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MRS. VEEDA MENEZES v.

YUSUF KHAN AND ANR.

March 31, 1966

[K. N. WANCHOO, J. C. SHAH AND S. M. SIKRI, JJ.] Indian Penal Code, s. 95-Harm caused whether must be accidental to come within General Exception-Physical injury whether altogether outside pur11iew of section.

In the course of an altercation between neighbours the first respondent slapped the appellant's servant and threw a file of papers at the appellant's husband which missed him but hit the appellant on the elbow, causing a scratch. On a prosecution being launched the Presidency Magistrate convicted the first respondent under s. 323 of the Indian Penal Code. The High Court however held that the offending act came within the General Exception in s. 95 of the Indian Penal Code as it was trivial. In appeal to this Court the appellant contended that: (1) Section 95 applies only when the act of the accused is accidental and not deliberate; (2) the section cannot be invoked if the harm caused consists of physical injury, HELD: (i) It cannot be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby will not fall within the terms of s. 95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense or temper would complain of such harm. [125 F]

(ii) There is nothing in s. 95 to justify the contention that the word 'harm' as used in that section does not include physical injury.

Section 95 is a general exception and that word has in many other sections dealing with general exceptionsi a wide connotation inclu~ sive of physical injury. There is no reason to suppose that the Legislature intended to use the expression 'harm' in s. 95 in a restricted sense. [126 A-B] F

(iii) Whether an offence is trivial must depend on the nature of the injury, the position of the parties, the knowledge or intention • with which the offending act is done, and other related matters.

[126 C-D]

CRIMINAL APPELLATE JURISDICTION: Appeal No. 209 of 1964.

Appeal by special leave from the judgment and order dated January 31, 1964 of the Bombay High Court in Criminal Revision Application No. 913 of 1963.

J. C. Dalal, E. E. Jhirad and 0. P. Rana, for the appellant.

S. C. Patwardhan B. Dutta, I. B. Dadachanji, 0. 0. Mathur and Ravinder Narain, for respondent No. I.

The Judgment of the Court was delivered by Shah, J. The appellant, Mrs. Menezes, is the owner of a

124 t.:PREMll! COURT RF.POHTS

(1966] BUPP. S.CR.

house in Bombay, and the wife of the first respondent Yusuf Khan is a tenant of a part of the first floor in that house. On January 17, 1963 one Roberta servant of the appellant. called the wife of

the first respondent a thief and 'l/a/kar'. On the next day the first respondent slapped the face of Robert. This was followed by a heated exchange of abusive words between the first respondent and the appellant's husband. The first respondent was annoyed B and threw at the appellant's husband a "file" of papers. The file did not hit the appellant's husband, but it hit the elbow of the appellant causing a "scratch". The appellant lodged information at the Sandra police station complaining that the first respondent had committed house trespass in order to the committing of an1

offence punishable with imprisonment, had thrown a shoe at her, C had slapped the face of her servant Robert, and had also caused her a "bleeding incised wound on the forearm". The version of the appellant was -a gross exaggeration of the incident. The Officer in charge of the police station was persuaded to enter upon an in vestigation on this information, which by charging the respondent with the offence of trespass was made to appear as if a cognizable offence was committed. The Sub-Inspector found that the appellant D had suffered a mere scratch on her elbow. The appellant and Robert declined to go to a public hospital for examination or treat ment, and were, it is claimed, examined by a private medical practitioner, who certified that the appellant had suffered a "bleeding incised wound, skin deep, size I" in length on the right forearm", and that Robert had "a swelling about Ii'' in diameter, roundish, soft and tender", hut no bruises.

The offence was petty, but was given undue importance. The case was transferred from the Court of the Presidency Magistrate, Bandra. to the Court of the Presidency Magistrate VI Court, Maza gaon, Bombay, and was entrusted to a special prosecutor on behalf of the State. The Trial Magistrate held that the story that thti

first respondent had trespassed into the house of the appellant was false and the charge of trespass was made only with a view to F persuade the police officer to investigate it as a cognizable offence.

The story of the appellant that the first respondent had hurled a shoe at her was also disbelieved. The Trial Magistrate held that simple injuries were caused to Robert and to the appellant and for causing those injuries he convicted the first respondent of the offence under s. 323 I.P. Code and sentenced him to pay a fine of Rs. I 0 on each of the two counts. Against the order of conviction, G a revisional application was preferred to the High Court of

Jdicature at Bombay. The appellant was no longer concerned with the proceedings in the High Court, but since there were some negotiations for compounding the offence, the appellant was impl:aded as a party to the proceeding before the Hi!lh Court. The High Court was of the view that the appollant had grossly exag B

gerted her story. that the evidence of the medical practitioner who claimed to have examined the appellant and Robert and to have

"certified the injuries" did "not inspire confidence", that the husband of the appellant had addressed provocative and insulting

abuses, and that in a state of excitement the respondent hurled a "file of papers" at the appellant's husband which missed him and caused a "scratch" on the appellant's forearm. The injuries caused to the appellant and to Robert were in the view of the High Court

"trivial" and the case was one in which the injury intended to be caused was so slight that a person of ordinary sense and temper would not complain of the harm caused thereby. The High Court accordingly set aside the conviction and acquitted the first respondent.

Before us it was urged that the High Court had no power to act under s. 95 J.P. Code, since by the act of the respondent bodily hurt was intentionally caused. It was argued that s. 95 applies only in those cases where the act which causes harm is actually caused to the complainant s. 95 cannot be invoked. In s. 95 J.P. Code includes financial loss, loss of reputation, mental worry or even apprehension of injury, but when physica.1 injury is

D actually caused to the complainant s. 95 cannot be invoked. In~ our view there is no substance in these contentions. Section 95 provides:

"Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of E such harm."

It is true that the object of framing s. 95 was to exclude from the operation of the Penal Code those cases which from the imperfec tion of language may fall within the letter of the law, but are not within its spirit and are considered, and for the most part dealt with by the Courts, as innocent. It cannot however be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby, will not fall within the terms of s. 95. The argument is belied by the plain terms of s. 95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm.

The expression "harm" bas not been defined in the Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in s. 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92,

100, 104 and 106 the expression can only mean physical injury. In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469

126 SUrRE.>IE COURT ltLPOll'fS [1966] SUPP. s.c.R.

and 499 harm, it is plain from the context, is to the reputation of the aggrieved party. There is nothing in s. 95 which warrants :t restricted meaning which counsel for the appellant contends should be attributed to tha.t word. Section 95 is a general cxcep•

tion, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical B injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in s. 95 in a restricted sense.

The next question is whether, having regard to the circumstances, the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 is intended to prevent penalisa- C tion of negligible wrongs or of offences of trivial character.

Whether an act which amtrnnts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending

act is done, and other related circumstances. There can be no + absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not com D plain of the hann. It cannot be judged solely by the measure of physical or other injury the act causes. A soldier assaulting h:s colonel, a policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heniousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of discipline. An assault by one child on another, or even by a grown-up E person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are pl<aced. and other circumstances in which harm is caused. that the victim ordinarily may not complain of the harm.

The complainant's husband had. it appears, beaten the first F respondent's child for some rude behaviour and Robert the appellanl"s servant was undoubtedly rude to the respondent's wife and instead of showing contrition he said that he would repeat his rude words. At the time of the incident in question, the appellant's

husband and the first respondent exchanged vulgar abuses. ApparenUy the respondent was annoyed and threw a "file" bf papers which caused a mere scratch to the appellant. It is trne that the G servant Robert was given a slap on the face by the first respondent.

But the High Court was of the view that the harm caused both to the appellant and to Robert was "trivial", and that the evidence justified the conclusion that the injury was so slight that a person of ordinary sense ancl temper placed in the circumstances in which the appollant and Robert were placed may not reasonably H have complained for that harm. Even granting that a different view may be taken of the evidence, we do not think that we woulcl

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be justified in an appeal under Art. 136 of the Constitution in disagreeing with the order of the High Court.

We therefore maintain the order of a, cquittal passed by the High Court. This court had at the time when special leave was granted directed that Rs. 1,500 be deposited by the appellant by way of costs of the respondents. The State of Maharashtra has not appeared before us in this appeal. In the circumstances, we direct that Rs. 7 50 be paid to the first respondent and the balance be returned to the appellant.

Appeal dismissed.

A

MRS. VEEDA MENEZES

YUSUF KHAN AND ANR

K. N. WANCHOO, J.

C. SHAH

S. M. SIKRI, JJ.

Indian Penal Code

s. 95

s. 323

Indian Penal Code

s. 95

Indian Penal Code

Section 95

s. 95

s. 95

Section 95

s. 95

s. 323

s. 95

s. 95

s. 95

s. 95

s. 95

Section 95

s. 95

Penal Code

s. 95

s. 95

Indian Penal Code

s. 95

Indian Penal Code

s. 93

s. 415

ss. 469

s. 95

Section 95

s. 95

Section 95

Art. 136


GOPALAKRISHNA PILLAI AlliD OTHERS

MEENAKSHI A Y AL AlliD OTHERS

March 31, 1966

(A. K. SARKAR C.J., J. R. MliDHOLKAR ASD R. S. BACHAWAT, JJ.J

Civil Procedure Code, 1908, Order 20. r. 12 future mesne profits- Wh'1n can be grated by Court.

