RAO NIHALKARAN

RAMGOPAL

January 27, 1966

[P. B. GAJENDRAGADKAR C. J., K. N. WANCHOO, J. C. SHAH,

S. M. SIKRI AND V. RAMASWAMI, JJ.]

Madhya Pradesh Land Revenue Code (20 of 1959), ss. 185(1)(ii)(a) 261 and 262(2)-Tenant, if includes a person whose tenancy has been teY..

minated at the contmencement of Code-Tenant against whom ejectmen'I proceedings had commenced at the commencement of the Code-If could claim to be an occupancy tenant.

The appellant (holder of an inam in Madhya Pradesh) served a notico on his tenant, the respondent, terminating the tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment.

The trial court decreed the suit. During the pendency of the appeal in the District Court, Art. 32 of 1954 was enacted, and pursuant to its proVJSions the hearing of the appeal was stayed. After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of s. 185 of that Code the respondent acquired the rights of an occupancy tenant and dismissed the suit. 'The High Court conllrml<t

the judgment of the District Court.

In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a person under s. 185(1)(i)(a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) by virtue of ss. 261 and 262(2), the operation of s. 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired.

claims the status of an occupancy tenant.

HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in s. 185 (I) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code.

The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition. In tho cootext in which the expression "tenant" occurs in s. 185(1), that definition could not be intended to apply in determining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of the Code. Therefore having regard to the object of the enactment the expression should be ascribed the meaning it has in Act 32 of 1954. Under ss. 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued to hold the land at the commencement of the Act was. entitled to protection against evictipn and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act, the contractual relationship of landford

and tenant was determined.

[432 D; 432 H-433 CJ

There is no reason to think that the Legislature sought to make a distinction between tenants of lnam land in s. I 85(1 )(ii)(a) and ryotwari

sub-lessees of other lands ins. J85(1)(ii)(b). Therefore, if the expressioo "ryotwari sub-lessee" ins. 185(1)(ii)(b) includes a sub-lessee whose

tenaure was terminated before tbe commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be inchided in the protection, provided at some time prior to the date on which the Code was brought into force, he was in poso; ession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code. [434 E-Hl

(ii) The provision> of the Code appeol lo tenants in proceedings for ejectment pending at the commencement of the Code.

The provi>o to s. 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the Code

had not been passed.

But the right to evict a tenant was governed by c the general law of landlord and tenant and was not acquired under any repealed law. The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code. Therefore, the tenant could not be evicted otherwise than in the manner and for reasons mentioned in

1. I 93 of the Code but, personal requirement for cultivation of land ;, not a ground on \Vhich a claim for ejectment cou1d be maintained. {435 G

436M D Section 262(2) is only procedural it provides that a civil court will continue to have jurisdicuon to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed would have been tried hy a revenue court; and in the disposal of such a suit, the civil coun will be governed by the procedural Jaw applicable thereto prior to the commencement of the Code. It doe< not nullify the statutory conferment of occupancy right upon persons in E the position of tenants against whom proceedings were taken at the date when the Code was brought into force. [436 B-Dl

CIVIL Apn-LLAlli JURISDICTION: Civil Appeal No. 365 of 1965.

Appeal by special leave from the Judgment and order <lated 1 February 18, 1963 of the Madhya Pradesh High Court (Indore F Bench) in Second Appeals Nos. 68 and 70 of 1961.

c. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -

K. R. Chaudhry, for the respondent.

8. R. L. lye11gar, G. L. Sa11ghi and A. G. Ratnaparkhi for Intervener No. I.

J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for intervener No. 2.

The Judgment of the Court was delivered by

Shah, J. Ramgopal-respondcnt in this appeal-was a tenant of certain lnam land situate in village Nanda Panth in Indore Tahsil. The appellant Rao Nihalkaran-holder of the lnamserved a notice terminating the tenancy on the ground that he needed the land for personal cultivation, and commenced an action in the Court of the Civil Judge, Class II, Indore, on July 21, 1950, against Ramgopal for a decree in ejectment. The Trial Court decreed the suit. During the pendency of the appeal to the District Court, Indore, by Ramgopal against the decree, Madhya Bharat Muafi & Inam Tenants and Sub-tenants Protection Act 32 of 1954 was enacted, and pursuant to the provisions thereof hearing of the appeal remained stayed till 1960. In the mean time the Madhya Pradesh Land Revenue Code (Act 20 of 1959) was brought into force.

Ramgopal urged before the District Court that he had by virtue of s. 185 of the Code acquired rights of an occupancy tenant and the appellant's right to obtain an order in ejectment on the ground set up must be refused. The District Judge accepted the contention of the respondent and allowed the appeal. Against the decree passed by the District . Court, Indore, the appellant appealed to the High Court of Madhya Pradesh, Indore Bench.

Following their judgment in Rao Nihalkaran v. Ramchandra and

Others (1), the High Court confirmed the decree of the District Judge, and dismissed the appeal. With special leave granted by this Court, this appeal has been preferred.

The dispute in the appeal centres round the meaning of the expression "tenant" used in s. 185(1) cl. (ii) (a) of the Madhya Pradesh Land Revenue Code. The material part of the clause reads:

"Every person who at the coming into force of this Code holds- (i)

(ii) in the Madhya Bharat region- F

(a) any Inam land as a tenant, or as a sub-tenant or as

an ordinary tenant, shall be called an occupancy tenant, and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code."

It is common ground that the tenancy of an occupancy tenant may be determined under s. 193 of the Madhya Pradesh Land Revenue Code by an order of the Sub-Divisional Officer on the grounds specified in that section, and personal requirement of the land-lord is not one of such grounds. But counsel for the appellant urged that the rights of an occupancy tenant arise in favour of a person under s. 185 (I) cl. (ii) (a) only if there is between him and the claimant to the land a subsisting relation under which he holds land

(1) L. P.A. No. 14 of 1961 decided on Sept. 24, 1962.

430 SUPRl!MP. COURT REPORTS

(1966] 3 S.C.R.

as a tenant at the date when the Code came into force. The Code has, it is said, no retrospective operation, and the person who under the law in force before the commencement of the Code had ceased to be a tenant because of termination of the contract between him and the landlord is not invested with the rights of an occupancy tenant under s. 185 (I) (ii) (a). In the alternative it is contended that by virtue of s. 261 and s. 262(2), operation of s. 185 is expressly excluded, when a person against whom proceedings have been instituted prior to the commencement of the Code for a decree in ejectment in enforcement of a right acquired under the law then in force, claims the status of an occupancy tenant.

The District Court held that the expression "tenant" within the meaning of s. 185 (l)(ii)(a) of the Code includes a person whose tenancy stood determined before the commencement of the Code, and with that view the High Court agreed. Counsel for the appellant complained that in reaching this conclusion, the Courts below ignored the definition in s. 2(y) of the Code that the expression "tenant" means a person holding land from a Bhumiswami as an occupancy tenant under Ch. XIV, and said that a person qua whom the contractual relation under which he was inducted as a tenant was detcrmied prior to the commencement of the Code is not a tenant within the meaning of s. 185(1)(ii)(a). To appreciate this argument it is necessary to examine the relevant legislative history culminating in the enactment of the Code in 1959.

In 1948 twenty Indian States including the States of Gwalior, Indore and Malwa formed themselves into a Union. Five more States were later incorporated into this Union.

