONDENT", "start_char": 6953, "end_char": 6965, "source": "ner", "metadata": {"in_sentence": "Piaiap Cha1Jd\n\nv. ·flam Narayan\n\nWanchoo ].", "canonical_name": "flam Narayan"}}, {"text": "October 20, 1943", "label": "DATE", "start_char": 7163, "end_char": 7179, "source": "ner", "metadata": {"in_sentence": "On October 20, 1943, the Sub- Divisional Officer passed an order which in effect zyjected the contention of the respondents and accept~ ellthe plea of the appellant."}}, {"text": ".Ramchandar", "label": "PETITIONER", "start_char": 8414, "end_char": 8425, "source": "ner", "metadata": {"in_sentence": "Further, they were allowed one-third share in the hmds held by the mother of .Ramchandar and also in certain other lands which came into the possession of the appellant as lambardar subject to payment of certain amounts.", "canonical_name": "Ramchanda.r became"}}, {"text": "ss. 68 and 69", "label": "PROVISION", "start_char": 10883, "end_char": 10896, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68", "label": "PROVISION", "start_char": 10998, "end_char": 11008, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 69", "label": "PROVISION", "start_char": 11033, "end_char": 11038, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11074, "end_char": 11078, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11114, "end_char": 11118, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 49 and 50", "label": "PROVISION", "start_char": 11509, "end_char": 11522, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 11657, "end_char": 11662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 11964, "end_char": 11969, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 12004, "end_char": 12009, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 12400, "end_char": 12405, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 49 and 50", "label": "PROVISION", "start_char": 12866, "end_char": 12884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 13078, "end_char": 13083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 13488, "end_char": 13493, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 14077, "end_char": 14082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 14240, "end_char": 14245, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 14478, "end_char": 14483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 14694, "end_char": 14699, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 16799, "end_char": 16804, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramcha.ndar's", "label": "PETITIONER", "start_char": 17523, "end_char": 17536, "source": "ner", "metadata": {"in_sentence": "Therefore, when Ramcha.ndar's ex-proprietary rights came to an end and the land came into the possession of the appellant a.nd became khUdkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees' share therein.", "canonical_name": "Ramchanda.r became"}}, {"text": "s. 70", "label": "PROVISION", "start_char": 18051, "end_char": 18056, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19960, "end_char": 19987, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "H.amchandar", "label": "PETITIONER", "start_char": 21288, "end_char": 21299, "source": "ner", "metadata": {"in_sentence": "II, r. 2, on the ground that these plots entered in the name of the mother of H.amchandar were not pecifically mentioned in the plaint.", "canonical_name": "Ramchanda.r became"}}]} {"document_id": "1961_3_923_929_EN", "year": 1961, "text": "...\n\n3S.C.R.\n\nSUPREME COURT REPORTS\n\nCOMMISSIONER OF INCOME-TAX,\n\nANDHRA PRADESH\n\nM/S. BHIKAJI DADABHAI & CO.\n\n(J. L. KAPUR, M. HrnAYATULLAH and J. C. SHAH, JJ.)\n\nIncome-tax-Assessment proceedings pending-Hyderabad Inc 1 odme-tax Act repealed-Penalty, whether. an additional tax-If ' .. t cou be imposed-Appellate Assistant Commissioner-Jurisdiction-- l Assessment, meaning of-Hyderabad Income-tax Act, s. 40-Indian Income-tax Act, r922 (XI of r922)-Finance Act, r950 (XXV of I950), s, IJ.\n\nThe Income-tax Officer found that the respondents' books of accounts were unreliable and after assessing income for Fasli year 1357, corresponding to the year 1946-47, issued notice to the respondents on December 22, 1949, under s. 40 of the Hyderabad Income-tax Act to show cause why penalty should not be levied in addition to the tax and by an order dated October 31, 1951, directed payment of the said penalty. The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income-tax Officer and by s. 13 ot the Finance Act, 1950, the Hyderabad Income-tax Act ceased to have effect from April I, 1950, but the operation of that Act in respect of levy, assessment and collection of income-tax and super-tax in , respect of periods prior thereto for which liability to income-tax could not be imposed under the Indian Income-tax Act, was saved. The question was whether (a) the Income-tax Officer had power on October 31, 1951, to impose a penalty under s. 40(1) of the Hyderabad Income-tax Act and (b) whether the assessee had a right to appeal against the order of the Income-tax Officer imposing penalty and whether the Appellate Assistant Commissioner had jurisdiction to hear appeals or whether his order was a nullity.\n\nHeld, that the power of the Income-tax Officer to impose a penalty under s. 40(1) of the Hyderabad Income-tax Act in respect of the year preceding the date of the repeal of the Hyderabad Income-tax Act was not lost because by s. 13 of the Finance Act, 1950, for the operation by the Hyderabad Incometax Act in respect of levy, assessment and collection of income ... tax and super-tax in respect of periods prior to April, r95r, for which liability to income-tax could not be imposed under the Indian\n\nIncometax Act, was aved and so the proceedings for imposing the penalty could be continued after the enactment of s. 13(1) of the Indian Finance At. 1950.\n\nHeld, that the appeal against the order of the Income-tax Officer on the ground that he was not competent to pass the order did lie to the Appellate Assistant Commissioner, whose jurisdiction was not made conditional upon the competence of the\n\n~ [~\n\nCommissioner of\n\nInconieta:r, A ndhra Pradesh\n\nv M /s, Bhikaji Dadabhai & Co.\n\nShah .f.\n\nIncome-tax Officer to pass the orders made appealable; as a court of appeal he had jurisdiction to determine the soundness of the conclusions of the Income-tax Officer both on the question of fact and law and even as to his jurisdiction to pass the order appealed from, and his order was not a nullity.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 434 of 1960.\n\nAppeal by special leave from the judgment and order dated October 4, 1956, of the Hyderabad High Court in I.T.R. No. 116/5 of 1954-55.\n\nK. N. Rajagopal Sastri and D. Gupta, for the appellant.\n\nA. V. Viswa11atha 8astri, S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents.\n\n1961. February 22. The Judgment of the Coul't was delivered by\n\nSHAH, J.-M/s. Bhikaji Dadabhai & Co.-hereinafter called the assessees-owned an oil mill at Khammamath in the area of the former State of Hyderabad.\n\nFor the year of assessment Fasli 1357 (October l, 1946, to September 30, 1947), the assessees returned an income. of Rs. 50,384/-. The Income-tax Officer found that the books of account maintained by the assessees were unreliable and by his order dated February IO, 1950, he assessed their total iricoine at Rs. 1,63,131/-. The Income-tax Officer had, before finalising the assessment, issued on December 22, 1949, a notice to the assessees under s. 40 of the Hyderabad Income-tax Act requiring them to show cause why penalty should not be imposed upon them and by order dated October 31, 1951, directed the assessees to pay by way of penalty Rs. 42,000/- in addition to the tax. This order was confirmed in appeal by the Appellate Assistant Commissioner. In appeal, the Income-tax Appellate Tribunal observed that by virtue of the provisions of s. 13 (I) of the Indian Finance Act, 1950, the Hyderabad Income-tax Act had ceased to have effect and as the power to impose penalty under s. 40 of the Hyderabad Income-tax Act was not saved, the order imposing penalty was without jurisdiction, The Tribunal observed ;\n\n' ~·\n\n3 S.Q.R.\n\nSUPREME COURT ttEPORTS !)25\n\n\"The Income-tax Officer may have been in error in imposing the penalty, but there was no appeal against the order of the Incorne-t.ax Officer to the Appellate Assistant Commissioner. Section 42(1) of the Hyderabad Income-tax Act gives a right to an assessee to appeal if he objects to an order under s. 40 made by an Income-l>ix Officer.\n\nSection 40 ceased to have effect.\n\nThere can therefore be neither an order under s. 40 nor an appeal against the order if an order has been wrongly made. The remedy of the assessee lies elsewhere, and not by way of an appeal to the Appellate Assistant Commissioner,'' and on that view dismissed the appeal.\n\nAt the instance of the assessees, the following questions were refen edditio1rnl tax imposed upou it pernon in , icw of his dishonest fE COURT REPORTS [1961]\n\nRAJE ANANDRAO v.\n\nSHAMRAO AND OTHERS. (P. B. GAJENDRAGADKAR and \"!(. N. W ANCHOO, JJ.)\n\nRtligious Endowmeni-Suit under s. 92, C.P.C.-Scheme providing for modification in future-Modifications, if can be made by application or separate suit-Code of Civil Procedure, 1908 (V of I908). s. 92.\n\nThe appellant was the trustee of a temple, which was an endowment for the public by his ancestors, and the respondents were its Pujaris with hereditary rights. Dissatisfaction with the management of the temple having arisen a suit under s. 92 of the Code of Civil Procedure was filed in which it was finallv decided that the office of the Pujaris was hereditary and they were subject to the control of the appellant. Some of the Pujaris were not parties to the suit but they were bound by the scheme framed therein as members of the worshipping public. Subsequently again trouble arose and on the report of a commissioner appointed to investigate the working of the temple, the District Judge passed an order by which he revised the scheme which was then in force. The Pujaris went to the High Court .in revision which was allowed. On appeal by special leave the main question arising for decision was how far it was open to the Court to amend a scheme once framed under s. 92 of the Code of Civil Procedure where a power to amend the scheme is reserved in the Scheme itself.\n\nHeld, that in a suit under s. 92 for the settlement of a scheme it was open to provide in the scheme for modifying it whenever necessary by inserting a clause to the effect.\n\nA suit for the settlement of a scheme is analogous to an administration suit and so long as the modification in the scheme is for the purpose of administration, such modification can be made by an application under the relevant clause of the scheme without the necessity of a separate suit under s. 92 of the Code of Civil Procedure the provisions of which are not violated by such a procedure.\n\nChandraprasad Ramprasad v. ]inabharthi Narayanabharthi\n\n(1931) I.LR. 55 Born. 414, Sri Swami Rangacharya v. Gangaram\n\n(1936) I.L.R. 58 All. 538, Umeshananda Dutta ]ha v. Sir Ravaneswar Prasad Singh (1912) r7 C.W.N. 84r, Manadananda ]ha v.\n\nTarakananda ]ha Panda A.LR. 1924 Cal. 330, Srijib Nyayatirtha v.\n\nSreemant Dandy Swami J agannath Ashram A.LR. 1941 Cal. 618, Mahomed Waheb Hussain v. Syed Abbas Hussain A.LR. 1923 Pat. 420 and Gangaram Go1•i11d Pashankar v. Sardar K. R. Vinchurkar I.LR. (1947] Born. 466, approved.\n\nPrayaga Doss Jee Varu v. Tirumala Anandam Pillai Purisa Sriranga Charylu Vam (r907) L.R. 34 I.A. 78 anrt Sevak\n\n3 ~.C.R.\n\nSUPRE~IE COlJltT REPOHTS 931\n\nKirpashanker Daje v. Gopal Rao Manohar Tambekar (1913) 24 M.L.J.\n\n199, referred to.\n\nVeeraraghavachariar v. The Advocate-General of Madras [19281 I.L.R. 51 Mad. 31, disapproved.\n\nA suit under s. 92 is a representative suit and binds not only the parties to the suit but all those who are interested in the trust. The mere fact that the Pujaris were not parties to the suit would not take away the jurisdiction of the District Judge to modify the scheme, if the modification was with respect to the administration of the trust and if it did not affect the private rights of the Pujaris.\n\nCrvm APPELLATE\n\n.JURISDICTION: Civil Appeal No. 370 of 1956.\n\nAppeal by special leave from the judgment and order dated November 25, 1955, of the former Nagpur High Court, in Civil Revision No. 333 of 1954.\n\nA. V. Viswanatha Sastri, Shankar Anand and Ganpat Rai, for the appellant.\n\nW. S. Barlingay and A. G. Ratnaparkhi, for the respondents.\n\n1961. February 23. The Judgment of the Court was delivered by\n\nRaje Anandrao v.\n\nShamrao\n\nWANCHOO, J.-This is an appeal by special leave Wanchoo J. against the judgment of the Nagpur High Court. The brief facts necessary for present purposes are these : There is an ancient temple of Balaji at Deolgaon Raja in the Buldana District.. Before 1866 the management of the temple was in the hands of a family bearing the name of 1 ad.\n\nA suit was filed in 1866 with respect to this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that the temple was his property. The defendants in that suit were certain pujaris. The suit was decreed by the first court but on appeal it was held that the temple was not the private property of the Raja but was an endowment for the public founded by the ancestors of the Raja and that the Raja was entitled as against the puja.ris to the possession and control of the institution.\n\nA receiver was appointed during the minority of the Raja. but in due course the Raja. took over the direct management of the temple. In 1872 it seems that there was some dispute between the Raja and the pujaris whose offices were also hereditary ; and an agreement\n\nRaj8 Anandrao v.\n\nShamrao\n\nfV anchoo J.\n\nwas arrived at between them. By this agreement it was provided that any offerings up to Rs. 5/- would go to the pujaris who were to defray the expenses of dhoop, deep and neivedya from this amount keeping the balance to themselv.es. There were also certain provisions in the agreement as to offerings in kind. The agreement also provided for other matters relating to worship and imposed certain duties on the pujarls.\n\nFinally, it provided that the parties should carry on all the duties stated in the agreement and other duties besides them as before according to the usual wahiwat and that earnings would be taken as stated in the agreement and proper arrangement of expenses would be kept and the pujaris woulme which was framed by the Privy Council in that case contained in cl. 20 a direction that the provisions of the scheme might be altered, modified or added to by an application to His Majesty's High Court of Judicature at Bombay. It is true that in these cases, the Privy Council was not considering whether such a clause could be legally inserted in a scheme; but the fact remains that in these two schemes the Privy Council did insert a clause in each authorising its modification by an application to the High Court.\n\nApart from authorities, however, let us see if there is anything in ~. 92 of the Code of Civil Procedure which militates against providing a clau8e in a scheme framed thereunder for its modification by an application to the court framing the scheme. Section 92 permits a suit in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the court is deemed necessary for the administration of any such trust to be filed either by the Advocate-General or two or more persons having an interest in. the trust with the consent in writing of the Advocate-General. Reliefs that can be obtained under that section are-\n\n\" (a) removing any trustee;\n\n(b) appointing a new trustee ;\n\n(c) vesting any property in a trustee;\n\n(cc) directing a trustee who has been removed or a person who has ceased to be trustee,· to deliver possession of any trust property in his possession to the person entitled to the 'possession of such property ;\n\n(d) directing accounts and inquiries;\n\n(>) (•907) L.R 3~ I.A. 78 (•) (t9l3] 2~ M.L.J 199.\n\nRaje Anandrao\n\nShamrao\n\nU' anclioo J.\n\nRaje Antoidrao\n\nShamrao\n\nH-\" anrhoo j.\n\n(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;\n\n(f) authorizing the whole or ttny part of the trust property to be let, sold, mortgaged or exchanged;\n\n(g) settling a scheme; or\n\n(h) granting such further or other relief as the nature of the case may require.\" Further sub-s. (2) of s. 92 bars a suit claiming the above reliefs unless the suit is filed in conformity with s. 92(1). In the present appeal we are concerned only with the modification of a scheme; we are not concerned with appointment or removal of trustees or any other matter enumerated in sub.s. (1) of s. 92: We do not therefore propose to consider whether it would be open to appoint or remo, e trustees etc., on the ground of breach of trust without recourse to a suit under s. 92.\n\nWe shall confine ourselves only to the question whether in a case where there is a provision in the scheme for its modification by an application to the court, it is open to the court to make modifications therein without the necessity of a suit under s. 92. So far as the scheme is concerned, s. 92 (1) provides for settling a scheme and if a suit is brought for this purpose it has to comply wit.h the requirements of s. 92(1); but where such a suit has been brought and a scheme has been settled, we see nothing in s. 92 (2} which would make it illegal for the court to provide a clause in the scheme itself for its future modification.\n\nAll that that sub-section provides is that no suit claiming any of the reliefs specified in sub-s. (1) shall be instituted in respect of a trust as is therein referred to except in conformity with the provisions of that sub. section. This sub-section therefore does not bar an application for modification of a scheme in accordance with the provisions thereof, provided such a provision can be made in the scheme itself. Under sub-s. (1} the court has the power to settle a scheme. That power to our mind appears to be comprehensive enough to permit the inclusion of a provision in the scheme itself which won!rl make it alterable by the court if and\n\no I\n\n• ·-\n\n•I /\n\nwhen found necessary in future to do so. A suit under s. 92 certainly comes to an end when a depree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the court can settle a scheme under s. 92(1) to prevent it from making the scheme elastic and provide for its modification in the scheme itself.