PUTI'ARANGAMMA & 2 ORS.

M. S. RANGANNA & 3 ORS.

February 8, 1968

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

Hindu Law-Joint family-Unilateral decalration to separate-Communicated to other members of family-Declaration withdrawn-Efiect.

The karta of a joint Hindu family fell ill. He had no male issue and in order to safeguard the interests of the appellant and fourth respondent, who were his daughters, he issued regfat.:ered notices to the other member. of the jont family declaring his unequivocal intention to separate from them. Later, he decided to withdraw the llDtices and instructed the poolal authorities not to forward them, but,. the unequivocal declaration of his intention to separate was conveyed to the other members of the joint family and they had full knowl"lge of such intention.

A few days thereafter he instituted a suit for partition and possession of his share of the property. The plaint was prepared by a responsible advocate, who explained the contents to the plaintiff (the karta), who was conscious and in full possession of his mental faculties, had his thumb impression affixed on the plaint and Vakalatnama. signed them both and had thdm filed in court.

After the suit was filed. on the same day, the plaintiff died. .

The trial court decreed .l!he suit, but the High Oourt, in appeal, reversed tho decree.

In appeal to this Court, HELD : The mere withdrawal of the plaintiff's unilateral declaration _of intention to sq>arate, which already bad resulted in hls division in status because of the communication of the intention to the other members, did llDt nullify its effect so as to restore the family to its original joint status, or amount to an agreemnt to reunite; and lthe appellant and the fourth respondent, as the legal representatives of the plaintiff, were entitled to the decree. (126 G-H; 127 A-B; 129 DJ

Radlwkrishna v. Satyanarayana, (1948) 2 M.L.J. 331, approved.

CIVIL' APPELLATE JURISDICTION : Civil Appeal No. 322 of 1965.

Appeal from the judgment and decree dated December 5; 1960 of the Mysore High Court in Regular Appeal No. 81 of 1956.

A. K. Sen and R. Gopalakrishnan, for the aJ>Pellants.

H. R. Gokhale, K. R. Chaudhuri and K. Rajendra Chaudhri; for respondent No. 1.

The Judgment of the Court was delivered by Ramaswami, J, This appeal is brought by certificate from the judgment of the Mysore High Court dated December 5, 1960 in R. A. No. 81 of 1956.

120 SUPlll!Ml! COUllT IU!POl.TS

(1968) 3 S.C.R.

The appellants and respondent No. 4 are the daughters and legal representatives of Savoy Rauganna who was the plaintiff in O.S. 34 of 1950-51 instituted in the court of the District Judge, Mysore. The suit was filed by the deceased plaintiff for partition of his share in the 11roperties mentioned in the schedule to the plaint and for granting him separate possession of the same.

Respondent No. 1 is the brother's son of the Plaintiff. The rela B tionship of the parties would awear from the following pedigree :

R..i I AlaJnma (Deft. 2)

(Died 45 I . years ""')

Dodd& il.,.pmma

(Deft. 2 (a)

I Kenchanna (Suppl.

Def).

Savoy Ranganna (S"

Savoy Ranpnna

(plaintiff)

Chikka l.Ran1•tnma Puita il.n..mma

(Deft. 3) (!st L. R. of plaintiff) (2nd L. R. of plaintiff)

I ChillaRa-

(Diod in 1947\ I M. S. R. Ranpnna, 3

(Deft. I) lakkamma

(D. W.10)

Chinnathayamma

(3rd I. p •. of plaintiff)

The case of the plaintjlf was that he and the defendants livea together as members of a Joint Hindu family till January 7, 1951, plaintiff being the karta. The plaintiff had no male issue but had only four daughters, Chikka Rangamma, Putta Rangamma, Rangathayamml! . l!Jld Chinnathay; unma.

The first 2 daughters r were widows. The fourth daughter Chinnathayamma was living with her husband. Except Chinnathayamma, the other daughters with their families had been living with the joint family.

The plaintiff became ill and entered 'Sharda Nursing Home' for treat ment as an in-patient on January 4, 1951. In order to safeguard the interests of his daughters the plaintiff, Savoy Ranianna issued G a notice on January 8, 1951 to the defend:mts clring his unequivocal intention to separate from them.

