KESHAVLAL JETHALAL SHAH

MOHANLAL BHAGW ANDAS & ANR.

April 2, 1968 [M. HmAYATULLAH, C.J., J. c. SHAH, s. M. Soou,

R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER,

C. A. VAIDIAL!NGAM AND K. S. HEGDE, JJ.)

Bonibay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, s. 29(1) a11d (2)-amended by Gujarat Act 18 of 1965whether anumded s. 29(2) applied to a case where decision of appellate Court given before the ammded section came into for if High Court could o,,/y exercise power under s. 115 C.P.C. in such case.

In a suit filed by the respondent in July 1958 for a decree in cjectment, arrears of rent and other dues against the appellant in respect of certain premises in Ahmcdabad. the trial court dismissed the claim for ejectment and passed a decree for arrears. of rent and pennitted increases.

Jn appeal .under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 the decree was eonfirmed on February 25, 1963.

Bv s. 29(2) of that Act, as it then stood, no appeal lay against any decision in appeal under sub .. ection ( 1) from the order of the trial court.

The respondent therefore moved the High Court by a petition under s. 115 CPC. While this petition was pending Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965 and it was provided in the amended s. 29(2) that while no appeal would lie against any decision in appeal under sul><; eetion ( 1). the ffigh Court may, .for the purpose of satisfying itself that a decision in appeal was according to Jaw, call for the case and pass such order os it thinks fit.

On the assumption that the amended Act applied to all petitions pending before it, the High Court. after a detailed examination of the case, reversed the order of the appellate court and decreed the respondent's suit.

In appeal by special leave to this Court, it was contended, i11ter aJia. by the appellant that the order of the appellate court which had acquired finality, subject to the exercise of the limited jurisdiction by the ffigh Court under s. 115 C.P.C. could not. be set aside in exercise of the jurisdiction under the amended s. 29(2) in t.he absence of a provision in the Amending Act making the an1endmcnt retrospective.

HELD : The High Court exercised the jurisdiction invested by Act 18 of 1965 in respect of a judgment which had become final a Jong time before that Act. The appeal must therefore be allowed, the order passed by the High Court set aside and the proceedings remande<l to the High Court to deal v."ith and dispo~ of the revision application on the footing that it wns governed by s. 115 C.P.C. under which it was purported to have been filed. [630 G].

When the revision application v:as entertained under s. 115 of th~ Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that ection, anJ. in the absence of any express

provision made in the Amending Act, the jurisdiction conferred by that seetion eould not be extended. r629 H-630 BJ.

There is nothing in the language of s. 29(2) as amended, which may indicate that it was intenccd to be retroscctive in operation. [630 DJ.

Indira Sohan Lal \', Custodian of Evacuee Property, Delhi [1955) A 2 S.C.R. 1117 and Moti Rw11 v. Smaj Bhan [1960] 2 S.C.R. 896; distin- RUisbed.

Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haii Safibhai, (1964] 5 S.C.R. 157; Colonial Sugc.r Refi11ing Company Ltd, v. Irving, [1905] A.C. 369; Garikapatti Veerava v. N. Subbiah Choudhury [1957] S.C.R. 488; Nana Bin Aha v. Sheku Bin Andu, I.L.R. 32 Bom. 337 and Dafedar Niranjan Singh & Anr. v. Custodian, Evacuee Property (Punjab) & Anr. [1962] I S.C.R. 214; referred to.

In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was acoording to law, the Legislature did not attempt to legislate in the matter of procedure. It expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.

[630 C].

Section 29(2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that. the decision in appeal was according to law, which the High Court did not possess before the . date of the Amending Act. It could not be said that tho amending clause only sought to explain any pre-existing legislation which was ambiguous or defective. [630 D-EJ.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1271 of 1967.

Appeal by special leave from the judgment and decree dated March 2, 3, 1967 of the Gujarat High Coun in Civil Revision Application No. 1010 of 1963.

B. C. Misrn, R. K. Mathur and M. V. Goswami, for the E appellant.

S. K. Zarer and K. L. Hat/ti, for the respondents.

Order of Reference Shah, J. This appeal raises the question whether a revision petition filed in the High Court under s. 115,-Civil Procedure F Code, from an order passed by an appellate court under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 may after the amendment of s. 29(2) by the Bombay Rents, Hotel and Lodging House Rates Cotrol (Gujarat Amendment) Act, 1965 be tried in accordance with the amended Act.

The High Court assumed that a proceeding pendinz before it at G the date on which the amending Act came into force had to be dealt with and decided in accordance with the provisions of subsec. (2) of s. 29' as amended.

There is no dispute that s. 29 (2) as Jmended has not expressly been given retrospective operation. In Colonial _sugar Refining Co. Ltd. v. Irving('), the Judicial Committee held that "while H provisions of a statute dealing merely with matters of procedure

(1) [19J5] A.C. 369

r--

'lmay properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of th_e statute are not to be applied retrospectively in the absence of express enactment or necessary intendment".

The Judicial Committee further observed that "provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were Jina!, are provisions which touch existing rights." The same principle has been affirmed by the Judicial Committee in a later decision in Delhi Cloth and General Mills v.

Income-tax Commissioner, Delhi(').

In Indira Sohan Lal v. Custodian of Evacuee Property, Delhi('), one of the points decided by this Court in dealing with a case under the Evacuee (Administration of Property) Act, 1947, as amended in 1948, was that even 'if at the date when an application was made for confirmation of a transaction of exchange by a evacuee, the order of the Custodian was to be deemed final, if by an amending Act passed before the order was made, the order was subject to revision by. the Custodian General, the order of the Custodian was denuded of its finality_. In Dafedar Niranjan Singh and Another v. Custodian Evacuee Property (Pb.) and Anr.( 3 ) this Court held that where an order of the Custodian had become final under the Patiala Evacuee (Administration of Property) Ordinance, its finality could not be affected retrospectively under s. 58(3) of the Administration of Evacuee Property Act, 1950 which replaced. the Ordinance. The Court distinguished the observations made in Indira Sohan Lal's case('). Another judgment to which our attention was invited is Moti Ram v. Sura; Bhan(') in which this Court observed that according to the decision in Indira Sohanlal's case(') an appellate decision under s. SB of the East Punjab Evacuees' (Administration of Property) Act. 194 7 acquires finality after the order in question is inade, and "even if there be in law any such right at all it can in no sense be a vested or accrued right'', and therefore notwithsta00in~ the declared finality of the judgment of the Controller under th~ Evacuee Property Urban Rent Restriction Act, 1947, when the petition for ejectme11t was filed, the Act having been amended, the High Court invested with revisional jurisdiction by s. 15 ( 5) was competent to revise the order of the Controller. This Court observed that the finality of the order of the Controller atfached thereto only when the order was made and therefore if before the date on which the order was made, by amendment of the Act, the order ceased to be final, a revfsion application to the High Court was competent.

(I) (1927)L.R. 541.A.421.

(3) [1%2] I S.C.R. 214.

(2) [1955] 2S.C.R.1117.

(4) [19W] 2 S.C.R. 8%,

It is true that in the present case the order of the City Civil A Court was made before the amending Act was enacted.

Under tho Rent Act. before it was amended, no further appeal lay from the decision of the Appellate Court, but the jurisdiction of the High Court under s. 115 Code of Civil Procedure was not on tilat account excluded. By the amended Act the High Court is exprssly invested with revisional jurisdiction, which is not subject to the B restrictions prescribed by s. 115 of the Code of Civil Procedure.

The result is that the revision petition when originally filed was triable under s. 115-Civil Procedure Code; it has been tried by the High Court iinder the amen~ s. 29(2) of the Rents, Rates Control Act.

Indira Sohanlal's case(') has made a departure from what was C apparently a settled rule. The question in this case is whetherthe

rule in Colonial Sugar Refining Company's case(') Will apply, or the exception engrafted upon the rule by the judgment in Indira Sohanlars case(') will apply. We direct that this case be pl:i.ced before a larger Bench.

It will be open to the parties to argue such other points as arise out of the order of the High Court, but 0 subject to the restridions imposed by the order granting rul~.

The Judgment of the Court was delivered by Shah J. The respondents sued the appellant for a decree in ejectment in respect of shop Municipal Census No. 1754 at Ahmedabad and for rent in arrears and additional taxes.

The E trial court dismissed the claim for ejectment and passed a d.xree for arrears of rent and permitted increases. In appeal under s. 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, the decree was confinned on February 25, 1963. By s. 29(2) of that Act, as it then stood, no appeal lay against any decision in appeal under sub-s. ( 1) from the order of the Court of First Instance.

The respondent accordingly mov· ed the High Court of Gujarat by a petition under s. 115 of the Code of Civil Procedure.

When this petition was pending in the High Court Bombay Act 57 of 1947 was amended by Gujarat Act 18 of 1965, and sub-s. (2) of s. 29 was replaced by the following sub-section : ''No further appeal shall lie against any decision in appeal under sub-sec. ( 1), but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."

On the assumption that by ~~ amende~ Act the High Court '!as

empowered to decide all petitions pending on the .date on which

(I) [t955J 2 s.c.R. 1111.