\n\nThat does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme.\n\nWe cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree.\n\nThe decree stands as it was, and all that happens is that a part of the decree which provides for, management under the scheme is being given effect to. It seems to us both appropriate and convenient that a scheme should contain a provision for its modification, as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through the cumbrous procedure of a suit.\n\nIn Veeraraghavachariar' s case (1 ), the Madras High Con.rt was cognizan.t of the two decisions of the Privy Council in wofiich \"clauses had been inserted in the scheme providing for its modification by an application. But the learne\"cl. judges were of the view that the point was never raised much less decided by the Privy Council and therefore it could not be said that the Privy Council was of the opinion that such a clause would be intra vires. They thought that inserting such a clause in the scheme would imply that the suit would remain pending for ever. It is not necessary to hold that a suit under s. 92 in which a scheme is framed providing such a clause is pending for ever. The scheme deals with the administrati<, m of the trust and for the purposes of the scheme it would not be wrong or improper to treat a suit under s. 92 as analogous to an administration suit.\n\nOn that view it would in our opinion be just and convenient to provide for a clause in the scheme which is framed for the administr&tion\n\nI•) (1928) !.L.R. 51 !4ad. 3r.\n\nIg6I\n\nRaje Anandr ao v.\n\nS'hamrao\n\n1-Vanchoo ],\n\nRaje Anandrao v.\n\nShamrao\n\nJVanchoo ].\n\nSUPREME COURT REPORT3 [1961)\n\nof the trust to allow for its modification by an application. We therefore accept the view of the Bombay, Calcutta, Allahabad and Patna High Courts in this matter and hold that it is open in a suit under ~- 92 where a scheme is to be settled to provide in the scheme for modifying it as and when necessity arises, by inserting a clause to that ffect. Such a suit for l he settlement of a scheme is analogous t_o an administration suit and so long as the modification in the scheme is for the purposes of administration, such modification can be made by applica.tion under the relevant clause of the scheme, without the necessity of a suit under s. 92 of the Code of Ci vii Procfdure. Such a procedure does not violate any provision of s. , 92. The view taken by the Madras High Court that insertion of such\n\na clause for the modification of the scheme is ultra vire8 is incorrect. It was therefore open to the District Judge in the present case to modify the scheme.\n\nThe next question is whether the modification in this case is for the purposes of administration alone for then it will be justified and within jurisdiction or whethe1' by this modification the private ights of the pujaris are in any way affected. It is true that the pujaris were not parties to the suit under s. 92 but the decision in that suit binds the pujaris as worshippers so far as the administration of the temple is concerned, even though they were not parties to it, for a suit\n\nunder s. 92 is a representative snit and binds not only the parties thjereto but all those who are interested in the trust. Therefore, the mere fact that the pnjaris were no parties to the suit will not take away the jurisdiction of the District , Judge to modify the scheme, if t.he modification is with respect to the administration of the tnrnt and if it does not affect the private right's of the puj1uis.\n\nAccording to the High Court, the modification in the scheme was only with respect to three paragraphs, namely, paragraphs 3, 4 and 12.\n\nLea.med counsel for the pujaris has admitted that there is no modification in paragraph 4.\n\nThis is also clear from a comparison of paragraph 4 of the 1935 scheme with paragraph 4 of the revised scheme, for the two paragraphs are word for word the same. Sn\n\nwe are left with the modification in para.graphs 3 and\n\n12. Paragraph 3 originally provided that \" the managing trustee shall have authority to regulate the performance of the pooja according to usage which is not in any way repugnant to public interest and morals \", and to this part of paragraph 3, the revised scheme adds the words \" but which encourages the use of vedic yagnik ''. Learned counsel for the pujaris admits that there can be nci objection to this addition, for it only brings out what was implicit in the okl scheme. Further the following addition is made to paragraph 3 in the revised scheme:-\n\n,, The rules may provide, inter alia, that the persons actually doing the worship sl.10uld have the requ:site knowledge of the mantrik ritual and in case any one has not such knowledge, the actul worship and ritual may be performed by his substitute having such knowledge and he may not be allowed to do the worship himself.\n\nThese rules will be printed and published locally and shall be enforced by the trustee.\" Now the old paragraph 3 also provided for framing of rules with the approval of the District Judge after hearing the publie and the pujaris, for the worship of the deity. The revised paragraph il also contains a direction regarding the making of such rules with the approval of the District Judge after hearing the public and the pujaris. It has further been provided that such rules should be printed and published locally and should be enforced by the trustee. There can in our opinion be no objection to this addition, for the enforcement of the rules was already implicit in old paragraph 3 and their prin, ting and publication. is only a matter of convenience to all and can in no way affect the private rights of the pujaris. Learned counsel for the respondents did not object to this addition either.\n\nHe objects to that part of the addition which says that \"the persons actually doing the worship should have the requisite knowledge of the mantrik ritual and in case any one has not such knowledge, the actual worship and ritual may be performed by his subst.itute having such knowledge.\" Now this provision merely\n\nlVamhoo J.\n\nRaje Auandrao\n\nShantrao\n\nIVanchoo J.\n\nsays what the rules for pooja to be approved by the District Judge after hearing the public and the pujaris should provide among other things. This provision is on the face of it reasonable, for it is unthinkable that a pnjari, even though he may be a hereditary pujari, should perform puja, when he does not know anything about the mantrik rituals. Learned counsel for the respondents has no objection to this provision either except that he contends that the rule seems to give the right to provide a substitute to the managing trustee (namely, the appellant). As we read the ruk, however, we do not think that that is wh1tt it means.\n\nAll that it says is that where the hereditary puj1tri does not know the mantrik ritual, the puja may be performed by his substitute. It means that the substitute has to be provided by the pnjari and not by the managing trustee. The fact that the substitute is pujari's substitute has implicit in it that it is the pujari who has to provide a substitute in his place in case he does not know the rituals. Learned counsel for the respondent~ concedes that if this is the meaning of the addition in paragraph 3, there can be no objection to it. We therefore make it clear that when the addition in paragrnph 3 speaks of a substitute for the pujari wbo is ignorant of rituals, it is the pnjari who has the right to provide the substitute and not the managing trustee. So read, this addition does not in any way affect the private rights of the pujaris in the matter of puja. Thus the entire addition in paragraph 3 deals with the administration of the temple with respect to puja and with the clarification which we have given above there is no trespass on the private rights of the pujaris by this addition. Therefore, the revised paragraph 3 was within the jurisdiction of the District Judge and cannot be taken exception to on that score.\n\nTurning now to paragraph 12 we find that .there are additions in that paragraph in the revised scheme and we shall deal with each addition seriatim: The first addition (i.e., cl. a) is that \"the Raje Anandra.o shall have power to keep such dependants like kirtankars, puraniks, etc., for proper performanC'e of the religious\n\n' f\n\n3 S.C.R.\n\nSUPHEME UOURT Rlnever it is opened and the pujaris would thus be at the mercy of the management for meeting the expenses of dhoop, deep and neivedya am! also for the balance to which they are entitled for their upkeep.\n\nUp to now this amnunt of offerings up to Rs. 5/- was going direct to the pujaris and they were incurring expenses on dhoop, deep and neivedya out of it. The appellant contends that under the Madhya Pradesh Public Trusts Act, No. XXX of 1951, he has to maintain proper accounts under s. 15, to prepare a budget under s. 18 and to have the accounts audited under s. 16. Therefore it is necessary that he should show the amount received in offerings up to Rs. 5/- in his budget and should also show how much of it goes to the pujaris for their personal use and how urnch of\n\nRaje Anandrao\n\nv, Shanirao\n\nWanchoo ].\n\nRaj\"e Anandrao\n\nShomrao\n\nWanchoo ].\n\n946 SUPR J<:)lE COURT REPORTS (1961]\n\nit is spent on dlwop, deep and nefredya. There is no doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary to have cherk in this income from offeringd up to Rs. 5/. from which this expenditure is incurred, leaving the balance for the personal use of the pujari~. Even so it seems to us necessary that the interests of the pujaris arc also safeguarded and thev should not be left entirely at the mercy of the appellant, who may take away' the entire m(ney found in the box and may not pay them for long periods to what they are entitled as the balance.\n\nThough . therefore the District Judge was right in making the arrangement for putting the offerings up to Rs. 5/- in a separate box so that they may be accounted for, we think some more provisions are necessary in order that cl. (c) may not affect adversely the private rights of the pujaris to the balance of these offerings after incurring the expenses on dhoop, deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the amount put in the box is not surreptit.iously taken away. Though therefore t.he main provision in cl. (c) dealing as it does with the administration of the trust is not objectionable, it is necessary that it should be made self-contained and should a!So contain safeirnards for the pujaris. We therefore direct the District Judge to amend cl. (c) of paragraph 12 in order to bring into it the provisions contained in his detailed order. We also direct that the District Judge should provide for the protection of the interests of the pujaris by including the following in cl. (c) :-\n\n(1) The box in which these offerings up to Rs. 5/- are put should be double locked-one lock to be put by the appellant and the other on behalf of the pujaris.\n\n(2) It should be opened in the presence of a representative of the management and a representative of the pujaris who ;; hall be chosen by the pujaris in such manner aH they think fit and two respectablf'\n\npersons of th<' town.\n\n(3) The box may be opned once in a month or oftener as desired by the pujaris but not more than once in a week.\n\n(4) The amount found in the box may be noted by the management; the whole of it should be handed over to the chosen representative of the pujaris on behalf of all the pujaris in case the ex. penditure for dhoop, deep and neivedya for the period prior to the opening has been met by the pujaris.\n\nIn case however sucli expenditure has been met by the management, the balance after deducting such expenses, shall be immediately paid to the chosen representative of the pujaris on behalf of them all.\n\nThe last provision has been made to make it clear that the management will not t:tke away the money but immediately give it to the representative of the pujaris for distribution among them. The provisions of the Public Trusts Act will be satisfied. in that the management will be in a position to know how much has gone to the pujaris including the amount spent on dhoop, deep and neivedya.\n\nThis provision will also take away any objection about there being interference with the private rights of the pujaris under the agree. ment of 1872.\n\nWe therefore allow the appeal, set aside the order of the High Court and restore the revised scheme subject to the modifications suggested by us above.\n\nThe Districi Judge will see that these modifications are embodied in the revised scheme.\n\nIn the circumstances of the case we order parties to bear their own costs.\n\nAppeal allowed.\n\nJIBON CHANDRA SARMA DOLOI\n\nAN ANDI RAM KALITA AND OTHERS. (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)\n\nBrahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.\n\nThe plaintiff-appellant filed a suit alleging that the lands in •uit were unauthorisedly transferred to the \\)redecessors in mle\n\nl?t\n\nI96I\n\nRaje Anandrao v.\n\nShamrao\n\nwa.nchoo J.\n\nFebruary a3.", "total_entities": 99, "entities": [{"text": "RAJE ANANDRAO", "label": "PETITIONER", "start_char": 36, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "Raje Antoidrao", "offset_not_found": false}}, {"text": "OTHERS. (P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 66, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "P.B. 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Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 3448, "end_char": 3468, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Shankar Anand and Ganpat Rai, for the appellant."}}, {"text": "Shankar Anand", "label": "OTHER_PERSON", "start_char": 3470, "end_char": 3483, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Shankar Anand and Ganpat Rai, for the appellant."}}, {"text": "Ganpat Rai", "label": "OTHER_PERSON", "start_char": 3488, "end_char": 3498, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Shankar Anand and Ganpat Rai, for the appellant."}}, {"text": "W. S. Barlingay", "label": "LAWYER", "start_char": 3520, "end_char": 3535, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and A. G. Ratnaparkhi, for the respondents."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3540, "end_char": 3557, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and A. G. Ratnaparkhi, for the respondents."}}, {"text": "WANCHOO", "label": "JUDGE", "start_char": 3671, "end_char": 3678, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaje Anandrao v.\n\nShamrao\n\nWANCHOO, J.-This is an appeal by special leave Wanchoo J. against the judgment of the Nagpur High Court.", "canonical_name": "WANCHOO"}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3718, "end_char": 3725, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaje Anandrao v.\n\nShamrao\n\nWANCHOO, J.-This is an appeal by special leave Wanchoo J. against the judgment of the Nagpur High Court.", "canonical_name": "WANCHOO"}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 3757, "end_char": 3774, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaje Anandrao v.\n\nShamrao\n\nWANCHOO, J.-This is an appeal by special leave Wanchoo J. against the judgment of the Nagpur High Court."}}, {"text": "Raje Mansingh Rao", "label": "OTHER_PERSON", "start_char": 4068, "end_char": 4085, "source": "ner", "metadata": {"in_sentence": "A suit was filed in 1866 with respect to this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that the temple was his property."}}, {"text": "Raja", "label": "OTHER_PERSON", "start_char": 4717, "end_char": 4721, "source": "ner", "metadata": {"in_sentence": "In 1872 it seems that there was some dispute between the Raja and the pujaris whose offices were also hereditary ; and an agreement\n\nRaj8 Anandrao v.\n\nShamrao\n\nfV anchoo J.\n\nwas arrived at between them."}}, {"text": "Raje Anandrao", "label": "PETITIONER", "start_char": 5784, "end_char": 5797, "source": "ner", "metadata": {"in_sentence": "It seems that there wasdissatisfaction with the management.of this temple by Raje Anandrao and in consequence a suit was filed after obtaining permission of the Advocate-General in February, 1904, for framing a scheme for the management of the temple.", "canonical_name": "Raje Antoidrao"}}, {"text": "April 29, 1916", "label": "DATE", "start_char": 5992, "end_char": 6006, "source": "ner", "metadata": {"in_sentence": "This suit was finally decided on April 29, 1916, by the Additional Judicial Commissioners."}}, {"text": "February 16, 1918", "label": "DATE", "start_char": 6916, "end_char": 6933, "source": "ner", "metadata": {"in_sentence": "In consequence the matter went ha.ck to the District Judge who framed a scheme on February 16, 1918, for\n\nthe management of the temple."}}, {"text": "November 25,\n\n1926", "label": "DATE", "start_char": 7030, "end_char": 7048, "source": "ner", "metadata": {"in_sentence": "This scheme was later substituted by , another scheme dated November 25,\n\n1926."}}, {"text": "October 16, 1935", "label": "DATE", "start_char": 7062, "end_char": 7078, "source": "ner", "metadata": {"in_sentence": "Finally, on October 16, 1935, another scheme was framed in substitution of that framed in 1926."}}, {"text": "Additional Subordinate Judge, II Class, Buldana", "label": "COURT", "start_char": 7442, "end_char": 7489, "source": "ner", "metadata": {"in_sentence": "was another suit pending in the court of the Additional Subordinate Judge, II Class, Buldana, between the appellant and the pujaris."}}, {"text": "April 30, 1936", "label": "DATE", "start_char": 7555, "end_char": 7569, "source": "ner", "metadata": {"in_sentence": "That suit was decided on April 30, 1936, and it was held therein that the agreement of 1872 which was binding on the appellant recognised that the olfice of pujari was hereditary."}}, {"text": "Shree Balasaheb Sansthan", "label": "OTHER_PERSON", "start_char": 8986, "end_char": 9010, "source": "ner", "metadata": {"in_sentence": "A declaratory decree was therefore passed to the effect that the pujaris who were defendants in that suit were holding hereditary office of the pujaris of Shree Balasaheb Sansthan and that they were in the discharge of their duties subject to the control of the plaintiff (namely, the Raja.)"