Under the Constitution, Madhya Bharat was formed as a Part B State out of the territories of the United States of Gwalior, Indore & Malwa and certain enclaves merged therein and the Chief Commissioner's Province of Panth Piploda. Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan. Apparently the diverse land tenures pre\'alent in the covenanting States and the laws governing them remained in opcrtion in their respective territories, even after the formation of the Part B State of Madhya Bharat. Attempts were made to evolve a uniform pattern of land revenue administration in conformity with the directive principles of State Policy in the Constitution to bring the tiller of the soil into direct relation with the State. The Legislature of the Part B State of Madhya Bharat enacted Act 66 of 1950 to consolidate and declare the law relating to revenue administration in the United States of Gwalior, Indore and Malwa and land revenue, land tenure

A and other matters connected with the land in the Ryotwari tracts or

l" villages of the United States. Section 54 of Act 66 of 1950 defined "Pakka tenant'', "ordinary tenant", "sub-tenant" and prescribed -.. the duties of a tenant by s. 55. By s. 73 a "Pakka tenant" was prohibited from sub-letting for any period any land comprised in his holding, unless he belonged to any of the classes mentioned

B in s. 74. By s. 74 certain classes of disabled persons were permilted to sub-Jet the whole or any part of their holding.

But such a sub-lease made in pursuance of the provisions of the Act was to cease to be in force after one year of the determination of the disability by death or otherwise. Bys. 75 it was provided that a sub-lease of the whole or any part of the holding of a "Pakka tenant" c effected "properly and legally" prior to the commencement of the Act was to terminate after the expiry of the period of sub-lease or expiry of four years after the commencement of the Act, whichever period was Jess.

By s. 76 a sub-lessee failing to hand over possession after expiry of his right was to be deemed a tresspasser and liable to ejectment in accordance with the provisions of the Act.

-J.

The Legislature with the object of improving the conditions of D agriculturists and with a view to remove the middleman between the State and the tiller of the soil also enacted the Zamindari Abo- ; lition Act and the Abolition of Jagirs Act. ,

Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act 32 of 1954-was enacted to provide, for the duration of the Act, for the protection of tenants or ordinary tenants and sub-tenants of Muafidars, lnamdars and lstumurardars in Madhya Bharat against eviction by such Muafidars or lnamdars of their tenants, as the case may be, and for stay of suits and other proceedings relating to such eviction. By s. 2(ii) the terms

F "tenant", "sub-tenant", "ordinary tenant" and "rent" were given the same meaning as was assigned to them in sub-ss. (1), (7), (8) & (9) of s. 54 of Act 66 of 1950.

By s. 3 a restriction was placed upon eviction of any tenant, sub-tenant or ordinary tenant of Inam land during the continuance of the Act and it was declared that the tenant, sub-tenar. t or ordinary tenant shall not pay rent higher than what he was paying in tile agricultural year ending G June 30, 1948. By s. 4 all suits, proceedings in execution of de- --r

crees or orders and other proceedings for the eviction of Inam land tenants, sub-tenants or ordinary tenants from Inam lands, or in which a claim for such eviction was involved, pending in the Court at the commencement of the Act or which may be instituted after such commencement, were to be stayed subject to the provisions ..

H contained in the Act. By sub-s. (11) of s. 4 it was provided that if the Inamdar, Muafidar or Istumurardar had taken possession of the land illegally from a tenant, sub-tenant or an ordinary tenant after August 15, 1947 such a tenant, sub-tenant or an ordinary

tenant may apply to the Tahsildar to be restored to possession of A 11uch land and on such application the Tahsildar shall cause the land to be returned to such tenant, sub-tenant or ordinary tenant from the Inamdar, Muafidar or Istumurardar, as the case may be.

By s. 6 it was provided that all suits and proceedings shall, after the expiration of the Act, be proceeded with subject to the provision• of any law which may then be in force from the stage which had B been reached when the suit or proceeding was stayed.

Act 32 of 1954 was intended initially to remain in force for a period of two years, but its life was extended by later enactments.

Protection against eviction during the continuance of Act 32 of 1954 by enforcement of a decree passed in a suit or a proceeding either before or after the date on which the Act was brought into force was conferred upon tenants, sub-tenants and ordinary tenants. It is clear from the terms of ss. 3 & 4 of the Act that the Legislature did not seek to grant protection only to persons between whom and the claimants for protection there was a subsisting contractual relation. A person who was inducted into the land as a tenant, sub-tenant or ordinary tenant and who continued to hold the land at the commencement of the Act was entitled to protection, notwithstanding that under the law in force prior to the Commencement of the Act the contractual relation was determined.

The Madhya Pradesh Land Revenue Code was enacted in 1959.

Dys. 157 of the Code it was declared that there shall be only one class of tenure holders of lands held from the State to be known as Dhumiswami, and by s. 158 it was provided that every person, who at the time of coming into force of the Code, belongs to any of the four classes specified shall be called a Dhumiswami, and shall have all the rights and he subject to all the liabilities conferred or imposed upon a Dhumiswami by or under the Code, and among the persons specified is "every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or as a Muafidar, Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007".

The argument of counsel for the appellant is that the respondent not being a tenant at the commencement of the Code could not acquire the rights of an occupancy tenant, and that. any proceeding instituted against the tenant must be heard and disposed of according to the law in force prior to the commencement of the Code. The definition of the expression "tenant" in s. 2(y) postulates a subsisting tenancy, but that definition may be r.esorted to for interpreting s. 185 (I) only ifthe context or the subject-matter of the section does not suggest a different meaning.

A tenant is by the definition a person who holds land as an occuancy teant from a Dhumiswami: but the status of a Dhum1swanu ts recogmzed

' >-

NJ, HALKARAN v. RAMGOPAL (Shah, /.) 433

for the first time by the Code, and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does -not appear to have been dealt with in this definition. The definition which is specially devised for the purpose of the Act throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code. In the context in which the expression "tenant" occurs in s. 185 the definition could not be intended to apply in determining the conditions which invest upon a holder of land the status of an occupancy tenant. If the expression "tenant" ins. 185 (1) be released from the artificial definition as given ins. 2(y), in view of the context in which it occurs, the expression "tenant" in s. l 85(l)(ii)(a), having regard to the object of the enactment would be ascribed the meaning that expression had in Act 32 of 1954.

This view is strengthened by certain indications found in cl. (ii)(b) if s. 185 (1) which provides that in the Madhya Bharat region every person who at the commencement of the Code holds any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-Lessee Protection Act 29 of 1955 shall be called an occupancy tenant. Unless a ryotwari sub-lessee .as defined in Act 29 of 1955 included a sub-lessee whose tenure was terminated before the commencement of the Code, that clause would not apply to any concrete case. The Court would not unless compelled by unambiguous language impute to the Legislature an intention to enact a provision which was ineffective.

By s. 73 of Act 66 of 1950 a Pakka tenant could not sub-let for any period any land comprised in his holding except in the cases provided for ins. 74, and bys. 75 it was provided that all sub-leases in force at the commencement of the Act were to terminate either on the expiry of the period of sub-lease or expiry of four years whichever was earlier. All sub-leases exc; ept those which were covered by s. 74 i.e. sub-leases granted by disabled persons before the commencement of Act 66 of 1950 stood terminated some time before the end of 1954 and by the express terms of s. 76 the sublessees were to be deemed trespassers and liable to ejectment in accordance with the provisions of the Act. Notwithstanding these provisions, by another Act 29 of 1955, scheme of which was Slj.bstantially the same as the scheme of Act 32 of 1954, ejectment of ryotwari sub-lessees other than a sub-lessee under s. 74 of Act 66 of 1950 was suspended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed.

Bys. 2(b) of Act 29 of 1955 "Ryotwari sub-lessee" was defined as meaning "a person to whom a Pakka tenant of any ryotwari land has sub-let on sub-lease any part of his ryotwari land". By

SUPREMI! COURT REPORTS (l 966] 3 s.c.R.

s. 3 a ban was imposed against ejectment of all ryotwari sub-lessees other than sub-lessees under s. 74 of Act 66 of 1950. Bys. 4 provision was made for ejectment of ryotwari sub-lessees and provisions similar toss. 5 & 6 of Act 32 of 1954 were made in this Act also.