After the notices were registered at the post office certain well-wishers of die famify intervened and wanted to bring about a settlement. On their advice and request the plaintiff n_otified to the post office ti)at he intended to withdraw the registered notices. But as no agreement could 8 be subsequently reached between the parties the plaintiff instituted the present suit on January 13. 1951 for partition of his share of the joint family properties. The suit was contested mainly by

D ,

PUTTAll.ANGAMMA V. RANGANNA (Ramaswami, J.) 121

respondent no. 1 who alleged that there was no separation . of status either because of the notice of January 8, 1951 or because of the institution of the suit.on January 13, 1951.. J'he case of respondent no. 1 was that Savoy Ranganna was 85 years. of age and .in a weak state of health and was not in a position to understand the contents.of the plaint or to affix his. signatµre or thwnb impression thereon as well as on the. Vakalatnama.

As regards the notice of January 8, 1951, respondent no. 1 asserted that there w•s no communication o( any such notice to him and, in any case, the notices were withdrawn by Savoy Ranganna unconditionally from the post office. It was therefore contended that there was no disruption of the joint family at the time of the death of Savoy Ranganna and the appellants were not entitled to a decree for partition as legal representatives of Savoy Ranganna. Upon the examination of the evidence adduced in the case the trial court held that Savoy Ranganna had properly affixed his thumb impression on the plaint and the V akalatnama and the presentation of the plaint was valid.

The trial court found that Savoy RanganJ!a was not dead by the time the plaipt was presented. On the question whe- . ther Savoy Ranganna was separate in status the trial court held that the notices dated January 8, 1951 were a clear and unequivocal declaration of the intention of savoy Ranganna .to become divided in status and there was sufficient communication of that intention to respondent no .. 1 and other members of the family.

The trial court was also of the opinion that anhe time of the issue of the notices dated January 8, 1951 and at the time of execution of the plaint and the Vakalatnama dated January 13, 1951 Savoy Ranganna was in a sonnd state of mind and conscious of the consequences of the action he was taking. The trial court accordingly granted a decree in favour of the appellants.

Respondent no. I took the matter in appeal to the Mysore High Court which by its judgment dated December 5, 1960 reversed the decree of the trial court <llld allowed the appeal. Hegde, J. one of the members of the Bench held that the suit could not be said to have been instituted by Savoy Ranganna as it was not proved that Savoy Ranganna executed the plaint As regards the validity of the notice Ex. A, and as to whether it caused any disruption in the joint family status, Hegde, J; did not think it necessary to express any opinion. The other member of the Bench, Mir. Iqbal Husain, J. held that the joint family of which the deceased Savoy Ran)!al!na was a member had not been disrupted by the issue of the notice dated January 8, 1951. The view taken by Mir Iqbal Husain, J. was that there was no prQOf that the notice was communicated either to respondent no. 1 or other members of the family and, in any event, the notice had been withdrawn by Savoy Ranganna and so there was no severance of joint status from the date of the notice.

USup.C.1168-9

The first question to be considered in this appeal is whether Savoy Ranganna died as a divided member of the joint family as alleged in the plaint. It is admitted that Savoy Ranganna was very old, about 85 years of age and was ailing of chronic diarrhoea.

He was Jiving in the family house tili January 4, 1951 when he was removed to the Sharda Nrsing Home where hJ: died on January 13, 1951 at 3 p.m. According to the case of respondent no. 1 Savoy Ranganna had a paralytic stroke m 1950 and was completely bed-ridden thereafter and his eyesight was bad for 5 to 6 years prior to his death.

It was alleged in the written statement. that Savoy Ranganna was unconscious for some days prior to .his death. The case of respondent no. 1 on this int is disproved by the evidence of D.W. 6, Dr. Venkata Rae. who was in charge of the Sharda Nursing Home on the material dates. This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic diarrhoea for over five months. He was anaemic but he was not suffering from any attack of paralysis.

As regards the condition of Savoy Ranganna on January 8, 1951, the evidence of P.W. 1,.Dr. Subbaramiah is important. This witness is the owner of the Sh.arda Nursing Home and he has testified that the notice Ex. A was read over to Savoy Ranganna and after . getting it read the latter affixed his thumb mark thereon. The witness asked Savoy Ranganna whether he was able to understand the contents of the notice and the latter replied in the affirmative.

The witness has certified on the notice, Ex. A-1 that Savoy Rananna was conscious when he affixed his left thumb mark to the notice in his presence. No reason was suggested on behalf of the respondents why the evidence of this witness should be disbelieved.

The trial court was highly impressed by the evidence of this witness and we see no reason fcir taking a different .view.