S. d'ied in 1927 and bv a will bequeathed some items of property

to his wife N and certain other property to his mother C. He also appointed C as a trustee of some property fo" the benefit of a temple.

C Upon the death of N in 1931, C inherited her properties as a limited heir.

Some of this property was sold by C under a sale deed in June 1957; by a deed executed in August 1940 she gifted some of the other inherited property to M and thcreaftec purported to execute a will

in September 194il. bequeathing to M the remainini: properties belonging to her and inherited by her as a limited heir from N, as also her trusteeship rights in the p'operty left by S.

After C's death on September 15, 194il, M conveyed all the pr0perties acquired by him under the gift deed and tho '.Viii to V. V died in 1943 leaving some of the defendants as his heirs.

ln about August 1952 the respondents instituted a suit and claimed the properties left by C and N as their heirs. The'' denied the factum and validity of the sale deed, the gift deed as well as the will of September 1940.

The Courts below held that C had no power to disnose of the properties which she had inherited from N as a limited heir; that '?1~ there was no sale by the deed executed in June 1957; and that the gift deed executed by her was valid.

TheSe findings were not challenged in the appeal to this Court.

The Trial Court, however. held that the respondents had failed to prove that they were entitled to inherit the properties on the F death of C. and that the will of September 4, 1940 was forged. On appeal to the High Court, the single bench upheld the will and also directed that the question whether the respondents were the next revcrsioners of N should be tried afresh by the Trial Court. But in a Letters Patent Appeal the Division Bench held the will was not genuine and its execution and attestation v; erc not proved: it also held that on the materials on the record the respondents must be held to te the next reversioners of N.

The Court therefore passed a decree in favour of the respondents for recovery of the various G items of p:-operty and deelared that they w"re entitled to mesne Pr<>- fits for three years prior to the suit and also to future mesne profits in respect of the various properties; accordingly it directed an inquiry by the Trial Court to determine futuce mesne profits.

In the appeal to this Court by some of the defendants. it was also contended that the High Court had no power to pass a decre" for mesne profits accrued after the institution of the suit as there H \Vas no specific prayer for such a decree.

GOPALAKRISHNA v. MEENAKSHI (Bachawat, J.) 129

HELD: On the facts, the High Court had rightly held that the appellants had failed to prove the execution and attestation of the will. [131 F-GJ The trial proceeded on the footing that the plaintiffs were the next reversioners of N and the High Court was therefore right in holding that it was not open to the appellants to contend that the respondents were not the reversionery heirs of N. [132 BJ.

On a reading of the plaint it was clear that the suit was for recovery of possession of immovable property and for mesne profits.

The provisions of Order 20, r. 12 were therefore attracted to the suit and the court had power to pass a decree in the suit for both past and future mesne profits. [132 F]

Order 20, r. 12 enables the court to pass a decree for both past ancf future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of 0. 7, rr. 1 and 2 and 0. 7, r. 7 of the Code of Civil Procedure and s. 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0. 20, r. 12 apply. But in a suit to which the provisions of 0.20, r. 12 apply, the court has a discretionary power to pass a decree directing an enquiry; into the future mesne profit•. and the court may grant this genera1 relief, though it is not specifically asked for in the plaint. [132 G-

133 BJ .

Case law referred to.

Appeal by special leave from the judgment and decree dated February 24, 1961 of the Madras High Court in L.P.A. No. 126 of 1957.

N. C. Chatterjee and R. Ganapathy Iyer, for the appellants.

T. V. R. Tatacihari, for respondents Nos. 1 and 3 to 7.

The Judgment of the Court was delivered by

Bachawat, J. The following pedigree shows the relationship of Sivasami Odayar and the members of his family: Chinnayal ,--------------"-------------, Sivasami Odayar Meenakshi Kamakshi married Ayal Ayal Neelayadakshi (Plff. No. I) (PltI. No. 2) Sivasami died issueless in 1927. By his will dated September 14, 1927 he bequeathed items 1 to 4 ancl one half of items 12 and 13 of the suit properties to his wife, Neelayadakshi absolutely and H items 5 to 11 and one half of items 12 and 13 to his mother, Chinnaya\ absolutely. He also appointed Chinnayal as the trustee of items 14 to 18 for the benefit of the Pillayar temple. Neelayadakshi

130 8CPI:n!E COl'1lT REPORTS

(1966) SCPP. S.~.R.

died in 1931. It is common case that on her death Chinnayal in- A herited her properties as a limited heir. Defendants 6 and 7 claimed that their father purchased item 4 from one Muthukumaraswami. agent of Chinnayal, under a sale deed dated June 5. 1937.

On August 28, 1940, Chinnayal executed a deed of gift in favour of Muthukumaraswami giving him items 1, 3 and 8 and portions B of items 5 and 13. On September 4, 1940, Chinnayal is said to have executed a will bequeathing to Muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from Neclayadakshi and also items 14 to 18 and her trusteeship right in respect of those items. Chinnayal died on September 15. 1940. It is common case that the plaintiffs are her heirs. Soon after her death, Muthukumaraswami conveyed to one c Venugopala all the properties acquired by him under the aforesaid gift deed and will. Venugopa!a died in 1943 leaving defendants 1 to 5 as his heirs. In or about August 1952, Meenakshi and Kamakshi instituted a suit in the Court of the Subordinate Judge, Cuddalore for possession of the suit properties alleging that they were entitled to the properties left by Chinnayal and Neelayadakshi and denying the factum and validity of the gift deed dated D August 28, 1940, the will dated September 4. 1940 and the alleged sale in favour of the father of defendants 6 and 7. The defendants contested the suit.

The Courts below held that ()) Chinnayal had no power to dispose of any of the properties which she harl inherited from Neelayadakshi as a limited heir, (2) Chinnayal duly executed the E gift deed and by that deed she lawfully disposed of items 8 and portions of items 5 and 13, and (3) there was no sale of item 4 to the father of defendants 6 and 7. These findings are no longer challenged. The Subordinate Judge held that the plaintiffs failed to prove that they were the reversioners of Neelayadakshi, or were entitled to inherit her properties on the death of Chinnayal, and that the will dated September 4, 1940 was forged and its execution F and attestation were not proved. The plaintiffs and the defendants preferred separate appeals from this decree to the Madras Hi)(h Court. Ramaswami, J held that the will was genuine and was duly executed and attested but it was inoperative with regard to items 14 to 18 and the trusteeship rights in those items. He also held that the question whether the plaintiffs were the next reversioners of Neelayadakshi should he tried afresh by the trial Court. There- G after. Kamakshi died and her legal representatives were substituted on the record. Meenakshi and the legal representatives of Kamakshi filed an appeaJ under cl. 15 of the Letters Patent of the Hioh Court, and the appellant filed cross-objections. A Division Bench of the Madras High Court held that the will was not genuine and its execution and attestation were not proved. It also held that on H the materials on the record the plaintiffs must be boll to be the next reversioners of Neelayadakshi. On thi• finding, the Division

A •

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GOPALAKRISHNA v.

MEENAKSRI (Bachawat, J.) 131

Bench passed a decree in favour of the appellants before t}1em for the nocovery of possession of items 1 to 4, 3 cents m item 5, items 6, 7 and 9 to 13 and items 14 to 18, declared that they were entitled to mcsne profits for it three years pror to the .suit nd to future mesne profits in respect of the aforesaid properttes, drrected the trial Court to make an enquiry into the mesne profits under

0.20, r. 12 of the Code of Civil Procedure and ordered that in respect of the rest of the suit properties the suit be dismissed. Some of the defendants now appeal W this Court by Special leave.

Counsel for the appellants challenged before us the correctne; s of the findings of the Division Bench of the High Court with regard to (]) the factum and execution of the will and (2) the plaintiffs' claim to be the next reversioners of Neelayadakshi. He also contended that the High Court had no power to pass a decree of mesne profits accrued after the institution of the suit.

The appellants' case is that the will of Chinnayal dated September 4, 1940 was attested by Balasubramania and Samiyappa.

The appellants rely solely on the testimony of Samiyappa for proof of the execution and attestation of the will. Samiyappa. was not present when Chinnayal is said to have put her thumb impression on the will. Samiyappa said that when he was passing along the street, Balasubramania and Muthukumaraswami called him. He went inside Chinnayal's house, Muthukumaraswami gave the wi!l to him and after he read it aloud, Chinnayal acknowledged that she had affixed her thumb-impression on the will. He then pnt his signature on the will and Balasubramania completed it after he left. In his examination-in-chief, he said nothing about the attestation of the will by Balasubramannia. In cross-examination, he said that after he signed, Balasubramania wrote certain words on the will and put his signature. On further crossexamination, he added that Balasubramania was saying and writing something on the will, but he did not actually see Balasubramania writing or signing We are satisfied that Samiyappa did not see Balasubramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasubramania or the attestation of the will by him.

On this ground alone we must hold that the will was not proved. We do not think it necessary to consider the further question whether the will was genuine.