(2) [1905] A.C. 369.

the amended section came into operation, as if the amended section applied thereto, the High Court entered upon a detailed investigation of the questions raised by the respondent in the petition-

( I) whether the tenant proved that he was ready and willing to pay the stlllldard rent and permitted increase$ within the meaning of s. 12(1) of the Act; (2) whether the tenant was in arrears of standard rent and permitted increases and the amount of tax for more than six months, and therefore the case fell within the purview of s. 12(3)(a) and not under s. 12(3)(b) of the Act; and

(3) whether in any event the tenant having failed to observe the conditions of the tenancy was disentitled to the protection either, under s. 12(1) ors. 12(3)(b) of the Act, and reversed the order of the appellate court and decreed the respondent's suit.

With special leave, the appellant has appealed to this Court.

This Court in Vora Abbasbhai Alimohomed "· Haji Gulumr.ubi Haii Safibhai(') held that in a petition under s. 115 of the Code of Civil Procedure from an order made by the appellate court under s. 29 of Bombay Act 57 of 1947, the Higb Court had no power to set aside the order merely because if was of opinion that the judgment was assailable on the ground of error of fact or even of Jaw: the High Court may exercise its power under that section only if the appellate court had acted without jurisdiction or had failed to exercise its jurisdiction or had acted with material illegality or irregularity in the exercise of its jurisdiction. Thereafter the Gujarat Legislature amended s. 29(2) by Act 18 of 1965 in the manner set out, so as to confer upon the High Court a jurisdiction wider than the jurisdiction exercisable under s. 115 of the Code of Civil Procedure.

Counsel for the appellant contended that in entering upon an enquiry into the questions raised by the respoµdent, the High Court exercised jurisdiction which it did not possess.

Counsel contended that the right to appeal-and which expression includes the right to move a superior court in exercise of the revisional jurisdiction-attaches to a litigation when it commences and it is not affected by any subsequent amendment unless an express provision is made giving retrospective operation to the amendment and tliat the right to appeal which originally attached to the litigation will continue to govern it till it is finally decided.

Counsel relied in support of that contention upon the decisions in Colonial S11gar Refining Company Ltd. v. Irving('); Garikapatti Veeraya v. N.

S11bbiah Choudhur; v( 8 ); and Nana Bin Aha v. Sheku Bin Andu(').

In the alternative counsel contended that the order of the appellate court which had acquired finality, subject to tile exercise of the limited jurisdiction by the High Court under s. 11 S of the

1190~] A.C. 369.

(3) 11957] S.C.R. 488.

(4) 1.l.R. 32 Born. )37

Code of Civil Procedure could not, in the absence of a provision in the Amending Act making the amendment expre:; sly or by necessary implication retrospective, be set aside in exercise of the jurisdiction conferred upon the High Court bys. 29(2) of the Amending Act enacted after the date on which the judgment of the appellate court was delivered. We do not think it necessary to express any opinion on the first question, because, in our judgment, on the second point raised by counsel, the appeal must succeed.

The suit out of which this appeal arises was file4 by the respon-

~ dent on July 22, 1958; it was decided on October 28, 1961; the appellate court decided the appeal on February 25, 1963 and the Amending Act 18 of 1965 came into effect on ; rune 17, 1965.

The High Court exercised the jurisdiction 'investe4 by Act 18 of 1965 in respect of a judgment which had become final a long time before that Act. It is true that this Court in Indira Sohanlal v.

Custodian of Evacuee Property, Delhi & Others(') distinguished the judgment of the Judicial Committee in the Colonial Sugar Refi11ing Co. Ltd.'s case(2 ) and observed at p. 1133:

". . . . . . it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do not so decide-no such vested right to obtain a determination with the attnb11tc of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of section 5-B of East Punjab Act XIV of 1947, finality attaches to it on ¢he making of the order.

Even if there be; in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. lt does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in ...... "

Jn J11dira SohMlal's case('), the Court was dealing with a case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh and Another '!. C!!Stodian Evacuee Property (Pu11jab) and Another(') distin- G guished Indira Sohaniafs case(') and held that an order which had become final under a provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provisiqn. In Dafedar Niranjan Singh's case(') an order releasing the property in dispute u

was passed by the Custooian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against

(1) [!955]2S.C.R.1117. (ll [1962] l S. C.R. 214.

(2) [ ! 905] A.C. 369.

KES!IAVLAL r. MOHANLAL (Shah, /.) 629

A the order of the Custodian and it became final on that account.

The order was however set aside by the Custodian in exercise of jurisdiction under s. 58 ( 3) of the Administration of Evacuee Property Act 31 of 1950.

This Court held that since the order had become final in exercise of the jurisdiction subseq11ently conferred. in the absence of any positive indication giving s. 58(3) retrospec- B tive operation, the finality of the previous order could not be taken a\vay;

Counsel for the respondent relied upon a judgment of this Court in Moti Ram v. Suraj Bhan and Others(') in which following llldira Sohan/al's case(') it was held that the High Court could in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which, according 10 the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court.

In Moti Ram's case(') an application for eviction of the appellant from a 'hop was made in August 1956 under s. 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal . was provided under s. 15 of the Act from the order of the Rent Controller, and sub-s. ( 4) of s. 15 provided that the decision of the appellate authority, and subject only lo such decision, the order of the Controller shall be final.

By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlord's application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order.

This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under s. 15(3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under s. 15(5) of the amended Act was delivered o.n August 19, 1958, after amendment of the Act on September 24.

1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Ram's case(') has, therefore, no application to this case.

Counsel for the respondent urged that the extension of the jurisdiction of the High Court bys. 29(2) of Bombay Act 57 of

1947 as amended by Gujarat Act 18 of 1965 related not to any right in existence, but to a matter of procedure, and on that account the Act as amended applied at the hearing, and in deciding 1hc revision application filed by the respondent the High Court - - fl) (l'J6G] 2 S.C.R. 896.

(2) [1955P S.C.R. ttl7.

630 SUPREJllE COURT REPORTS

( 1968] J S.C.R.

was bound to apply the amended Act.

But when the revision application was entertained under s. 115 of the Code o[ Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provi sion made in the Amending Act, the jurisdiction conferred by that section could not be extended.

The question whether the High Cou1t could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter. of procedure. The order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by s. 115 of the Code of Civil Procedure, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law, the Legis lature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High, Court power to reopen questions which till then were to be deemed finally decided.

Counsel for the respondent also submitted that s. 29(2) as amended was intended to have retrospective operation, because the Amending Act was in the nature of explanatory legislytion. There is nothing in the language of s. 29(2) as amended, which may indicate that it was intended to be retrospective in operation. Sec tion 29(2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act.

The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional juris diction was before the amendment derived from. s. 115 Code of Civil Procedure, and the Legislature has by the Amending Act attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doullts as to the meaning of the previous Act. Section 29(2), before it was en11cted, was precise in its implication as well as in its expression : the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.

The appeal is therefore allowed and the order passed by th~ High Court is set aside, and the proceeding is rmanded to the High Court to deal with and dispose of the revision application on the footing that it is governed by s. 115 of the Code of Civil Procedure under which it purports to have been filed.

The. costs of this Court will be costs in the High Court.

R.K.P.S.

Appeal allowed.

KESHAVLAL JETHALAL SHAH

MOHANLAL BHAGW ANDAS & ANR

April 2, 1968

R. S. BACHAWAT

V. RAMASWAMI

G. K. MITTER

K. S. HEGDE, JJ.

s. 29(1)

s. 29(2)

s. 115

C.P.C

Ahmcdabad

s. 29

February 25, 1963

s. 29(2)

s. 115

CPC

s. 29(2)

s. 115

C.P.C

s. 29(2)

s. 115

C.P.C

s. 115

Code of Civil Procedure

s. 29(2)

Indira Sohan Lal

[1960] 2 S.C.R. 896

(1964] 5 S.C.R. 157

Section 29(2)

CIVIL APPELLATE JURISDICTION

March 2, 3, 1967

Gujarat High Coun

B. C. Misrn

R. K. Mathur

M. V. Goswami

S. K. Zarer

K. L. Hat

s. 115

Civil Procedure F Code

s. 29

s. 29(2)

s. 29

s. 29

s. 58(3)

Indira Sohan Lal

Indira Sohanlal

s. 15

s. 115

Code of Civil Procedure

s. 115

the Code of Civil Procedure

s. 115

Civil Procedure Code

s. 29(2)

Rates Control Act

Colonial Sugar Refining Company

Indira Sohanlars

Shah

Ahmedabad

s. 29

s. 29(2)

High Court of Gujarat

s. 115

the Code of Civil Procedure

High Court Bombay Act 57 of 1947

s. 29

s. 12(1)

s. 12(3)(a)

s. 12(3)(b)

s. 12(1)

Vora Abbasbhai Alimohomed

Haji Gulumr.ubi Haii Safibhai

s. 115

the Code of Civil Procedure

s. 29

Gujarat Legislature

s. 29(2)

s. 115

the Code of Civil Procedure

s. 11

Code of Civil Procedure

rune 17, 1965

Colonial Sugar Refi11ing Co. Ltd.

section 5

East Punjab Act

J11dira SohMlal

Dafedar Niranjan Singh

KES!IAVLAL

s. 58

s. 58(3)

llldira Sohan

Moti Ram

s. 13

s. 15

s. 15

September 24, 1956

s. 15(3)

s. 15(5)

August 19, 1958

September 24.

1956

s. 115

s. 115

the Code of Civil Procedure

s. 29(2)

s. 29(2)

s. 115

Code of Civil Procedure

Section 29(2)

s. 115

the Code of Civil Procedure


S. K. GHOSH AND ANR.

UNION OF INDIA & ORS.