}}, {"text": "Raje AnandYao", "label": "JUDGE", "start_char": 9182, "end_char": 9195, "source": "ner", "metadata": {"in_sentence": "and they were bound to respect his authority and rightful\n\nRaje AnandYao\n\nShanira\"\n\nWanchoo ].", "canonical_name": "Raje Antoidrao"}}, {"text": "Raje Anandrao", "label": "JUDGE", "start_char": 9219, "end_char": 9232, "source": "ner", "metadata": {"in_sentence": "Raje Anandrao\n\nShanirao\n\nlVancJioo j.\n\norders and that.", "canonical_name": "Raje Antoidrao"}}, {"text": "November 30, 1953", "label": "DATE", "start_char": 9465, "end_char": 9482, "source": "ner", "metadata": {"in_sentence": "It seems that there was some trouble in the temple and consequently the District Judge visited the place on November 30, 1953."}}, {"text": "April 12, 1954", "label": "DATE", "start_char": 10209, "end_char": 10223, "source": "ner", "metadata": {"in_sentence": "The matter was then gone into and the District J u '\n\n3 S.C.R.\n\nSUPREME COURT REPORTS 947\n\n(3) The box may be opned once in a month or oftener as desired by the pujaris but not more than once in a week.\n\n(4) The amount found in the box may be noted by the management; the whole of it should be handed over to the chosen representative of the pujaris on behalf of all the pujaris in case the ex. penditure for dhoop, deep and neivedya for the period prior to the opening has been met by the pujaris.\n\nIn case however sucli expenditure has been met by the management, the balance after deducting such expenses, shall be immediately paid to the chosen representative of the pujaris on behalf of them all.\n\nThe last provision has been made to make it clear that the management will not t:tke away the money but immediately give it to the representative of the pujaris for distribution among them. The provisions of the Public Trusts Act will be satisfied. in that the management will be in a position to know how much has gone to the pujaris including the amount spent on dhoop, deep and neivedya.\n\nThis provision will also take away any objection about there being interference with the private rights of the pujaris under the agree. ment of 1872.\n\nWe therefore allow the appeal, set aside the order of the High Court and restore the revised scheme subject to the modifications suggested by us above.\n\nThe Districi Judge will see that these modifications are embodied in the revised scheme.\n\nIn the circumstances of the case we order parties to bear their own costs.\n\nAppeal allowed.\n\nJIBON CHANDRA SARMA DOLOI\n\nAN ANDI RAM KALITA AND OTHERS. (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)\n\nBrahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.\n\nThe plaintiff-appellant filed a suit alleging that the lands in •uit were unauthorisedly transferred to the \\)redecessors in mle\n\nl?t\n\nI96I\n\nRaje Anandrao v.\n\nShamrao\n\nwa.nchoo J.\n\nFebruary a3.\n\nSUPRE.\\fE COURT REPORTS [1961]\n\nr96r of the respondents. His contention was that the lands were granted to the Bardeuries (officials) of a certain ancient temple in Jibon Chandrn Assam in order to enable them to render service to the deities Sarma Dotoi installed in the temple and as such the lands were inalienable to v. straners other than the Bardeuries.\n\nAnandiRain f\\alita Held, that in view of the history of land tenure in Assam and by virtue of the relevant statutory provisions of Assam Land and Re,•enue Regulation (Reg. I of 18Sb) the lands mu>t be deemed to be heritable and transferable without any restriction.\n\nThe transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under s. S(r)(a) and becam<• \"land holders\" under s. 3(g) of the Regulation and consequently s. g applied to them statutorily recognising their rights in the lands to be permanent, heritable and transferable.\n\nTo prove the plaintiff-appellant's contention that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 105 and 106 of 1957.\n\nAppeals from the judgment and decree dated April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41 and 54 of 1951.\n\nL. K. Jha and D. N. Mukherjee, for the appellant.\n\nN aunit Lal, for respondents Nos. 1 to 12.\n\n1961. February 23. The Judgment of the Court was delivered by\n\nGajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds. His case was that Madhab Temple at Hajo is a ver:' ancient temple and the Assam Rajahs had granted lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in J; he said temple. The lands thus granted to the temple officials were endowed lands and the same had been burdened with service to the temple ; in other words, the grantees were entitled to enjoy the lands on condition that they rendered the ...- requisite service to the temple.\n\nAs a c_orollary of th\\l\n\n• •\n\n3 8.C.R.\n\nSUPREME COUHT ltEPOR'l'8 949\n\nburden imposed on the grantees by the said grant the\n\nI96I lands we. re inalienable to strnnbcrers though they could - J ibon Chandra be transferred to anv of the Bardeurie; of the temple. sa,,,, a Doloi According to the ap.pellant the said lands had originv. ally been granted to Hem Kanta 8arma and Uma AnandiRam l be found in . the introduction to the Assam Land . Revenue i\\fan1ial shows that Nisf.khirajdar of. he ~-.. present day \"is ordinarily a person whose lands'.19-ere claimed by his ancestors revenue-free. on. the. groinid that they were granted by the Assam . Rajas for some religious or charitable purpose\". It appears' that the word \"Nisf-khiraj\" was invented for the first-time in 1871 and it applied to all estates which paid half the ordinary revenue rates .. This. word was presumably invented to avoid c1mfusion caused by the use of the , word .. lakhiraj\" which had been applied to them_ prior tol87l. __ ·. : . •-; ., ·. '\n\n- . ·-·· [· ·•The hlstory of this tenure is similarly stated in the Goverpnient Gazette relating to A8sam as well as by\n\nBaden_-Powell (Vo_!. III, pp. 406 followingj. . .\n\n1961 At this stage it would be necessary to refer to the relevant provisions of Regulation I of 1886. It is.\n\nJibon Chandra JJ d h A L 50,, •• Do1o; ca. e t e ssam and and Revenue Regulation of the v. sa.id year. Section 3(g) of this Regulation defines .-lnandiRam Kalil•\" la.nd holder\" as meaning any person deemed to have acquired the status of a land holder under s. 8; while Gajeodrogadk•r fs. 8 (I) provides, inter alia, that any perso11 who has, before the commencement of this Rrgulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate. or iu a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to s. 9 which provirles that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in els. (a), (b) and\n\n(c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under s. 8 (I) (a) and became Ja.nd holders under s. 3 (g).\n\nThe inevitable consequence of this position is thats. 9 applies to them a.nd their rights in the lands in their occupation a.re statutorily recognised to be permanent, heritable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to au.stain the plea that the lands in question a.re burdened with the special condition that they can he transferred only to Ba.rdeuries and not to any strangers outside the group. As the High Court ha.s found, and that is no longer in dispute, these lands are described as brahmottar lands in revenue records a.nd to the said lands anti their holders the statutory provisions of the Regulation to which we have just referred a.pplied ; therefore, it is impossible to escape\n\n' .\n\nthe conclusion that by virtue of the relevant statutory .... , provision8 of the Regulation the lands must be deemed to be heritabk ncl t mnsforabl\" without any Tf'Rtriction,\n\n1961 This aspect of the matter was completely ignored by the trial court and the appellate court, and so the Jib•• C1\"'ndr• High Court was right in correcting the error which had Sarma, Doloi crept irito the concurrent decisions of the courts below. . v. . .\n\nBesides, the High Court was also right in holding Anand•R••• K•l•I• that in a case of this kind where the appellant urged G . d-dA 1 that the lands could be alienated only to a specified aJ•• raga \"' • class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That . was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.\n\nIn the result the appeals fail and are dismissed with costs.\n\nAppeals dismissed.\n\nN. KASTURI\n\nD. PONN AM.MAL AND OTHERS. (P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)\n\nWill-Construction-Bequest to Kin the absence of adoption- Testator's intention to adopt K-Authority to adopt given lo widow -No adoption made-K's rights, whether vested interest subject to defeasance by subsequent adoption.\n\nA testator, who was childless, executed a will on April 28, 1937, and died on March IO, 1939, leaving him surviving his . ·• widow. In cl. 6 of the will he expressed his desire to adopt a boy and stated that in case he did not make an adoption during his life-time his wife shall adopt K. He also conferred authorityQo hi~\n\n~~2", "total_entities": 44, "entities": [{"text": "JIBON CHANDRA SARMA DOLOI", "label": "PETITIONER", "start_char": 1533, "end_char": 1558, "source": "metadata", "metadata": {"canonical_name": "JIBON CHANDRA SARMA DOLOI", "offset_not_found": true}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 1592, "end_char": 1612, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 1617, "end_char": 1630, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)"}}, {"text": "Brahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation", "label": "STATUTE", "start_char": 1638, "end_char": 1716, "source": "regex", "metadata": {}}, {"text": "ss. 3(g)", "label": "PROVISION", "start_char": 1741, "end_char": 1749, "source": "regex", "metadata": {"linked_statute_text": "Brahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation", "statute": "Brahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation"}}, {"text": "Sarma Dotoi", "label": "OTHER_PERSON", "start_char": 2201, "end_char": 2212, "source": "ner", "metadata": {"in_sentence": "His contention was that the lands were granted to the Bardeuries (officials) of a certain ancient temple in Jibon Chandrn Assam in order to enable them to render service to the deities Sarma Dotoi installed in the temple and as such the lands were inalienable to v. straners other than the Bardeuries."}}, {"text": "Assam", "label": "GPE", "start_char": 2390, "end_char": 2395, "source": "ner", "metadata": {"in_sentence": "AnandiRain f\\alita Held, that in view of the history of land tenure in Assam and by virtue of the relevant statutory provisions of Assam Land and Re,•enue Regulation (Reg."}}, {"text": "s. 3(g)", "label": "PROVISION", "start_char": 2737, "end_char": 2744, "source": "regex", "metadata": {"statute": null}}, {"text": "L. K. Jha", "label": "LAWYER", "start_char": 3306, "end_char": 3315, "source": "ner", "metadata": {"in_sentence": "L. K. Jha and D. N. Mukherjee, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 3320, "end_char": 3335, "source": "ner", "metadata": {"in_sentence": "L. K. Jha and D. N. Mukherjee, for the appellant."}}, {"text": "N aunit Lal", "label": "LAWYER", "start_char": 3357, "end_char": 3368, "source": "ner", "metadata": {"in_sentence": "N aunit Lal, for respondents Nos."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 3464, "end_char": 3478, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "GAJENDRAGADKAR", "label": "JUDGE", "start_char": 3482, "end_char": 3496, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "Court of the Special Subordinate Judge, Assam Valley Districts", "label": "COURT", "start_char": 3572, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds."}}, {"text": "Hajo", "label": "GPE", "start_char": 3877, "end_char": 3881, "source": "ner", "metadata": {"in_sentence": "His case was that Madhab Temple at Hajo is a ver:' ancient temple and the Assam Rajahs had granted lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in J; he said temple."}}, {"text": "Hem Kanta 8arma", "label": "OTHER_PERSON", "start_char": 4678, "end_char": 4693, "source": "ner", "metadata": {"in_sentence": "ally been granted to Hem Kanta 8arma and Uma AnandiRam l make an arrangement to the effect that my adopted son similarly gets and enjoys only the remaining half. My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas\n\nKasturi\n\nSUPRE:YIE COURT REPORTS [11161)\n\nproperties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares.\n\nCl. 12. Should myself and 'my wife die without making an adoption or should my wife predecease me or in case I do not adopt any boy 01 in case the boy adopted by me is not alive at the time of my death, the above Kasturi and the above Ka.lvanasnndaram shall get and take the whole of my properties in equal shares for being enjoyed according to the terms mentioned in paragraph 11 above and subject to the conditions regarding the properties to be set apart for maintenance as stated above.\n\nShould myself and my wife die without making an adoption as stated above and should the above Kalyanasundaram predecease us, the above Mangayarkarasi Ammal and Kanuiammal shall get all the properties and enjoy them during their lifetime without subjecting them to any encumbrances whatever and by virtne of the permission hereby granted by me to them to adopt a boy, they shall adopt a boy and that adopted boy shall succeed to them.\" Before proceeding to construe these clauses we may refer briefly to the remaining clauses of the will.\n\nClause 13 refers to the charitable dispositions. already made by the testator and the arrangements made by him in that behalf. It adds \" even as regards the other charities which I intend to do hereafter, the respective documents shall be acted upon. \" Clause 14 names th\" advisers in consultation with whom the e)!:ecut!'ix has l_wou \"ked hy llw t.<, stu.tor to earry out.\n\n• j\n\nI t\n\nthe terms of his will.\n\nUnder cl. 15 the testator r96r Provides that aft.er his wife's death or in the event of J(asturi his wife dying even at the outset when his will takes v. effect respondent 2 shall be the executrix and guardian Ponnammal of respondent 5 \"suitably to circumstances. \" In case -- she also is not alive at the relevant time respondent 3 Gafendyagadka, J. should be the executrix and guardian. Clause 16 provides that in case the testator dies without making an adoption during his lifetime his ob8equies shall be performed by respondent 5 and the appellant; the said two persons are also required to perform the obsequies of his wife if she dies without making any adoption as well as obsequies of respondents 2 and 3.\n\nRespondent 5 is required to perform the obsequies of respondent 4.\n\nUnder cl. 17 the testator has provided that in case respondent 2 or 3 became the testatrix she shall manage the properties in consultation with the advisers specified in the will.\n\nBy cl. 18 the testator provided that his will will take effect from the date of his death, and by cl. 19 the testator reserved the power to alter his will or to add to it. It would thus be seen that this will which contains 19 clauses is a very reasonable will and it seeks to do justice to the claims of all persons belonging to the family in whom the testator was interested and in respect of whom as the sole surviving coparcener he recognised his responsibilities. He bas scrupulously attempted to carry out the desires of bis deceased cousin, and on the whole its terms are very fair and reasonable. The question which arises for our decision is: Does the appellant get any right undAr cl. 12 of the will which would justify bis claim for a declaration and other appropriate reliefs made by him in the present suit? As we have already indicated, both the courts below have answered this question against the appellant.\n\nMr. Sastri contends that in construing the two relevant clauses it is necessary to bear in mind two principles which govern the construction of wills. The first principle is that so far as is i:easonably possible courts should adopt that construction of the will which would a.void intestacy; and the second principle is that the construction which postpones the vesting of\n\n'96' the estate after the death of the testator should be\n\nKasturi avoided. Iu support of the first principle Mr. Sastri v. has relied on the observation of Mookerjee, J., in Ponnammal Sarojini Dassi v. Gnanendranath Das & Others etc. (1 ). - On a construction of the several dispositions contained cajendragadkar J. in the will with which t, he learned judge was dealing he came to the conclusion that taken together the said dispositions show that the testator internkd to dispose of all his properties, and then he added \" if there is any doubt, we ought if possible to read the will so as to lead to a testacy, not to an intestacy.\" In support of this conclusion the learned judge referred to four English decisions, In re Redfern ('), In re Harrison('), Kirby Smith v. Parnell(') and In re Edwards('). In support of the second principle enunciated by Mr. Sastri he has relied on the decision of the Privy Council in Bickersteth & Another\n\nv. Shanu ('). In that case the Privy Council held that the established rule for construing devises of real estate is that they are held to be vested unless a condition precedent to the' vesting is expressed with reasonable clearness.\n\nOn the other hand, the learned Attorney-Genera.I has invited our attention to a decision of this Court in Gnanambal Ammal v. T. Raju Ayyar & Others('), in which this Court has definitely ruled that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances ; but it can be invoked only when there is undoubted ambiguity in ascertainmeut of the intentions of the testator. Mukherjea, J., as he then was, observed that the cardinal maxim to be observed by courts in constraing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the langu. age of the document which is to be read as a who]., without indulging in any conjecture or speculation as to what the testator would have done if he had been\n\n(1) (1916) 23 Cal. L.J. 241, 255. !>) (1877) 6 Ch, D. 133.\n\n(3) (188,5) 30 Ch. D, 390,\n\n A.LR. 1 9~1 s.~. 10~.\n\n(4) [1903] 1 Ch. 483.\n\n(5) [1906] I Ch. 570.\n\n(6) (1936] A.C. 290.\n\n. '\n\n3 S.C.R.\n\nSUPREME COUliT REPORTS 965\n\nbetter informed or better advised; and in support 1961 of this view the learned judge cited similar observa- Kasturi tions made by the Privy Council in Venkata Narasimha v.\n\nv. Parthasarathy (1).