A ban was therefore imposed against eviction of ryotwari sub-lessees and proceedings for eviction against them were stayed by Act 29 of 1955. Therefore ryotwari sub-lessees who had ceased by determination of the sub-leases to have right in the lands were still protected from eviction during the pendency of Act 29 of 1955, and by s. J85(1)(ii)(b) of the Code upon the ryotwari sub-lessees the rights of occupancy tenants were conferred. If the expression "ryotwari sub-lessee" were to be construed to mean a ryotwari sub-lessee between whom and his lessor there was a subsisting contract of sub-letting, the protection for all purposes would be ineffective. for, by express statutory provision read with s. 74 of Act 66 of 1950 all ryotwari sub-leases stood determined before Act 29 of 1955 was brought into force, and by virtue of s. 185 (3) of the code a holder of land from a disabled Bhumiswami belonging to a class mentioned in s. 168(2) of the Code does not qualify for the status of an occupancy tenant. It may be noticed that in the class of disabled persons in sub-s (2) of s. 168 of the Code are included all persons who are declared disabled by sub-s. (2) of s. 74 of Act 66 of 1950.

If ryotwari sub-lessees of disabled persons mentioned in subs. (2) of s. 74 of Act 66 of 1950 cannot claim rights of occupancy tenants by virtue of s. 185 (3) of the Code and other oyotwari sublessees cannot qualify for those rights because of the determination of their interest as sub-lessees by virtue of ss. 75 & 76 of Act 66 of 1950 s. 185 (l)(ii)(b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sublessec" in s. 185 (l)(ii)(b) of the Code includes persons whose contractual relation has heen determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of lnam land ins. 185(l)(ii)(a) of the Code and ryotwari sub-lessees of other lands in s. 185(l)(ii)(b).

A member belonging to those classes would therefore be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of crmmenccment of the Code.

The alternative argument that s. 185 of the Code has no application in respect of pending proceedings for ejectment is without substance.

Bys. 261 of the Code a large number of

F .

. ..,..

.( H

statutes specified in Sch. II were repealed. By s. 261 certain enactments specified in Sch. II . including the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 and the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 32 of 1954 were wholly repealed. But it is expressly provided in s. 261 that the repeal shall not affect-( a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accued or incurred under any law so repealed or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed. Section 262 which deals with transitory provisions by sub-s. (2) provides:

"Any case pending in Civil Court at the coming into force of this Code, which would under this Code be exclusively triable by a Revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the commencement of this Code."

Relying upon these two provisions it was urged that persons who were tenants, sub-tenants or ordinary tenants of Inam land prior to the date on which the Code was brought into force, whose rights have consistently with the law in force before that date been terminated, cannot set up rights of occupancy tenants acquired under s. 185, for, within the meaning of s. 261 the right to eject a tenant has accrued to the landlord before the commencement of the Code and a proceeding for enforcement of that right may be continued and the right enforced as if the Code had not been passed, and the Court in which the proceeding is pending would be bound to dispose of the proceeding according to the law in force prior to the commencement of the Code. The argument is misconceived. Act 66of1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to s. 261 had no operation. In terms the proviso to s. 261 protects a right privilege, obligation, or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided bys. 6 of Act 32 of 1954 and bys. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted

otherwise than in the manner and for reasons mentioned in s. 193 of the Code.

Personal requirement for cultivation of land is not, however, a ground on which claim, since the commencement of the Code, for ejectment may be maintained .

. Section 262(2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That however docs not imply that the contract between the parties which was sought to be enforced unaffected by thcrstatutory declaration of occupancy tenants under s. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural: it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code.

There is nothing in s. 262(2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date 11he11 the Code was brought into force.

The appeal therefore fails and is dismissed with costs.

Appeal dismissed.

RAO NIHALKARAN

RAMGOPAL

January 27, 1966

P. B. GAJENDRAGADKAR

K. N. WANCHOO, J.

C. SHAH

S. M. SIKRI

V. RAMASWAMI, JJ.

Madhya Pradesh Land Revenue Code

ss. 185(1)(ii)(a)

Art. 32

s. 185

s. 185(1)(i)(a)

ss. 261 and 262(2)

s. 185

s. 185

s. 185(1)

ss. 3 & 4

s. 261

Section 262(2)

B. Agarwa!a

B. Dutra

B. DadachanjCo.~

Ral'i11der Narain

K. R. Chaudhry

R. L. lye11gar

G. L. Sa11ghi

A. G. Ratnaparkhi

J. B. Dadachanji

C. Mathur

Ravinder Narain

Shah

Rao Nihalkaran

July 21, 1950

Ramgopal

District Court, Indore

s. 185

District . Court, Indore

s. 185(1)

Madhya Bharat

s. 193

s. 185

Sept. 24, 1962

s. 185

s. 261

s. 262(2)

s. 185

s. 185

s. 2(y)

s. 185(1)(ii)(a)

Gwalior

Indore

Malwa

United States

Panth Piploda

States Reorganisation Act, 1956

Madhya Pradesh

November 1, 1956

Bhopal

Vindhya Pradesh

Kotah

Rajasthan

Section 54

s. 55

s. 73

s. 74

s. 74

s. 76

Act and the Abolition of Jagirs Act

s. 2(ii)

s. 54

s. 3

June 30, 1948

s. 4

s. 4

Muafidar

Istumurardar

August 15, 1947

s. 6

ss. 3 & 4

s. 158

s. 2(y)

s. 185

s. 185

s. 185

s. 73

s. 74

s. 76

s. 74

s. 3

s. 74

s. 74

s. 185

s. 168(2)

s. 168

s. 74

s. 74

s. 185

ss. 75 & 76

s. 185

s. 185

s. 185(l)(ii)(b)

s. 185

s. 261

s. 261

Section 262

s. 185

s. 261

s. 261

s. 261

s. 193

Section 262(2)

s. 185

s. 262(2)


' .,

GIRDHARILAL AMRATLAL SHODAN AND OTHERS

STATE OF GUJARAT AND OTHERS

January 28, 1966

[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]

Land Acquisition Act, 1894 (I of 1894)-N_otification under •: 6 invalid and ineffective-Po-.ver of Governnzent to issue fresh not1ficatlon.

Where a notification under s. 6 of the Land Acquisition Act, 1894 is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under s. 6. Nothing in s. 48 of the Act precludes the Government from doing so.

The cancellation of the earlier notification is only a recognition of the invalidity of that notification.

[439 B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1070 of 1965.

Appeal from the judgment and order dated April 2, 1965 of the Gujarat High Court in Special Civil Application No. 584 of 1961.

Nire11 De, Additional Solicitor-General and J. B. Dadachanji for the appellants.

R. Ganapathy Iyer and B. R. G. K. Achar, for respondent Nos. I and 2.

Arun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No. 3.

The Judgment of the Court was delivered by

Bachawat, J, : On August, 3, 1960, the Government.of Gujarat issued a notification under s. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) stating that the land measuring about 7151 sq. yards in Final Plot No. 460 of the Town Planning Scheme No. III of Elisbridge in Ahmedabad taluka city, village Changispur, was likely to be needed for a public purpose, viz., for construction of houses for Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad. The land is the subject-matter of a trust of which appellant No. 1 is the trustee and appellants Nos. 2 to 6 are the beneficiaries. An enquiry under s. 5-A of the Act was duly held, and a report under

5. 5A(2) was made to the Government. On July 18, 1961, the State Government issued a notification under s. 6 of the Act stating that the land was needed to be acquired for the aforesaid public purpose at the expense of Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On September 22, 1961, the appellants filed a writ application in the High Court of Gujarat 437

4 38

SUPREME COURT REPORTS

[1966] 3 S.C.R.

praying for an order quashing the notification under s. 6 dated July 18, 1961. During the pendency of this application, the Government issued a notification dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961. On August 14, 1964, the

Govrnment issued a fresh notification under s. 6 stating that the land was needed to be acquired at the public expense for a public purpose, viz., for the housing scheme undertaken by Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad with the sanction of the Government. The appellants were thereupon allowed to amend the writ petition, and by the amended writ petition, they prayed for an order quashing the notification under s. 6 dated August 14, 1964 as also the notification under s. 4 dated August 3, 1960. On April 2, 1965, the High Court dismissed the application. The appellants now appeal to this Court on a certificate granted by the High Court.