The case of the appellants is that respondent no. 1 had knowledge of the notice, Ex. A because he was present in the Nursing Home on January 8, 1951 and he tried to snatch away the notice from the hands of P.W. 1 but he was prevented from so doing. P.W. 5.

Chinnanna stated in the course of the evidence that after P .W. 1 had signed the certificate in all the three copi.es, respondent no. 1 and one Halappa came to the .ward and tried to snatch away the notices.

The first respondent tried to snatch away the copy Ex. A-1 that was in the hands. of Dr. Subbaramiah and attempted to tear it. Dr. Subbaramian somehow prevented respondent no. 1 from taking away Ex. A and handed it over to

P.W. -5.

The evidence of P.W. 5 with regard to the "snatching incident" is corroborated by Dr. Subbaramiah who stated that after Savoy Ranganna had executed the notices and he had signed the certificates, one or two persons came and tried to snatch e document. P .W. 1 is unable .to identify the first respondent as one of the persons who had taken part in the "snatching incident". The circumstance that P.W. 1 was unable to identify respondent no. 1

is not very material, because the inc111ent took place about. three years before he .i:ave evidence in the court, but his evidence with regard 10 the "snatching incident" strongly corroborates the allegation of P.W. 5 that it was res[lj)ndent no. 1 who had come into the Nursing Home and attempted to snatch the notice. There is also another circce which supports the case of the appellants that respondent no. 1 had knowledge of the contents of Ex. A and of the unequivocal intention of Savoy Rangann'l to come divided in status from the joint family. According to P.W. 5 respondent no. 1 and his Wife and mother yisited Savoy Ranganna in the Nursing Home later on and pressed him. t<J withdraw the notices promising that the matter will be amicably settled. Sowcar T. Thammanna also intervened on their behalf. Thereafter the deceased plaintiff fastructed.his grandson P.W. 5 to withdraw the notice.

Accordingly P.W. 5 prepared two applications for the withdrawal and presented them to the postal authorities.

The notice, Ex. A meant for the first respondent and Ex. E meant for the original second defendant were thheld by the postal authorities.

These notices were produced in court by the postal authorities during the hearing of the_case. In our opinion, the evidence of P .W. 5 must be accepted as true, because it is corroborated by the circumstance that the two notices, Bxs. A and E were intercepted in the post office and did not reach their destination. This circumstance also indicates that though there was no formal communication of the notice, Ex. A to the first respondent, he had sufficient knowledge of the contents of that notice and was fully aware of the clear and unequivocal intention of Savoy Ranganna to become separate from other members Qf the joint f!!ffiily.

It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can b, ring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty.

It is not necessary that there should be an agreement between all

te oparceners for the disruption of the joint status. It is immatenal m such a. case whether the other copareeners give their a5sent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant portion of the commentary of Vijna!'eswara tates as follows :

"<:i"ll'f ""''""''"; imrf<: \If'!~"! f<raf<: fir'i!Frl1" arf; i'"""1!f'I' <ra~ qi;! l+f~oq f'ftWft \TCffu'" .. ' "'

[And thus though the mother is having her menstrual H courses (has not lost the capacity to bear children) and the father ha!! attachme!lt and does not desire a partition, yet by the will (or desire) of the son a partition of 'he grandfather's wealth does take place]" ·

Saraswathi Vilasa, placitum 28 states :

"~ m'lit 'ff"11\rt ITTr ""'~If f"'1Jlr f<ff~: I 'l'IT'!f'Om"'R"f'!; fim lio; ii'lqll~f<f 11"

[From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech.)" Viramitrodaya of Mitra Misra (Ch. II. pl. 23) is to the follow ing effect:

"<ll"l'I' 'f'f~ rit ;; ft; rf~ 4•'11.,"l"fail1•i: f<r 'll'l<ll' • f""1>rra 1 " '

[Here too there is no distinction between a partition during the lifetime of the father or after his death and

partition at the desire of the sons may take place oc D even by the desire (or at the will) of a single ( oopar c.ener) ]."

Vyavahara Mayukha of Nilakantabhatta also states :

"•oq1t1q.1'41q1tlfq mf~ f'l"l!'Rr mr oq•*"IMlf"lfir 'lfm ~: I

f.rfan1<1qti14 f~ f'f'llT'l': Ii qlf'liilfs.,44 ~

II"

. [Even. in the absence of any common (joint family) property, severance does indeed result by the mere declaration 'I am separate from thee' because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental. state (or condition).]" (Ch: IV, S. iii-I).