\n\nIn dealing with the principle Ponnammaz that intestacy should be avoided, Mukherjca, J. said . - that the desire to avoid intestacy was based on Eng- Ga1endragadkar J. lish habits of thought which should not necessarily bind an Indian court. Therefore, there can be little doubt that what Mr. Sastri formulates as a rule of construction against the avoidance of intestacy cannot be treated tis an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly, in regard to the rule that vesting should not be postponed the position is exactly the. same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must -be decided by construing the will as a whole and giving the relevant clauses in the wiJJ their plain grammatical meaning considered together.\n\nIn construing a will it is generally not profitable or useful to refer to the construction of other wills because the . construction of each will must necessarily depend upon the terms ued by the will considered as a whole, and the result which follows on a fair and reasonable construction of the said words must vary from will to will.\n\nTherefore, we must look at the relevant clauses carefully and decide which of the two rival constructions should be accepted.\n\nMr. Sast, ri argued that els. 11 and 12 are separate and independent clauses and they deal with two\n\n(1) (1913) L.R. 41 I.A. 51. 70.\n\nz96z separate and different positions. According to him,\n\ncl. 11 deals with the position which would have arisen J(asluri\n\nv. if an adoption had been made by the widow of the Ponnammat testator, whereas cl. 12 deals with the position which . -- would arise where no adoption is made. His argu- Ga;•ndragadkar J. ment is that when no adoption is made and until it is so made there is a vested right in respect of half the properties in the appellant whieh right no doubt may be defeated if an adoption is subsequently made. He contends that this is a vested right subject to defeasance by subsequent adoption, and this right has nothing to do with the right which would be conferred on the appellant if he is adopted as contemplated by cl. 11. That according to the appellant is the tenor and the effect of cl. 12, and that is how the appellant avoids intestacy and postponement of vesting.\n\nThe respondents' case, howeyer, is, and that is the case which has been accepted by the courts below, that cl. 12 should be construed as operating at the time of the death of the testator and not later, and according to this argument, as soon as the testator died the said clause ceased to be applicable and the rights of the appellant fall to be considered only under\n\ncl. 11. If cl. 12 had to he construed by itself separately and in isolation from cl. 11 much could have been said in favour of the contention urged by the appellant; but, in our opinion, it would be plainly inconsistent with all the rules of construction to take\n\ncl. 12 by itself and isolate it from the rest of the will.\n\nClauses 6 to 11 deal primarily with the adoption which the testator contemplated would be made by his widow in case he did not make an adoption in his lifetime. Clause 11 confers a vested interest on respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible ELdoptee and then deals with his rights on that footing. With the other bequests made by the said cla.use we are not directly concerned. Having thus made the provisions in cl. 11 on the basis that his widow may adopt, cl. 12 deals with an alternative situation which would arise in\n\n'.;..\n\ncases contemplated by the said clause, and it is z96z intended to be operative only at the time of the death Kasturi of the testator and not otherwise. If that be the true v. position then the appellant would not be entitled to Ponnammal any right under cl. 12 at all. .\n\nNow as a matter of construction there are some Ga1end.agadkar l , serious difficulties in the way of accepting the appellant's case. The first part of cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator, the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellant's argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression \" myself and my wife \" has to be read as \"myself or my wife \", and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and there is little doubt that Hindu law does in that sense recognizes an adoptive mother (' pratigrihitrimata' (')) (Vide: Annapurni Noohiar v.\n\nForbe; i (10). Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown to Hindu law the word \"and\" should be read as \" or\" in the relevant clause. That is the first diffieulty in accepting the appellant's construction.\n\nThe second difficulty is that if the word \"and\" is read as \"or\" the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in\n\n(9) :Mayne on Hindu Law & Usage, t Jtb Edn., pp 2-1-1. 1-fS\n\n(10) (1899) 26 I.A 246, 253.\n\nKasturi v.\n\nPo11naninu.l/\n\nthe first part of the clause. Mr. Sastri fairly conceded that this superfluity would follow on his construction; but, he argued, that that need not necessarily defeat his construction.\n\nThe third difficulty in accepting the said construc- GaJend.agadhar J. tion is that the right which has already vested under\n\ncl. 11 in respondent 5 is again vested by cl. 12. As we have already seen, under cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thayumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under cl.12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under cl.11.\n\nThere is still one more difficuHy in accepting the appellant's construction, and that is in regard to the last part of cl. 12.\n\nUnder this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were tu take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression \"all the properties \" means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with cl. II. Faced with this difficulty Mr. Sastri suggested that the context requires that \"all the properties\" would. mean all the properties which would have gone to the appellant if he had been adopted; that is tp say, half the properties given to him under cl. 11 on the basis of his adoption. Such a limitation on the meaning .of the words \"all the properties\" seems to us to be whdl.Iy unjustified. Therefore, we are satisfied that reading els. II and 12 together the High Court was right in holding that cl. 12 was intended to operate\n\n, !\n\n' '\n\nat the time of the de'.l.th of the testator and not later 1961 and that the appellant would get an interest under Kastud\n\ncl. 12 only if the widow of the testator pre.deceased v. the testator and there is no adoption by the testator Ponnammal before his death. If that be so, the appellant cannot claim any right or title on the strength of cl. 12 be- Gajend, agadkar I cause at the relevant time it was not intended to be operative at all. In the circumstances the appellant's rights are provided for by cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sastri on behalf of the appellant we see no reason to interfere with the said conclusion.\n\nTh.e result is the appeal fails; there would be no ordQr as tu c.osts.\n\nAppeal dismissed.\n\nSTATE OF JAMMU KASHMIR\n\nMIR GULAM RASUL.\n\n(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)\n\nFundamental rights-Equality before law-Breach of law, if amounts to violation of equal protection of law-Writ Petition-No fundamental right involved-Duty of High Court-Constitution of India, Arts. I4, 32(2A).\n\nThe Government of J ammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier .. The respondent moved the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service. Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu\n\nFtbrttary 23", "total_entities": 105, "entities": [{"text": "N. KASTURI", "label": "PETITIONER", "start_char": 1473, "end_char": 1483, "source": "metadata", "metadata": {"canonical_name": "N. KASTURI", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 1513, "end_char": 1533, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "IC N. WANcHoo", "label": "JUDGE", "start_char": 1538, "end_char": 1551, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)"}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 1919, "end_char": 1924, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 2830, "end_char": 2839, "source": "regex", "metadata": {"statute": null}}, {"text": "April 28, r937", "label": "DATE", "start_char": 3755, "end_char": 3769, "source": "ner", "metadata": {"in_sentence": "Held, that on a true construction of the will dated April 28, r937, cl."}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 3771, "end_char": 3777, "source": "regex", "metadata": {"statute": null}}, {"text": "L. R. 41 I.A. 5", "label": "CASE_CITATION", "start_char": 4858, "end_char": 4873, "source": "regex", "metadata": {}}, {"text": "A. V. Viswanatha Sastri", "label": "PETITIONER", "start_char": 5080, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "z96r\n\nA. V. Viswanatha Sastri, A. V. Narayanaswami and Ponnan .. ••l M. 8."}}, {"text": "A. V. Narayanaswami", "label": "LAWYER", "start_char": 5105, "end_char": 5124, "source": "ner", "metadata": {"in_sentence": "z96r\n\nA. V. Viswanatha Sastri, A. V. Narayanaswami and Ponnan .. ••l M. 8."}}, {"text": "Ponnan", "label": "PETITIONER", "start_char": 5129, "end_char": 5135, "source": "ner", "metadata": {"in_sentence": "z96r\n\nA. V. Viswanatha Sastri, A. V. Narayanaswami and Ponnan .. ••l M. 8."}}, {"text": "T. K. Snndara Ra.man", "label": "LAWYER", "start_char": 5164, "end_char": 5184, "source": "ner", "metadata": {"in_sentence": "Narasimhan for T. K. Snndara Ra.man, for the appellant."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 5206, "end_char": 5220, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer and B. K. B. Naidu, for respondent No."}}, {"text": "R. Ramamurthi Iyer", "label": "LAWYER", "start_char": 5240, "end_char": 5258, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer and B. K. B. Naidu, for respondent No."}}, {"text": "B. K. B. Naidu", "label": "LAWYER", "start_char": 5263, "end_char": 5277, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer and B. K. B. Naidu, for respondent No."}}, {"text": "JENDRAGADKAR", "label": "JUDGE", "start_char": 5489, "end_char": 5501, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGA, JENDRAGADKAR, J.-T.his appeal raisas a short&ajendragadkar J. question about the coustruct, ion of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura."}}, {"text": "Diraviyam Pillai", "label": "RESPONDENT", "start_char": 5621, "end_char": 5637, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGA, JENDRAGADKAR, J.-T.his appeal raisas a short&ajendragadkar J. question about the coustruct, ion of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura."}}, {"text": "N. Kasturi", "label": "PETITIONER", "start_char": 5712, "end_char": 5722, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGA, JENDRAGADKAR, J.-T.his appeal raisas a short&ajendragadkar J. question about the coustruct, ion of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura.", "canonical_name": "N. KASTURI"}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 5818, "end_char": 5824, "source": "regex", "metadata": {"statute": null}}, {"text": "Ponnammal", "label": "RESPONDENT", "start_char": 6172, "end_char": 6181, "source": "ner", "metadata": {"in_sentence": "12 of the will certaiu rights either vested or contingent had been conferred on him in regard to the property as therein described, and it was in pursuance of the said rights that he claimed a declaration with a view to protect his interest and safeguard the estate from being wasted by, and lost in the hands of, the testator's widow, respondent 1, Ponnammal, who was in charge of the said estate.", "canonical_name": "Ponna.mmal herself"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 6637, "end_char": 6654, "source": "ner", "metadata": {"in_sentence": "The appellant then took the matter before the Madras High Court by his appeal."}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 7380, "end_char": 7397, "source": "ner", "metadata": {"in_sentence": "The appellant then applied for and\n\nK.VN•i obtained a certificate from the High Court, and it v. is with the said certificate that he has come to this\n\nP .. \"\"\"'\"\"\" court by his present appeal ; and so, the only question which falls for our decision is: Have the courts below G•i••d••gadh• J. put an unreasonable construction on the will as Mr. Viswanatha Sastri for the appellant contends?"}}, {"text": "March 10, 1939", "label": "DATE", "start_char": 7516, "end_char": 7530, "source": "ner", "metadata": {"in_sentence": "As we have already seen the testator executed the will on April 28, 1937, and he died on March 10, 1939."}}, {"text": "Thayumanaswami Pillai", "label": "OTHER_PERSON", "start_char": 7655, "end_char": 7676, "source": "ner", "metadata": {"in_sentence": "During his lifetime the testator was a member of a joint and undivided Hindu family consisting of himself and his cousin, Thayumanaswami Pillai.", "canonical_name": "Thayumanaswarui Pilla.i"}}, {"text": "May 9, 1935", "label": "DATE", "start_char": 7740, "end_char": 7751, "source": "ner", "metadata": {"in_sentence": "At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal."}}, {"text": "Mangayarkarasi Ammal", "label": "RESPONDENT", "start_char": 7817, "end_char": 7837, "source": "ner", "metadata": {"in_sentence": "At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal."}}, {"text": "Kanniammal", "label": "RESPONDENT", "start_char": 7856, "end_char": 7866, "source": "ner", "metadata": {"in_sentence": "At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal.", "canonical_name": "Kanniammal"}}, {"text": "Pichai Ammal", "label": "RESPONDENT", "start_char": 7920, "end_char": 7932, "source": "ner", "metadata": {"in_sentence": "At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal."}}, {"text": "Kalyanasundaram", "label": "RESPONDENT", "start_char": 8197, "end_char": 8212, "source": "ner", "metadata": {"in_sentence": "The appellant is the sister's daughter's grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son by the testator's cousin, Thayumanaswami Pillai.", "canonical_name": "Kalyanasundaram"}}, {"text": "June 12, 1935", "label": "DATE", "start_char": 8877, "end_char": 8890, "source": "ner", "metadata": {"in_sentence": "Clause l of the will refers to the fact that the testator had alread v executed a will on June 12, 1935, and had registered it."}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 9102, "end_char": 9110, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 9595, "end_char": 9603, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 9780, "end_char": 9785, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 10241, "end_char": 10249, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 10601, "end_char": 10609, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 11262, "end_char": 11267, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 11464, "end_char": 11472, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 12327, "end_char": 12332, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 13268, "end_char": 13276, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 14594, "end_char": 14600, "source": "regex", "metadata": {"statute": null}}, {"text": "Cl. 11", "label": "PROVISION", "start_char": 14708, "end_char": 14714, "source": "regex", "metadata": {"statute": null}}, {"text": "Thayumanaswarui Pilla.i", "label": "OTHER_PERSON", "start_char": 14803, "end_char": 14826, "source": "ner", "metadata": {"in_sentence": "Exclusive of the properties that may be given in writing, as stated above, to the late Thayumanaswarui Pilla.i's wives and daughter and similarly for herself, that is to say, for my wife, for being enjoyed by each during her lifetime, in respect of one-half of all the remaining properties of my family, my wife shall, before making an adoption, execute in favour of the above Kalyanasundaram a document with suitable recitals to the effect that he shall enjoy only the income that may be derived therefrom during his lifetime without subjecting them to any encumbrances whatever, that is to !", "canonical_name": "Thayumanaswarui Pilla.i"}}, {"text": "Kalyanasundaram", "label": "RESPONDENT", "start_char": 15093, "end_char": 15108, "source": "ner", "metadata": {"in_sentence": "Exclusive of the properties that may be given in writing, as stated above, to the late Thayumanaswarui Pilla.i's wives and daughter and similarly for herself, that is to say, for my wife, for being enjoyed by each during her lifetime, in respect of one-half of all the remaining properties of my family, my wife shall, before making an adoption, execute in favour of the above Kalyanasundaram a document with suitable recitals to the effect that he shall enjoy only the income that may be derived therefrom during his lifetime without subjecting them to any encumbrances whatever, that is to !", "canonical_name": "Kalyanasundaram"}}, {"text": "Ponna.mmal herself", "label": "RESPONDENT", "start_char": 15600, "end_char": 15618, "source": "ner", "metadata": {"in_sentence": "My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas\n\nKasturi\n\nSUPRE:YIE COURT REPORTS [11161)\n\nproperties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares.", "canonical_name": "Ponna.mmal herself"}}, {"text": "Kasturi", "label": "PETITIONER", "start_char": 15880, "end_char": 15887, "source": "ner", "metadata": {"in_sentence": "My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas\n\nKasturi\n\nSUPRE:YIE COURT REPORTS [11161)\n\nproperties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares.", "canonical_name": "N. KASTURI"}}, {"text": "Piohammal", "label": "OTHER_PERSON", "start_char": 16023, "end_char": 16032, "source": "ner", "metadata": {"in_sentence": "My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas\n\nKasturi\n\nSUPRE:YIE COURT REPORTS [11161)\n\nproperties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares."}}, {"text": "Ponnammal", "label": "RESPONDENT", "start_char": 16045, "end_char": 16054, "source": "ner", "metadata": {"in_sentence": "My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas\n\nKasturi\n\nSUPRE:YIE COURT REPORTS [11161)\n\nproperties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares.", "canonical_name": "Ponna.mmal herself"}}, {"text": "Cl. 12", "label": "PROVISION", "start_char": 16554, "end_char": 16560, "source": "regex", "metadata": {"statute": null}}, {"text": "Kanuiammal", "label": "RESPONDENT", "start_char": 17206, "end_char": 17216, "source": "ner", "metadata": {"in_sentence": "Should myself and my wife die without making an adoption as stated above and should the above Kalyanasundaram predecease us, the above Mangayarkarasi Ammal and Kanuiammal shall get all the properties and enjoy them during their lifetime without subjecting them to any encumbrances whatever and by virtne of the permission hereby granted by me to them to adopt a boy, they shall adopt a boy and that adopted boy shall succeed to them.