Counsel for the appellants submitted that the power of the State Government to cancel a notification under s. 6 of the Act implied by s. 21 of the General Clauses Act, 1897 is subject to the condition that the Government should withdraw from the acquisition as provided for in s. 48 of the Act, by cancelling the notification under s. 6 dated July 18, 1961, the Government must be taken to have withdrawn from the acquisition and cancelled the notification under s. 4 dated August 3, 1960 also and consequently the Government could not issue the notification under s. 6 dated August 14, 1964 without issuing a fresh notification under s. 4 and making a fresh enquiry under s. SA.

Counsel for the respondents disputed the correctness of this submission.

It is to be noticed that the notification under s. 6 dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants Cooperative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to s. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v. State of Madhya Pradesh( ). The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April

(I) [196416 S.C.R. 636; A.l.R. 1965 S.C. 427.

~'

1 ,

SHODAN v. GUJARAT (Bachawat, !.)

' '' 439

28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation, the Government issued a fresh notification under s. 6 where, as in this case, the notification under s. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under s. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification.

There is nothing .in s. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under. s. 6. Where the notification under s. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from ' the acquisition, as provided for under s. 48. But no such question arises in this case and we express no opinion on it.

Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 the power of the State Government to issue a notification under s. 6 was exhausted and the Government could not issue a fresh notification under s. 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under s. 6. In the circumstances, the Government could well issue the fresh notification under s. 6 dated August 14, 1964.

Counsel for the appellants next submitted that the notification under s. 6 must be issued without unreasonable delay after the issue of the notification under s. 4 and consequently, the notification dated August 14, 1964 is invalid, as it was issued after unreasonable delay. This contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the injunction, the Government could not take further steps in the acquisition. The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court below. We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under s. 6 without reasonable delay after the issue of the notification under s. 4.

In the High Court, the appellants c•ntended that the public purpose set out in the notification dated August 14, 1964 was MIO Sup.C.I./66-15

440 SuPRBMB COUllT REPORTS [l 966) 3 S.C.R.

different from the public purpose set out in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under s. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before us.

The appeal fails, and is dismissed with costs.

Appeal dismissed.

STATE OF GUJARAT AND OTHERS

January 28, 1966

A. K. SARKAR, J.

R. MUDHOLKAR

R. S. BACHAWAT, JJ.

Land Acquisition Act, 1894

s. 6

Land Acquisition Act, 1894

s. 6

s. 48

Gujarat High Court

J. B. Dadachanji

R. Ganapathy Iyer

B. R. G. K. Achar

Arun H. Mehta

M. N. Shroff

I. N. Shroff

s. 4

Land Acquisition Act, 1894

Ahmedabad

s. 5

July 18, 1961

s. 6

High Court of Gujarat 437

4 38

s. 6

August 14, 1964

s. 6

s. 6

s. 4

August 3, 1960

April 2, 1965

s. 6

s. 21

General Clauses Act, 1897

s. 48

s. 6

s. 4

s. 6

s. 4

s. 6

s. 6

s. 6

s. 6

s. 6

April 28, 1964

s. 48

s. 6

s. 6

s. 48

s. 6

s. 6

s. 6

s. 6

s. 6

s. 4

September 25, 1961

s. 6

s. 4

s. 4


, F

MOHD. RAZA DABSTANI

STATE OF BOMBAY AND ORS.

January 28, 1966

[A. K. SARKAR AND J. R. MUDHOLKAR, JJ.]

Constitution of lnd1'a, Art. 5-Cltizenship claimed by foreign national on basis of Indian domicilt!--Onus to prove domicile-Residence hether suf]icient proof-Foreign national whether can be Indian citizen.

The appellant, an Iranian national by birth, came to India. in. 1938.

In 1945 he obtained an Iranian passport and went to Iraq on p1lgnmage.

On return to India he was registered under the Registeration of Foreigners Rules, 1939, as an Iranian national. On May 25 .. 1951 he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India up to a certain date. This permission was extended from time to time at his request.

In his applications for this purpose, he described himself as an Iranian national. On December 2, 1957 his last request was refused and he was asked under the Foreigners' Act, 1946 to leave India. He then filed a suit in the City Civil Court Bombay, for a declaration that he was an Indian citizen and for an injunction restraining the authorities from taking action against him on the basis that he was a foreigner.

The suit was dismissed by the City Civil Court and an appeal to the High Court failed.

With special leave the appellant came to this Court, claiming citizenship of India under Art. S of the Constitution on the basis that he had acquired Indian domicile.

HELD : (i) Residence alone is insufficient evidence to establish acquisition of a new domicile; there also has to be proof that the residence in a country was with the intention of making it the person's home. [443 Al

(ii) An Indian citizen cannot be the national of another State. [443 G-Hl

State Trading Corporation v. Commercial Tax Officer, [1964] 4 S.C.R. 99 : A.I.R. 1963 S.C. 1611, relied on.

When in his applications the appellant described himself as an Iranian national he was saying that be was not an Indian citizen. If he was not an Indian citizen he did not have an Indian domicile; for if he had such a domicile, he would be an Indian citizen. [444 A-BJ

(iii) The onus of proving his change of domicile from Iran to India was on the appellont. The evidence produced by him did not discharge the onus. [445 Al

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 289 of 1964.

Appeal by special leave from the judgment and order dated October 3, 1963 of the Bombay High Court in Appeal No. 295 of 1960 from Original Decree.

S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant.

SUPREME COURT REPORTS

C. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents.

The Judgment of the Court was delivered by

Sarkar J. The appellant, an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old. The record does not show on what passport he entered India. In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage. This passport showed that he held an identity card of the Iranian Government. On return from the pilgrimage he was on March 22, 19% registered under the Registration of Foreigners Rules, 1939 as an Iranian national. On May 25, 1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain di\te. This permission was extended from time to time at his request. On

December 2, 1957 his last request was refused and he was ordered under the Foreigners Act, 1946 to leave India. On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the

Union of India from taking action against him on the footing that he was a foreigner and not a citizen of India. This suit was dismissed by the City Civil Court and an appeal by the appellant to the High Court at Bombay also failed. He has now appealed to this Court with special leave.

The appellant bases his claim to citizenship of India on Art. 5 of the Constitution. Under that article every person who had his domicile in the territory of India and had been ordinarily resident there for not less than five years immediately preceding the commencement of the Constitution was declared to be a citizen of India. Article 5 of the Constitution came into force on November 21, 1949. It is not in dispute that the appellant had been ordinarily resident in tlic territory of India for over five years before November 21, 1949. The only question in this appeal Is whether he had his domicile in the territory of India on that date.

When the appellant arrived in India he was a minor. His domicile was, therefore, that of his father which was Iranian.

This is not disputed. The appellant contends that he had changed his Iranian domicile into an Indian domicile prior to November 21, 1949. The onus of proving the change of domicile is, of course entirely on the appellant. Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently. The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all along been a rci; ident of Bombay. It is

well established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be proof that the residence in a country was with the intention of making it the person's home.

Now on the question of intention of the appellant to make Inilia his home, there is very little evidence. The evidence shows that after his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943.

Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant.

It is said that he had . done all these because under the Jaw then obtaining he had no option. It has. however to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other fact which happened between 1943 and 1949 to which .our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided. to make India his home. We do not even know whether during this period he was economically independent or had his own resi-. dential establishment.

 The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension.

In these applications he described himself as an Iranian national.

It was contended that this description does not militate against' his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here however the question of domicile arises because. on the basis of it the appellant claims citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State • Trading Corporation of India Ltd. v. Commercial Tax Officer('). would indicate that that cannot be done. It was there said at p. 114, "All citizens are nationals of a particular State but all nationals may not be citizens of the State." It would follow from

(') [196414 S.CJl-:99; A.i.R. 1963 S.C. 1811.

444 SUPREME COUllT llBPOllTS

(1966] 3 S.C.R.

that that an Indian citizen cannot be a national of another State.

Therefore, when the appellant described himself as an Iranian national in has applications for a residential permit and for extensions thereof after l 950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners' Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that in one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home.

As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused.

He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one.

Instead of making such a claim or any effort in that regard he continued proceeding on the asis that he was an Iranian national.

It appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March

1953. This by itself is not enough to establish the necessary intention. In any case it c-, mnot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in India for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. further, he made an application to a magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused.

It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensi0ns of permits were no longer necessary for him. This would indicate that the appellant's real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential pennit and not that he had intended to make India his home.

• H

,, .

In this State of the evidence it cannot be held that the appel lant has been able to prove his intention to settle in India or make India his home. The result is that the appeal fails and is dismissed with costs.

Appeal dismissed.

F

MOHD. RAZA DABSTANI

STATE OF BOMBAY AND ORS

January 28, 1966

A. K. SARKAR

R. MUDHOLKAR, JJ.

Art. 5

December 2, 1957

City Civil Court Bombay

[1964] 4 S.C.R. 99

Iran

S. J. Sorbjee

G. L. Sanghi

B. R. Agarwala

M. S. Patel

H. K. Puri

C. K Daphtary

B. R. L. Iyengar

A B. R. G. K. Achar

R. H. Dhebar

Sarkar

Yezd

Iraq

Iranian Government

March 22, 19%

Registration of Foreigners Rules, 1939

May 25, 1951

Foreigners Act, 1946

December 14, 1957

City Civil Court at Bombay

State of Bombay

Police of Bombay

High Court at Bombay

Art. 5

Article 5

November 21, 1949

Bombay

March 23, 1946

March 30, 1957

October 13, 1954

September 24, 1955


\'ELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU

YALAMANCHILI CHEVA ABHAYI AND ORS.

February 4, 1966.

(P. B. GAJENDRAGADKAR, C. ]. , K. N. WANCHOO, J.C. SHAH B S. M. SllCRI AND V. RAMASWAMI, JJ.]

Will--<:onstructlon o/-Prop<rty whether could be claimed as doaignata In terms of the will.

The reopondent filed a plaint claiming properties mentioned in Schedules A and B thereof on the ground that he was adopted by the appellant who was widow of L. Apart from adoption the respondent•• claim was C hued on being mentioned as ptrsona desiRnata in L's will.

The re-- levant words in the will were : "It has been settled that my wife should take, the second son of my elder brother, ........ in adoption, celcbrata hiJ marriage, etc., and after he passes his minority she should deliver pc 1 •ion of my other movable and immovable propertic'i that I have ........ ". The trial court held that the respondent had not been adopted hr the appellant nor W8' he entitled to any right< as persona da/pDID m Va will.

On appeal the High Court held that while there D was no adoption, the respondent was entitled to the property as persona dnignata. The appellant came to this Court. The question presented for determination W8' whether the High Court W8' right in holding that upon a true construction of the will Ex.B-1 there was a gift of the property to the plaintiff as persona designa/a.

HELD : The will contained no direct words of disposition in favour of the respondent. There was no expression of devise in favour of the E rnpondent. There was only a direction to the widow to adopt and the gift to the respondent was on condition of being adopted. The respondent•s claim as persona dnignata could not therefore be accepted.

(448 0-H. 450 A]

Fanlndra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.

Nldhoomoni Debya v. Saroda Pershad Mookerjee, 3 I.A. 253 distinguished.

CivtL APPELLATE JURISDICTION : Civil Appeal No. 752 of 1963.

Appeal from the judgment and decree dated December 16 1958 of the Andhra Pradesh High Court in Appeal Suit No. 284 of 1954.

M. A. Narasayya Chaudhury, I.

Shivamurthy and K.

Sarmo, for the appellant.

W. S. Barlingay and E. Udayaratnam, for the respondent.

The Judgment of the Court was delivered by

Ramaswami J. This appeal is brought on behalf of the defendant against the judgment and decree of the High Court of Andhra

Pr11desh dated December 16, 1958 in A. S. No. 284 of 1954 whereby

GODAVARU v. ABHAYI (Ramaswam1', !.) 447

A it reversed the judgment and decree of the Court of Subordinate Judge, Vijayawada in 0. S. No. 171 of 1950,

In the suit which is the subject-matter of this appeal the plaintiff alleged that he was duly adopted by the defendant-the widow of Lakshmayya-and therefore entitled to properties mentioned in Schs. A & B of the plaint. The plaintiff also asserted that, apart from his right as an adopted son, he was entitled to the properties. claimed as a persona designata under the will dated November 30, 1946-Ex. B-1 executed by Lakshmayya. The suit was contested l>Y the defendant who alleged that the plaintiff was not adopted as tlie son of Lakshmayya. The trial court rejected the case of the plaintiff that he was adopted by the widow after the death of Lakshmayya. The trial court further held that the plaintiff was not entitled to any rights under the will as a persona designata. The trial court accordingly dismissed the suit. On appeal by the plaintiff the High Court confirmed the finding that no adoption had been made. It, however, held on the construction of the will that the plaintiff was entitled to the properties claimed as a persona designata. The High Court allowed the appeal and granted a decree to the plaintiff for possession of the properties subject tocertain incidental directions given in the decree.

The question presented for determination in this appeal is whether the High Court was right in holding that upon a true construction of the will-Ex. B-1 there was a gift of the properties to the plaintiff as a persona designata.

 It is necessary, at this stage, to set out the material provisions of the will Ex. B-1 executed by Lakshmayya :-

"I have no male or female issue. I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah. .For the last 10 days I am suffering from a disease akin to paralysis and fearing that I may not survive, I make the following settlement as set down below to take place after my life.

Land called Mallukunta Out of Raksh kunta ( ?) vadde land Out of Maddurivari land Out of Pooravamamvari land

TOTAL

A.C. 1---00 1-25 1-05 2-60

6-50

Six acres and (50) fifty cents seri wet land; 10 cents in Kolli Chinna Bapaiah's (back) yard; and 300 yards of house-site towards the west of my house (belonging to my mother-in-law) with a tiled house thereon, have been

SUPREME COURT REPORTS

(1966] 3 S.C.R.

settled upon my wife to enjoy as she likes with all rights of gift, mortgage, exchange, sale, etc.

2. Southern side garden 80 cents (eighty cents of scri wet land) has been settled upon my mother Basa vamma to enjoy with all rights of gift, mortgage, exchange, sale, etc.

3. It has been seltlcd that my wife should take, the 2nd son of my elder brother, Yalamanchili Somaiah, in adoption, celebrate his marriage, etc., and after he passes his minority she should deliver possession of my other movable and immovable properties that I have and described here below. During the life-time of my wife, if the adopted son and she live together without any trouble,

(she) is to live in my house, and if there is disagreement between the adopted son and my wife, (she) is to live in a room of my house.

My wife has been given power over my minor (son's) property, to collect debts due to me and to discharge <lebt.s due by me."