April 2, 1968

[V. RAMASWAMI, J.M. SHELAT AND V. BHARGAVA, JJ.]

Rules for recruiunent to the grade of Directors of Postal Services in Indian Postal Service, Class I, in the Posts and Telegraphs Department, r. 3-Pronzotion tis Directors froni time Scale of Class I service based on selection ar.d not senioritJ-Re1ision of their seniority in the ti111e sccle of Class J Service later-Seniority of Directors inter se if could be revised ~_uch revision if 1iolatire of Art. 16 of Constitution.

The petitioners were promoted from the Postal Superintendents Service Class II to the time scale of Class I Service, and, respondent. 3 to 7 were direct recruits to the time scale of Class I service.

On 30th January 1957. Government fixed the inter se seniority between them by

showing the petitioners as senior to respondents 3 to 7.

Subsequently, the petitioners were promoted as Directors of Postal Services, and some time later, respondents 3 to 7 were alSo promoted as Directors, so that,

the petitioners were seniOr to respondents 3 to 7 even in the grade of Directors. On 5th June 1965 Government revised the seniority of these officers in the time scale of Class I , scrvicc, by shmving respondents 3 to 7 as senior to the petitioners, and on 17th January 1966, their seniority in the gra<lc of Directors y, as also revised placing respondents 3 to 7 as. senior to the petitioners.

The petitioners challenged the ty, o orders in a petition under Art. 32.

The Government justified its orders on the grounds. that. the order. of 30th January 1957 was passd by mistake as a relevant 'rule. namely, Supplementary r. 2(15) \Vas not given effect t<i, and. since the revision of seniority in the time scale of Class I Service was justified, the conse quential revision of seniority in the grade of Directors was also valid.

HELD: The revision of seniority in .the grade of Directdrs by order dated 17th January 1966 was not based on any rule or applicable principle. It was therefore arbitrary and violative of Art. 16 and must be.struck

down. Once that order was quashed, the petitioners would not be affected by the order dated 5th June 1965, and therefore, it Was not necessary to decide on its validity. [638 E-G].

Rule 3 of the Rules for recruitn1ent to the grade of Directors of Postal Services in Indian Postal Services Class L in the Posts and Telegraphs Department, shows that appointment to the grade of Directors is made by selection and not on the basis of seniority in the time scale. It must therefore be presumed tha:t the promotion and appointment of the Oetitioners and respondents 3 to 7 as Directors was based on merit, whic.b was to be taken into account at the time of selection and not on seniority in the time scale of Class I Service. Once a member of Class I Service in the time scale was selected for promotion to the grade of Directors and given seniority over another officer selected later, the seniority so determined _as_ a result of selection could not be made dependent' on the senioritv in the time scale. Therefore, even if there was iustification for revisipg the seniority inter se .of the petit~O!lers and respondents 3 to 7 in the time scale of Class I Sernce, that rev1s1on could not in any way affect their order of seniority in the grade of Directors to which they were promoted' on the basis of selection is accordance with the Rules. [637 G-H:

638 A-C].

ORIGINAL JURISDICTION: Writ Petition No. 131 of 1966.

Petition under An. 32 of the Constitution of India for th~ enforcement of fundamental rights. ·

A. K. Sen and K. B. Mehta, for the petitioners.

B. Sen and R. H. Dhebar for respondents Nos. 1 and 2.

B. P. Maheshwari and S. M. Jain, for respondent No. 4.

The Judgment of the Court was delivered by Bhargava, J. S. K. Ghosh and A. M. Narula, the two petitioners in this petition under Article 32 of the Constitution, appeared for the examination held in October, 1945 for recruitment to the Indian Audit and Accounts Service and other Allied Central Services. On the basis of the result of the examination, both of them were selected for appointment to the Postal Superintendents' Service Class II.

Petitioner No. I, S. K. Ghosh, joined a post in that Service on probation with elfect from 9th April, 1947, while petitioner No. 2, A. M. Naruja, .ioined as a probationer on 11th February, 1947.

At that time there was no Class I Service in the Postal Department.

In Class II Service, to which these two petitioners were appointed, recruitment was made by a competitive examination to the extent of 50 per cent, while the remaining 50 per cent posts were filled by promotion from lower cadres of the Department.

On 24th May. 1948, the Government sanctioned the creation of Jnclian Postal Service Class I with four grades as follows :-

(i) Directors of Postal Services, Grade I,

(ii) Directors of Postal Services, Grade U,

(iii) Senior Time Scale, and

(iv) Junior Time Scale.

This decision of the Government was communicated to the Director-General, Posts and Telegraphs, by their letter dated 13th November, 1948, which also laid down the manner of recruitment to the Service and the various sources from which recruitment was to be made.

The nonnal rule laid down was that appointments to the junior time-scale were to be made by direct recruitment agafo.st 75% of the vacancies and the remai.ning 25% were to be filled by promotion by selection of th!! 1?est o!ficers in the Postal Superintendents' Service Class II, sentonty bemg regarded only when all other qualifications were practically equal.

To this rule, however, an exception was laid down to the effect tat all initial appointments to the time scale cadres of the Indt.an Postal Service Class I consisting of 64 post~ (23 in the semor scale and 41 in the junior scale) were to be made by promotio~ from amongst officers of Postal Superintendents' Service Class II by selection.

Future recruitmet was to be governed by . the general rule cited above.

Appomtments to Grade .IT of the D1r_ectors of Postal Services was to be made by promotion by selection

of the best officers in the senior time scale of the Indian Postal Service, Class I, seniority . being regarded only wl!ere other qualifications were practically equal.

These promotions were to be made through a Departmental Promotion Committee consisting of the Director-General, Posts and Telegraphs, Senior Deputy Director-General, Posts and Telegraphs, and a member of the Federal Public Service Commission. Appointments to Grade I of Directors of Postal Services were to be mad~ by promotion from Grade II of Directors in the order of senioricy, provided the senior officer was considered fit for such promotion.

The Service under these rules was, in fact1 constituted with effect from 15th September, 1948, and, even in cases where appointments were actually made later, they were made effective retrospectively from 15th September, 1948 for purposes of confirmation.

The two petitioners were still probationers in Postal Superintendents' Service Class II on 15th September, 1948; and, since only persons holding permanent posts in the cadre of Class II were to be considered for appointment to this Class I Service, the petitioners were not considered at the initial stage.

Both the petitioners completed their probation in Class II Service in the year 1949.

According to the petitioners, petitioner No. 1 was promoted to Class I Service on 2nd December, 1949, and petitioner No. 2 on 5th December, 1949. They were shown as officiating in this Service. Subsequently, petitioner No. 1 was confirmed in the junior time scale of Class I Service with effect from 11th May. 1951, while petitioner No. 2 was confirmed with effee't from 12th February, 1952. In the meantime, direct recruitment to Class I Service was also made on the basis of competitive examinations held in the years 1948 and 1949, and a number of direct recruits were selected for appointment to this Service.

Amongst them were K. Ramamurti, N. C. Talukdar, Shiv Nath, S. L. Rajan and B. N. Dubey, respondents Nos. 3 to 7 in the petition. Besides these, a number of other direct recruits were also taken, but it is unnecessary to take notice of them, because the petitioners have sought relief against these five respondents only, the others having already retired by the time this petition was filed.

These five respondents joined Class I Service as probationers on various dates falling between 16th March, 1950 and 22nd November, 1950.

Thereafter, the question of fixing seniority inter se between the direct recruits and officers promoted from Class II Service came up for consideration of the Government.

Government communicated their final decision through the letter dated 30ih January,

1957. The letter indicated the considerations that-led the Government to fix the seniority of the various officers and to the letter was. annexed an Appendix giving the seniority of iunior time scale officers. In this list, the two petitioners were placed at Nos. 31 and 32, while the five respondents were placed junior to them at Nos. 33, 36, 41, 42 and 44. In the letter, the Government specifical!y stated that, in arriving at the decisions, the Government had given due consideration to all the representations submitted by officers on the subject and replies to these representations were not, therefore, being sent separately.

Only one representation of A. C. Mohamedi was still under consideration; but, with that representation, we are not concerned in the present writ petition.

The Govermnent added that the seniority list along with a copy of the memorandum was to be given to all the officers concerned for their information and they were to be informed that any further representations against the principles on the basis of which the seniority list had been prepared, would not be entertained.

At the time when this seniority was fixed, the principles, which, according to the petitioners, were applicable, were those laid down in the Ministry of Home Affairs'Office Memorandum dated 22nd June, 1949, paragraph 2 of which contained the decision that seniority in respect of persons employed in any particular grade should, as a general rule, be determined on the basis of the length of service in that Grade as well as service in an equivalent Graile, irrespective of whether the latter was under the Central or Provincial Government in India or Pakistan.

The order of seniority laid do.wn by the order dated 30th January, 1957 continued in force for a number of years.

The Ministry of Home Affairs subsequently issued an Office Memorandum on 22nd December, 1959, laying down general principles for determining seniority of various categories of persons employed in Central Services.

This Memo. referred to .various earlier Office Memoranda, including the one dated 22nd June, 1949 imed by the Home Ministry. Paragraph 3 of this Office Memo. laid down that the instructions contained in those various Office Memoranda were thereby cancelled but made an exception in regard to determination of seniority of persons appointed to the vatious Central Services prior to the date of this Office Memorandum.