 Emphasis is laid on the "budhi visesha" (particular state or condi ti on of the mind) as the decisive factor in producing a severance in status and the-declaration is stated to be merely "abhivyanjika" or manifestation which might vacy according to ciroumstances; In Suraj Narain v. Iqbal Narain(1) the Judicial Committee made the following categorical statement of the legal position :

"A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed .......... Suraj Narain alleged that he separated a few months later; there is, however, no

(I) J.L.R. 35 All. 80. (P.C.)

writing in support of his allegation, nothing to show that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family." In a later case-Girja Bai v. Sadashiv Dhundiraj(') the Judicial Committee examined the relevant texts of Hindu Law and referred to the well-marked distinction that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into specific shares of the property held until then jointly, and laid down the Jaw as follows :

"One is a matter of individual decision, the d.esire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separtely from the others without being subject to the obligations which arise from the joim status; whilst the other is the natural resultant from his decision, the division. and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervel)tion of the Court.

Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to his right to have his share allocated separately from has a title is unimpeachable; neither the co.-sharers can

question it nor can the Court examine his conscience to find out whether his reasons for separation were well- Jounded or sufficient; the Court has simply to give effect

to his right to have his share allocated separately from the others."

In Syed Kasam v. Jorawar Singh( 2 ), Viscount Cave, in delivering the judgment of the Judicial Committee, observed :

"It is settled law that in the case of a joint Hindu family subject to the Jaw of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one. of the joint holders of his intention to hold his share separately, even though no actual division takes place : and the commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree."

These authorities were quoted '*ith approval by this Court in Addagada Raghavamma v. Addagada Chenchamma( 3 ), and it was hel!I tl1at a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to Other members of his family from whom he seeks to separate.

The

(I} l.L.R. 43 Cal. 1031. (P.C.)

(2) l.L.R. SO Cal. 84. (P.C).

(3) (1964] 2 S.C.R. 933.

126 SUPUMB ()()Ul.T UPOl.TS

[1968} 3 S.C.R.

correct legal position therefore is that in a case of a joint Hindu family subject to Mitaksbara law, severance Qf status is effected by an unequivocal declaration on the part of one of the jointholders of his intention to hold the. share SCJl!lrafely. It is, however, necessary that the member Of the joint Hindu family seeking

to separate himself must make known his intention to other membel'S of the family from whom he seeks tp SCQate. The process of communication may, however, vary in the circumstances of each particular case.

It is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of . the colll!!lunication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given sitwition and circumstances of the particular case. Applying this principle to the facts found in the present case, we are of opinion that there was a definite and unequivocal declaration of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to respondent no. l and other members 9f the joint famliy and respondent no. 1 had full knowledge of the intention of Savoy Ranganna.

It follows therefore that there was a division of status of Savoy Ranganna from the joint Hindu family with effect from January 8; 1951 which was the date of the notice.

It was, however, maintained on behalf of the respondents that on January 10, 1951 Savoy Ranganna had decided to .withdraw the two notices, Exs. A & E and he instructed the postal authorities not to forward the notices to respondent no. l and other members of the joint family.

It was contended that there could be no severance of the joint family after Savoy Ranganna had decided to withdraw the notices. In our opinion, there fa no warrant for this argument. As we have already stated, there was a unilateral declaration of an intention by Savoy Ranganna to divide from the joint family and there was sufficient communication of this intention to the other coparceners and therefore in law there was in consequence a disruption or division of the status of the joint family with effect from January 8, 1951. When once a communication of the intention is made which has resulted in the severance of the joint family status it was not thereafter open to Savoy Ranganna to nullify its effect so as to restore the family to its original joint status. If the intention of Savoy Raugauna had stood alone without giving rise to any legal effect, it could; of course, be withdrawn by Savoy Ranganna, but having communicated the intention, the divided status of the Hindu joint family had already come into exitence and the legal consequences had taken effect.

It was not, therefore, possible for Savoy Ranganna to get back

to the old position by mere revocation of the intention. It is, of course, possible for the members of the family by a subsequent agreement to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate which already had resulted in the division in status cannot amount to an agreement to reunite.