The testator then mentioned two items of debts due to him.

He thereafter enumerated the debts due by h.im which aggregated to

Rs. 15,803/- . A description of the land is also given.

The question involved in this appeal is whether the disposition

of the properties to the plaintiff is as a persona designata or by E reason of his fulfilling a particular legal status, namely, the adopted son of the testator. "!be question in such a case is really one' of intention of the testator which must be ascertained from the language of the various clauses of the will and the surrounding circumstances of the execution of the will.

As pointed out by the Judicial Committee in Fanindra Deb Raikat v. Rajesll'ar Das.<(') : F

"The distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances."

In the present case we are satisfied, on reading the various clauses of the will, that there is no gift to the plaintiff and there was only a direction to the defendant to adopt the plaintiff as the son of Lakshmayya and the intention of the testator was that the plaintiff should take as an adorted son and, therefore, the gift made to the plaintiff was conditional on his being adopted. The reason is that there are no direct words of disposition in favour of the plaintiff.

In this connection the language of cl. 3 of the will is ----· ·-·· ---·

(!) 12 I. A. 72.

GODAVARU v. ABHAYI (Rama.rwait11', J.) 449

in contrast with that of els. 1 and 2 where words of disposition are used with regard to the gifts made to the widow-Sivapanchakshari and to the mother of the testator-Basavamma. Clause 3 of the will does not contain any expression of devise of the property in favour of the plaintiff. Clause 3 only contains a direction that the wife of the testator should take the plaintiff in adoption, celebrate his marriage etc. and "after he passes his minority she should deliver possession of my other movable and immovable properties to him". It is manifest that in the present case there is a direction to the widow to adopt and the gift to the plaintiff is on the condition of his being adopted. It appears to us, upon reading the will as a whole, that tho testator had no intention to give the property to the plaintiff irrespective of the adoption to be made by the widow in accordance with the direction. On behalf of the respondents reference was made to the decision of the Judicial Committee in Nidhoomoni Debya v. Saroda Pershad

Mookerjee(1) in which it was held that there was a gift of his property by the testator to a designated person (the words being "I declare that I give my property to Koibullo whom I have adopted"), and this gift was not dependent on the performance of certain ceremonies by his widows. The principle of the decision is not applicable to the present case where the language of the testamentary instrument is materially different. We think the present case is similar to that of Fanindra Deb Raikat v. Rajeswar Dass(') where the Judicial Committee held on a true construction of the angik:ar-patra by which the deceased purported to give his property to the respondent by virtue of his being the adopted son, that the gift did not take effect inasmuch as the adoption was invalid. At page 89 of the Report the Judicial Committee observed

"They think the question is whether the mention of him as an adopted son is merely descriptive of the person to take under the gift, or whether the assumed fact of his adoption is not the reason and motive of the gift, and indeed a condition of it. The words are,-'I authorize you by this angikar-patra to offer oblations of water and pinda to me and my ancestors after my death, by virtue of your being my adopted son. Moreover, you shall become the proprietor of all the movable and immovable properties which I own and which I may leave behind; you shall become entitled to my dena-pawna (debts and dues), and you and your sons and grandsons shall enjoy them agreeably to the custom of the family.' He is to make the offerings by virtue of being an adopted son, and 'moreover' he is to become the proprietor. This is to be the consequence of the adoption."

(I) 3 I. A. 253.

(2) 12 I. A. 72.

450 SUPllBMB COURT RBPORTS

(1966] 3 S.C.R.

For the reasons expressed we hold that the High Court was in error in interpreting the will of Lakshmayya as a gift of the properties made to the plaintiff as a persona designata.

We are, therefore, of the opinion that the plaintiff is not entitled to the properties on the basis of the will executed by Lakshmayya and the suit of the plaintiff should be dismissed. This appeal is accordingly allowed with costs.

Apptal a//owtd.

YELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU

YALAMANCHILI CHEVA ABHAYI AND ORS

P. B. GAJENDRAGADKAR

K. N. WANCHOO, J

C. SHAH

V. RAMASWAMI, JJ.

M. A. Narasayya Chaudhury

Shivamurthy

K.

Sarmo

W. S. Barlingay

E. Udayaratnam

Ramaswami

Court of Subordinate Judge, Vijayawada

November 30, 1946

Lakshmayya

Sivapanchakshari

Basavamma

Somaiah

Kolli Chinna Bapaiah

Yalamanchili Somaiah

cl. 3

Clause 3

Clause 3

Nidhoomoni Debya

Koibullo


PANDIT SRI CHAND AND ORS.

. v.

M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS.

February 4, 1966

[J. C. Sifm, S. M. SIKRI AND V. RAMASAWAMI, JJ.]

Code of Civil Pr11cedure (Act V of 1908), 0. 41 r. 4-Abatement of Appeal with reapect to one appellant-When operates as abatement of entire appeal-Supreme Court Rules, 1950, 0. 16 r. 14.

The 1st respondent filed a suit against the 2nd respondent for re- . covcry of money and in pursuance of an order of the Court directin1 . c the 2nd respondent to furnish security for satisfaction of the decree that may be passed against him, the three appellants and two others stoo~ sureties agreeing jointly and oeverally to satisfy the decree. After the smt was decreed the first respondent applied for execution of the decree against the sureties. The •ureties raised the pleas that the surety bond wu not enforceable because it was not registered, and that the degree

'. holder had committed acts by which the remedy of the sureties against

judgment debtor was impaired, but the pleas were negatived by the D executing court and the High Court. After the three appellants preferred an appeal to this Court, one of them died and since his legal . representatives was not brought on record, the appeal abated, as far as he was concerned.

On the question whether the appeal in so far as the other two appellants were concerned also abated,

HELD : Applications to bring on record legal representatives of a deceased appellant OT respondent were governed by 0, 16, r. 14 of the Supreme Court Rules, 1950, and the rule applied to all classes of appeals . including appeal<s arising from orders in execution.

Because the repre-- sentatives of the deceased appellant were not brought on record within the time permitted by the rule and the delay in filing the petition to bring the representatives on record was not condoned, the appeal of the deceased appellant abated. Since the Liability of the sureties was joint and several, if this Court proceeds with the appeal of the other two sureties and holds that the High Court was in error in rejecting their contentions, there would be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other-of this Court that it was not enforceable. Therefore" the appeal must be held to have abated in its entirety. [454 D; 456 B; 457 BJ

St11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed,

CIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of 1963.

Appeal by special leave from the judgment and order dated April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi) . in LP.A. No. 17-D of 1960.

Gopal Singh and Amar Singh, for appellant No. 1.

J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No. 3.

SUPREME COURT REPORTS (1966] 3 s.c.R

Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury A for respondent No. I. '

Mohan Behari Lal, for respondent No. 3.

S. K. Mehta and K. L. Mehta, for respondent No. 4.

The Judgment of the Court was delivered by

Shah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent'-<:ommenced suit No. 265 of 1952 in the Court of the Senior Subordinate Judge, Delhi, against the second respondent for a decree for possession of goods hypothccated to them by Messrs. Mudgal Motors Ltd.,-second respondent in this appeal. The first respondent filed another suit No. 43 of 1952 for a decree for Rs. 42,914/10/- being the amount due at the foot of the hypothecation account, and for sale of the goods in satisfaction of the amount due. The two suits were consolidated for trial. In suit No. 43 of 1952 the first respondent applied for appointment of a receiver and the Court directed the second respondent to furnish security in the sum of Rs. 50,000/-.

Pursuant to this order five persons stood sureties for satisfaction of the decree. It was recited in the surety bond dated April 21, 1953, that the five sureties mortgaged the properties specified in the Schedule annexed thereto and jointly and severally agreed that if any decree was passed against the second respondent they shall comply with the same and in default the amount payable under the decree but not exceeding Rs. 50,000/- shall be realized from the properties mortgaged. This surety bond was not registered. Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.