The revised General Principles embodied in the Annexure to this Memorandum were not to apply with i; etrospectivc effect, but were to come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from which these revised principles were to be adopted for purposes of determining seniority had already been or was to be thereafter agreed to by fae Home Ministry.

Jn para. 2 of the Annexure it was again laid down that, subject to the provision of para. 3 below. persons appointed in a substantive or officiatin~ capacity to a grade prior to the issue of these general principles were to retain the. relative seniority already a"igned to them or such seniority as miht thereafter be assigned to them under the existing orders applicable to their cases and were to be e11 bloc senior to all others in that grade. Tt was. thus. the case of the petitioners that this Office Memorandum of 22nd December, 1959 did not in any way affect their seniority

s. K. GHOSH I', L:NION (Bhargaia, J.) 635

which had already been determined under the decision of the Government dated 30th January, 1957.

Subsequently, the petitioners as well as respondents Nos. 3 to 7 were promoted as Directors. The common case of both the parties was that, by the time these promotions were made, the two grades of Directors of Postal Services were amalgamated into one single grade, and the promotions of the petitioners as well as respondents Nos. 3 to 7 were to that grade.

The case of the petitioners was .that respondents Nos. 3 to 7 were promoted as Directors after the petitioners, so that the petitioners were recognised as seniors in the grade of Directors also.

These promotions, according to the petitioners, were made some time in the years 196 l and 1962.

Subsequently, by an Order dated 5th June, 1965, the Government suddenly revised the seniority of these various officers. The letter dated 5th June, 1965 mentioned the subject as "Revision of seniority in the erstwhile Junior Time Scale of the Indian Postal Service, Class I of direct recruits from the combined competitive examinations held in the years 1947. 1948 and 1949." As a result of this revision of seniority in the junior time scale of the Indian Postal Service Class r, respondents Nos. 3 to 7 were shown as senior to the petitioners.

The places allotted to respondents Nos. 3 to 7 were at Nos. 17, 20, 22, 23 and 25, while the two petitioners were placed below them at Nos. 26 and 27. Later. again another Order was issued on 17th January 1966 revising the seniority in the grade of Directors of Postal Services, and, in that revision also, respondents Nos. 3 to 7 were placed as senio.rs at Nos. 14, 15, 17, 18 and 19, while the two petitioners were shown as junior to them at Nos. 20 and 21.

The petitioners, consequently, filed this petition under Article 32 of the Constitution challenging the revision of their seniority in the .iunior time scale by the order dated 5th June. 1965 as well as the revision of their seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966.

The principal ground, on which these orders were challenged by the petitioners. was that they had been made by the Government arbitrarily in exercise of their power to fix seniority and. by such arbitrary action, had adversely affected the rights of the petitioners vis-a-vis respondents Nos. 3 to 7 in violation of Article 16 of the Constitution. The point taken was that the seniority hnving once been fixed by the Order dated 30th January, 1957 in accordance with the Rules then in force could not be arbitrarily disturbed by the Government, particularly when the Rules were never revised subsequently, nor were any fresh Rules issued governing the seniority of these officers who had been appointed to the junior time scale of Class I Service prior to 30th January. l 957.

Learned counel appearing for the petitioners formulated four differe, nt grounds for challenge of the Order dated 5th Jnne,

1965, all leading to the contention that that Order violated Art.

A 16 of the Constitution, or was passed against the principles of natural justice. In addition, the Order dated 17th January, 1966 was challenged on one more ground, viz., that, even if it be held that the re-fixation of seniority in the junior scale of Class I Service was justified, the Order of the Government revising the seniority in the grade of Directors was in any case void and ille- B gal.

This point was urged on the basis that appointment to the Directors' grade was made on the basis of selection and there

coud not be automatic revision of seniority in that grade consequent upon the revision of seniority in the time scale of the Service. ·

The petition was opposed by respondents 1 and 2, the Union C of India, and the Director-General of Posts and Telegraphs, as also on behalf of some of the other respondents. Most of the facts put forward by the petitioners haw been admitted, but the inferences and conclusions drawn by the petitioners as well as the submissions on their behalf in the writ petition were challenged.

The principal contention for resisting the petition was that the D order dated 30th January 1957 fixing the seniority had been made by mistake as a result of the Government having ignored Supplementary Rule 2(15), the effect of which was that for purposes of seniority the service of respondents 3 to 7 in junior time scale Grade I was wrongly taken as commencing from the date of their confirmation in the Service, while, correctly, it should have been taken from the date on which these respondents joined E as probationers. It was urged that, on a correct interpretation of. the Rules, respondents Nos. 3 to 7 should have been held, even initially, to be senior to the petitioners in the junior scale of the Class I Service. It was further urged that, since the revision of seniority in the junior time scale of Class I Service was justified and not arbitrary, the consequential revision of seniority in the F grade of Directors of Postal Services was also valid.

Arguments were addressed at length on both aspects of the case, but we think that it is not necessary for us in this case to decide the first point raised on behalf of the petitioners regarding the validity of the refixation of their seniority in the junior time scale of Class r Service by the order dated 5th June, 1965, be- G cause the petitioners could even obtain adequate relief on the ter native •round that the revision of seniority in the grade of Directors bythe order da•ed 17th January, 1966 was void. Th.e petitioners in para. 4 of their petition made a definite assertion tht respondents 3 to 7 were all promoted as Directors after the petitioners. This factual assertion made in this paragraph has .not ff been denied in any counter-affidavit filed on behalf of the vanous respondents. In the course of arguments before us, it was ur~ by learned counsel appearing for the respondents that the pelltioners as well as respondents 3 to 7 were only shown as officiating in the grade of Directors in the Civil List and, consequently we should not base our decision on acceptance of the allegation made by the pelltioners that the petitioners and respondents 3 to

7 had all been promoted as Directors. We are unable to accept this submission. The entry in the Civil List is no proof that the petitioners and the five respondents have not been promoted in accordance with the Rules laid down by the Government for promotion. If it was a fact that there had been no promotion in compliance with those Rules, the assertion made on behalf of the petitioners in the petition should have been specifically controverted.

The principles for appointment to the post of Directors of Postal Services were initially laid down by the Home Ministrys Memorandum dated 24th May, 1948 to which we have already referred.

As indicated earlier, it was laid dow11 that appointments to Grade II of the Directors of Postal Services were to be made by promotion by selection of the best officers in the senior time scale of the Indian Postal Services Class I, seniority being regarded only where other qualifications were practically equal.

From the very first stage, therefore, appointmel)ts to the post' of Directors of Postal Services were to be made on the basis of merit and not on the basis of seniority.

Seniority was to be taken into account only if other qualifications were practically equaL It appears that, after the two grades of Directora of Postal Services were amalgamated, some fresh rules were promulgated.

The relevant Rules have been brought to our notice by placin)! before us extracts from Posts and Telegraphs Manual Volume IV. 4th Edn., in which paragraph 153 mentioned that the rules for -recruitment to the grade of Directors of Postal Services in the

Indian Postal Service Class I in the Posts and Telegraphs Department are given in Appendix 6-A. A copy of Appendix 6-A has also been placed before us.

The Appendix bears the heading "Rules for recruitment to the grade of Directors of Postal Services in the Indian Postal Services, Class I in the Posts and Telegraph<

Department". Rule 2 in this Appendix lays down the scale of pay of the post in the grade which is admittedly Rs. 1,300-60-

1 ,600.

Rule 3 prescribes the method of recruitment and is as follows:-

"Recruitment to posts in the grade shall be by selection from among the officers of the Senior Time

Scale of the Indian Postal Service, Class J;, one post being reserved for promotion of Presidency Postmasters, on the basis of selection." This Rule also makes it clear that appointment to the grade of Directors of Postal Services is made by selection and not on the basis of promotion in accordance with seniority. The presumption exists that the promotion of the petitioners and respondenh

SUPREME COURT REPQRTS

[1968] 3 S.C.R.

3 to 7 t9 the grade of Directors must have been made in accord ance with these instructions and rules, so that the appointmc.nt of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not 011 seniority in the time scale of Class I Service.

Once a member ot the Class I Service in the time scale was selected for promotion to the grade of Director and given seniority over another officer selected later, the seniority so determined as a result of selectio11 could not be made dependent on the seniority in the time scale.

It is clear that, in these circumstances, even if there was justifica tion for revising the seniority inter se of the petitioners and res pondents 3 to 7 in the time scale of Class I Service, that revision of seniority could not in any way affect their order of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rules. It is, therefore, clear that, even if it be held that the order of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid, the order dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified.

The seniority in the grade of Directon. of Postal Services was not dependent on hte inter se seniority in the junior time scale and any alteration .in the seniority in the latter could not form the basis for revising the seniority in the . former grade.

No other justification for the revision of the seniority in the grade of Directors of Postal Services was put for. ward on behalf of any of the respondents. It is, thus, clear that the revision of seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade, and must, therefore, be held to be totally arbitrary.

Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion, must, therefore. be struck down as violating Art. 16 of the Constitution. Once this order dated 17th January, 1966 is quashed, the petitioners will no longer be affected in future by the revision of their seniority in the time scale of the Service by the order dated 5th June, 1965 and, consequently. we have refrained from going into the question of the validity of that order.

The petitioners are not claimin~ any relief on the basis of the invalidity of the order dated 5th June, 1965 which would give to them any additional benefit over and above the relief which they can obtain on the order dated 17th January, 1966 being quashed.