\"", "canonical_name": "Kanniammal"}}, {"text": "Clause 13", "label": "PROVISION", "start_char": 17585, "end_char": 17594, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 14", "label": "PROVISION", "start_char": 17838, "end_char": 17847, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 18000, "end_char": 18006, "source": "regex", "metadata": {"statute": null}}, {"text": "Gafendyagadka", "label": "JUDGE", "start_char": 18327, "end_char": 18340, "source": "ner", "metadata": {"in_sentence": "In case -- she also is not alive at the relevant time respondent 3 Gafendyagadka, J. should be the executrix and guardian."}}, {"text": "Clause 16", "label": "PROVISION", "start_char": 18383, "end_char": 18392, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 17", "label": "PROVISION", "start_char": 18784, "end_char": 18790, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 18", "label": "PROVISION", "start_char": 18962, "end_char": 18968, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 19", "label": "PROVISION", "start_char": 19057, "end_char": 19063, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 19650, "end_char": 19656, "source": "regex", "metadata": {"statute": null}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 19888, "end_char": 19894, "source": "ner", "metadata": {"in_sentence": "Mr. Sastri contends that in construing the two relevant clauses it is necessary to bear in mind two principles which govern the construction of wills.", "canonical_name": "Sastri"}}, {"text": "Mookerjee", "label": "JUDGE", "start_char": 20416, "end_char": 20425, "source": "ner", "metadata": {"in_sentence": "Iu support of the first principle Mr. Sastri v. has relied on the observation of Mookerjee, J., in Ponnammal Sarojini Dassi v. Gnanendranath Das & Others etc. ("}}, {"text": "cajendragadkar", "label": "JUDGE", "start_char": 20558, "end_char": 20572, "source": "ner", "metadata": {"in_sentence": "On a construction of the several dispositions contained cajendragadkar J. in the will with which t, he learned judge was dealing he came to the conclusion that taken together the said dispositions show that the testator internkd to dispose of all his properties, and then he added \" if there is any doubt, we ought if possible to read the will so as to lead to a testacy, not to an intestacy.\""}}, {"text": "Redfern", "label": "OTHER_PERSON", "start_char": 20986, "end_char": 20993, "source": "ner", "metadata": {"in_sentence": "In support of this conclusion the learned judge referred to four English decisions, In re Redfern ('), In re Harrison('), Kirby Smith v. Parnell(') and In re Edwards(')."}}, {"text": "Edwards", "label": "OTHER_PERSON", "start_char": 21054, "end_char": 21061, "source": "ner", "metadata": {"in_sentence": "In support of this conclusion the learned judge referred to four English decisions, In re Redfern ('), In re Harrison('), Kirby Smith v. Parnell(') and In re Edwards(')."}}, {"text": "Mukherjea", "label": "JUDGE", "start_char": 21880, "end_char": 21889, "source": "ner", "metadata": {"in_sentence": "Mukherjea, J., as he then was, observed that the cardinal maxim to be observed by courts in constraing a will is to endeavour to ascertain the intentions of the testator.", "canonical_name": "Mukherjea"}}, {"text": "Mukherjca", "label": "JUDGE", "start_char": 22767, "end_char": 22776, "source": "ner", "metadata": {"in_sentence": "In dealing with the principle Ponnammaz that intestacy should be avoided, Mukherjca, J. said . -", "canonical_name": "Mukherjea"}}, {"text": "Sast", "label": "OTHER_PERSON", "start_char": 24546, "end_char": 24550, "source": "ner", "metadata": {"in_sentence": "Mr. Sast, ri argued that els.", "canonical_name": "Sastri"}}, {"text": "(1913) L.R. 41 I.A. 51", "label": "CASE_CITATION", "start_char": 24647, "end_char": 24669, "source": "regex", "metadata": {}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 24734, "end_char": 24740, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 24879, "end_char": 24885, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 25411, "end_char": 25417, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 25482, "end_char": 25488, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 25674, "end_char": 25680, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 25937, "end_char": 25943, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 25948, "end_char": 25954, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 26018, "end_char": 26024, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 26201, "end_char": 26207, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 26422, "end_char": 26431, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 26819, "end_char": 26825, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 26865, "end_char": 26871, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 27191, "end_char": 27197, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 27360, "end_char": 27366, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 29458, "end_char": 29464, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 29500, "end_char": 29506, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 29539, "end_char": 29545, "source": "regex", "metadata": {"statute": null}}, {"text": "cl.12", "label": "PROVISION", "start_char": 29801, "end_char": 29806, "source": "regex", "metadata": {"statute": null}}, {"text": "cl.11", "label": "PROVISION", "start_char": 30078, "end_char": 30083, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 30205, "end_char": 30211, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 31064, "end_char": 31070, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 31314, "end_char": 31320, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 31478, "end_char": 31484, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 31697, "end_char": 31703, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 31861, "end_char": 31867, "source": "regex", "metadata": {"statute": null}}, {"text": "STATE OF JAMMU KASHMIR", "label": "RESPONDENT", "start_char": 32376, "end_char": 32398, "source": "ner", "metadata": {"in_sentence": "STATE OF JAMMU KASHMIR\n\nMIR GULAM RASUL."}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 32441, "end_char": 32453, "source": "ner", "metadata": {"in_sentence": "(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 32456, "end_char": 32469, "source": "ner", "metadata": {"in_sentence": "(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "K. C. DAS GUPTA", "label": "JUDGE", "start_char": 32471, "end_char": 32486, "source": "ner", "metadata": {"in_sentence": "(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "N. RAJAGOPALA AYYANGAR", "label": "JUDGE", "start_char": 32492, "end_char": 32514, "source": "ner", "metadata": {"in_sentence": "(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 32690, "end_char": 32711, "source": "regex", "metadata": {}}, {"text": "Government of J ammu and Kashmir", "label": "RESPONDENT", "start_char": 32736, "end_char": 32768, "source": "ner", "metadata": {"in_sentence": "The Government of J ammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier .. The respondent moved the Jammu and Kashmir High Court under Art."}}, {"text": "Art. 32(2A)", "label": "PROVISION", "start_char": 32955, "end_char": 32966, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 32974, "end_char": 32995, "source": "regex", "metadata": {}}, {"text": "State of Jammu and Kashmir", "label": "ORG", "start_char": 33014, "end_char": 33040, "source": "ner", "metadata": {"in_sentence": "32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service."}}, {"text": "Articles 226 and 3", "label": "PROVISION", "start_char": 33253, "end_char": 33271, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 33283, "end_char": 33304, "source": "regex", "metadata": {}}, {"text": "State of Jammu", "label": "ORG", "start_char": 33333, "end_char": 33347, "source": "ner", "metadata": {"in_sentence": "Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu\n\nFtbrttary 23"}}]} {"document_id": "1961_3_969_973_EN", "year": 1961, "text": "' '\n\n3 S.C.R.\n\nSUPREME COURT REPORTS 969\n\nat the time of the de'.l.th of the testator and not later 1961 and that the appellant would get an interest under Kastud\n\ncl. 12 only if the widow of the testator pre.deceased v. the testator and there is no adoption by the testator Ponnammal before his death. If that be so, the appellant cannot claim any right or title on the strength of cl. 12 be- Gajend, agadkar I cause at the relevant time it was not intended to be operative at all. In the circumstances the appellant's rights are provided for by cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sastri on behalf of the appellant we see no reason to interfere with the said conclusion.\n\nTh.e result is the appeal fails; there would be no ordQr as tu c.osts.\n\nAppeal dismissed.\n\nSTATE OF JAMMU KASHMIR\n\nMIR GULAM RASUL.\n\n(P. B. GAJENDRAGADKAR, A. K. SARKAR,\n\nK. N. WANCHOO, K. C. DAS GUPTA and\n\nN. RAJAGOPALA AYYANGAR, JJ.)\n\nFundamental rights-Equality before law-Breach of law, if amounts to violation of equal protection of law-Writ Petition-No fundamental right involved-Duty of High Court-Constitution of India, Arts. I4, 32(2A).\n\nThe Government of J ammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier .. The respondent moved the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service. Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu\n\nFtbrttary 23\n\n1961 and Kashmir. The High Court acting under Art. 32(2A) set aside the orders suspending and demoting the respondent.\n\nState oj Held, that the High Court had no powers to act under Jammu and Art. 32(2A) of the Constitution of India as the writ petition did l\\n; hmfr not disclose a violation of any fundamental right.\n\nNF G 1v. R 1 Held, further, that the breach of a Jaw by the Government, if i_r .ii ani asu any, did not amount to a denial of the equal protection Of the laws, as it had not ever been alleged by the respondent that the benefit of that Jaw had been designedly denied only to him.\n\nSarkar].\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 31 of 1957.\n\nAppeal from the judgment and order dated September 27, 1955, of the Jammti and Kashmir High Court in Misc. Application No. 23of1955.\n\nJ aswant Singh, Advocate-General for the State of . Jammu and Kashmir and R. H. Dhebar, for the appellant.\n\nS. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra,.for respondent.\n\n1961. February 23. The Judgment of the Court was delivered by\n\nSARKAR, J.-The respondent is a Civil Engineer who held various positions under the appellant, the Government of the State of Jammu and Kashmir. On\n\nSeptember 8, 1954, while the respondent was holding the post M Development Commissioner, he was placed . under suspension by an order made by the a.ppellant ·. on that date. Later, the appellant passed another order on February 12, 1955, demoting the petitioner to the post of a Divisional Engineer.\n\nOn May 12, 1955, the respondent moved the High Court of Jammu and Kashmir under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir, for a, writ directing the appellant not to give effect to the order dated February 12, 1955, and to 'recognise him as the Chief Engineer. the substantive post held by him when he was suspended, with effect from the date of suspension and with all the emoluments of that office. The High Court issued. the writ as prayed. The State appeals from the judg- 14ent of the High Court,\n\n< I\n\nIn the view that, we think, must be taken of this 1961 case, it is unnecessary to go into the facts a great State •! deal. At one stage of his career under the appellant, fammu a•d the respondent held a job of some responsibility in Kashmir what was called the Sindh Valley Hydro Electric v.\n\nScheme. This Scheme wi.s for generating electric Mir G\"lam Rasul\n\npower by dams erected in theSindh water course and for using the water for irrigation purposes. The work on this Scheme seems to have commenced some time ago. The respondent was connected with the Scheme\n\nfrom 1949 till he was transferred from the work in\n\n1953. It appears that the appellant was dissatisfied\n\n~ with the progress of the work and the manner in which it had been carried out and decided to establish a Commission of Inquiry (a) to investigate into the reasons. for (i)progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations. Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954. Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons.\n\nThe Commission made certain enquiries and eventually submittlld its report to the appellant.\n\nThe appellant then made the order demoting the respondent purporting to act on \\he\n\nbasis of the report. It is not necessary to set out the facts any more. The respondent, in his application for the writ, questioned the validity of the. orders suspending and demoting him on these grounds. He alleged that the Commission did not conduct the enquiry according to the rules of natu, ral justice. He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he bad not been at fault at all. He also said that the appoint- . \" ment of the Commission could only have been made under s. 2 of the Public Servants (Inquiries} Act, 1977\n\nSarkar /.\n\n(Kashmir era), and must, therefore, be deemed to have\n\nState of been so made. He corn plained that the provisions of J•mmu and this Act were not observed by the Commission in l(ashmir making the enquiry. Lastly, he said that the responv. dent could be reduced in rank only in accordance with Mir Gula>• Rasul th d 1 \"d d . th K h . c 1 s . . __ e proce ure a1 own m e as m1r 1v1 erv1ce\n\nSarkar J.\n\nRules passed by the State Council Order No. 81-C of 1939 and this procedure had not been followed.\n\nIn the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length. The High Court took the view that they had. We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been substantiated.\n\nNow, the High Court was moved to exercise its powers under Art. 32 (2A) of the Constitution. The order made by it cannot be upheld if it was not justified by that provision. This is not in dispute. That provision is in t!; tese terms: Art. 32(2A). \"Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction io issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part.\" The High Court can then exercise its powers under Art. 32 (2A) only \" for the enforcement of any of the rights conferred by this Part\". The Part referred to is Part III and the rights conferred by it are the fundamental rights. Therefore, the High Conrt can act under cl. (2A) of Art. 32 only to enforce a. fundamental right.\n\nThe only fundamental right, however, on the violation of which !'earned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the la..ws.\n\nHe said that the . '\n\n. -.\n\nrespondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules fo!lowed Stale of before the order demoting him could be made and as Jammu ••d that procedure was not followed, his client had been I(')). The principle in these cases was evolved in P(!,(; k v .• Hailssy ('). In that case the testatrix had bequeathed some of her best linen to her grandchildren. It was held that the legacy was void for uncertainty and the Master of the Rolls said that-\n\n\" if it were such or so much of my best linen as they should choose, or a.Et my executors should choose for them, this would be good, and by the choice of the legatees or executors is reducible to a certainty.\" In Tapky v. Eagleton (3), the testator devised \"two houses in King Street\". to the le11atee. He however had three houses in King Street and the question a.rose whether the devise was bad for unoertaintv.\n\nJessel, M. R. held that the words meant \" two vf \"Aiy\n\n(r) (1833) 1 My .i K. 571: 39 .t:.R. 797, (2)(1726) 2 P. Wm,. 387 ; 2~ F:, Jl, 780, (31(18f9)12 Ch. P. 683.\n\n~I.\n\n3 S.C.R. SUPRE~JE COURT REPORTS 979\n\nhouses in King'Street\" and that two of the houses out of three passed to the legatee who was entitled tu elect which tw.t in case of disagreement among them, the choice was to be determined by lots. \\ It is urged that this is r n artificial :ule of cohst1uction and there is no reason to apply it to India. The rule was evolved by English Courts in order tha.t where the testator's intention to make a gift was clear and there was only some uncertainty (but not such complete uncertainty as could not be resolved at all) that may be avoided by giving a choice to the legatee. The rule seems to be a common sense rule to give effect to the intentions of a testator which clearly show that he intended tri bequeath something which could be made definite by choice.\n\nWe do not sec why such a rule of common sense to give effect to wiils which are not quite uncertain and which can be made certain should be called :>n artificial rule. We also do not see why in appropriate cases this rule of common sense should not be extended to India. We have already said that it is only when the uncertainty is so great that there is no way of resolving it and finding out the intention of the testator thats. 89 comes into play. But where\n\nthe uncertainty is of a less degree and the intention of the testator to gift certain property is clear, though there inay be some difficulty because there is .mote property of that kind tha, n actually bequeathed, that\n\n(1) (186o) 5 H. & N. 219; 157 E.R. u6o. (>) (1941] Ch. 428,\n\n196I\n\nM ahalakskmi\n\nAm111al\n\nWanchoo ].\n\nBalakrishnan v.\n\nMahalakshmi\n\nWanr.hoo ].\n\nthe benevolent rule should be applied to carry out the intention of the testator which is otherwise clear.