The plaintiffs claimed that on Chinnayal's death the properties acquired by Neelayadakshi under the will of Sivasami devolved upon them as the next reversioners of Neelayadakshi. Relying on a statement of P.W. 2, Sethurama Nainar, that Meenakshi had two daughters and a son, the appellants contend that the son of Meenakshi was the reversionary heir of Neelayadakshi. Assuming that Meenakshi had a son, it is not possible to say that he was born before the death of Chinnayal, and, if so, he was alive at the time

S1JPRLti:; COURT ltJo:PORTS [1966] surr. s.c.ll.

of her death. In the absence of any son of Mcenakshi at the time A of Chinnayal's death, aclmit!cdly the plaintiffs would be the next reversioncrs of Nalayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were the next reversioncrs of Neelayadakshi. The trial Court refused leave to the appellants to file an additional statement raising an issue on this point. In the circumstances, the Division Bench of B the Madras High lourt rightly held that it was not open to the appellants to contend that the plaintiffs were not the rcversionary heirs of Neelayadakshi, and were not entitled to succeed to her estate on the death of Chinnayal.

In the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for c the appelants argued that in the absence of such a specific prayer, the High Court had no jurisdiction to pass a decree for such mesnc profits. We arc unable to :iccept this contention. Order 20, r. 12 of the Code of Civil Procedure provides that "where a suit is for the recovery of possession of immovable property and for rent or mesne profits" the Court may pass a decree for the possession of the property and directing an inquiry as to the rent or mcsne D profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of 0.20, r. 12 apply to the present suit. We find that the plaintiffs distinctly plcadcJ in paragraph 9 of the plaint that they were entitled to call upon the defendants to account fbr mesne profits sir.cc the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees. they E valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court-fee thereon.

In the prayer portion of the plaint, they claimed recovery of possession, an acc0unt of mesnc profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the Court in the circumstances of the case. On a reading of the plaint, we arc satisfied that the suit was for recovery of possession F of immovable property and for mesne profits. The provisions of

0.20, r. 12 were, therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mcsne profits.

Order 20. r. 12 enables the Court to pass a decree for hoth past and future mesnc profits but there are important distinctions G in the procedure for the enforcement of the two claims. With regard to past mesne profits. a plaintiff has an existing cause of

action on the date of the institution of the suit. In view of 0.7, rr. I and 2 and 0.7. r. 7 of the Code of Civil Procedure ands. 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesnc profits, value the H claim approximately and pay court fees thereon. With regard to future mesnc profits, the plaintiff has no cause of action on the

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GOPALAKRISHXA v.

MEENAKSHI (Bachawat, J.) 133

date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0.20, r. 12 apply. But in a suit to which the provisions of 0.20, r. 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya('). In Fakharuddin Mahomed Ahsan, v. Official Trustee of Bengal('), Sir R. P. Collier observed :

"The plaint has been already read in the first case and their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under s. 196 of Act VIII of 1859, it was in the power of the Court, if it thought fit, to make a decree which should give the plaintiff wasilat up to the. date of obtaining possession ...

Section 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which s. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future mesne profits.

The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of 0.20, r. 12 of the Code of Civil Procedure, 1908 apply.

In support of his contention that the Court has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the following passage in Mohd. Yamin and others v.

Vakil Ahmed and others(").

"It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mcsnc profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining

( 1 ) I.L.R. l!>tJ21\IaJ. 173 (F.B) at 177. (')

[1952] S.C.R. II33, II44.

(')

(8181) I.L.R. 8 Cal. 178 (P.C), IS9

134 Sl:PIUCldE COURT REPORTS [l\166) St:PP. • .: ....

thereto'. We arc afraid that the claim for mcsne profits A cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne pro Ii ls though they had not been claimed in the plaint.

The provision in regard to the mesne profits will therefore have to be deleted from the decree." In our opinion, this passage does not support counsel's con

tention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circum stances, the suit was not one "for the recovery of possession of im

movable property and far rent or mcsne profits", and the Court c could not pass a decree for future mesne profits under 0.20, r. 12 of the Code of Civil Procedure. But where. as in this case, the suit is for the recovery of possession of immovable property and for past mcsne profits, the Court has ample power to pass a decree directing an enquiry as to future mesnc profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this

Court did not lay down a contrary proposition, and this was point D ed out by Subba Rao, C.J. in Atchamma v. Rami Reddy(').

We arc, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mcsne profits. It is not contended that the High Court exercised its discretion im properly or erroneously. We see no reason to interfere with the decree passed by the High Court.

In the result, the appeal is dismissed with costs.

Appeal dismissed.

(') I.L.R. [1UJ7j !ndlir& J'r&Jo, h, 62,06.

GOPALAKRISHNA PILLAI AlliD OTHERS

A. K. SARKAR C.J.

R. MliDHOLKAR ASD R. S. BACHAWAT, JJ

Civil Procedure Code, 1908

the Code of Civil Procedure

s. 7(1)

Court Fees Act

cl. 15

the Code of Civil Procedure

the Code of Civil Procedure

the Code of Civil Procedure

Court Fees Act

s. 196

Section 196

s. 196

Code of Civil Procedure, 1908

the Code of Civil Procedure


13&

KUCHIYAN GOVINDA SW AMI

KALLIANI AMMA LEKSHMI AMMA AND ORS.

March 31, 1966

[M. HIDAYATULLAH, J. R. MUDHOLKAR, R. S. BACHAWAT AND

J. M. SHELAT, JJ.J Ke•ala Land Reform' Act, 1963 (Ker. 1of1964), ss. 2(28), 2(26) -"Kuzhikanam" and "Kudiyiruppu'-', meaning.

By a deed styled 'otti Kuzhikanam deed', the predecessor of the respondent sold a building standing on a property to the predecessor of the appellant and also transferred to him the right to possess and enjoy the property for 12 years in Kuzhikanam right with liberty to plant coconut trees thereon. The deed expressly reserved the right for the respondent to enjoy the fruit bearing trees then standing on the properties. and provided that after expiry of 12 yar~ the appellant would on demand demolish and take away the bmldmg and surrender possession of the land on receipt of a certain amount and he agreed compensation for the coconut trees planted by him. The respondent instituted a suit for redemption of the property, which was decreed. On appeals, the decree was affirmed by the District Court and High Court. In appeal to this Court the appellant claimed fixity of tenure and protection from eviction on the ground thd he was (i) a Kuzhikanamdar under s. 2(57)(d) and s. 2(28), or alternatively,

(ii) the holder of a kudiyiruppu under s. 2(57) (hY and s. 2(26) of the Kerala Land Reforms Act.

HELD: (i) The deed did not grant Kuzhikanam rights to the appellant.

"Kuzhikanam" as defined in s. 2(28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit bearing trees thereon. It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882 but it was not the case of the respondent that the deed created such a usufructuary mortgage.

(137 E-FJ A tranffi'cr of land without the fruit bearing trees then standing on it and not carrying Vvith it the right to enjoy those trees was not a kuzhikanam as defined ins. 2(28). The force of the words "if any" in the definition of "kuzhikanam" in s. 2(28) is that if there are any fruit bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee.

[137 H-138 BJ .

(ii) The appellant was not the holder of Kudiyiruppu within th~ meaning of s. 2(26) cl the Act.

There was no material on the record to show that the building on the land was a residential building. Moreover, it did not appear that the land was necessary for the convenient enjoyment of the building. [138 DJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 225 of 1964.

Appeal by special leave from the judgment and decree dated Ju1y 25. 1961 of the Kerala High Court in S.A No. 852 Of 1957.

L/S5SCI-Jl

13G l'1'RElt.E COLRT RFPOR1'H

A. G. Pudi.uery, for the appellant.

M. R. K. Pillai, for the respondents.

[1966] 8!'.>P. ~.c n.

The Judgment of the Court was delivered by

Bachawat, J. In 1921, the plantiff executed in favour of the de- B fendant an otti kuzhikanam deed in respect of the suit property.

By this deed, the plaintiff sold to the defendant the building standing on the property for 350 fanams and also transferred to him for 350 fanams the right to possess and enjoy the property for 12 years in kuzhikanam right with liberty to plant coconut trees thereon, expressly reserving for the plaintiff the right to enjoy the fruitbearing trees then standing on the property. The deed provided C that after the expiry of 12 years the defendant would on demand demolish and take away the building and surrender possession of the land on receipt of 350 fanams and the agreed compensation for the coconut trees planted by him. The plaintiff instituted a suit for redemption of the property. During the pendency of the litigation, the plaintiff and the defendant died, and their legal representatives were substituted in their place. On May 31, 1951, the Principal D District Munsif. Quilon decreed the suit. On appeal. the District Court of Quilon aflirmed this decree. The present appellant, who is one of the legal representatives of the original defendant, filed a second appeal in 1 he High Court of Kerala. During the pendency of this appeal, the Kerala Agrarian Relations Act. 1960 (Act IV of 1961 I came into force. Before the High Court. the appellant claimed fixity of tenure and protection from eviction on the ground E that he was a ku1hikanamdar or alternatively, the holder of a kudiyiruppu. and, therefore. a tenant within the meaning of s. 2(50l (i)le) read with s. 2122) and s. 2(50)(illjl read with s. 2121) of Act IV of 1961. The High Court negatived this contention, and dismissed the appeal. The appellant now appeals to this Court by special leave. During the pendency of this appeal, Act IV of 1961 was repealed and the Kerala Land Reforms Act, 1963 <Act I of F

1964) came into force. The appellant now claims fixity of tenure and protection from eviction on the ground that he is a kuzhikanamdar within the meaning of s. 2(57)(d) read with s. 2(28), or alternatively. the hnlder of a kudiyiruppu within the meaning of s. 2(57)(h) read with s. 2(26) of Act I of 1964. In the High Court, the appellant also claimed protection from eviction on the ground that he was a 'kudikidappukaran', but this contention was nega- G tived by the High Court and is no longer pressed.