As a result, we allow this petition and quash the order dated 17th January, 1966, revising the seniority ?f the petitioners and respondents Nos. 3 to 7 in the grade of Directors of Postal Services.

In the circumstances of this case, we direct that the peti tioners will receive their costs from respondent No. 1.

V.P.S.

Petition allowed.

L7Sup.C.T./68-2,500-Soc. Vl-24·4-69-GIPF.

S. K. GHOSH AND ANR

UNION OF INDIA & ORS

April 2, 1968

V. RAMASWAMI, J

M. SHELAT

V. BHARGAVA, JJ.

Art. 16

30th January 1957

5th June 1965

17th January 1966

Art. 32

Art. 16

Constitution of India

A. K. Sen

K. B. Mehta

B. Sen

R. H. Dhebar

B. P. Maheshwari

S. M. Jain

Bhargava

S. K. Ghosh

A. M. Narula

Article 32

Indian Audit and Accounts Service

S. K. Ghosh

9th April, 1947

A. M. Naruja

11th February, 1947

24th May. 1948

13th November, 1948

Federal Public Service Commission

15th September, 1948

2nd December, 1949

5th December, 1949

11th May. 1951

12th February, 1952

K. Ramamurti

N. C. Talukdar

Shiv Nath

S. L. Rajan

B. N. Dubey

16th March, 1950

22nd November, 1950

30ih January,

1957

A. C. Mohamedi

22nd June, 1949

India

Pakistan

30th January, 1957

Ministry of Home Affairs

22nd December, 1959

K. GHOSH

Bhargaia

5th June, 1965

Indian Postal Service Class r

Article 32

5th June. 1965

17th January, 1966

Article 16

30th January. l 957

Union C of India

[1968] 3 S.C.R.

3

Art. 16


SIDROMANI & ORS.

11.

HEM KUMAR & ORS.

April 4, 1968

[J. C. SHAH AND V. RAMASWAMY, JJ.j

I11dilln Registration Act (16 of 1908), s. 11(1)(b)-Partition of propem in specific shores-Deed not registered-Admissibility.

Pleadings-Plea of.acquiescence-Not raised in pleadings-Cannot be allowed to be set up subsequently.

Hindu Law-Agharla 'Caste-Custom of lethansi allowing larger share of family property to eldest son--Outmoded custom loses legal force.

Indian Evidence Act (I of 1812), s. 91-Bar on oral evidence.

D died in 1940 leaving certain agricultural land as well as house property.

He bad two children by his first wife the elder of whom was mpoodent no. 1.

By his second wife, appellant no. 2, he had a son, appellant no. 1. The family belond to the Agharia caste and wns aovemed by the Benares School of Hindu Law. In 1956 Appellants I and 2 liled a suit in the Court of the Qvi! Judge Raigarh (now m Madhya Pta

deob) claiming that they were entitled to th share each in D's estate and that there should be a partition by metes and bounds of joint family : property. According to their pleadings Ex.D.4 dated December 27, 1943 by which appellant no. 2 accepted a lesser share of the properties than was due to her and her son was executed as a result of coercion by respondent no. I. The latter along with other respondents contested the suit, relying on Ex.D-4. The trial court, the first appellate court, as well as the High Court decided against the appellants who by special leave came to this Court. The que.tions that fell for consideration were : (i) whether Ex.04 was admissible in evidence without having been register ed; (ii) whether Appellant No. 2 was precluded from demanding her share because her signing of Ex. D4 showed acqui..., eme on her part;

(ill) whether a higher share far respondent no. 1 was justified because of tho custom of Jethansi in the Agbaria caste according to which the eldest son was entitled lo a larger share than others; (iv) whether it was

open to tho respondents to give oral evidence of actual partition subse quent to the execution of Ex.04.

HELD: (i) Tho recitals in Ex.D.4 showed that there was allotment of specific properties to individual co-parceners and tho document therefore fell within tho mischief of s. 17(1J(b) of the Registration Act .. It followed that Ex.D-4 was not, admissible in evidence to prove tho title of any of the. C01'&fl'Cner& to any particular property or to prove that any particular progerty had ceased to be joint property. The document was only admDsiblo tO prove an intention on the part of the co-parceners. to becnme divided in status. [643 F-HJ

Nanni Bal v. Gita Bal, [1959] S.C.R. 479, relied on.

(ii) There was no pleadin~ on behalf of the respondents and no i!sue framed to the effect that by signing Ex.D-4 appellant no. 2 had acquiese

ed in the division of properties among her sons without claiming the share to which she was entitled und"I' the Mitaksbara Law of the Benares

School. The respondents therefore could not be allowed to set up the A plea of acquiescence by appellant no. 2 (644 El

(iii) The d0¥lfine of "Jethansi" or "Jeshtbhagam" is now obsolete and unen'forceable.

The principle of Hindu Law is equality of division and the exceptions to that rule, have almost, if not altogether disappeared.

All between br_others or other relations absolute equality is now the invariable rule in all the State5, unless, perhaps, where some special family B custom to the contrary is made out.

The re5pondents had failed to prove ihat such a custom was prevalent in the caste di Agharias to which the parties belonged. (644 F-0; 645 FG; 646 A-F]

M. Y. A. A. Nachiappa Chettiar v.

M. Y. A. A. Muthu Karuppan Cftettiar, A.I.R. 1946 Mad. 398 and Hur Purshad v. Sheo Dyal, 3 I.A. 259 at p. 285, referred to.

(iv) The evidence showed that document Ex.D-4 was intended by the parties to be the sole evience of partition and since it had been held that Ex.D..4 was not admissible in evidence on account of non.registration to establish when the property was so partitioned, it was manifest that no oral evidence was admissible to prove any subsequent partition having regard to the prLvisions of s. 91 of the Evidence Act. [646 G-647 Al

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 749 and 750 of 1965.

Appeals by special leave from the judgment and decree dated November 8, 1963 of the Madhya Pradesh High Court in second appeals Nos. 569 and 568 of 1960 respectively,

S. V. Gupte and G. L. Sanghi, for the appellants (in both the appeals) .

Sarjoo Prasad and D. N. Mukherjee, for the respondents (in both the appeals).

The Judgment of the Court was delivered by Civil Appeal No. 749 of 1965 :

Ramaswami, J, This appeal is brought, by special leave, from the judgment of the High Court of Madhya Pradesh, Jabalpur dated November 8, 1963 in Second Appeal No. 569 of

1960.

Respondents nos. 1 and 3, Hemlmmar and Dinomani and appellant no. 1 Shiromani are the sons of late Dharam Singh Agharia.

Appellant no. 2 Mst. Subhagwati is the second wife of Dharam Singh and the mother of appellant no. 1. Mst. Jampalhin, the mother of respondents 1 and 3 died before Dharam

A Singh married appellant no. 2.

The relationship of the parties will appear from the following pedigree :

First wife: ~1st. Jampa\hin

Hcn1Kumar (Dfdt. No. I l

Dharam Singh

Si:i.:onU wife: Mst. Sl

1l'h<'gwati (Pllf. No. 2)

Shironani (Plff. No. 1)

Dinmani (Dfdt. No. 3)

Et war Singh Cha

0 ndraBhusa11Singh (Dfdt. No. 2) !Dfdt. No. 4) It is not disputed that the parties are governed by the Benares.

School of Hindu Law. It appears that Dharam Singh was mur dered in 1940 and his son Hemkumar was involved as an accused but he was acquit!ed in that case.

Mst. Subhagwati, appellant no. 2 appeared as a prosecution witness in the murder case and deposed against Hemkumar.

At the time of his death, Dharam Singh had left 102.28 acres of ryoti land in village Tilgi arid 16.56 acres of ryoti land at village Supaka and also some house properties.

Appellants 1 and 2 instituted C.S. no. 43-A of 1956 in the court of the Civil Judge, First Class, Raigrah claiming that they were entitled to }th share each of Dharam Singh's estate and there should be partition by metes and bounds of the joint family properries. They challenged the validity of Ex. D-4 dated December 27, 1943. It was alleged that Mst. Subhagwati was compelled by Hemkumar under threat of violence to execute the deed, Ex. D-4.

It was said that the deed Ex. D-4 was prejudicial to Shiromani who was a minor at that time because he was given Jess than the share to which he was entitled and his mother Mst.

Subhagwati was also not given her due share of joint family properties.

The appellants accordingly prayed that there should be a fresh partition by metes and bounds of the joint family properties and they should be given tth share each therein.

The suit was resisied by the respondents on the ground that the parties were bound by the deed of partition, Ex. D-4 and there was no ground for reopening the partition which had already taken place. The trial judge found that the partition deed, Ex.

D-4 dated December 27, 1943 was not executed by Mst. Subhag wati under undue influence and that document was acted upon.

If was further held by the trial judge that though the partition

SUPRBMB COURT REPORTS

[1968] 3 S.C.R.

-deed did not reserve any share to Mst. Subhagwati, the appellants were not entitled to reopen the partition because Mst. Subhagwati

was not entitled to a share and Hemkumar was entitled to an increased share on account of the custom of "Jetbansi". 1he .appellants took the matter in appeal to the.District Judge of

Raigarb but the appeal wa~ dismissed. The appellants preferred .a Second Appeal to the High Court of Madhya Pradesh which dismissed the Second Appeal. The High Court took the view that the deed, Ex. D-4 was neither an award nor was it a document effecting partition of immovable properties of the value of more than Rs. 100. It was held that Ex. D-4 was admissible in evidence in order to show that there was separation of status between the coparceners.