\n\nThe matter has come up for consideration in two cases in the Madras High Court. In the first case, Narayana8ami Gramani v. Periathambi Gramani (1), the testator owned land measuring one kani and three quarters. He made a will by whici. he devised one kani thereof to the plaintiff in that suit. The plaintiff filed a suit to recover one kani selected by liim out of the land in question ; and the point to be decided was whether the plaintiff was entitled to select and thus make the bequest which the testator wanted to give him certain. It was not urged in that case that the gift was altogether void for uncertainty, for the intention of the testator to give one kani out of one kani and three quarters of land was clear and certain and difficulty only was as to which part of one kani and three quarters should go to the legatee. The High Court lield in that case as follows :--,-\n\n\"In a case like the present the devisee has clearly the right to choose. It has been long settled that 'if a man devises two acres out of four acres that lie together, this is a good devise and the devisee shall select. (Jarman on Wills, 5th Edition, page 331) '.\" The matter came up again in Bharadwaja Mudaliar\n\nv. Kolandavelu Mudaliar (2 ). In that case the will gave to the legatee \"six acres of good irrigated nauja lands in the village of Pudur \". The testator had 19·40 acres ofland JLnswering to the description. The legatee died without having made the selection. His heir brought a suit and wanted to select. It was held that the bequest was not void for uncertainty and that the heir would be entitled to six acres on partition but was not entitled to selection. Wallis C.J. remarked that-\n\n\" in England such a bequt would have been held void for uncertainty but for the benevolent rule of construction that the testator is intended to have left the choice to the legatee.\" He also pointed out that the accepted view in England was that the will could not be read as intending that\n\n(1) (18g5) I.L.R. 18 lllad. -160.\n\n(2) (1915) 29 111.L.J. 717.\n\n.. 3 S.C.lt.\n\nSUPREME COURT REPORTS 981\n\nheirs of a legatee should be allowed tu make the election in the event of the legatee dying without having made it. He therefore distinguished the earlier case of Narayaninted out by the High Court in the present case these observations of Wallis C.J. were unnecessary in the case before him, as he was dealing with a case where the legatee had died without making the selection.\n\nWe think that the further English rule that the legatee's heir cannot make the selection is also based on common sense, for t.he testat.or never had the legatee's heirs in his mind when he made the bequest; his intention could only be in a case where selection wa.s necessary that the legatee should make the selection. It seems to us therefore that where it is not possible to say on the construction of a will that the testator himself indicated the selection or appointed a third person to make the selection but still intended to make a gift which could be made certain by selection made by the legatee, the English rule of construction that in such cases the testator intended the legatee to select should be applied in India also and the decision in N arayanasami t shew that the testator was bequeathing any particular one of the properties to the legatee who desires to select, for the selection by the testator is imcompatible with the view that he intended the legatee to select.\" That was a case where on the ounstruction of the will it was held that the testator himself intended to select.- but the. selection ; failed becai.ise of the uncenairlty in the will. The second case is Bishop v. Holt('). In that case the testatrix by her will gave her 140 shares in the Crown Brewery Company to the legatee for her life with remainder in trust for her children. She held 40 fully paid-up shares and 240 partly paid-up shares in\n\n\\I) [1894] 3 Ch. D. 260.\n\n(2) [<900) 2 Ch. D, 620.\n\n, ..\n\n, -\n\nthe Brewery. A question arose as to from where these 140 shares were to come. It was held that they were to come out of the 240 partly paid-up shares on the ground that the testatrix's intention was clear, for she only held,40 folly paid-up shares and it could not have been intended that 140 shares should have come partly from the fully paid-up shares and partly from partly paid-up shares. The decision in that case was that the testatrix's own selection could be spelt out of the will and once that was so uo. question of any selection by the legatee arose. This case therefore does not in any way wea, ken the rule of benevolent construction by which the' li'lgatee is_ entitled in certain circumstances to make a selection. These two cases therefore have_ no application to the facts of the present case and do not detract from the rule of benevolent con- 'struction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make the selection.\n\nThis brings us to the second point, namely, whether the testator on the construction of this will intended his daughters to select. The main argument on behalf of the appellant in this connection is that on a fair and reasonable construction of the will the testator intended his brother Seetharama to select for the daughters and that as his brother had died withou.t niaking .the selection, the lands devised to the de.ugh.\" ters must now be partitioned in the ordinary course.\n\nIt is not disputed that if the intention of the testator was not to give the selection to his brother, the case . . would clearly be of the third kind indicated by us above and the daughters would have the right to _select.\n\nWe have already pointed out that by this- .will . the testator appointed Seetharama as th1<-guardian of his minor. de.ugh ters as well as of his foster son,\n\nnamely~ the appellant. Then he said as follows:-\n\n\"He (Seethe.re.ma) shall as soon as the minors attain majority give to the female children per head immediately they attain majority one veli of nanja land and one veli of punja land in the said vattam No. 149 out of the afore•n.id properties and he shall\n\nBalah, ishnan\n\nv. ,\\1ahalakslsmi\n\nAmmal\n\nWanchoo J.\n\nBalalcrishnan\n\nv. .\\I Gllalal:sliini\n\nA.mmal\n\nlVanchoo ).\n\ndeliver possession of the remaining properties to my son immediately after he attains majority. \" The argument is that these words show that it was Seetharama who was to make the selection and give the devised land to the two daughters and stress is laid on the words \"he shall give to the fem:ile children.\" These words are contrasted with the words \" he shall deliver possession of the remaining properties to my son.\" Now it is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the two daughters. Can it be said merely because in one case the words used are \" he shall give to the female children \" and in the other case the words are \"he shall deliver possession to my son\" that by the use of the former words the testator was ,; iving the right of selection to Seetharama? As we read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who wao the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major. We do not think that the testator meant something different in the case of the daughters because he used the words \" he shall give to the female chilcl.ren \" in \"ontrast with the words \"he shall deliver possession ........ \" used in the case of the appellant. In the context the words in our opinion mean the saIUe.\n\nTherefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them. We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there a51-ything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad\n\nquality of the land. If that were the intention of the testa.tor he should have given them a share in the . '\n\n...\n\nvattam (No. 149) and not a specific area of land of both nanja and punja lands. Or be could have made this position clear, even if be wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in corn puting the area to be given to the daughters.\n\nThere are nu words in the will from which it can be inferred that Seetharanui was nominated by the testator to make the selection ; nor are there ny words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality. The case, therefore, squarely comes in the third class of cases mentioned above by us, i.e., the testator had indicated with sufficient clarity what he wanted his daughters to get. The difficulty has arisen because vattam No. 149 has 21·38.acres of nanja land and 16•99 acres of punja land while each 111 t.\n\nNaunit Lal, for respondent No. 1.\n\nB. K. Khanna and R. H. Dhebar, for respondent No. 2.\n\n1961. February 27. The Judgment of the Court was delivered by\n\nSuBBA RAO, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay allowing the appeal filed by respondent No. 1 against the acquittal of the appellant by the Judicial Magistrate, First Class, Thana, and convicting him unrler s. 16(1), read with s. 7(i), of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act), and sentencing him to undergo rigorous imprisonment for two months and to pay a fine of Rs. 250/-.\n\nThe appellant is the proprietor of a shop at Thana known as the Cottage Industries. He is a dealer in butter. On June 27, 1957, the Food Inspector of the Thana Borough Municipality visited the shop of the appellant and purchased from him some quantity of Khandeshi butter. After purchasing the butter, the Food Inspector notified his intention to the appellant that he was going to get the butter analysed. He divided the butter into three equal parts, put them iri three separate bottles and duly sealed the bottles in the presence of two panchas.\n\nHe gave one of those bottles to the appellant, sent one to the Public Analyst and kept the third with himself. The appellant signed the labels on the bottles and also passed a receipt in favour of the Food Inspector in token of the receipt of one of the bottles and that receipt was signed by the appellant and counter-signed by two panch witnesses.\n\nThe Public Analyst analysed the butter sent to him and sent his report in due course. In the report it was stated that the butter contained 18:J2% foreign fat, 19·57% moisture and 64·67% milk fat.\n\nOn October 5, 1957, the Food Inspector filed a co111plaint jn the Court of the Judicial Magistrate, First Class, Thana, against the appdlant. It was 11-lleed\n\nJoshi\n\nShimpi\n\nSubba Rao].\n\nJoshi\n\nShimpi\n\nSvbbaRao ].\n\ntherein that the said butter was found to be \"adulte. rated\" as defined in s. 2(1) (a) of the Act and that the appellant had committed an offence under s. 16 (1) (a) of the Act by selling the adulterated article of food in contravention of s. 7(i) of the Act and the rules made thereunder. The Judicial Magistrate acquitted the appellant on the ground that it had not been proved beyond reasonable doubt that the butter which was purchased from the shop of the appellant was the very same butter which was sent to the Public Analyst and also for the reason that butter prepared out of curd did not come within the mischief of the definition of the word \" butter\" in rule A.11.05 of Appendix B to the Pre\\•ention of Food Adulteration Rules, 1955 (hereinafter called the Rules). The Food Inspector preferred an appeal against that order of acquittal to the High Court. The High Court held that the conclusion of the learned Judicial Magistrate that the buttet' purchased from the appellant might have been tampered with before it was sent to the Public Analyst was not based on any evidence on the record. It further held that butter prepared from curds was covered by the definition of the word \" butter \" given in the relevant rule. It further held that even if the butter prepared out of curds was not butter as defined in the said rule, the appellant would still be liable under s. 2 (1) (a) of the Act as it contained foreign fat an~, therefore, was an adulterated article of food within the meaning of the said sec.tion.\n\nIn the result it set aside the order of acquittal, convicted the appellant under the Act and sentenced him to rigorous imprisonment for two months and to pay a fiire of Rs. 250/ ·. Hence this appeal.\n\nLearned counsel for the appellant raised before us the followiug points; (1) the High Court went wrong in holding that the appellant had committed an offence under the Act, even though the butter in question was not butter within the meaning of the Rules. (2) Butter prepared from curds is not butter within the meaning ofr. A.11.05 of Appendix B to the Rules. (3) Butter sent to the Public Analyst was not the same butter seized from the appellant. (4) Th\\l\n\n3 S.C.R.\n\nSUPREME COUR'f l~EPORTS 989\n\nreport of the Public Analyst was vague and, therefore, no conviction could be based on it.\n\nFor the purpose of this appeal we are assuming in favour of the appellant that he would not be liable for conviction unless the butter seized from him was butter within the meaning of the rule.\n\nWe shall proceed to consider the appeal on that basis. In this view, nothing further need be said on the first question raised by learned counsel.\n\nAt the outset it would be convenient to consider the ingredients of the offence alleged to have been cotLmitted by the appellant. Section 2(i) of the Act defil)es the word \" adulterated \" and it says that an article of food shall be deemed to be ad u!Lerated if it satisfies one or other of the conditions prescribed in sub-els. (a.) to (1).\n\nWe a.re concerned in this appeal with sub-cl. (1) whereunder a.n article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents a.re present in quantities which a.re in excess of the prescribed limits of variability. Section 2(xii) defines \" prescribed \" to mean \" prescribed by rules ma.de under this Act.\" In exerciae of the powers conferred by sub-s. (2) of s. 4 and sub-s. (1) of s. 23 of the Act, the Central Government ma.de rules prescribing, inter alia, the standards of quality of different a.rticl.es of food. Rule 5 says that standards of quality of the various articles of food specified in Appendix B to the Rules a.re as defined in that appendix. Rule A.11.05 of Appendix B to the Rules defines \"butter\" to mean \" the product prepared exclusively from the milk or cream of cow or buffalo, or both, or without the addition of salt and anna.tto and shall contain not less than 80 per cent. of milk fat and not more than 16 per cent. of moisture\" and no preservative is permissible in butter. Therefore, if the quality or purity of butter falls below th~ standard prescribed by the said rule or its constituents a.re in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of ~. 2 of the Act. If the prescribed standard is not attained,\n\nJoshi v, S/iimpi\n\nSttbba Rao J.\n\nI96I\n\nJoshi\n\nSlt.inipi\n\nSubba Rao J.\n\n990 SUPREME cotJR'r R.El>OR'l'S [1961]\n\nthe statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To pnt it in other words, by reason of the fiction, it is not permissible for an accused to prove that, though the standard prescribed is not attained, the article of food is in fact not adulterated. The non-conformity with the standard prescribed makes such butter an adulterated food.\n\nSection 7 of the Act prohibits the manufacture, sale, storage, or distribution of s1:rh food.\n\nSection 16 provides a penalty for the contravention of the provisions of s. 7. The first question, therefore, that falls for consideration is whether the, butter seized from the appellaritwa~ butter as defined by rule A.11.05 of Appendix B to the Rules.\n\nLearned counsel for the appellant argues that butter prepared from curd is not butter as defined in the Act for the following reasons: (1) the definition of the word \"butter\" . does not include the product which is obtained from curd, as it refers only to a product which is prepared from milk or cream; (2) the three words,\" milk\",\" cream\" and\" curd\", are separately and exhaustively defined in the Rules and, therefore, the omission of the word \"curd\" in the said rule is a clear legislative indication that butter prepared from curd is not butter within the meaning of that rule; and (3) the word \"exclusively\" found in the rule emphasizes the fact that butter to come under the definition in the Act should have been prepared from milk or cream and from no other product.\n\nBefore considering the argument advanced, it would be necessary to notice how butter is made. In England butter is made as follows:\n\n\" ... as quickly as the milk is separated the cream is cooled. The cream is delivered to the creamery, where it is graded according to at least two classes, sweet and sour ......... Then it is pasteurized, and if ripened cream butter is to be made a pure cultu_re of Streptococcus lactis is introduced to start th~ desirable souring process. If sweet cream butter 1s to be made no starter is added. The best storage butter is made from unripened or sweet cruam.\n\nAfter\n\npasteurization and ripening the cream is held overnight, when it is churned, washed, salted and worked in the combined churn and worker.\"\n\n(See Encyolopaedia Britannica, Vol. 4, p. 469.) In India butter is prepared in the rural areas by the indigenous process out of soured milk and cream, i.e., curd. In some cities butter is also made directly out of milk and cream; but tbe percentage of the said production is insignificant compared with the indigenous system obtaining throughout India. Whatever process is adopted, whether butter is taken directly out of milk or taken out of soured milk or cream, it is prepared only from milk. The only difference between the two is that in the case of butter prepared from curd there is an intervening souring process which is not necessary in the case of butter directly prepared from milk or cream. Shortly stated, butter, by whatever process it is prepared, is a product prepared from milk.\n\nNow let us look at the relevant rules to consider whether they provide any reasonable basis for sustaining the argument advanced by learned counsel for the appellant. We shall now read the relevant rules of Appendix B to the Rules.\n\nA. 11.01. Milk means the normal clean and fresh secretion obtained by complete milking of the udder of a healthy cow, buffalo, goat or sheep during the period following at least 72 hours after calving or until colostrum free whether such secretion has been\n\nproc{, ssed or not.\n\nA. 11.05.\n\nButter means the product prepared exclusively from the milk or cream of cow or buffalo, or both, or without the addition of salt and annatto and shall contain not less than 80 per cent. of milk fat and not more than 16 per cent. of moisture. No preservative is permissible in butter.\n\nA. 11.06. Dahi or curd: (a) Whole milk dahi or curd means the product obtained from fresh whole milk either of cow or buffalo by souring. It shall not contain any ingredient not found in milk.