Section 13 of Act I of 1964 gives to every tenant fixity of tenure in respect of his holding. and forbids resumption of the holding except as provided in ss. 14 to 22. Section 2(571 defines 'tenant'. By section' 2(57){d) and (h), a tenant includes a kuzhika- H namdar and the holder of a kudiyiruppu. The appellant does not contend that he is a tenant as defined in the main part of s. 2(57).

• •

. ·-1-- "

...

GOVINDA SWAMI v. KALLIANI AMMA (Bachawat, J.) 137

He, however, contends that he is a tenant as defined in s. 2(57)(d) and s. 2(57)(h).

The deed of 1921 was styled 'otti kuzhikanam deed'. In Malabar, the word "otti" in the context of the deed designates a possessory mortgage. According to Wilson's Glossary of Judicial and B Revenue Terms, "kurikanam" means "compensation allowed for the value of trees planted, or other improvements made by the tenant or mortgagee on relinquishing possession; a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees C planted on relinquishing possession. Had there been no special definition of the expression "kuzhikanam" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar. But s. 2(28) of Act I of 1964 provides that in this Act unless the context otherwise requires, "kuzhikana'm" means and includes a transfer of garden lands or of other lands or of both, with the fruit-bearing trees, if any, standing there- D on at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon but shall not include a usufructuary mortgage a<s defined in the Transfer of Property Act, 1882." This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression "kuzhikanam in the Act can have only the meaning given in s. 2(28). There is nothing in the context of s. 2(57) and E s. 13, which requires a different meaning for this expression.

"Kuzhikanam" as defined in s. 2(28) means a transfer (!) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any, standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruitbearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to the grantee. On behalf of the appellant, it was argued that the words "with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees" are not essential parts of the definition of 'kuzhikanam' in s. 2(28), and that we should hold that a transfer of land for the purpose of planting fruit-bearing trees thereon is kuzhikanam, though there is no transfer of the fruit-bearing trees stalllding on the land at the time of the transfer and though the transfer is not for the en.ioyment of those H trees. We are unable to accept this contention. We think that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a L/S5SCI-ll(a)

138 8UPRF..llE C'OcRT REP0RT'!

(I 966] SUPP. R.C.H.

kuzhikanam as defined in s. 2(28). The force of the words "if any" A in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer. the trees also must be transferred for their enjoyment hy the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in s. 2(28) of Act I of 1964 is rejected.

The appellant next contends that he is the holder of kudiyiruppu. Section 2(26) of Act I of 1964 which defines 'kudiyiruppu', reads:

"kudiyiruppu" means a holding or part of a holding consisting of the site of any residential building. the site or sites of other buildings appurtenant thereto. such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu."

J here is no material on the record to show that the building on the land is a residential building. Moreover, it does not appear that

the land is necessary for the convenient enjoyment of the building.

The contention that the appellant is the holder of kudiyiruppu is D rejected.

The appeal fails and is dismissed. There will be no order as to costs.

A ppea/ dismissed.

• I

-'I--

lo:

AMI

KALLIANI AMMA LEKSHMI AMMA AND ORS

M. HIDAYATULLAH, J.

R. MUDHOLKAR

R. S. BACHAWAT

M. SHELAT, JJ

ss. 2(28), 2(26)

s. 2(57)(d)

s. 2(28)

s. 2(57)

s. 2(26)

s. 2(28)

s. 2(28)

s. 2(26)

s. 2(50l (i)

s. 2122

s. 2(50)(illjl read with s. 2121)

Kerala Land Reforms Act, 1963

s. 2(57)(d)

s. 2(28)

s. 2(57)(h)

s. 2(26)

Section 13

ss. 14 to 22

s. 2(57)

s. 2(57)(d)

s. 2(57)(h)

s. 2(28)

Transfer of Property Act, 1882

s. 2(28)

s. 2(57)

s. 13

s. 2(28)

s. 2(28)

s. 2(28)

s. 2(28)

Section 2(26)


• A

VAJESINGH SALAMBHAI NAIK & ORS .

STATE OF GUJARAT & ANR.

April I, 1966

[K. SUBBA RAO AND V. RAMASWAMI, JJ.]

Bombay Merged Territories and Areas (Jagirs AboWion) Act, 1953, ss. 13, 17(1), 20-Decision of appeals under the Act by Tribunal- Whether must be on merits in every case-Regulation 21 made under the Bombay Revenue Tribunal Act, 1958-Limitation for application for restoration of appeals dismissed for non-prot.1ecution.

The appellants had applied for compensation to the J agir Abolition Officer under s. 13 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953 in respect of their proprietary jagirs.

Against the orders of the said officer they preferred appeals to the Revenue Tribunal which were dismissed for non-prosecution.

The appellants thereupon filed applications for restoration of the appeals within 30 days of the receipt of the orders of dismissal of the appeals.

These applications were dismissed as time-barred, the Tribunal taking the view that time was to be calculated from the date of the urder. The appellants' applications under Art. 227 of the Constitution to the High Court failed and they came by way of special leave, to this Court. It was contended on behalf of the appellant that (i)' the Tribunal even while deciding ex-parte had to decide on merits and that (ii) the applications for restoration were filed within the time prescribed in Regulation 21 made under the Bombay Revenue Tribunal Act, 1958 which applied to the case.

HELD: (i) In the context of s. 20 and iin view of the express language of s. 17(1) of the Jalgirs Abolition Act the Tribunal had no power to dismiss the appeals in question for non-prosecution, but it was obligatory on its part of decide the appeals on merits and to record is decision even though there was de(ault on the part of the appellant to appear in the appeal. [142 E-FJ

(ii) The Tribunal also committed an error of law in dismissing as time-barred the applications for restoration of the appeals made by the appellants. In Regulation 21 made under Bombay Revenue Tribunal Act, 1958 the time prescribed for such applications is thirty days from the date of receipt of the Tribunal's order dismissing the appeal, and, the appellants had filed their applications within the said period. [145 A, BJ

Regulation 21 lays down the procedure for dealing with applications for restorati?n _made under Regulation 20 and th" latter Regulation mcludes w1thm its scope all appeals 'decided ex-parte' whether on merits or otherwise. It could not therefore be said that Regulation 21 did not apply to the case. [144 HJ

CIVIL APPELLATE JURISDICTION: Appeals by special leave from the judgments and orders dated November 27, 1961 of the Gujarat High Court in Special Civil Applications Nos. 704 and 707 of 1961.

140 Sl.PRF..ME COL'RT l'.":PORT~ [1\lt'G) 8l'PP. s.C.R•

Arun !liagi11/al S11rti, B. Datta and J. B. Dadachanji, for the appellants.

A. K. Sen, M. S. K. Sastri and B. R. G. K. Achar, for the respondents.

The Judgment of the Court was delivered by

Ramaswami, J, These four consolidated appeals are brought, by special leave, against the order of the High Court of Gujarat dated November 27, 1961 summarily dismissing four Special Civil Applications Nos. 704 to 707 of 1961 which had been filed by the appellants under Art. C.27 of the Constitution of India for quashing the order of the Gujarat Revenue Tribunal dated July 18, 1961.

The appellants had applied for compensation to the Jagir Abolition Officer, Baroda under s. 13 of the Bombay Merged Territories & Areas (Jagirs Abolition\ Act. 1953, hereinafter referred to as the 'Jagirs Abolition Act', in respect of their proprietary jagirs. Against the a\\ ard of compensation made by the Jagir Abolition Officer the <:ppcllants preferred appeals under s. 16 of

the Jagirs Abolition Ad. Although these appeals were filed before D the Revenue. Tribunal at Bombay. the appeals were transferred. on the bifurcation of Bombay State. to the Gujarat Revenue Tribunal at Ahmedabad. hereinafter called the Tribunal'. All these appeals were ultimately dismiscd by the Tribunal for non-prosecution on account of non-appear; ince of the advocate of the appellants.

Against the dismissal of the appeals for non-prosecution the appellants liled applications for restoration before the Tribunal on May E 6, 1961. The appellants contended that since the orders passed dis missing the appeals were received by them on April 9 and April 20. 1961, the restitution applications tiled on May 6, 1961 were within 30 days of the receipt of the order of dismissal and hence the applications for restoration were made in time under Regulation 21 of the Bombay Re, enue Tribunal Regulations. The appellants also prayed that the applications for restoration should be allowed F

a~ they were prevented for sufficient cause from appearing at the hearing of the appeals. The Tribunal rejected the applications holding that they were barred under Art. 168 of the Limitation Act read with Regulation 55 and 0.41. rr. 17 and 19 of the Civil Procedure Code. The view taken by the Tribunal was that the applications for restoration shnuld have been made within 30 days from the date of the order of dismissal. As the orders of dismissal was G made on February I. 2 and 3, 1961 and the applications for restoration were made only on May 6. 1961. the Tribunal held that they were time-barred. Aggrieved by the order of dismissal of the restoration applications the appellants moved the High Court of Gujarat under Art. 2n of the Constitution of India but their applications were dismissed i11 /iminc.