On January 14, 1955, the second respondent was ordered to be wound up in a petition presented by the first respondent to the District Court, Delhi. Suit No. 265 of 1952 was therafter withdrawn and in suit No. 43 of 1952 a decree was passed against the second respondent for Rs. 42,914/10/- with costs and future interest at six per cent per annum. The first respondent then applied to execute the decree against the sureties. The sureties objected to the execution of the decree against them on the grounds, inter alia, that the surety bond not being registered as required by law, the application for execution must fail, and that since the first respondent had committed acts by which the remedy of the sureties against the second respondent had been impaired the sureties stood discharged. The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J., in appeal to the High Court of Judicature, Punjab. Appeals against the order of Grover, J., under the letters patent of the High Court were disinisscd in limine.

With special leave granted on August 12,

I l

• ,

SRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:

1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.

Basant Lal, one of the appellants died on October 18, 1962.

As he died before the record of the appeal was transmitted to this Court, his heirs and legal representatives applied on July 24, 1963, to the High Court for an order under 0. 16, r. 12 of the Supreme Court Rules, 1950, certifying that they were proper parties to be impleaded as legal representatives on the record of the appeal.

Tuey also applied for condonation of delay in moving the application. The High Court held that there was no adequate explanation justifying an order condoning the delay in making the application for bringing the heirs on record and accordingly the application for condonation of delay and the application for certifying the heirs were dismissed. A petition submitted to this Court for impleading the heirs and legal representatives in the appeal was also dismissed by an order made in chamber on February 9,

1965. Thereafter a petition was filed on May 7, 1965 for special leave to appeal against the order passed by the High Court refusing to bring on record the legal representatives of Basant Lal. By order dated January 20, 1966 we have rejected this petition.

Counsel for the first respondent contended that the appeal had abated in its entirety because the heirs of Basant Lal had not been brought on record, and the ground on which the judgment of the High Court proceeded was common to all the sureties.

In our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded and the record of the appeal is defective.

That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants I & 3 and the third respondent. Support was sought to be derived for the first contention from 0 41, r. 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties. This plea stands refuted by the judgment of this Court in Remeshwar Prasad and Others v. Shambehari Lal Jagannath and another.(') It was held by this Court in Rameshwar Prasad' s case (') that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under 0 41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.

SUPREME OOURT REPORTS

(1966]3 S.C.R.

The two principal pleas raised before Grover, J., were that A the surety bond was not enforceable because it wss not registered and that the decree-holders had committed an act by which the .remedy of the sureties against the judgment-debtor had been impaired and therefore the sureties stood discharged. The learned .Judge negatived both the pleas. The decision of the Court obviously proceeded on grounds which were common to all the sureties.

Basant Lal died after the order of the High Court under appeal.

He had preferred an appeal, but since the legal representatives .to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants I & 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.

This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram (1) this Court explained the tests applicable in considering whctile; an appeal abates in its entirety when it has abated qua one of the respondents. 1be headnote of the case reads :

"If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it : otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not \viii be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been de5cribed thus : (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's -------=--· ·-

(1) [19'2) 2 S.C.R. 636.

A ,

• c

• F •

Sill CHAND V. JAGDISH PARSHAD (Shah, 1.) 455

passing a decree which will be contradictory to the deree which had become final with respect to the same subjectmatter between the appellant aud the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respon dents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.

The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.

When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents, other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has

abated." The principle of this judgment was affirmed in Rameshwar Prasad' s case (') and later in an unreported judgment in Kishan Singh and others v. Nidhan Singh and others (2). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram's case (3) are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety.

But counsel for the appellants has contended that the rules laid down by this Court in Nathu Ram's case(') and other cases has no application to this appeal, firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in 0·22, r. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in so far as he is concerned, notwithstanding abatement of the appeal of a co-obligee. Order 22, r. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts.

In some cases the view has prevailed that appeals from orders in execution proceedings are not subject to rules 3, 4 and 8 of 0 22, Code of Civil Procedure and failure to implead heirs and legal

(1) (1964] 3 S.C.R. 549.

(2) C.A. 563 of 1963 decided on Dec. 14, 1964.

(3) (1962] 2 S.C.R. 636 MIO Sup. Cl/66-16

4 5& SUJIU!MI COUl.T UPOl.TS

(1966) 3 S.l>.R.

rl!resentatives of a deceased party in such an appeal will not be A vmted by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceedi~ in execution of a decree" and that such an appeal will abate if

the heirs are not brought on record within the period of limitation, and that r. 12 has no application to appeals. Io this appeal it is not necessary to resolve this conflict, for, appeals to this Court.

B arc 1ovemed by the rules contained in 0.16 of the Supreme Court Rules, 1950, and by r. 14 thereof it is provided :

"An application to bring on record the legal representative of a deceased appellant or respondent shall be made within ninety days of the death of the said appellant or respondent :

Provided that in computing the time taken in obtaining a the said period certificate from the High Court shall be excluded."

The rule is explicit and makes no exemption in favour of any class

of appeals. It is true that r. 14-A of 0 16 of the Supreme Court D-

• •

Rules, 1950, provides that : •

"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 13 in the High Court and in the E.

Supreme Court."

nd thereby the provisions of 0. 22 relating to abatement of appeals arc attracted. But there is no warrant for holding that any class of appeals filed in this Court is exempt from the operation of r. 14.

Liability of the sureties is under the law joint and several.

If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged : nor will release by the creditor of one of them discharge the other : vide ss. 137 & 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudi cation of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the bond.

The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make

' - •

• . )-

W CHAND V • .TAGI>ISH PAl.SHAI> (Shall, l.) 457

the liability of each covenantor distinct. It is true that in enforce· ment of the claim of the decree-holder the properties belonging to the sureties individually may be sold separately. But that is be cause the properties are separately owned and not because the liability arises under distinct transactions.

It must therefore be held that the appeal has abated, because the representatives of the second appellant-Basant Lal-havoc not been brought on record within the time permitted by r. 14 of 0. 16 of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned. c The appeal must therefore fail and is dismi11sed. Having• regard to the circumstances, there will be no order as to costs in this appeal. ·

Appeal dismissed .

PANDIT SRI CHAND AND ORS

February 4, 1966

S. M. SIKRI

Supreme Court Rules, 1950

[1962] 2 S.C.R. 636

[1964] 3 S.C.R. 549

CIVIL APPLLATE JURISDICTION

Gopal Singh

Amar Singh

J. M. Lal

E. C. Agarwala

P. C. Agarwala

SUPREME COURT REPORTS (1966] 3 s.c.R

Bishan Narain

K. Rajendra Chaudhury

K. R. Chaudhury

Mohan Behari Lal

S. K. Mehta

K. L. Mehta

Shah

Jagdish Pershad Kishan Chand

Mudgal Motors Ltd.

April 21, 1953

Chand

Basant Lal

Debi Ram

January 14, 1955

Grover

High Court of Judicature, Punjab

CHAND V. JAGD!SH PARSHAD

Chand

Basant Lal

Debi Ram

October 18, 1962

July 24, 1963

Supreme Court Rules, 1950

Tuey

February 9,

1965

May 7, 1965

January 20, 1966

the Code of Civil Procedure

Rameshwar Prasad

Raghubar Dayal

Nathu Ram

Code of Civil Procedure

the Code of Civil Procedure

Code of Civil Procedure

(1964] 3 S.C.R. 549

Dec. 14, 1964

(1962] 2 S.C.R. 636

Supreme Court Rules, 1950

Article 171

ss. 137 & 138

.TAGI>ISH PAl.SHAI

Basant Lal-havoc

Supreme Court Rules, 1950


SURENDRA NATII BIBRA

STEPHEN COURT LTD.