It should also be stated that the question whether there was a subsequent agreement'between the members to reunite is a question of fact to be proved as such, In the present case, there is no allegation in the written statement nor is there any evidence on the part of the respondents that there was any such agreement to reunite after January 8, 1951. The view that we have expressed is borne out by the decision of the Madras High Court in Kurapati Radhakrishna v. Kurapati Satyanarayana(') in which there was a suit for declaration that the sales in respect of certain family properties did not bind the plaintiff and for partition of his share and possession thereof and the plaint referred to an earlier suit for partition instituted by the 2nd defendant in the later suit. It was alleged in that suit that 'the plaintiff being unwilling to remain with the defendants has decided to become divided and he has filed this suit for separation of his one-fifth share in the assets remaining after discharging the family debts separated. and for recovery of possession of the same'.

All the defendants in that suit were served with the summons and on the death of the 1st defendant therein after the settlement of issues, the.., Jaintiff in that action made the following endorsement on the plamt : "As the 1st defendant has died and as the plaintiff had to manage the family, the plaintiff hereby revokes the intention to divide expressed in the plaint and agreeing to remain as a joint family meniber, he withdraws the suit.' It was held by the Madras High Court that a division in status had already been brought about by the plaint in the suit and it was not open to the plaintiff to. revoke or withdraw the unambiguous intention to separate contained in the plaint so as to restore the joint status and as such the members should be treated as divided members for the purpose of working out their respective rights.

We proceed to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents. . The case of the appellants is that Sri M. S. Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9-30 or 10 a.m. on January 13, 1951. Sri Ranganathan wrote out the plaint which was in English and translated it to Savoy Ranganna who approved the same.

P.W. 2, the clerk of Sri Ranganathan has deposed to this effect.

He took the ink-pad and affixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama.

There is the attestation of Sri M. S. Ranganathan on the (ff{f948) 2 M.LJ. 331.

plaint and on the Vakalatnarna .. The papers were handed over to P.W. 2 who after purchasing the necessary court-fee stamps filed the plaint and the Vakalatnama. in the court at about 11.30 a.m. or 12 noon on. the same day.

The evidence of P.W. 2 is corroborated by P.W. 5 Chinnanna. tounsef on behalf of the respondents, however, criticised the evidence of P.W. 2 on the grou11d that the doctor, D.W. 6 had said that the mental condition of the patient was bad and he was not able Jo understand thfugs when he examined him on the morning of January 13, 1951.

D.W. 6 deposed that he examined Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a.m. and found "his pulse imperceptible and the sounds of the heart feeble". On the question as to whether Savoy Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has accepted the evidence of P.W. 2, Keshavaiah in preference to that of

D.W. 6.

We see no reason for differing from the es!imate of the trial court with regard. to the evidence of P. W. 2.

The trial court has pointed out that it is difficult to accept the evidence of D.W. 6 that Savoy Ranganna was not conscious on the morning of January 13, 1951. In cross-examination D.W. 6 admitted that on the night of January 12, 1951 Savoy Ranganna was conscious.

He further admitted that on January 13, 1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12,

I 951.

There is no note of the necessi\!:Y data in the case sheet, Ex. I to suggest that Savoy Ranganna was not conscious on Janu~ ary 13, 1951. It is therefore not unreasonable assume that the condition of Savoy Ranga11na was the same on January 13, 1951 as on January 12, 1951 and there was no perceptible change noticeable in his condition between the two dates. In these circumstances it is not possible to accept the evidence of D.W. 6 that Savoy Ranganna was unconscious on the morning of January 13, 1951. It was pointed out on behalf of the respondents that D.W. 7, Miss Arnold has also given evidence that the condition of Savoy Ran_ganna became worse day by day and on the last day his condition was very bad and he could not understand much, nor could he respond to her calls. The trial court was not impressed with the evidence of this witness.

In our opinion, her evidence suffers from the same infirmity as of D.W. 6, because the case sheet, Ex. I does not corroborate her evidence.

It is also difficult to believe that D.W. 7 could remember the details of Savoy Ranganna's case after a lapse of three years without the help of any written case sheet.

There is also an important discrepancy in the evidence of D.W. 7. She said that on January 13, 1951 she called D.W. 6 at 12 noon since the r.ondition of the patient was very bad, but D.W. 6 has said that he did not visit Savoy Ranganna after 8 or 9 a.m. on that date. Comment was made by Counsel on behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared

the plaint and Savoy , Ranganna bad ed his tJiumb impression in his presence. In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have been proper conduct on his PS!t if J1e_had returned the brief of the appellants and given evidence in the case' as to the execution of the plaint and the V akalatnama.