B The first question for consideration is whether the orders of the Tribunal dated February I, 2 and 3, 1961 are illegal and ultra

v. s. NAIK v. GUJARAT (Ramaswaini, J.) 141

A vires because the Tribunal dismissed the appeals for non-prosecution and there was no decision of the appeals on merits. It was contended that it was obligatory on the part of the Tribunal to decide the appeals on merits and record its decision in view of s. 17 of the Jagirs Abolition Act which states as follows: -

"17. (]) The Bombay Revenue Tribunal shall, after giving notice to the appellant and the State Government, decide the appeal and record its decision.

(2) In deciding an appeal under this Act the Bombay Revenue Tribunal shall exercise all the powers which a court has and shall follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908."

In our opinion, the contention put forward by the appellants is well-founded and must be accepted as correct. Section 13 of the Jagirs Abolition Act provides that any jagirdar entitled to compensation under section 11 or 12 shall, on or before the. 31st day of July 1958 apply in writing to the Collector for determining the amount of compensation payable to him under the said section.

Sestion 13(2) states that on receipt of an application under sub-s. (!), the Collector shall, after making formal enquiry in the manner provided by the Code, make an award determining the amount of compensation. Section 14 of the Jagirs Abolition Act states as follows:

"14. ([) If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation.

(2) The application under sub-section (!) shall be made to the Collector in the prescribed form on or before the 31st day of July 1958. The Collector shall, after holding a formal inquiry in the manner provided by the Code, make an award determining the compensation in the manner and according to the method provided for in sub-section (I) of section 23 and section 24 of the Land Acquisition Act, 1894."

Section 15 states that "every award made under section 13 or 14 shall be in the form prescribed in section 26 of the Land Acquisition Act, 1894 and the provisions of the said Act shall, so far as may be, apply to the making of such award". Section 16 provides

142 Sl'PRnrs COURT lt>:POll'f8 [19Gj Sl'PP. s.c.R.

for an appeal against the Collector's award and is to the following effect:

"16. An appeal shall lie against an award of the Collector to

A ..

the Bombay Revenue Tribunal constituted under the • Bombay Re, enue Tribunal Act, 1957 notwithstanding anything contained in the said Act." B Section 20 provides for the !inality of the award and of the decision of the Revenue Tri bum! and reads as follows:

"20. The award made by the Collector subject to an appeal to the Bombay Revenue Tribunal and the decision of the Bombay Revenue Tribunal on the appeal shall be final and conclusi\ e and shall not be questioned in any suit or proceeding in any Court." C On a consideration of the language of s. 17(!) of the Jagirs Abolition Act and in the context of s. 20 of the Jagirs Abolition Act we are of the opinion that it is obligatory on the part of the Tribunal to decide an appeal 011 merits even though there is default in the appearance of the appellants and to record its decision regarding the merits of the appeal. If an appeal is dismissed for want of prose- D cution it cannot he said that the Tribunal has 'decided the appeal' and 'recorded its decision' within the meaning of s. 17 of the Jagirs Abolition Act. It cannot be supposed that the legislature intended by the word decide' in s. 17(!) to mean 'dispose of the appeal or to put an end to the appear. It is important to notice that s. 20 of the Jagirs Abolition Act makes a decision of the Tribunal in appeal as final and conclusive ; rnd not to be questioned in any E suit or proceeding in any Court. In the context of s. 20 and in view of the express language of s. 17( I) of the Jagirs Abolition Act we are of opinion tha1 the Tribunal has no power to dismiss an appeal for non-prosecution but it is obligatory on its part to decide the appeal on merits and to record its decision even though there is default on the part of the appellant to appear in the appeal.

The second question of law for consideration in this case is F whether. on a proper Cl'llStruction of Regulations 19. 20 and 21 of the Bomba} Revenue Tribunal Regulations. 1958. the Tribunal was right in taking the view that the applications for restoration made by the appellants were barred hy limitation.

Section 14 of the Bombay Revenue Tribunal Act (Bombay Act No. XXXI of 1958) deals with the practice and procedure to G be followed by the Gujarat Revenue Tribunal. Section 14 states: _>.. "14. (!) Subject to the provisions of this Act and to the previous approval of the State Government. the President may make regulations for regulating the practice and procedure of the tribunal. including the award of costs by 1he Tribunal, lhe levy of any B process fee, the right of audience before the Tribunal. the sittings of the members either singly, or in

• A

v. s. NAIK v. GUJARAT (Rarnaswanii, J.) 143

benches constituted by the President or such member as is authorised by him from amongst the members of the Tribunal, the disposal by the Tribunal, or a bench thereof, of any proceedings before it notwithstanding that in the course thereof there has been a change in the persons sitting as members of the Tribunal or bench; and generally for the effective exercise of its powers and discharge of its functions under this Act. Where any members sit singly or where any benches are constituted, such member or bench shall exercise and discharge all the powers and functions of the Tribunal.

(2) The regulations made under this section shall be published in the Official Gazette." Regulation 19 deals with procedure to be followed by the Tribunal in case of non-appearance of parties. Regulation 19 is to the following effect:

"19. (l) If on the date fixed for hearing or any other subsequent clay to which the hearing may be adjourned, the appellant or applicant does not appear either in person o;- through his agent or lawyer when the appeal or application is called for hearing, the Tribunal may dismiss the appeal or c pplication or may decide it on merits, after hearing the respondent or his agent or lawyer, if present.

(2) If on the date fixed for hearing or on any other subsequent day to which the hearing may be adjourned, the respondent or opponent, as the case may be, does not appear in person or through his agent or lawyer when the appeal or application is called for hearing, the Tribunal may decide the same on merits, after hearing the appellant or applicant or his agent or lawyer ..................... ".

Regulation 20 provides for restoration of an appeal or application and reads as follows :

"20. If any of the parties was absent on the date of the hearing, either preliminary or final, and the appeal or application was heard and declared ex-parte, the party concerned may apply for restoration of the appeal or application, G as the case may be, and if the party satisfies the Tribunal that he had no notice of the date of the hearing or that he was prevented by sufficient cause from appearing when the appeal or application was called for hearing, the Tribunal may restore the appeal or application to its file, provided that where the other party had appeared in the H appeal or application such party shall be given notice and an opportunity of being heard before the order for restoration of the appeal or application is made."

144 bLl'R£la: COURT RHURTS (19G6j SUPP.

S.C. t,

Regulation 21 is to the following effect:

"21. (!) An application for restoration of an appeal or application made under regulation 20 shall be filed within thirty days from the date of the receipt of the order or dismissal of the appeal or application and shall be accompanied by-

(al a certified copy of the Tribunal's order;

(b) the decision or order (either in original or a certified copy thereof! iu respect of which appeal or application sought to be restored is made;

(c) if the decision or order referred to in clause (b)

is itself made in appeal against any decision or c order. then also such latter decision or order either in original or a certified copy thereof; and

(d) as many copies of the restoration application as there are respondents or opl??nents. .. ........

Regulat; on 55 states that m any matter not provided for in the Regulations the Tribunal shall follow the procedure, as far as it is D applicable. laid down in the Code of Civil Procedure, 1908.

From the scheme , if the Regulations it is apparent that under Regulation 19(1) it is open to the Tribunal to dismiss an appeal for non-prosecution in a case where the appellant does not appear either in person or through his agent or lawyer. It is also open to the Tribunal in such a case to hear the respondent to the appeal E and decide it on merit>. Regulation 19(21 contemplates a case

where the respondent fails to appear and even so it is open to the Tribunal to hear the appellant and then decide the case on merits.

Regulation 20 which provides for restoration of the appeal is a consequential regulation to Regulation 19. One of the conditions for invoking the provisi<ms of restoration under Regulation 20 is that "the appeal or application was heard and decided ex-parte''.

F On behalf uf the respondent it is contended by Mr.

Asoke Sen that Regulation 20 only applies to cases contemplated by the latter part of Regulation 191 Ii and 19(2) and not to cases of dismissal for want of prosecution under the first part of Regulation J 9(1). We

arc unable to accept this submission as correct. In our opinion. the language of Regulation 20. l>n its true interpretation. applies not only to a case where the appeal has been decided on merits but G also tu a case where the appeal has been dismissed for want of prosecution under Regulation 191 Ii. The rc:tson is that in Regulation 19(1) and I 9(2i the legislative authority uses the words "decide it on merits" but in Regulation 20 the cxpcssion used is "decided ex-parte" and we see no reason, either in the language or context of Regulation 20. why it should not include in its scope and ambit H an application for restoration of an appeal dismissed for nonprosccution as also an application for restoration of appeal decided

v. s. :l'AIK v. GUJARAT (Raniaswami, J.) 145

on merits under Regulation 19(1). If the view that we have taken as to the interpretation of Regulation 20 is correct, it follows that Regulation 21 applies to the present case and the period of limitation prescribed by that Regulation being 30 days from the date of receipt of the order of dismissal of the appeal, the applications of restoration made by the appellants in all the four cases were well within the period of limitation prescribed by Regulation 21. It follows. therefore, that the Tribunal committed an error of law in dismissing the applications of restoration m<ide by the appellants in all the four appeals.