\n\nA. 11.10. Cream means the portion of milk rich in milk fat which has risen to the surface of milk on\n\nJodi\n\nSAimP•\n\nSubba Rao J.\n\nJo.shi\n\nv. $AiMpi\n\nSuhb• Rao J.\n\nstanding and ha.s been removed or which.has been separated from milk by centriiugal force. It shall contain not less than 40 per cent. of milk fat and shall not contain any added substance. The fat separated from cream shall conform to the specification prescribed for ghee.\n\nA. 11.14. Ghee means the pure clarified fat derived solely from milk or from milk curds or from cream to which no colouring matter or preservatiYe has been added.\n\nIt wa.s asked with some plausibility that if the rule ma.king authority did not intend to make a. distinction, in the context of making butter, .between milk, cream and curd, why did it define the said three products separately, a.nd why, in the case of butter, curd wa.s not shown as one of the products from which it could be prepared, while in the case of ghee, it was shown a.s a separate produce from which ghee could be prepared. The first criticism ca.n easily be answered.\n\nMilk, cream a.nd butter have got to be sepa.ra.tely defined, for they a.re sold in those three different forms, a.nd the question ofadulteration of the said products would have to be considered separately in regard to the standards prescribed for them. There is also no force in the second criticism. The original rules were framed on September 12, 1955, and the definition of ghee was introduced therein in 1956. The authority making the subsequent rule might have thought of clarifying the definition of ghee to steer clear of the difficulties raised in the case of the definition of butter.\n\nPutting aside the general argument, let us now look a.t the relevant provisions. The following words in the definition stand out prominently: \"product prepared exclusively from milk or cream of cow or buff a.lo, or both.\" To be butter it should comply with the following conditions: (i) it shall be a. product from milk or cream ; (ii) the said milk or cream shall be the, t of cow or buffalo, or of both ; (iii) the product sha.11 be prepared from the said milk; a.nd (iv) it shall be prepared exclusively from the said milk. \"Product\" means \" a. thing produced by nature or a. na.tura.l process or manufacture.\" What is the meaning of the\n\n...\n\nword \"prepared\" ? The Rules use different words for different milk products. In the case of butter, milk and curd, the word used is \"obtained\"; and in the case of ghee the word used is \"derived \". The dictionary meaning of the word \" prepare \" is, \"to bring into proper state for use by some special or tech, nice.I process, to manufacture, to make or compound \": (see The Shorter Oxford Dictionary, 3rd edn., at\n\nii. 1571). The word has a comprehensive meaning and t>i\n\nSubba Rao].\n\nJoshi\n\nSlimpi\n\nSubb• Roo ].\n\nemployed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the Legislature.\n\nThe latest view on the relevant rule of construction is found in \"Maxwell on'the Interpretation of Statutes\",\n\n10th edn., at p. 262, which reads,\n\n\" ......... it is now recognized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully,\n\nits plain and rational meaning and to promote its object. \" Adverting to Acts against adulteration, the learned author quotes Day, J., in Newby v. Sims(•) as follows:\n\n\"I cannot concur in the contention that because these acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be strict. I think that neither greater nor less strict. ness should be applied to those than to other statutes.\" So judged, we have no doubt that the butter prepared out of curd falls within the plain meaning of the words in the said rule.\n\nReliance is placed by learned counsel for the appellant on the decision of Miabhoy, J., i11 Narshir!ha\n\nBhaskar v. State of Bombay(•). The decision is certainly in favour of the appellant. But a full bench of the same High Court in Sarlashiv v. P. V. Bhalerao (3) overruled the said decision. In the latter decision Chainani, C. J., after considering the arguments, observed at p. 1804 thus :\n\n\" The emphasis is, therefore, on the basic material from which butter is prepared and not on the process by which it is made. Dahi is prepared from milk by souring it. Butter prepared from De.hi can, therefore, be said to be butter prepared from milk itself, after it has undergone the process of souring ................... ,..... There is also a third method, which is used in some dairies and that is produce butter directly from milk itself. In a.II these three oases, the basic material from which butter is\n\n!•> [•89tl 63.L.J.M:c. 229.\n\n(2) I.L.R. [1958] Bom. 63?, <3) I.L.R. [1959] Bom. 1800.\n\n. -\n\nmade is milk. Only the processes adopted for making it are different. In one case it is produced from milk directly. In the other two cases, cream and curd are first prepared and these aru then churned to obtain butter. The preparation of cream or curd is only an intermediate process in the manufacture of butter from milk. Butter made from Dahi or curd, is therefore also butter made from milk.\" We entirely agree with these observations.\n\nReliance is then placed upon a decision in Hunt v.\n\nRichardson(1) in support of the argument that if the standard prescribed was not maintained, the appellant did not commit any offence, as there was no adulteration of milk fat with other products. In the above case, by s. 6 of the Sale of Food and Drugs Act, 1875, \" no person shall sell t.o the prejudice of the purchaser any article of food which is not of the nature, substance, and quality of the article demanded by the purchaser, under a penalty.\" By s. 4 of the said Act, the Board of Agriculture were empowered to make regulations for determining what deficiency in any of the normal constituents of genuine milk should for the purposes of the Sale of Food and Drugs Acts raise a presumption, until the contrary was proved, that the milk was not genuine. In exercise of their power, the Boa.rd of Agriculture made a regulation prescribing that where a sample of milk contained less than 3 per cent. of milk fat it was to be presumed that the milk was not genuine by reason of the abstraction therefrom of milk fat or the addition thereto of water. A dealer in milk sold pure milk and the deficiency in the milk fat was not due to any abstraction from the milk or addition thereto, but because of the herbage on which the cows were fed.\n\nThe court, by a majority, held that no offence was committed by the dealer. The reason given for the decision is found at p. 452 and it is,\n\n\" This section does not authorize the Boa.rd of Agriculture to define what is milk, or to fix a standard of the normal constituents below which\n\n(1) (1916] 2 K.B. 446.\n\nJoshi v.\n\nShim pi\n\nSubba llao J.\n\nJoshi v.\n\nShim pi\n\nSt4bba Rao].\n\nan article shall be deemed not to be milk, . and the regulation providing that where a sample of milk contains less then 3 per cent. of milk fat it shall be presumed, until the contrary is proved, not to be genuine of necessity implies that it may be proved to be genuine although it contains less than 3 per cent. of milk fat. It is to be observed that s. 1 of the same Act of 1899, which deals with the import ation of adulterated or impoverished milk, provides in sub-s. 7 that for the purposes of that section milk shall be deemed to be adulterated or impoverished if it has been mixed with any other substance, or if any part of it has been abstracted so as in either case to affect injuriously its quality, substance, or nature. This, I think, confirms the view implied in the regulation that milk which has not been so treated although it be deficient in milk fat is none the less deemed to be milk for the purposes of s. 6 of the Sale of Food and Drugs Act, 1875.\" It is, therefore, obvious that under the English Act selling milk below a particular standard is not an offence. The gist of the offence is mixing with milk any other substance or abstracting any part from it so as to affect injuriously the quality, substance, or nature of the milk. The regulation prescribing that milk shall contain not less than 3 per cent. of milk fat raises only a rebuttable presumption, and the dealer, notwithstanding such deficiency, can prove that the milk has not been adulterated or impoveri shed within the meaning of the said Act. But in the Indian Act selling butter below the prescribed standard is deemed to be adulteration. If the standard is not maintained, the butter, by a fiction, becomes an 11.dulterated food.\n\nA dealer in such butter cannot adduce evidence to prove that notwithstanding the deficiency in the standard, it is not adulterated.\n\nThe conclusion we have arrived at is not only supported by the plain words of the rule, but also carries out the clear intention of the Legislature. The Act was passed to make provis10ns for the prevention of adulteration of food.\n\nButter is a favourite edible fat and is consumed in different ways by innumerable\n\n. -\n\npersons in this country. As we have already pointed out, butter is prepared in the rural areas throughout this country by the indigenous process of churning soured milk, whereas only in a few cities butter is prepared directly from milk. The interpretation suggested by learned counsel for the appellant, if accepted, would make the rule a dead-letter, for all practical purposes, and the object of the Legislature would be defeated. In our view, the intention of the Legislature has been clearly expressed in the rule.\n\nWe, therefore, hold that butter prepared from curd comes within the definition of \"butter\" in r. A.11.05 of Appendix B to the Rules.\n\nThe second contention turns upon a question of fact., The High Court considered the entire evidence and accepting the evidence of the Food Inspector and the Health Officer, held that the bottle sent to the Public Analyst was the sample seized from the appellant. There are no permissible grounds for allowing the appellant to canvass the correctness of this finding. We, therefore, accept the finding. ' The last contention is that the report of the Public Analyst is ambiguous and, therefore, the benefit of doubt should be given to the appellant. What is stated is that in the report it is stated that the butter contained 19·57% of moisture, 64·67% of milk fat and 18'32% of foreign fat, totalling 102·56% i.e., more than 100%. It is, therefore, argued that the report on the face of it is incorrect and therefore should not be acted upon. There is an obvious fallacy underlying this argument. 18·32 per cent. of foreign fat is not a percentage in relation to the milk but only in relation to the fat. Out of the fat in the milk, the analyst says that 18·32 per cent. is foreign fat. In his own words, \".The butter fat in the sample contains 18·32% foreign fat.\" If that be so, there is no mistake on the face of the report. The report clearly indicates that the butter sold by the appellant was below the standard prescribed under the rule. If so, it follows that the appellant is guilty of the offence with which he was charged.\n\nJoshi v.\n\nShim pi\n\nSubba Rao].\n\njoslu\n\nShimpi\n\nSubba Ilao ] .\n\nI96I\n\nFebruary :i7.\n\nThe High Court sentenced the accused to undergo rigorous imprisonment for two months and also to pay a fine of Rs. 250/-. We agree with the High Court that the offence committed by the appellant is a serious one and that ordinarily the punishment should be deterrent. In mqst of the cases of this kind imprisonment would certainly be a suitable sentence.\n\nBut in this case, there was a conflict of view even in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice that on April 16, 1960, the Central Government made another rule amending rule {\\-11.05 by inserting the word \" curd \" in the definition of butter and the amended definition reads, \" butter means the product prepared exclusively from milk, cream or curd of cow or buffalo ......... \" This must have been made to clarify the position in view of the conflicting decisions: In the circumstances, we think that a sentence of fine would meet the ends of justice in the present case. We, therefore, set aside the sentence of two months' rigorous imprisonment and a fine of Rs. 250/- and instead sentence the appellant to pay a fine of Rs. 500/·.\n\nWith this modification, the appeal is dismissed.\n\nA.JYPeal di81nissed.\n\nKARUMUTHU THIAGARAJAN CHETTIAR\n\nAND ANOTHER\n\nE. M. MUTHAPP A CHETTIAR. (P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)\n\nPart1'ership-Duration not expressly provided-When can be\n\nimplied~Terminatien of partnership by notice-Partnership Act,\n\nI9J2 (IX of 1932). ss. 7, IO, r3(g).\n\nThe appellant and the respondent entered into a written partnership with respect to the managing agency business of two mills, the terms of which were, inter alia, that the management shall be carried on in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter,\n\nl )", "total_entities": 71, "entities": [{"text": "M. V. JOSHI", "label": "PETITIONER", "start_char": 40, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "M. V. JOSHI", "offset_not_found": false}}, {"text": "M. U. SHIMP! AND ANOTHER", "label": "RESPONDENT", "start_char": 53, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "M. U. SHIMP! AND ANOTHER", "offset_not_found": false}}, {"text": "K. SuBBA RAO", "label": "JUDGE", "start_char": 89, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "Prevcntion of Food Adulteration Act", "label": "STATUTE", "start_char": 265, "end_char": 300, "source": "regex", "metadata": {}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 535, "end_char": 543, "source": "regex", "metadata": {"linked_statute_text": "Prevcntion of Food Adulteration Act", "statute": "Prevcntion of Food Adulteration Act"}}, {"text": "Adulteration Act, 1954", "label": "STATUTE", "start_char": 588, "end_char": 610, "source": "regex", "metadata": {}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 809, "end_char": 832, "source": "regex", "metadata": {}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 1156, "end_char": 1179, "source": "regex", "metadata": {}}, {"text": "Section 2(i)(l)", "label": "PROVISION", "start_char": 1527, "end_char": 1542, "source": "regex", "metadata": {"linked_statute_text": "Appendix B to the Rules", "statute": "Appendix B to the Rules"}}, {"text": "H. J. Umrigar", "label": "JUDGE", "start_char": 2281, "end_char": 2294, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 2296, "end_char": 2308, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "J. B. Dadrichanji", "label": "LAWYER", "start_char": 2310, "end_char": 2327, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 2329, "end_char": 2343, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "Ravindei Narain", "label": "LAWYER", "start_char": 2348, "end_char": 2363, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 2388, "end_char": 2398, "source": "ner", "metadata": {"in_sentence": "H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei Narain, for the appell>111 t.\n\nNaunit Lal, for respondent No."}}, {"text": "B. K. Khanna", "label": "LAWYER", "start_char": 2423, "end_char": 2435, "source": "ner", "metadata": {"in_sentence": "B. K. Khanna and R. H. Dhebar, for respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 2440, "end_char": 2452, "source": "ner", "metadata": {"in_sentence": "B. K. Khanna and R. H. Dhebar, for respondent No."}}, {"text": "SuBBA RAO", "label": "JUDGE", "start_char": 2540, "end_char": 2549, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSuBBA RAO, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay allowing the appeal filed by respondent No.", "canonical_name": "SuBBA RAO"}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 2623, "end_char": 2657, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSuBBA RAO, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay allowing the appeal filed by respondent No."}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 2817, "end_char": 2825, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(i)", "label": "PROVISION", "start_char": 2837, "end_char": 2844, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 2853, "end_char": 2894, "source": "regex", "metadata": {}}, {"text": "Thana", "label": "GPE", "start_char": 3070, "end_char": 3075, "source": "ner", "metadata": {"in_sentence": "The appellant is the proprietor of a shop at Thana known as the Cottage Industries."}}, {"text": "June 27, 1957", "label": "DATE", "start_char": 3138, "end_char": 3151, "source": "ner", "metadata": {"in_sentence": "On June 27, 1957, the Food Inspector of the Thana Borough Municipality visited the shop of the appellant and purchased from him some quantity of Khandeshi butter."}}, {"text": "Thana Borough Municipality", "label": "GPE", "start_char": 3179, "end_char": 3205, "source": "ner", "metadata": {"in_sentence": "On June 27, 1957, the Food Inspector of the Thana Borough Municipality visited the shop of the appellant and purchased from him some quantity of Khandeshi butter."}}, {"text": "October 5, 1957", "label": "DATE", "start_char": 4127, "end_char": 4142, "source": "ner", "metadata": {"in_sentence": "On October 5, 1957, the Food Inspector filed a co111plaint jn the Court of the Judicial Magistrate, First Class, Thana, against the appdlant."}}, {"text": "Court of the Judicial Magistrate, First Class, Thana", "label": "COURT", "start_char": 4190, "end_char": 4242, "source": "ner", "metadata": {"in_sentence": "On October 5, 1957, the Food Inspector filed a co111plaint jn the Court of the Judicial Magistrate, First Class, Thana, against the appdlant."