February 4, 1966 [J. C. SHAH, S. M. S!Klll AND V. RAMASWAMI, JJ.)

1.And/ord and tena111-Pos>ession of whole of the premises agreed to not dtlivered-Tenant's right to suspend payment of entire rent.

The appellant e•ecuted a lease for a period . of 21 years. in respect of the respondent's flat consisti~ of 3 bedrooms, at a monthly rent of

Rs. 350. As the respondent <leltvered possession of only 2 bed rooms, the appellant snspended the payment of rent altogether. The respondent thereupon filed a suit for recovery of rent in the Court of Small Canseo

but it was dismissed.

In an application under •~ 38 of the Presiden::y Small Canseo Court Act the Full Bench of the Small Causes Court de creed the suit, and the decree was confirmed in the appellant"a revision petition to the High Court under s. 11 S of the Civil Procedure Code and Art. 227 of the Constitution.

In appeal to this Court.

HELD : The appellant must pay a proportionate part of the rent, becanse, it would be inequitable to allow the respondent, on the one hand, to recover the full rent when he had not delivered possession of the whole of the premises, and on the other, to allow the appellant to enjoy a substantial portion of the property of the landlord without much inconvenience as a windfall.

It will depend on the circumstances of each case whether a tenant would be entitled to snspend payment of the rent fully or whether he should be held liable to pay the proportionate part of the rent. [460 DFl

Ra:n Lal Dutt Sarkar v. Dhirendra Nath Roy, (19431 70 I.A. 18 applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1963.

Appeal by special leave from the judgment and order dated August 17, 1959 of the Calcutta High Court in Civil Rule No.

274 of 1958.

F N. C. Chatterjee and S11kumar Ghose, for the appellant.

Sarjoo Prasad and S. C. Mawmdar, for the respondent.

The Judgment of the Court was delivered by Sikri J. This appeal by special leave is directed against the judgment of the High Court of Calcutta in an application under G s. 115 of the Code of Civil Procedure and under art. 227 of the Constitution filed by the tenant, Shri Surendra Nath Bibra, now appellant before us.

Stephen Court Limited, respondent before us, hereinafter referred to as the plaintiff, filed a suit in the Court of Small Causes, Calcutta, for the recovery of rent from September 1956 to Novem II ber 1956, at the rate of Rs. 350/· per menscm, and interest, against the appellant, hereinafter referred to as the defendant, alleging that the defendant was a monthly tenant by virtue of a lease dated

\ •

, ' •

S. N. BIBRA v. STl!PHl!N COURT (Sikri, ].) 459

April 30, 1956, under the plaintiff, in respect of flat No. 17 at pre mises No. ISA, Park Street, known as Stephen Court in the town of Calcutta, and that the defendant had not paid the rent from September to November, 1956. The defendant, inter alia, pleaded that relying on the representation and assurance of the plaintiff that three bed-rooms, two bath rooms etc. would be available to the defendant in flat No. 17 he executed a lease on April 30, 1956, for a period of 21 years, but the plaintiff put him in possession only of two bed-rooms and not three, and according to him, in the circumstances he was entitled to suspend the rent altogether.

The Small Cause Court Judge, Mr. Manda!, found that the defendant had not been put into possession of one of the three bed-rooms. Purporting to follow Katyayani Debi v. Udoy Kumar Das (1) and Abhoya Charan Sen v. Hem Chandra Pal (2) he held that the defendant was entitled to suspend payment of rent to the plaintiff.

The plaintiff then preferred an application under s. 38 of the Presidency Small Cause Courts Act against the dismissal of its suit. The Full Bench of the Small Causes Court, following Ram Lal Dutt Sarkar v. Dhirendra Nath Roy,(3) held that the plaintiff's claim for arrears of rent must succeed in spite of the fact that the landlord had failed to give possession of one out of the three bed-rooms of the demised premises. The Bench, however, made it clear that the "non-applicability of the principle of suspension of rent in the present suit for recovery of arrears of rent for a particular period will not necessarily debar the tenant from claiming other appropriate reliefs against the failure of the landlord to put him in possession of the entire demised premises by way of apportionment of rent or damages.' Accordingly, it decreed the suit.

The defendant then filed an application under s. 115, Civil Procedure Code, and art. 227 of the Constitution. In the applica tion the defendant prayed that the suit be dismissed. In the alternative, the defendant alleged that the plaintiff was at best entitled only to a proportionate rent. The High Court dismissed the application and the defendant having obtained special leave, the matter is now before us.

Mr. N: C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutt's (4) case which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years. He says that the doctrine of suspension of rent should be applied to the facts of thii case because the plaintiff had deliberately not given possession

(I} 30 C.W.N. (P.C.) J.

(2) 33 C.W, N. ns.

C3) 70 I.A. 18.

SUPUWll COUJ.T UPO.TI

(1966) 3 S.C.R.

of one bed-room. In the alternative he contends that the Full Bench of the Small Causes Court and the High Court should have made an order for apportionment of rent.

We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt's (')case can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenzie (2) should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the 1ubjcct-matter of the lease in Neale v. Mackenzie (2) was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in Neale v. Mackengie (2) is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem -equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property, in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it ia unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.

We may make it clear that like the Privy Council in Ram IAl Dlltt's (') case we are not deciding that the doctrine of suspension of rent should or should not "be applied at all to cases of eviction -0f the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule-these questions will call for careful review when they are presented by the facts of a particular case." In view of this we need not consider cases like Hakim Sardar Baltadur v. Parkash Singh (3); Jatindra Kumar Seal v. Raimohan Bai (4); .and Nilkantha Pali v. Kshitish Chandra Satati.(S)

(I) 70 I.A. 18.

(2) ISO l!.R. 6J5.

(3) A.l.R. (1962} Pun. 385.

(4) A.l.R. (l!Hil) Aa. SJ.

(5) I. L.ll. (19S2) I Cal. 59.

• D

s. N. BmllA v. STEPHEN COUllT (Sikri, l.) 461

The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.

In our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises in question.

Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four monthsthis fact also is relied on by the High Court-and therefore we should not remand the case. But we find that three months' rent was paid in advance as security deposit, and hence there is no force in the contention.

Mr. Sarjoo Prasad finally contends that as this appeal arises from an application under s. ll5 of Civil Procedure Code and art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under art. 227 of the Constitution, and although ordinarily art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on t)iis ground.

In the result the appeal succeeds. We set aside the orders of the High Court and of the Full Bench of the Small Causes Court and of the Judge Small Causes Court, and remand the case to the Court of Small Causes, Calcutta, with the direction that it will dispose of the suit in the light of this judgment. The parties would be at liberty to lead evidence before the Court of Small Causes on the question of apportionment of rent. In the circumstances of the case there would be no order as to costs.

Appeal allowed.

SURENDRA NATII BIBRA

STEPHEN COURT LTD

February 4, 1966

C. SHAH

V. RAMASWAMI, JJ.

Small Canseo Court Act

s. 11

Art. 227

Calcutta High Court

F N. C. Chatterjee

Sarjoo Prasad

S. C. Mawmdar

High Court of Calcutta

s. 115

the Code of Civil Procedure

art. 227

Surendra Nath Bibra

Stephen Court Limited

Court of Small Causes, Calcutta

Calcutta

April 30, 1956

Manda

s. 38

Presidency Small Cause Courts Act

s. 115

Civil Procedure Code

art. 227

N: C. Chatterjee

Ram Lal Dutt

Chatterjee

India

George Rankin

Ram IAl Dlltt

Sarjoo Prasad

Civil Procedure Code

art. 227

art. 227

art. 227