For these reasons we allow these appeals, set aside the order C of the Gujarat High Court dismissing Special Civil Applications 704 to 707 of 1961 and hold that the order of the Gujarat Revenue Tribunal dismissing the restoration applications Nos. GRT.D. 10 to 13 of 1961 dated July 18, 1961 is defective in law and must be set aside. We also hold that the orders of the Gujarat Revenue Tribunal dismissing Appeals Nos. REV.A. 27. 28, 29 and 30 of 1960 are ultra vires and illegal and must be set aside and order that these D four appeals should go back to the Gujarat Revenue Tribunal for being reheard and dealt with in accordance with law. The parties will bear their own costs up to this stage.

A ppea/s allowed •

A

VAJESINGH SALAMBHAI NAIK & ORS

STATE OF GUJARAT & ANR

K. SUBBA RAO

V. RAMASWAMI, JJ.

ss. 13, 17(1), 20

Bombay Revenue Tribunal Act, 1958

s. 13

Art. 227

Bombay Revenue Tribunal Act, 1958

s. 20

s. 17(1)

Bombay Revenue Tribunal Act, 1958

Constitution of India

s. 13

Jagirs Abolition Act

s. 16

Art. 168

Limitation Act

Art. 2

Constitution of India

s. 17

Code of Civil Procedure, 1908

Section 13

section 11

Section 14

section 23

section 24

Land Acquisition Act, 1894

Section 15

section 13

section 26

Land Acquisition Act, 1894

Section 16

Tribunal Act, 1957

Section 20

s. 17(!)

s. 20

s. 17

s. 17(!)

s. 20

s. 20

s. 17( I)

Revenue Tribunal Regulations

Section 14

Section 14

Code of Civil Procedure, 1908

Asoke Sen that Regulation


PATEL RAMBRAI BACHARBHAI & ANR.

PATEL DAHYABHAI BECHARBHAI & Al'iR.

April 4, 1966

[K. SUBBA RAO A~D V. RA~ASWAMI, JJ.}

Bombay r1gricult,, rul Debtors Ilelief Act (28 of 194i), ss. 46 and 56-Scope of.

The father of the first respondent sold his lands to the second

respondent but continued to be in possession. The second respondent C sold them to the appellants who were put in possession in 1934. In August 1945, the first respondent filed a pe!lbion against the second respondent, before the Debt Adjustment Board, under ss. 17, 18 and 45 of the Bombay Agricultural Debtors Relief Act. 1939, within the time prescribed by s. 17, alleging that the transaction with the second respondent was a mortgage and that the debt was liable to be adjusted under the Act The first appellant was impleadcd as a party to the petition in December 1945, beyond the time specified in s. 17.

D No appeal was filed <1gainst that order. and in 1947, the Board dispos<?d of the petition for adjustment of debt by directing the second respondent to render occounts. He appealed and, pending the appeal, the 1939 Art was rcpt>aled by the Bombay Agricultural Debtors Re- 1; ef Act of 1947. In 1949. the appellate Court set aside the Board's order and remanded the case to the C1v1l Judge, for deciding the na ture of the transaction. because. under the 1947 Act. the Board was dissolved an:i its jurisdict'on was vested in the Civil Judge. Jn 1950,

the first respondent's application to the Civil Judge for impleading E the second respondent also as u party to the petition for adjustment of the debt. was allowed. and thercaf1er, the matter was disposed of on merits.

On the questions: (i) Whether the orders impleading the appellants were without jurndiction. and (ii) whether the appellants had acquired title tc> the lands by adverse possession,

HELD; fi) The orders were not without jurisdiction.

Under the• rcpcald Art. if a part,- was added beyond the period prescribed under s. 17 of the Act. if he was added as a necessary party to a petition filt>d in time. the said order might be improper but not without jurisdiction. [151 C-D]

Under s. 5G of the 1947 Act. origrnal and appcilate proceedings initiated under the repealed Act but pending at the time the 1947 Act came into force \\'ill have to be disoosed of in arcordanre with the substantive and procedural sections of the 1947 Act. Under s. 46 G of the 1947 Act. tle court is empo1,1, crcd. in a suitable case. to add parties under 0.1. r. Ill. Civil Procedur,• Code. and they mcv be added irrespective of th .. lime limit prescribed under the repealed Act or the time specified m ss. 4 and 24 of the 1947 Ad. [152 A-Cl '

Case law referred to. . (i1l The appellants had not acquired any title bv adverse po; sess10n. as the pet1t:on fnr adjustment of debt was filed .., .. ; thin 12 years H from the dateof their occupation of the suit lands. [153 F]

RAMB!llI v. DARYABHAI (Subba Rao, J.) 147

i A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 386 of

~ : ' 1964.

:ii

Appeal by special leave from the judgment and order dated January 10, 1962 of the Gujarat High Court in Civil Revision Application No. 158 of 1960.

---C--.._

S. V.

Gupte, Solicitor-General, S. H. Sheth .and

M. V.

+ D

Goswami, for the appellants.

G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. I.

The Judgment of the Court was delivered by

Sobba Rao, J. This appeal by special leave is directed against the order of the Gujarat High Court in Civil Revision Application No. 158 of 1960 confirming that of the District Judge, Kaira, holding that the lst respondent herein was a debtor and directing the Civil Judge, Kapadvanj, to adjust the debt under the provisions of the Bombay Agricultural Debtors Relief Act.

The relevant facts may be briefly stated.

The father of the first respondent owned three pieces of land bearing Survey Nos. 93, 102/3 and 125I1 in village Chikhlod, Taluka Kapadwanj, District Kaira in the State of Gujarat. On June 9, 1933, he sold the same by an oral vardi to respondent No. 2 for a sum of Rs. 2,701/- but continued to be in possession thereof. On April 7, 1934, the 2nd respondent sold the said lands to the I st appellant by an oral vardi for Rs. 2,521 I - and the !st appellant got possession thereof on the said date. In a partition that was effected in the joint family of the I st appellant. survey No. 93 went to the share of the 2nd appellant and the remaining two lands fell to the share of the !st appellant. The appellants have been in possession of the said lands from April 7, 1934.

On August 3, 1945, the 1st respondent filed an application before the Debt Adjustment Board under s. 17. read withs. 18 ands. 45 of the Bombay Agricultural Debtors Relief Act, 1939. To that application only the 2nd respondent was made a party. His case was that his father had money dealings with the 2nd respondent and in consideration of past debts his father had sold the said lands to the 2nd respondent in 1933 by way of an oral sale with a condition of reconveyance of the said lands to the vendor and, therefore, the said debt was liable to be adjusted under the provisions of the said Act. The 2nd respondent denied that he had any money dealings with the father of the 1st respondent and stated that the lands were not in his possession.

On December 4. 1945, the respondent made an app]jcation before the Debt Adjustment Board for adding the appellants as respondents to the petition. It appears from the record that only the 1st appellant was made a party-respondent to

14A 8t"l'HE\1F 00\IRT REP<'RT:i ! 19tlfl1 SI"PP.

~ ,(' R

that application.

On April 29, 1947, the said Board held that the sales in favour of the 2nd respondent and the appellants were invalid and directed the 2nd respondent to render the accounts.

Against that order. the 2nd respondent preferred an appeal to the District Judge at Na<liad.

On May 27. 1947, Bombay Agricultural Debtors Relief Act 28 of 1947. hereinafter called the new Act. came into force and under s. 56(2) thereof the Bombay Agricullllral Debtors Relid Act. 1939, hereinafter called the repealed Act was repealed.

On April 14. 1949 the learned District Judge. Kaira. set aside the order of the Board and remanded the case to the court of the Civil Judge (Junior Division) at Kapadwanj with a direction to decide afresh the question of the nature of the said transaction in accordance with law.

It was remanded to the said Civil Judge as under the new Act the Debt Adjustment Board was dissolved and its jurisdiction was vested on the Civil Judge.

On April 24. 1950. the 1st respondent made an application before the Civil Judge for adding the 2nd appellant as a partyrespondent and that petition was allowed on August 21, 1950. On September 29. 1953. the Civil Judge dismissed the petition as not maintainable; but on appeal the District Judge, Kaira, allowed the appeal and remanded the matter to the Civil Judge for disposal according to law. The appellants and the 2nd respondent preferred a revision to the High Court. hut that was summarily rejected.

After the remand. the Civil Judge held that the transaction was not a mortgage and th.: appellants had acquired title lo the lands by adverse possession.

Against that order the !st respondent pre ferrcd an appeal to the District Judge, who. by his order dated October 16. 1958. held that the mortgage subsisted and that the ap pellants had not acquired title to the said lands by adverse possession. In hat view. he remanded the case to the Civil Judge for adjustment of the debts. On revision the High Court of Gujarat accepted the finding of the learned District Judge and dismissed the revision. Hence the present appeal.

The learned Solicitor-General, appearing for the appdlanls. raised before us the following four points: 0) Under the repealed Act the Board would have jurisdiction to entertain an application

for adjustment of debts. if it was filed within 18 months from the date of the appointment of the Board under s. 4 of the said Act. i.e..

G on or before October 31. 1945. and. as no such application was filed

either against the 1st appellant or against the 2nd appellant before > that date. the order of the Board adding the Isl appellant on December 4. 1945, and the order of the Civil Judge adding the 2nd appellant on August 21. 1950 were without juriS<tiction a;1d. therefore. void; as the said orders were without jurisdiction. the appellants had acquired a vested interest in the properly and the new Act does H not affect the said right. (2) The appellant had acquired a right to the said lands by adverse possession. t3l The application to the

Board to investigate ihc nature of the transaction was not competent. And (4) The benefit under s. 55(6)(b) of the Transfer of Property Act is available only to a buyer under a valid transaction and not to a buyer under a transaction which is void at the very inception.