}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 4414, "end_char": 4421, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 4491, "end_char": 4496, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(i)", "label": "PROVISION", "start_char": 4579, "end_char": 4586, "source": "regex", "metadata": {"statute": null}}, {"text": "Food Adulteration Rules, 1955", "label": "STATUTE", "start_char": 5054, "end_char": 5083, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5720, "end_char": 5724, "source": "regex", "metadata": {"linked_statute_text": "Food Adulteration Rules, 1955", "statute": "Food Adulteration Rules, 1955"}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 6402, "end_char": 6425, "source": "regex", "metadata": {}}, {"text": "Section 2(i)", "label": "PROVISION", "start_char": 7130, "end_char": 7142, "source": "regex", "metadata": {"linked_statute_text": "Appendix B to the Rules", "statute": "Appendix B to the Rules"}}, {"text": "Section 2(xii)", "label": "PROVISION", "start_char": 7643, "end_char": 7657, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7787, "end_char": 7791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7810, "end_char": 7815, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 7832, "end_char": 7850, "source": "ner", "metadata": {"in_sentence": "In exerciae of the powers conferred by sub-s. (2) of s. 4 and sub-s. (1) of s. 23 of the Act, the Central Government ma.de rules prescribing, inter alia, the standards of quality of different a.rticl.es of food."}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 8029, "end_char": 8052, "source": "regex", "metadata": {}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 8103, "end_char": 8126, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 9231, "end_char": 9240, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 9313, "end_char": 9315, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9326, "end_char": 9336, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9399, "end_char": 9403, "source": "regex", "metadata": {"statute": null}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 9555, "end_char": 9578, "source": "regex", "metadata": {}}, {"text": "England", "label": "GPE", "start_char": 10455, "end_char": 10462, "source": "ner", "metadata": {"in_sentence": "In England butter is made as follows:\n\n\" ... as quickly as the milk is separated the cream is cooled."}}, {"text": "India", "label": "GPE", "start_char": 11151, "end_char": 11156, "source": "ner", "metadata": {"in_sentence": "In India butter is prepared in the rural areas by the indigenous process out of soured milk and cream, i.e., curd."}}, {"text": "shall now read the relevant rules of Appendix B to the Rules", "label": "STATUTE", "start_char": 12068, "end_char": 12128, "source": "regex", "metadata": {}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 13016, "end_char": 13025, "source": "ner", "metadata": {"in_sentence": "Cream means the portion of milk rich in milk fat which has risen to the surface of milk on\n\nJodi\n\nSAimP•\n\nSubba Rao J.\n\nJo.shi\n\nv. $AiMpi\n\nSuhb• Rao J.\n\nstanding and ha.s been removed or which.has been separated from milk by centriiugal force.", "canonical_name": "SuBBA RAO"}}, {"text": "September 12, 1955", "label": "DATE", "start_char": 14320, "end_char": 14338, "source": "ner", "metadata": {"in_sentence": "The original rules were framed on September 12, 1955, and the definition of ghee was introduced therein in 1956."}}, {"text": "Day", "label": "JUDGE", "start_char": 18048, "end_char": 18051, "source": "ner", "metadata": {"in_sentence": "Adverting to Acts against adulteration, the learned author quotes Day, J., in Newby v. Sims(•) as follows:\n\n\"I cannot concur in the contention that because these acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be strict."}}, {"text": "Miabhoy", "label": "JUDGE", "start_char": 18558, "end_char": 18565, "source": "ner", "metadata": {"in_sentence": "Reliance is placed by learned counsel for the appellant on the decision of Miabhoy, J., i11 Narshir!ha\n\nBhaskar v. State of Bombay(•)."}}, {"text": "Chainani", "label": "JUDGE", "start_char": 18799, "end_char": 18807, "source": "ner", "metadata": {"in_sentence": "In the latter decision Chainani, C. J., after considering the arguments, observed at p. 1804 thus :\n\n\" The emphasis is, therefore, on the basic material from which butter is prepared and not on the process by which it is made."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 20196, "end_char": 20200, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Food and Drugs Act, 1875", "label": "STATUTE", "start_char": 20208, "end_char": 20240, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 20434, "end_char": 20438, "source": "regex", "metadata": {"linked_statute_text": "the Sale of Food and Drugs Act, 1875", "statute": "the Sale of Food and Drugs Act, 1875"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 21953, "end_char": 21957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 22070, "end_char": 22074, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 22525, "end_char": 22529, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Food and Drugs Act, 1875", "label": "STATUTE", "start_char": 22537, "end_char": 22569, "source": "regex", "metadata": {}}, {"text": "Indian Act", "label": "STATUTE", "start_char": 23145, "end_char": 23155, "source": "regex", "metadata": {}}, {"text": "Appendix B to the Rules", "label": "STATUTE", "start_char": 24406, "end_char": 24429, "source": "regex", "metadata": {}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 26366, "end_char": 26383, "source": "ner", "metadata": {"in_sentence": "But in this case, there was a conflict of view even in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule."}}, {"text": "April 16, 1960", "label": "DATE", "start_char": 26531, "end_char": 26545, "source": "ner", "metadata": {"in_sentence": "Indeed, it was brought to our notice that on April 16, 1960, the Central Government made another rule amending rule {\\-11.05 by inserting the word \" curd \" in the definition of butter and the amended definition reads, \" butter means the product prepared exclusively from milk, cream or curd of cow or buffalo ......... \" This must have been made to clarify the position in view of the conflicting decisions: In the circumstances, we think that a sentence of fine would meet the ends of justice in the present case."}}, {"text": "A.JYPeal", "label": "PETITIONER", "start_char": 27214, "end_char": 27222, "source": "ner", "metadata": {"in_sentence": "A.JYPeal di81nissed."}}, {"text": "KARUMUTHU THIAGARAJAN CHETTIAR", "label": "RESPONDENT", "start_char": 27236, "end_char": 27266, "source": "ner", "metadata": {"in_sentence": "KARUMUTHU THIAGARAJAN CHETTIAR\n\nAND ANOTHER\n\nE. M. MUTHAPP A CHETTIAR. ("}}, {"text": "E. M. MUTHAPP A CHETTIAR", "label": "RESPONDENT", "start_char": 27281, "end_char": 27305, "source": "ner", "metadata": {"in_sentence": "KARUMUTHU THIAGARAJAN CHETTIAR\n\nAND ANOTHER\n\nE. M. MUTHAPP A CHETTIAR. ("}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 27308, "end_char": 27328, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)"}}, {"text": "K. N. WANcnoo", "label": "JUDGE", "start_char": 27333, "end_char": 27346, "source": "ner", "metadata": {"in_sentence": "P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)"}}, {"text": "ss. 7", "label": "PROVISION", "start_char": 27494, "end_char": 27499, "source": "regex", "metadata": {"statute": null}}]} {"document_id": "1961_3_998_1014_EN", "year": 1961, "text": "joslu\n\nShimpi\n\nSubba Ilao ] .\n\nI96I\n\nFebruary :i7.\n\nSUPREME COURT REPORTS [1961]\n\nThe High Court sentenced the accused to undergo rigorous imprisonment for two months and also to pay a fine of Rs. 250/-. We agree with the High Court that the offence committed by the appellant is a serious one and that ordinarily the punishment should be deterrent. In mqst of the cases of this kind imprisonment would certainly be a suitable sentence.\n\nBut in this case, there was a conflict of view even in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice that on April 16, 1960, the Central Government made another rule amending rule {\\-11.05 by inserting the word \" curd \" in the definition of butter and the amended definition reads, \" butter means the product prepared exclusively from milk, cream or curd of cow or buffalo ......... \" This must have been made to clarify the position in view of the conflicting decisions: In the circumstances, we think that a sentence of fine would meet the ends of justice in the present case. We, therefore, set aside the sentence of two months' rigorous imprisonment and a fine of Rs. 250/- and instead sentence the appellant to pay a fine of Rs. 500/·.\n\nWith this modification, the appeal is dismissed.\n\nA.JYPeal di81nissed.\n\nKARUMUTHU THIAGARAJAN CHETTIAR\n\nAND ANOTHER\n\nE. M. MUTHAPP A CHETTIAR. (P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)\n\nPart1'ership-Duration not expressly provided-When can be\n\nimplied~Terminatien of partnership by notice-Partnership Act,\n\nI9J2 (IX of 1932). ss. 7, IO, r3(g).\n\nThe appellant and the respondent entered into a written partnership with respect to the managing agency business of two mills, the terms of which were, inter alia, that the management shall be carried on in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter,\n\nl )\n\nIt further provided that the partners and their heirs and those getting their rights shall carry on the management in rotation.\n\nSoon after disputes arose between the partners and the appellant gave notice to the respondent terminating the partnership treating it as a partnership at will, and the directors of the mills in\n\nKaruniutku Thiagarajan\n\nCheUiar their turn terminated the managing agency on the ground that > v. . the quarrels between the partners were detrimental to the good' futhappa Chell••• management of the mills. Thereafter the respondent brought a suit against the appellant and the mills for dissolution of the partnership firm and damages alleging that dissolution of the partnership by the appellant by notice was fraudulent and connived at by the mills.\n\nThe trial court held that the partnership was at will and the termination of the managing agency was legal and disallowed damages. On appeal by the respondent the High\n\nCourt held that the partnership was not a partnership at will and could not be dissolve~. by notice by the appellant. The termination of the managing agency was also held to be illegal. On appeal by the appellant with a certificate of the High Court:\n\nHeld, that considering the provision that the management would be carried on in rotation between the partners in four yearly periods and that the heirs of the partners would also carry an the business in rotation the intention was obviously to have a partnership of some duration, though the duration was not expressly fixed in the agreement. The duration of a partnership may be expressly provided for in the contract but even when there is no express provision, courts have held that the partnership will not be at will if the duration can be implied.\n\nGrawshay v. Manie, l Swans 495; 36 E.R. 479, followed.\n\nThe contract in this case disclosed a partnership the determination of which was implied, namely, the termination of the managing agency and, therefore, under s. 7 of the Partnership Act it was not a partnership at will and was not legally terminable by the notice given by the appellant.\n\nIn view of the strained atmosphere between the partners there was sufficient reason for the mill to terminate the managing agency and the resolution of the board of directors terminating the managing agency agreement confirmed by the general meeting of the shareholders, did terminate the managing agency.\n\nThere was neither any fraud nor collusion by the mills with the appellant.\n\nM orarji Gokuldas and Co. v. Sholapur Spinning and Weaving Co. Ltd. and Others, A.LR. 1944 P.C. 17 and Commissioners of Inland Revenue v. Sansom, [1921] K.B. 492, referred to.\n\nThe partnership in the present case must be deemed to have determined on the date of the passing of the resolution by the board of directors terminating the managing agency.\n\nSections ro and 13(1) of the Partnership'Act have no application to the facts of the case.\n\n196I\n\nKarumuthu\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 375of1956.\n\nThiagarajan Appeal from the judgment and decree dated Chettiar July 27, 1953, of the Madras High Court, in A. S. No.\n\nMuthapp:· Chettiar 623 of 1949.\n\nA. V. Viswanatha Sastri and S. Venkata Krishnan, for the appellants.\n\nM. C. Setalvad, Attarney.General for India, R. Gana pathy Iyer and G. Gopalakrishnan, for the respondent.\n\n1961. Februay 27. The Judgment of the Court was delivered by\n\nWanchoo J.\n\nWANCHOO, J.-This is an appeal on a certificate granted by the Madras High Court. The brief facts necessary for present purposes are these : The present suit was brought by Muthappa Chettiar (hereinafter referred to as the respondent) against K. Thiagarajan Chettiar (hereinafter called the appellant) and the Saroja Mills Ltd. In 1939 these two persons thought of doing business jointly by securing ma.naging agencies of some mills. In that connection they carried on negotiations with two mills, namely, Rajendra Mills Limited, Salem and the Saroja Mills Limite~, Coimbatore (hereinafter called the Mills). The ma.nag. ing agency of the MillA was with the Cotton . Corpora. tion Limited. On October 4, 1939, the said Corporation transferred and assigned its rights to the appellant and the respondent under the name of Muthappa and Co. On November 15, 1939, the Mills at an extra. ordinary general meeting of the shareholders accepted Muthappa and Co. as the managing agents and made the necessary changes in the Articles of Association.\n\nLater the appellant and the respondent obtained the managing agency of the Rajendra Mills Limited, Salem. The managing agents of this mill were Salem\n\nBalasubramaniam and Co. Ltd. Mnthappa and Co. purchased all the shares of th$ Salem Balasubramaniam and Co. and thereafter carried on the business of the managing .agency of this mill in the name of Salem Balasubramaniam and Co. Ltd. In November 1940 the appellant and the respondent entered into a written partnership agreement with respect to\n\nthe managing agency business of the two mills. We I96r shall consider the terms of this agreement later and Ka, umuthu all thitt we need say at this stage is that turns were Thiagarajan fixed for the appellant and respondent to look after Chettiar the actual management of the two mills and the v appellant's turn was the first and he therefore came Muthappa Cl>ettiar into actual control of the two mills. Soon after how- --- H' anrhno ]. ever disputes arose between the appellant and the respondent with respect to the managing agency of the Rajendra Mills Limited, which resulted in various suits being filed between the partners, to which we shall refer later. Eventually on March 4, 1943, the appellant gave notice to the respondent terminating the partnership, considering it as a partnership at will. This was followed by the directors of the Mills terminating the managing agency of Muthappa and Co. on the ground that that company had ceased to exist and also on the ground that quarrels between the partners of the firm were not conducive to good management of the Mills.\n\nThis was notified to the respondent on March 22, 1943. This action of the directors was approved in a meeting of the shareholders of the Mills on September 29, 1943, and necessary modifications were a.gain made in the Articles of Association. In between on April 17, 1943, the respondent had filed a suit for a declaration that Muthappa and Co. continued to be the managing agents of the Mills and for obtaining possession of the office of managing agents for himself or along with the appellant and also for a permanent injunction restraining the Mills from appointing any other managing agents. This suit was dismissed by the trial court on the ground that it was not maintainable under s. 69 of the Indian Partnership Act, No. IX of 1932 (hereinafter called the Act), though the trial court gave findings on other issues also. The respondent went up in appeal to the Madras High Court against the decree in that suit. This appeal was dismissed on July 8, 1948, as the High Court held that the finding of the subordinate judge that the snit was not maintainable under s. 69 of the Act was correct.\n\nThe High Court however made it clear that it was\n\nSUPHEME COURT REPORTS [l\\!61]\n\n,96r expressing no opinion on the correctness or otherwise of the other findings recorded by the subordinate f(arumuthu d Thiaga•ajan ju ge. c11, 11; a,· While this appeal was pending the respondent v. brought the present suit on February 28, 1946. In .Huthappa Chelliarthis suit he prayed for dissolving the firm Muthappa . - and Co., for accounts and for damages. against the R awhao I appellant and the Mills.\n\nThe main contention of the respondent in the suit was that the alleged dissolution of partnership by the appellant and the removal of Muthappa and Co. from the managing agency of the Mills were part of a scheme of fraud conceived by the appellant which was actively connived at by the Mills in order to defeat and defraud the respondent of his legitimate dues and his right to continue and act as the mana.ing agent of the Mills.\n\nThe damages claimed were estimated at the figure of five lacs of rupees to be recovered from both the appellant and the Mills or from either of them. In the alternative the respondent claimed tha, t even if Muthappa and Co. had been removed validly from the managing agency on September 29, 1943, he was entitled to an account from the appellant from November 15, 1939, to September 29, 1943. The suit was resisted by both the appellant and the Mills and their case was that the partnership was oue :it will and therefore was validly terminated by the appellant by notice .. It was further contended that in any case the Mills were within their rights in terminating the managing agency of Muthappa and Co., as that firm had ceased to exist and there were interminable disputes between the partners. Fraud and collusion were denied and it was alleged that it was the respondent's conduct which compelled the appellant to give notice of termination of partnership and the Mills to terminate the managing agency. The Mills took a further plea, namely, that so far as they were concerned, the suit was barred under s. 69 of the Act.\n\nThe trial court held that the firm of l\\iuthappa and Co. was a partnership at will and therefore was legally dissolved by the appellant by giving nut.ice dated March 4, 1943. It further held that no case of fraud\n\nhad been proved and that the termination of the '96' managing agency was legal. As to the Mills the trial Ka, umuthu . court h!lld that the smt against them was barred Thiagarafan under s. 69 of the Act. In consequence the suit against Chetliar the Mills was dismissed in toto aml the prayer for v. . damages was also rejected. The trial court however.lfothappa Clldltuw