The High Court also rejected the plea of the appellants that the partition should be reopened be cause it did not give a share to Mst. Subbagwati.

Accord.in~ to the Benares School of Hindu Law, Mst. Subbagwati was enutled to a share m the joint family properties equal to that of a son but the High Court found that there was a clear acquieicence on the part of Mst. Subbagwati when she executed the deed, Ex.

D-4 and it must be taken that she relinquished her share in favour of the other coparceners. On.the question of "Jethansi" claimed by Hemkumar, the High Court found that the evidence established the custom of "Jethansi" whereby the elder son was given a greater share in the property of bis father. On the basis of these findings the High Court dismissed the Second Appeal.

The first question to be considered in this appeal is whether the deed, Ex. D-4 dated December 27, 1943 is admissible in evidence.

On behalf of the appellants Mr. Gu_pte put forward the argument that the document is inadmissible in evidence as it effected the partition of the properties of the value of more than Rs. 100 and it was not registered. It was argued that there was allotment of specific properties to individual coparceners in this document and its registration was therefore compulsory under s. 17 ( 1 )(b) of the Registration Act. In our opinion, the argu ment put forward on behalf of the appellants is. well-founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered becaUSe there was only severance of joint status of the members of the coparcenary and there was no partition of the properties by metes and bounds. It is not possible to accept this argument as correct. The relevant portion of Ex. D-4 is to the following effect : "For the partition of our joint land in Mauza Tilgi and Supa and house and utensils etc. and Dhan, movable and immovable property, amongst us three brothers, the Panchas have been appointed. The partition and distribution effected by the under-mentioned

SllmOMANI v. HEM K1JMAlt (Ramaswami, /.) 64~

Panchas Will be acceptable to us and also the undermentioned conditions will also have to be accepted by us.

1. Out of lease land in Mauza Tilgi and Mauza Supa totalling 123 acres, Hem Kumar's share including Jetltosi will be 51 acres that is 51 shares and Dinmani's 39 acres that is 39 shares and minor Shiromani's whose guardian is Smt. Subhagwati 33 acres that is 33 shares. The three of them will be in possession of the same.

Out of 123 acres of land, the . land near Munga Tikra Gara Para will be given to Dinmani ang

minor Shiromani through guardian Smt. Subhagwa\1 for building a house instead of the old house. For building of the house in Munga Tikra the three brothers will give Rs. 60.

Out of the 'Mitti Khatu' and Gobar khatu, there is in the house, after deducting Hemkumar's tenth share will be divided into three equal shares amongst the three brothers and they will take it so.

They will also divide the buried Khatu into their shares. . . . . . .

5. That out of the old house the house on the side of the v'1lage the length of which is 30 haath and the stone used in it and the house on the side of 'Patav' the length of which is 30 haath, is given to Hem Kumar E in his share and as Jethosi and the Bamboo, wood etc. used in the other house is given to the two brothers Dinmani and Shiromani.

Besides the house and Kotha there is old and new wood and 3 new doors.

All this is given to Dinmani and Shiromani." With regard to ryoti lands, para 1 definitely states that H.em- F kumar is allotted 51 acres, Dinmani 39 and Shiromani 33 acres.

With regard to the joint family house there is partition between the three brothers by metes and bounds and specific shares are given to each.

In view of the recitals in Ex. D-4 we are of opinion that there is allotment of specific properties to individual

coceners and the document therefore falls within the mis- G chief of s. 17 (l )(b) of the Registration Act. It follows that Ex.

D-4 is not admissible in evidence to prove the title of any of the

eoparceners to any particular property or to prove that any particular property has ceased to be joint property. Of course the document is admissible to prove an intention on the part of the coparceners to become divided in status; in other words to prove that the parties ceased to be joint from the date of the histrument H dated December 27, 1943 (See the decision of this Court in

Nanni Bai v. Gita Ba1'1).

(I) [J959J S. C. R. 479.""°

We proceed to consider the next question arising in this appeal, namely, whether Mst. Subhagwati was entitled to a share A

in the joint family properties equal to that of a son and whether the alleged partition effected by Ex. D-4 was invalid because no such share was allotted to her. It is not disputed on behalf of the respondents that according to the Mitakshara Law of the Benares School a wife is entitled, on partition between her sons, to a, share equal to that of a son. But the contention put forward on behalf of the respondents is that by signing the docu ment, Ex. D-4 Mst. Subhagwati acquiesced in the division of the properties between her sons without claiming any share for herself and it must consequently be. taken that Mst. Subhagwati relinquished her share.

It was pointed out that Ex. D-4 was executed on December 27, 1943 and for a period of 11 years Mst. Subhagwati did not take any action to impeach that dot:u ment.

We are unable to accept the argument pUt forward on behalf of the' respondents as correct.

There is no issue in the trial court regarding the alleged acquiescence of Mst. Subhag

wati,, nor was it pleaded _on behalf of the respondents that there was an agreement by which Mst. Subhagwati gave up her share in favour of the other coparcen.ers.

On the contrary, it is alleged in para 9 of the Written Statement that Subhagwati was not entitled to any share and therefore the partition alleged to be effect

ed by Ex. D-4 was not prejudicial to the interests of plaintiff no. 1. To put it differently, there is no pleading on the part of respondents of acquiescence by Mst. Subhagwati and there is no E issue on the question of acquiescence. We are accordingly unable to accept the 1lrgument of the respondents that there was acquiescence on the part of Mst. Subhagwati or that she relinquished her share in favour of the other coparceners and the find ing of the High Court on this point iS erroneous.

We pass on to consider the next question arising in this appeal, namely, whether Hemkumar was entitled to a greater F share of joillli family properties for the reason that he was the eldest brother on the principle of "Jethansi". But the doctrine of "Jethansi" or "Jeshtbhagam" is now obsolete and unenforce able.

The principle of Hindu Law is equality of division and the exceptions to that rule have almost, if not altogether, disappeared. One of the exceptions was in favour of the eldest son, who was originally entitled to a special share on partition, either a tenth or a twentieth in excess of the others, or some special chattel, or an extra portion of the flocks (Apastamba, Il, 6, 14, 10..13; Baudh., Il, 2, 2-5; Gaut., XXVIII, U, 12; Vas., XVII, 42-45; Manu, IX. 112, 114, 156). But unequal partition of ancestral or joint propertY was from early times condemned. The Smritichandrika, the Vyavahara Mayukha and the Viramitrodaya declare that unequal partition is forbidden in the Kali age (Smritichandrika, III, 16; V. May., IV, iv, 11; Viramit.,

SHIROMANl v. HEM KUMAR (Ramaswami, 1.) 645

ill, 16 (Setlur's ed., 319)._ The Commentary of Mitakshara on y ajnavalkya. n. 117 is briefly as follows :

"art !Wr! ~: lllffiili:"<ffif'llfil <'!fi!; firf~""oe~"1~1w=1 ~: 1 awrd ~ 111'~1'1'~ <J:mr f~ I ~T-'f~ 'lT 'fT

lf"414i'liW~-mr <'IT'lif<rl<"'1'i"61~'J. 1 l{'TT 'fT- 4"11<\&•i <rt 'fWl'f'iil"o!fT'fT; rif<r-f<r 'fiff<l!ffifil' <it1t1fqfa;;,;"llq~'J."OT'flJ: 1 '1"-lf'TT f~41•ra>il oil' '"'l;-~Tf<r•r 1 Mi; t<fq'l\iliTSfq' lf'f lfirfa •<fit 11 I ••• ftr<rirr flrin; r: mm;<itfii <'!T't1f~fi'l'f<\<la1~<t 'fl'\~ ef" "1'!1f'f mmr f.!<r...r, f 1 flrnr on 'IT l l-1 1 1 .

"Unequal division though found in the sastras (e.g. Mam1 IX. 105, 112, 116, 117, Yaj. II. 114) should not be practised because it has come to be condemned tor has become hateful to) by the people, since there is the prohibition (in Yaj .. I. 156) that an action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people since such an action does not lead to the attainment f Heaven.

For example, though Yaj. t 109 prescribes the offering of a big ox or a goat to a learned brahmana guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow 'one should sacrifice a barren cow called anubandhya for Mitra and Varona', still it is not done because people condemn it.· And it has been said 'just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after givinll a special share (to the eldest son) does not now exist".

As between brothers or other relations, absolute equality is now the invariable rule in all the States, unless, perhaps, where some special family custom to the contrary is made out (For example, see the decision of the Madras High Court in M.Y.A.A. Nachiappa Chettiar v. M.Y.A.A. Muthu Karuppan Chettiar(')_.

On behalf of the respondents, however, reliance was placed upon the special custom of "Jethansi" said to be pr¢valent in the caste of Agharias to which the parties belong. Reference was made to the evidence of D.W. 4, Baratrani, D.W. 5, Sitaram, D.W. 6, Ya1obra and D.W. 7, Khewla1 to show that there such a custom in the caste whereby the eldest son was given a greaier share in .the property of the father: Mr. Sarjoo Prasad took us through the evidence of these witnesses but we are not

(I) A. r. R. 1946 Mad. 398.