At the outset it may be mentioned that the 4th point was sought to be raised before the High Court for the first time and the High Court refused to go into that matter. We cannot, therefore, allow the appellants to raise that point before us.

The third point was also not raised before the High Court and we do nol see any justification for allowing the appellants to press the same before us.

We shall, therefore, confine our judgment to the first two points raised.

To appreciate the rival contentions of the parties it will be convenient to read at this stage the relevant provisions of both the repealed and new Acts.

The Bombay Agricultural Debtors Relief Act, 1939.

&ction 17. (1) Within eighteen months from the date on which a Board is established under section 4, any debtor may make an application to the Board for the adjustment of his debts under this Act as hereinafter provided:

(3) An application under this section shall be made to the Board established for any local area if the debtor or any of the debtors who is a party to the application ordinarily resides in such area, or to the Board established for the class of debtors, if the debtor or any of the debtors who is a party to the application belongs to the said class.

Section 7.(1) Subject to the provisions of this Act and any rules, the Board shall have the same powers as are vested in civil courts under the Code of Civil Procedure,

1908, when trying a suit and in particular in respect of the following matters: -

(a) joining any necessary or proper parties.

The Bombay Agricultral Debtors Relief Act, 1947.

Section 4. (!) Any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February H 1947, or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts.

&LPREME C01.'RT REPORTS [lr66J serP. s.c.~.

Section 46. Save as otherwise expressly provided in this Act, the pro\'isions of the Code of Civil Procedure.

1908, shall apply to all proceedings under this Chapter.

*Provided that the Court may in a proper case and on such terms as may appear to it to be just, exercise its powers to add or strike out parties under rule 10 of Order

I of the said Code in any proceeding pending before it under section 4 or 24, notwithstanding the fact that such addition, or strikin~ out of parties is to be made after the date specified in scdion 4 or 24. as the case may be, has elapsed.

(*This proviso wa.s added by Bombay Act 37 of 1950. s. 9).

Section 56. (2) The Bombay Agricultural Debtors Relief Act. 1939, is repealed.

All Boards established under section 4 of the repealed Act shall be dissolved: Provided that-

(a) all proceedings pending before any such Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under section 4 had been made to the Court in respect therefor;

(b) all awards made. confirmed or modified under the repealed Act shall be deemed to have been made, confirmed or modified under this Act as if this Act was in force at the date when the said awards were made, confirmed or modified, as the case may be;

(c) all appeals pending before any Court under the repealed Act against the decision. order or award of such Board shall be continued and disposed of as if the said appeals were filed under the provisions of this Act; and

(d) all appeals which could have been filed under the repealed Act against any decision. order or award of such Board but which could not be filed only by reason of the fact that the said Act was repealed by this Act shall when filed before a competent court be deemed to have been filed under the provisions of this Act and shall be disposed of accordingly.

The impact of the provisions of the new Act on those of the repealed Act in the context of the present enquiry may be stated thus: Under the repealed Act an application could be filed before the appropriate Board for the adjustment of a debt within the time prescribed under s. 17 thereof. Under s. 7 thereof the

R(lJBHAI v. DAHYABHAI (Siibba Rao, J.) 151

Board had the power to join any necessary or proper parties. The said power was coterminus with that of a civil court under the Code of Civil Procedure.

Order I, r. 10, of the Code of Civil Procedure enables the court in a suitable case to strike out or add parties; and under sub-s. (5) thereof, subject to the provisions of s. 22 of the Indian Limitation Act, 1877, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Under the repealed Act therefore, if a party was added, the proceedings as against him should be deemed to have been taken only on the service of summons. If a party was added subsequent to the period prescribed under s. 17 of the repealed Act, it could be objected that the proceedings against the party so added was beyond the period prescribed under s. 17. But nonetheless if he was added as a necessary party to a petition filed in time, though the said order might be improper, it could not be said that the court acted without jurisdiction. If it was an illegal order, it could be set aside by an appropriate order in appeal.

Under s. 56(2) of the new Act the 1939 Act was repealed and all the Boards established under the repealed Act were dissolved. The three provisos to sub-s. (2) of s. 56 of the new Act prescribed for the continuity of the proceedings initiated under the repealed Act. Under the first proviso, all proceedings pending before any such Board shall be continued before the court as if an application under s. 4 of the said Act had been made to the court.

This proviso introduces a fiction; and under that fiction, if an application filed before the Board under s. 17 of the repealed Act was pending at the time the new Act came into force, it shall be continued as if it were an application filed under s. 4 of the new Act. Under the third proviso, which deals with pending appeals, appeals pending before any court under the repealed Act shall be continued and disposed of as if they were appeals under the new Act. This proviso also introduces a fiction, namely, the appeal should be deemed to be an appeal under the new Act. The expression "under the Act" means under the provisions of the Act.

This expression emphasizes the fact that pending appeals shall be deemed to be appeals under the (new) Act and, therefore, shall be disposed of by applying the provisions thereof. The fourth proviso deals with appeals to be filed against the orders under the repealed Act; under the G said proviso those appeals when presented after the new Act came into force shall be deemed to be appeals from the decision or orders or awards of courts under the new Act and shall be disposed of accordingly. In short, the old Act was repealed and the proceedings, original or appellate, are all deemed to be proceedings under the new Act and they should be disposed

H of in accordance with the substantive and procedural sections of the new Act. If that be the interpretation of s. 56 (2) of the new Act, to such a proceeding s. 46 is immediately attracted. Under

L/S5SCI-12 . .

lli2 Scl'REME COURT RRl'IMTS (1006] RLl'l'. 8.C, R.

s. 46 of the new Act. the court is empowered in a suitable case to add parties under Order I, rule I 0, of the Code of Civil Procedure, notwithstanding the fact that the addition of parties is made after the dates specified in s. 4 or 24, as the case may be, have expired.

By reason of the aforesaid fiction. a proceeding taken under the repealed Act is deemed to be a proceeding under the new Act and, therefore. a party may be added after the prescribed period.

To summarize: After the new Act was passed there are two types of proceedings, namely. (i) proceedings initiated under the repealed Act but pending at the time the new Act came into force; and (ii) proceedings taken under the new Act. Both the proceed

ings will have to be disposed of under the provisions of the new Act, that is to say, both the substantive and the procedural sections of the new Act would equally apply to both classes of proceedings.

Some of the decisions cited at the Bar have a direct bearing on the question raised before us.

A division Bench of the Born bay High Court in Vishwanath Mahadev Adhikari v. Krishnaji Ramchandra Bodas(') construed the scope of the three provisos to s. 56(2) of the new Act. It was contended before the said Bench that proviso 2 had no retrospective effect and the appeals which were pending should be disposed of according to the repealed Act and not according to the new Act. Chagla, C. J., adverting to that argument. speaking for the Court, observed thus:

"Further, in our opinion, the language used in proviso 2 is fairly clear and explicit and makes this proviso retros pective in its effect. What the Legislature says ; s that the appeals shall be continued and disposed of as if they were appeals under this Act, which clearly means that all the provisions of this Act shall apply to the appeals which are pending. The appeal Court is asked to treat the appeals as if the new Act was in force and not the old Act, and in disposing of those appeals the appeal Court has to consider the substantive Jaw as well as the procedural law brought into force by Act XXVlll (28) of I 947 ." Another division Bench of that Court in Hiraman Ratan v. P11r shollam Deorao(') expressed the same view. Therein it held that the language of the provisos to s. 5612) of the new Act clearly gave retrospective effect to all the provisions of the new Act including the substantive provisions and not merely to the procedural provisions thereof. In Basarnnappa Shivappa v. Neelappa Adiveppa(').

Gajendragadkar. J .. construed s. 46 of the new Act and held that parties could be added in a proper case without considerations of delay.

('I A.T, R. 1949 Boru. 390,1!11, (') A.T.R 1953 nom. 200, (') A.T.R. 1966 Dom, 201.

A •

F •

The views expressed in these decisimi.s accord with those expressed by us earlier.

With this legal position in mind, let us look at the facts of the present case. The application was filed by the 1st respondent against the 2nd respondent under s. 17 of the repealed Act before the prescribed time, i.e., October 31, 1945. The 1st appellant was added by the Board itself on December 4, 1945; and the 2nd appellant was added by the Civil Judge on August 21, 1950. As the appeal against the order of the Board was pending at the time the new Act came into force, under proviso (c) to s. 56(2) of the new Act that appeal had to be disposed of under the provisions of the

nw Act and after remand the application had likewise to be disposed of under the provisions of the new Act.

At that time the civil Court had ample jurisdiction to add the appellants as parties irrespective of the time limit prescribed under the repealed Act.

If so, it cannot be said that the Civil Judge acted without jurisdiction in disposing of the petition as if it was filed under the new Act. There are, therefore, no merits in the first contention.

There are no merits in the second contention either. Some relevant facts may be recapitulated. The father of the 1st respondent sold the lands to the 2nd respondent on June 9, 1933. The 2nd respondent sold the same to the l st appellant on April 7, 1934, and he was put in possession on the same day. From June 9, 1933 to April 7, 1934 the father of the 1st respondent was in possession. The application for adjustment of the debt was made on August 3, 1945. From April 7, 1934 to August 3, 1945 the appellants were in possession of the disputed lands and the said period of occupation of the lands by the appellants was less than 12 years.