But spite of this circumstance we consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is necessary to notice that the plaint and the Vakalatnania are both counter-signed by Sri Ranganathan---a responsible Advocate-and it is not likely that he would subscribe his signatures to. these documents if they had been executed by a person who was unable to understand the contents thereof.

As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two documents. It follows therefore that the appellants and respondent no. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore.

For the reasons expressed, we hold that this appeal should be allowed, the judgment of t!te Mysore High Court dated December 5, 1960 in R.A. no. 81 of 1956 should be set aside and that of the District Judge, Mysore dated October 31, 1955 in 0.S. no. 34 of 1950-51 should be restored.

The appeal is accordingly allowed with costs.

V.P.S.

Appeal allowed ..

PUTI'ARANGAMMA & 2 ORS

M. S. RANGANNA & 3 ORS

February 8, 1968

C. SHAH

V. RAMASWAMI, JJ.

Vakalatnama

A. K. Sen

R. Gopalakrishnan

H. R. Gokhale

K. R. Chaudhuri

K. Rajendra Chaudhri

Ramaswami

S. 34

Savoy Ranganna

Savoy Ranpnna

Chikka l.Ran1•tnma Puita

Chinnathayamma

Chikka Rangamma

Putta Rangamma

Chinnathayamma

Sharda Nursing Home

Savoy Ranianna

January 8, 1951

January 13. 1951

PUTTAll.ANGAMMA V. RANGANNA

Savoy Ranganna

Savoy RanganJ!a

savoy Ranganna

January 13, 1951

Mysore High Court

December 5, 1960

Hegde

Mir. Iqbal Husain

Savoy Ran)!al!na

Mir Iqbal Husain

January 4, 1951

Sharda Nrsing Home

Venkata Rae

Subbaramiah

Savoy Rananna

Chinnanna

Halappa

Subbaramiah

Subbaramian

Savoy Rangann'l

Sowcar T. Thammanna

Vijna!'eswara

Vyavahara Mayukha

Nilakantabhatta

Suraj Narain

(1964] 2 S.C.R. 933

January 8; 1951

January 10, 1951

Savoy Raugauna

Madras High Court

M. S. Ranganathan

Ranganathan

M. S. Ranganathan

Savoy Ranganna

Keshavaiah

January 12,

I 951

Savoy Ranga11na

Arnold

Savoy Ran_ganna

Ranganathan

Savoy , Ranganna

District Judge of Mysore

October 31, 1955


INDIAN HUME l'lft 00. LTD.

v. mmt WORDIEN

February 8, 1968

[G. K. MITTER AND K. S. llEGDE, JJ.] B

Industrial Dispute-Closure-Tribunal whethu can go into bona ftdes of closur.-Retrench,,..nt- 'Last co,,.. (int flO'-TribunaJ not compe- .tent to appv principle without plea beinr raised.

The lodQStrial Tribunal, deciding a dispule between. the appellant company and its workmen held that the notice of clooure given by the -compny waa not bona fide and that the ptjnciple of 'Jaat come first go' C should have been applied by the company in retrenching twelve of its workmen. In appear-to this Court.

HELD: (i) Once the Tribunal finds that an employer has closed his factory as a mailer of fact it is not concerned to go into the question aa to the motive which guided him and to come to a conclusion that be- cause of the previous history -0f the dispute between the employer ond the employees the closure waa not justified Such a closure cannot give D rise to an industrial dispute. [l35 DJ

PiprGich Sugar Mills Ltd. v. P.SM. Mazdoor Union, (1957) 1 L.L.J. 235, K. M. Padmanabha Ayyar v. State of Madras, [1954) 1 L.L.J. 469, Tea Districts Labour Association, Calcuttt.• v. Ex..employees of Tea Districts Labour .Association and Anr. [1960) 3 S.C.R. 207, Hatisi11gh Manufacturing Co. Ltd. v. Union of India, (1960) ) S.C.R. 52~. Express E New•papers (P} Ltd; v. The Work.rs, A.l.R. 1963 S.C. 569 and Andhra Probha v. Madras Union of Journalist1; [1967) 3 S.C.R. 901, applied.

(ii) The plea as to the application. of the principle 'last come first go' was not taken in ¢he written statement of the UniOn and the Tribunal was not competent to go into that qtlestion at all. (135 Fl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1829 of 1967.