646 'SVPllEMB COUllT llBPOllTS

(1968) J'S.C.ll.

satisfied on their evidence that the custom pleaded for has been established. It is well-established that a custom must be proved to be ancient, certain and reasonable if it is to be recognised and acted upon by Courts of law; ll!ld being in derogation of the general rules of law the custom must be construed strictly (See Hur Purshad v. Sheo Dyal)('). In the present case, the evidence adduced on behalf of the respondents to prove the alleged custom is unsatisfactory and conflicting. D.W. 4, Baratram stated that the custom of "Jethansi" was prevalent ill Agharias community but he admitted when cross-examined, that he was not present at any partition.

He further said that there was "no fixed custom about Jethansi and the1eldest brother could be given more or Jess".

D.W. 5, Sitaram sd that "I got 16 acres of Jetbansi land in a partition between my own brother." The total area of land was 100 acres.

He admitted that there was no written document about the custom. D.W. 6, Yalobra said that his brother Sita Ram got Jethansi land of 16 acres out of a total area of 100 acres.

When cross-examined, be said that no more than Dashanshi was . given "and the people who divided did not fell any account of it". The evidence of Khew!al, D.S. 7 is that there was partition among his brothers and the eldest brother Din Dayal was given 5-6 acres of land as Jethansi. The total area of the land to be divided was 100 acres.

No documentary evidence of partition has been adduced on behalf of the respondents and the oral evidence is vague and uncertain. We are accordingly of the opinion that the custom of J ethansi alleged on behalf of the respondents has not been established by proper evidence and the finding of the High Court is vitiated because it is not supported by proper evidence.

We accordingly reject the argument of the respondents that Hemkumar was entitled to a larger share of the joint family properties on the basis of the alleged custom of J ethansi in his caste.

On behalf of the respondents reference was made to the evi. dence of D.W. 1 Dinamani and D.W. 2 Dindayal that there was an actual partition of joint family properties not on December 27,. 1943 when Ex. D-4 was executed but about two months later and specific allotments Were made to each of the coparceners.

There is, however, no pleading in the Written S•atement on behalf of the respondents that apart from the document, Ex.

D-4 there was a partition of the joint fan1ily properties. We are satisfied in this case, upon examination of the evidence. that the intention of the parties was that document Ex. D-4 should be the sole evidence of partition and since we have held that Ex.

D-4 is not admissible in evidence on account of non-registration to establish when the property was so partitioned, it is manifest that no oral evidence is admissible to prove any subsequent parti

(, I) 3 I. A. 259, at p. 28S.

A .tion having regard ID the provisions of s. 91 of the Evidence Act.

It is clear therefore that the appellants are entitled to a prelimi nary decree for partition of joint family properties.

For the reasons ex~ we hold that this appeal should be allowed and the suit brought by the two appellants should B be &creed.

The appellants, Subhagwati and Shiromani are each entitled ID tth share in the joint family properties and there should be a preliminary decree drawn up for the partition of tth share of the joint family properties for each of the appellants, Mst. Subhagwati and Shiromani.

The question as to what are the joint family properties which are to be the subject-matter of partition would be determined by the trial court in proceedings C for 1he final decree.

We accordingly allow this appeal with costs.

Civil Appeal No. 750 of 1965 :

For the reasons given by us in Civil Appeal No. 749 of 1965 we set aside the judgment of the High Court in Second Appeal D No. 568 of 1960 and C.S. No. 36-A of 1956 filed by Dinmani is dismissed. We accordingly allow this appeal with costs. There will be one hearing fee for both this appeal and Civil Appeal No. 749 of 1965.

G.C.

Appeal allowed

LSSup.CI/68-2

SIDROMANI & ORS

HEM KUMAR & ORS

April 4, 1968

C. SHAH

Registration Act

s. 11(1)(b)

Indian Evidence Act

s. 91

Court of the Qvi! Judge Raigarh

December 27, 1943

Jethansi

s. 17(1J(b)

Registration Act

s. 91

S. V. Gupte

G. L. Sanghi

Sarjoo Prasad

D. N. Mukherjee

Ramaswami

High Court of Madhya Pradesh, Jabalpur

Hemlmmar

Dinomani

Shiromani

Dharam Singh Agharia

Subhagwati

Jampalhin

Dinmani

Dharam Singh

Hemkumar

Tilgi

Supaka

Civil Judge, First Class, Raigrah

Subhagwati

Shiromani

Subhag wati

deed

If was further held by the trial judge that though the partition

SUPRBMB COURT REPORTS

[1968] 3 S.C.R.
deed did not reserve any share to Mst.

District Judge of

Raigarb

High Court of Madhya Pradesh

Subbagwati

s. 17

Registration Act

Hem Kumar

Dinmani

s 39

Munga Tikra Gara Para

Munga Tikra

Mitti Khatu

Gobar khatu

Khatu

Hem Kumar E

Jethosi

Kotha

H.em- F kumar

s. 17

Registration Act

Subhag

wati

Gaut

Manu

Vyavahara Mayukha

Viramit

Mitakshara

Mitra

Varona

Madras High Court

M.Y.A.A. Nachiappa

Baratrani

Sitaram

Sarjoo Prasad

Baratram

Yalobra

Sita Ram

Dashanshi

Khew!al

S. 7

Din Dayal

Dinamani

Dindayal

27,. 1943

s. 91


PREM RAJ

D.L.F. HOUSING & CONSTRUCTION PVT. LTD. & ANR.

April 4, 1968

[J. C. SHAH AND V. RAMASWAMI, JJ.]

Practice and Procedure-Suit for setting aside contract and prayer, in the alternative, for a decree for specific perforinance thereunder-Whether maintainable.

Specific Rlief Act (I of 1877), ss. 35 and 31-Scope of.

Code of Civil Procedure (S of 1908), s. llS(c) Revisional jurisdiction of High Court.

The appellant filed a suit for a declaration that a certain contract against him was void and inoperative. having been obtained by undue in fl.uence, and in the alternative prayed 1for a decree for specific perform. ance of certain terms in the same contract. The first respondent objected that the appellant having claimed the agreement to be void and inopera tive could not in the same suit , PraY for specific performance of the same agreement.

The trial court reiected the preliminary objection, but the High C.ourt, in revision, held that the appellant could not in the alternative be permitted to sue for specific performance of the agreemen~ and therefore the suit must .fail so far as the relief for specific performance was concerned.

Dismissing the appeal, this Court : HELD : Under 0. 7, r. 7, Civil Procedure C.ode it i• open to a plaintiff to pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. So far as the relief of specific performance is concerned, the matter mwt be examined in the light Of the provisions of the Specific Relief Act. Section 37 of the Act provides that a plaintiff suing for specific performance of the contract can alter natively sue for the rescission Of the contract but the converse is not pro vided. Section 35 of the Act statea the principles upon which the rescission of a contract may be adjudged.

But there is no provision in this •ection or any othec_ section of the Act that a plaintiff suing for rescission of the agreement may sue in the .alternative for specific performance. The omission is deliberate and the intention di the Act is that no such alter• native prayer is open to the plaintiff. It was therefore not open to the appellant to sue for rescission of the agreement and in the alternative sue for specific performance. [651 C--0)

Cawley v. Poole, 11 E.R. 23, applied.

Further, in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present ca~ no such averment is made. in the plaint. On the other hand, the appellant has alleged that the agreement was a result of fraud and undue influence and not binding upon him. [652 0-E]

Ardeshir Mama v. Flora Sassoon, SS I.A. 360, referred to.

The appellant had not made out a cause of action so far as the relief H of specific performance was concerned and hence the appellant was not entitled to be put to election with regard to the two alternative reliefs.

(653 HJ

In ho1ding that the appellant was entitled in the alternative to ask for the relief of specific performance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its jurisdiction within the meaning of s. 115(c) of the CDde of Civil Procedure. It was therefore competent to the High Court tu interfere, in revision, with the order of the trial court on this p.:; int.

1654 B-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 37 of 1966.

Appeal by special leave from the judgt:nent and order dated February 14, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 228-D of 1962.

C B. C. Misra and M. V. Goswami, for the appellant.

M. C. Chagla, Daya Krishan, S. C. Javali and Ravinder Narain, for respondent No. 1.

The Judgment of the Court was delivered by

Ramaswami, J.-The sole question involved in this appeal is whether a plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue intluence, can in the same suit in the alternative ask for the relief of specific performance of the same contract.

On October 26, 1956 Pt. Prem Raj, the appellant entered into an agreement with Shri Moti Ram Bhalla, respondent no. 2 for the purchase of lands from Shri Lila Ram, father of the appellant at the price of Rs. 1025 /- per bigha on the terms and conditions mentioned therein. On December 18, 1956, the appellant and respondent no. 2 entered into a partnership to carry on the business of buying and selling lands and developing the same under the name and style of "L.M.G. Colonisers & Traders;'.

Subsequently, on January 2, 1957 the said firm "L.M.G. Colonisers.& Traders" entered into a deed of partnership with D.L.F. Housing.: & Construction (P) Ltd., respondent no. 1 herein to carry onTue business of purchasing and developing the lands into a residential lcolony and to sell the same in plots either by auction or by tenders or in any other manner as the company, respondent no. 1 may find expedient after getting the scheme for development approved by the competent authority.

On the same day i.e., January 2, 1957 the newly formed partnership between the respondent no. 1 and L.M.G. Colonisers & Traders entered into an agreement for the purchase of the same land with Pt. Lila Ram on the terms and conditions set out therein.

On June 11, 1958 the parties cancelled the new partnership and agreement dated January 2, 1957 and entered into a fresh arrangement and executed the following four documents :

SUPREMB COURT REPORTS

(1968] 3 S.C.R,

"(i) A deed of dissalution of the new partnership between L.M.G. Colonisers and Traders (consisting of the appellant and respondent llOI. 2 and 1 entered into on 2nd January 1957 (Ex. P. 1).