But it was contended that the 1st respondent was in possession of the lands as a tenant of the !st appellant between June 9, 1933 to April 7, 1934 and, therefore, the said period should be tacked on to the period of adverse possession by the appellants. But the High Court found, agreeing with the District Judge, that the appellants failed to prove that the !st respondent was in possession of the lands as a tenant during that period. 1f so, it follows that the appellants had not acquired any title to the suit property by adverse possession.

In the result, the appeal is dismissed with costs.

Appeal dismissed.

LjS5SCI--12(a)

ANR.

PATEL DAHYABHAI BECHARBHAI & Al

K. SUBBA RAO

Debtors Ilelief Act

ss. 46 and 56

ss. 17, 18 and 45

s. 17

s. 17

s. 17

s. 5G

s. 46

ss. 4 and 24

s. 17

Bombay Agricultural Debtors Relief Act

s. 56(2)

s. 4

s. 55(6)(b)

Transfer of Property Act

section 4

Section 7

Code of Civil Procedure

Section 4

section 4

Section 46

the Code of Civil Procedure

I of the said Code

section 4

s. 9

Section 56

section 4

section 4

s. 17

s. 7

the Code of Civil Procedure

the Code of Civil Procedure

s. 22

Indian Limitation Act, 1877

s. 17

s. 17

s. 56(2)

s. 56

s. 4

s. 17

s. 4

s. 56

s. 46

s. 46

the Code of Civil Procedure

s. 4

s. 56(2)

s. 5612

s. 46

s. 17

s. 56(2)


T.D.GOPALAN

COMMISSIONER OF HINDU RELIGIOUS & CHARITABLE

ENDOWMENTS, MADRAS

April 5, 1966

(M. HIDAYATVLLA!I, J. R. MUDHOLKAR, R. S. BACHAWAT AND J. M. SttliLAT, JJ.]

Constitution of India, Art. 133(1) (a) and (b)-Valu<>tion of vrover ty for purpose of appeal before Supreme Court-Suit for declaration C that property was TWt a temple within meaning of Madras Act 19 of 1951-Claim whether capable oJ valuation.

The appellant >; Ought a declaration that certain premises belonged to his family as private property and did not constitute a temple within the meaning of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951). The District Court decreed the suit but the High Court found that the property in question was a temple.

D The appellant then flied a petition for leave to appeal to this Court under Art. 133(1) (a) and (b) of the Constitution and submitted that the property was more than Rs. 20000 in value. The High Court dismissed the application on the ground, inter a!ia, that the subject matter of the dispute whether as a private or a public temple was incapable of valuation as it could have in either case no market value.

The appellant by special leave came to this Court.

HELD: The High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation. The subject-matter of the dispute had to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint the property was the private property of the appellant's family capable of alienation, the High Court ought to have valued the property accordingly, [157 A, B]

CIVIL APPELLATE JURISDicnoN: Civil Appeal No. 230 of F 1964.

Appeal by special leave from the judgment and order dated January I I. 1961 of the Madras High Court in S. C. Petition No. 165 of 1960.

R. Ganapathy Iyer und R. Thiagarajan, for the appellant.

A. V. Ra11i; G111, for the respondent. ).

The Judgment of the Court was delivered by

Shelat, J. This appeal by special leave is against the order of the High Court of Madras dated January 11, 1961 refusing the H certificate under Art. 1330 )(a) and (b) of the Constitution.

GOPALAN V. COMMR. H.R.E. (S/telat, J.) 155

The authorities appointed under the Hindu Religious and Charitable Endowments Act, Madras Act II of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the idol of Sri Srinivasaparumal and certain other idols were located constituted a temple within the meaning of the said Act, the appellant filed an application in the District Court for a declaration that the said premises were private property and for an order setting aside the said decision. The said application was by an order of the High Court converted into a suit.

The main question in the suit was whether the said premises could be said to be a temple as defined by Madras Act 19 of 19 51.

The District Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple and set aside the decision of the said authorities. On appeal, the High Court reversed the said judgment and decree and found that the premises in question constituted a temple.

The appellant thereupon filed a petit'on for leave to appeal to this Court and submitted that the value of the subject-matter of dispute in the District Court as also in appeal in the High Court was more than Rs. 20,000 I and that the judgment of the High Court having reversed the judgment and decree of the Trial Court he was entitled to leave under Art. l33(l)(a) and (b).

The High Court dismissed that application on the following grounds: (a) that the subject-matter of the dispute, whether it was a private or a public temple could have no market value and therefore was incapable of valuation; (b) that cl. (b) of Art. 133(1) could not apply as the judgment and decree passed by it did not involve directly or indirectly a claim or question res pecting property of the value of Rs. 20,000/- or more and (c) that the appeal did not involve any substantial question of law.

For the time being we are concerned with grounds (a) and (b) and not with ground (c) as the contention raised by Mr. Ganapathy Iyer for the appellant was that the refusal to grant leave by the High Court under either of the clauses (a) and (b) of Art. 133(1) was not correct.

The point for consideration is whether the High Court was r; ght in holding that the property in question whether as a private or a public temple was incapable of valuation as it could have in either case no market value. It may be observed that the appellant claimed that the property belonged to the Thoguluva family and he was in management thereof for and on behalf of the family.

The suit in the first instance was filed by him in the form of an application. being O.P. No. 37 of 1950 under s. 84(2) of Madras Act II of 1927.

Under that Act only a fixed court fee was payable.

That being so. the appellant did not have to pay court fees as it would in the case of an ordinary suit on a valuation made by h; m therefor. The application was subsequently converted into a suit by an order of the High Court.

He was therefore entitled

SUPRE>IE COURT REPORTS (JOG6j St:PP. S.C.R.

to contend at the time of the leave application that the property A in dispute was of the value of not less than Rs. 20,000 I-.

It does not appear tu be in dispute that the site of the Manda pam and the structure standing thereon was originally the property of one Kuppaiyan and his undivided sons. The appellant's case was -that in execution of the decree in Suit No. 650 of 1882 B passed against the said Kuppaiyan the property was sold by public auction and purchased by Thoguluva Thirumalayyan, the appellant's ancestor. for a sum of Rs. 1,060/-. The original mandapam was thereafter improved upon and some additional structures e.g .• shops and other constructions were added, the expenses for such repairs and additions having been met by the descendants of the said Thoguluva Thirun, alayyan, and therefore the property be- longed to and was an alienable private property of the family. On the other hand, the case of the respondents in their written statvment was that the properly was a public temple for public religious worship and that the allegation of the plaintiff that it was a private property capable of alienation was "false and misleading." The case of the appellant was accepted by the Trial Court but was rejected by the High Coun and the High Court held that the pro- D perty was a public temp'.c within the meaning of Madras Act 19 of 1951.

The dispute between the parties was thus centred round the question whether the property was the private alienable property of the said family or was a public temple as held by the High Court. There was evidence that the shops subsequently con- E structed as aforesaid were let out to tenants for a number of years and property taxes were levied thereon by the Madurai Municipality, presumably on their rateable value.

We may also mention here that in his application to this Court for directing an inquiry into the value of the propaty under 0. 45, r. I of the Code of Civil Procedure the appellant has stated that he has in his possession municipal receipts showing the property tax paid to the Madurai F Municipal; ly.

According to the appellant, property tax for the half year ending September 30. 1950 was Rs. 94-0-6 and for !he half year ending March JI, 1961 it was Rs. IJ0.36nP. According to him the half yearly tax would be equivalent to one month's rent and on that basis the annual rental value would come to Rs. 1,126-6-0 in 1950 and to Rs. l.672.32nP in 1961.

If that be so, capitalising that value al twenty times the annual rental value, G the value of the property would come to more than Rs. 20.()()(J/-.

The refusal of the High Court to grant leave was based on the observation that whether the property is a private or a public temple it was incapable nf valuation. llut as observed earlier the appellant's case was that the subject-matter of dispute in the suit H was the private property of the said family and that it was alienable property and therefore capable of a valid transfer. That being

4-- ..

GOI'ALAN V. OOMl\IR, H.R.E. (She/at, J.) 157

the dispute between the parties, the High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation.

The subject-matter of the dispute has to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint, the property is the private property of the said family capable of alienation, the High Court ought to have valued the property accordingly though according to the respondents the property was inalienable and was a public temple. The High Court was thus wrong in proceeding on the aforesaid assumption.

We would therefore allow the appeal, set aside the order passed by the High Court and remand the case to the High Court to decide the application for leave in accordance with the observations made in this judgment. The High Court may either hold the inquiry itself or remit the case to the Trial Court to hold such inquiry and report to it.

Accordingly, the appeal is allowed and the High Court's order is set aside.

The respondents will pay to the appellant the costs of this appeal.

Appeal allowed.

D.GOPALAN

R. MUDHOLKAR

R. S. BACHAWAT

Constitution of India

Art. 133(1)

Charitable Endowments Act

Art. 133(1)

Art. 1330

Charitable Endowments Act

Madras Act II of 1927

Art. 133(1)

Art. 133(1)

s. 84(2)

Madras Act II of 1927

the Code of Civil Procedure