(ii) A deed of cancellation of agreement of sale of land between Lila Ram and the said new partnership firm of L.M.G. Colonisers and respondent no. 1.

(iii) A new Agreement of sale of these same lands by Lila Ram in favour of respondent no. 1.

(iv) An agreement to sell 22 plots out of the land

agreed to be purchased from Lila Ram under the C agreement stated in (iii) above by respondent no. 1 in favour of the appellant."

By virtue of these documents the new partnership dated January 2, 1957 between L.M.G. Colonisers & respondent no. 1 came to an end as illso the agreement dated January 2, 1957 by which Lila Ram had agreed to sell his lands to the said new partnership D firm and there was a fresh agreement by Lila Ram to sell the same !ands to D.L.F. Housing and Construction (Private) Ltd., respondent no. 1 at a certain price and out of t)ie land thus to be bought, respondent no. 1 agreed to sell 22 plots of land to the appellant. After about 3 years, on or about June. 8, 1961, the appellant gave notice to respondent no. 1 repudiating the arrange- E ment dated June 11, 1958 as void and claimed that the documents were not binding upon him.

The appellant alleged that the deeds executed on June 11, 1958 were unlawful and ve>id and inoperative against him as they were executed as a resuh of undue influence and coercion exercised upon him. In the alternative the appellant prayed for a decree for specific performance of the F agreement dated June 11, 1958 to sell the aforesaid 22 plots of land and for damages in addition thereto. A preliminary objection was raised by the contesting respondent no. 1, D.L.F. Housing and Construction (P) Ltd. to the effect that the appellant having claimed that the agreement dated June 11, 1958 was void and inoperative, cannot in the same suit pray for specific performance of the same agreement. The Subordinate Judge, First Class, G Delhi rejected the preliminary objection by his order dated February 26, 1962. Respondent no. 1 filed a Civil Revision Application no. 228-D of 1962 in the Circuit Bench pf the Punjab High Court at Delhi.

By his order dated February 14, 1964, Dulat, 1. allowed the Revision Application holding that the appellant having sued for a declaration that the agreement .of June 11, 1958 WllS' u void, cannot in the alternative be permitted to sue for specific performance of the. agreement and therefore the suit must fail so far as the relief for specific performance was concerned.

This appeal is brought by special leave f~ the .oder o~ he Punjab High Court dated February 14, 1964 1Il, Cm! Rev1S1on Application no. 228-D of 1962.

In support of this appeal it was argued, in the first place, that under 0.7 r. 7, Civil Procedure Code the appellant was entitled to claim a relief in the alternative on the facts stated. in the plaint and it was open to him to pray to the Court that a decree for specific perfoniiance should be granted if the Court did not accept his case that the impugned agreement dated June 11, 1958 was illegal and void.

It is true that under 0. 7, r. 7, Civil Procedure Code it is open to a plaintiff to pray for inconsistent reliefs. 13ut it must be shllwn by the plainiff that each of such pleas is maintainable.

So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act. In this connection reference may be made to s. 37 -of the Specific Relief Act (Act No. 1 of 1877) which is to the following effect :

"A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically may direct it to be rescinded and delivered up accordingly."

It is expressly provided by this section that a pl!tlntiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. Section

35 of the Specific Relief Act, 1877 states the principles upon which the rescission of a contract may be adjudged. But there is no provision in this section or any other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. In our opinion, the omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff. This view is borne out by the following passage in "Fry on Specific Performance, 6th Edn., p. 493" :

nit remains to remark that the plaintiff, bringing an act!on .for the specifi.c performance of a contra-ct, may clllllll m the alternattve that, if the contract cannot be enfroced, it may be rescinded and delivered up to be cancelled, provided that the a.lternative relief is based on the same state of facts, though with different conclusions as to law. When the action is brought by the

SUPREME COURT REPORTS

(1968) 3 S.C.R

vendor, and the purchaser has been in possession, this alternative claim may embrace an accountof the rents and profits.

But, for the reason already stated, a suit to set aside a transaction for fraud or, in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery. And notwithstanding the provisions of the Rules of the Supreme Court as to alternative claims for relief, it seems probable that the same conclusion would still be arrived at, on the ground that the claims were inconsistent and embarrassing." The same principle is enunciated in Cawley v. Poole(') in which it wcis held by the Court of Chancery that in a case where a bill

allg"s a judgment obtained by fraud, and a subsequent compromi>e, and seeks to set aside the whole transaction on the ground of fraud. or in default to have the compromise carried out, and the Court is of opinion that the case of fraud fails, it will not en'orce the compromise, but the whole bill must be dismissed.

There is also another reason for holding that the appellant has m.:de out no cause of action with regard to the relief of specific performance of the contract. It is well-settled that in a suit for spe-:ific performance the plaintiff should allege that he is ready am:! willing to perform his part of the contract. In the present

ca~, no such averment is made in the plaint. On the other hand. the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action. The legal position has been stated by Lord Blanesburgh in pronouncing the opinion of the Judicial Committee in Ardeshir Mama v. Fiora Sassoon( 2 ) as follows :

"Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, Ire thereby elected to treat the contract .as at an end and himself as discharged from its obligations.

No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting.

He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness. from the date of the contract to the time of the hearing,

to perform the contract on his part. . Failure to make good that averment brought with it the inevitable dismissal of his suit.

Thus it was that the commencement

(l) 71 E. R. 23.

(2) 55 J. A. 360, at p. 372.

of an action for damages being, on the principle of such cases as Clough v. London and North Western Rly. Co. [(1871) L.R. 7 Ex. 26], and Law v. Law [(1904) I Ch. 140], a definite eleetion to treat the contract as at an end, no suit for specific performance, wl!atever happened to the action, could thereafter be maintained by the aggrieved plaintiff.

He had, by his election precluded himself even from making the averment just referred to, proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon."

It was pointed out by Lord Blanesburgh that the Indian law on the subject as contained in the Specific Relief Act, 1877 is not different from the English law. At page 3 7 5 of the same Report Lord BJanesburgh states :

"Although, so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England [s. 24 (b) is tbe nearestj, it seems invariably to have been recognized, and, on principle, their Lordships think rightly, that tbe Indian and the English requirements in this matter are the same : see, e.g., Karsandas v. Chhotalal (25 Born. L.R. 1037, 1050)."

In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.

It was n_ext contended on behalf .of the appellant that in any event the Htgh Court should have given the appellant an option to elect either of the two reliefs and ought not to have dismissed the suit at a preliminary stage so far as relief for specific performance was concerned.

We do not think there is any substance in this argument.

The question of election between the two reliefs would have arisen only if the appellant could have shown that in respect of specific performance he had a cause of action.

As we have already pointed out, the appellant has not made out a cause of action so far as he relief of specific performance is

concrned. and hence the appellant is n?t entitled to be put to election with regard to the two alternative reliefs.

We accordingly reject the argument of the appellant on this aspect of the case. ·

654 SUPREME COUllT REPORTS

[1968] 3 S.C.R.

Lastly, it was argued on behalf of the appellant that the High Court had no jurisdiction to interfere with the order of the trial court under s. 115 of the Civil Procedure Code. It was said that the finding of the trial court did not involve any question of jurisdiction and the High Court has fallen into an error in reversing the finding of the trial court on issue no. 4, whether the relief for specific perfonnance was open to 'the appellant in the alternative.

In our opinion, there is no warrant for the argument put forward on behalf of the appellant. It is manifest that in holding that the appellant was entitled in the altenµtive to ask for the relief of ; pecific perfonnance, the trial court had committed an error of law and so had acted with material irregularity or illegality in the exercise of its jurisdiction within the meaning of s. 115{c) of the Civil Procedure Code. It was therefore competent to the High Court tu interfere, in revision, with the order of the trial court on this point. To put it differently, the decision of the trial court on this questiqn was not a decision on a mere qu!'Stion of law but it was a decision on a question of law upoµ which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial court; the trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the High Court in revision.

For these reasons we hold that there is no merit in this appeal which is accordingly dismissed with costs.

Y.P.

Appeal dismissed.

PREM RAJ

April 4, 1968

C. SHAH

V. RAMASWAMI, JJ.

Specific Rlief Act

ss. 35 and 31

Code of Civil Procedure

Specific Relief Act

Section 37

Section 35

s. 115(c)

C B. C. Misra

M. V. Goswami

M. C. Chagla

Daya Krishan

S. C. Javali

Ravinder Narain

Ramaswami

October 26, 1956

Prem Raj

Moti Ram Bhalla

Lila Ram

December 18, 1956

L.M.G. Colonisers & Traders

January 2, 1957

L.M.G. Colonisers.& Traders

June 11, 1958

SUPREMB COURT REPORTS

(1968] 3 S.C.R

L.M.G. Colonisers and Traders

2nd January 1957

L.M.G. Colonisers

June. 8, 1961

February 26, 1962

Punjab High Court at Delhi

February 14, 1964

Dulat

Punjab High Court

Civil Procedure Code

Civil Procedure Code

Specific Relief Act

s. 37

Specific Relief Act

Section

35

Specific Relief Act, 1877

Supreme Court

Blanesburgh

Specific Relief Act

BJanesburgh

England

s. 24

s. 115

s. 115