Appeal by special leave from the Award dated June 30, 1967 of the Third Industrial Tribunal, West Bengal in Case No. VIII-87 -of 1965.

M. C. Setalvad, K. P. Mookerjee and l. N. Shroff, for the appellant.

lanqrdan Sharma and S. K. Nandi, for th.e respondents.

The Judgment of the Court was delivered by

Mitter, J. This is an appeal by special leave against an award dated June 30, 1967 of the Third Industrial Trjbunal, West Bengal, in Case No. VIII-87 of 1965 finding that the retrenchment of 12 workmen and the closure of the factory of the appellant were both illegal and unjustified.

The Tribunal accordingly directed

H •

that the workers whose services had been purported to be tenninated on the ground of closure must be deemed to be still in service of the company and they should receive all their wages and allowances with effect from the date when their services were terminated.

The two issues which '.!Vere referred by the order of the Government of West BC!lgal dated April 23, 1965 under s. 10 of the Industrial Disputes Act between the appellant Company and their workmen were :

( 1) Whether the closure of the factory at Barakar is bona fide and in the circumstances justified ? To what relief, if any, are the workn)en entitled ?

( 2) Whether the retrenchment of the following workmen is justified ? To what relief, if any, are they entitled?

(1} Kuldip Goala, (2) Chandra Bahadur, (3) Gour Baidyakar, ( 4) Pradip Kumar Dey, ( 5) Dular Chand Prasad, (6) Gangadhar Pandey, (7) Mahendra Bhagat, ( 8) Sunil Kumar Chatterjee, ( 9) Balai Chandra Ghose, ( 10) Surendra Kumbhakar, ( 11 ) Sagar Chandra Ghose, ( 12) Pares.h Gope.

The facts about which there is no dispute are as follows. The appellant is a big engineering concern with its head office at Bombay and factories and establishments numbering about sixty spread all over India and CeylOQ. In West Bengal it had two factories, one at Barakar and the other Rt Konnagore near Calcutta.

The distanee between the two factories is about 140 miles. The Barakar factory had about 85 workmen daily-rated as well as monthly-rated.

The factory was situated qwte close to Grand Trunk road.

The whole area of the factory and its surroundings including the Grand Trunk road was coal bearing land from which coal had been extracted towards the end of the nineteenth century or the beginning of the twentieth century.

On December 18, 1962 there was a subsidence of the earth towards the north of the Grand Trunk road passing through Barakar town affecting a surface area of about I 00' X 60'. This is corroborated by a letter of the Inspecting Olficer, Circle m of the Coal Board Asansol to the Barakar Electric Supply Co. Ltd., a copy whereof was sent to the appellant.

This letter shows that the subsidence had affected a part of the premises of the factory of the appellant and appeared to have a trend of extending towards the occupied quarters of the appellant's factory. Simultaneously, there was a declaration of the Mines Department of India that Barakar town near Asansol had been declared unsa(e.

The declaration further shows that this was the second time when the town had been so declared unsafe aild according to the MinC5 Department this was

132 SUPREME COURT REPOllTS [ 1968] 3 s.cil.

dUe to the fact that the area involved was above a 70 year old A abandoned colliery. It appears that there WllS another subsidellCe in the same area on May' 4, 1963 as a result whereof the approaCh road to the appallant's factory was badly damaged.

There was also damage to a portion of the manager's quarters near the factory gate.

By Jetter dated May 15, 1963 addressed to the Gtief Inspector of Mines, Government of India, the appellant wanted the B site to be inspected for the purpose of finding out whether ther, e was any chance of further subsidence. That the subsidences were real was not questioned before the Industrial Tribunal nbr is there any controversy regarding the same before us.

This has been referred to in. many official correspondence which have been exhibited in this case.

On July 18, 1963 there was a letter from c the office of the Chief Inspector of Mines to the appellant that its factory was situaje on a goaf made in the last part of the nineteenth century and was therefore dangerntt~ for habitation. It was also mentioned in that letter that the factory having been declared unstable, restarting of the factory on that site could not be recommended.

On September 12, 1963 the head office of the appellant at Bombay wrote to its office at Barakar that it was con- D sidering closing down of the above factory as a precautionary safety measure and that it was not thinki.."'lg of shifting the factory but intended to close it completely. The last portion of the letter seems to have been necessitated by enquiries started by the factory at Barakar regarding the availability of suitable site not very far away to which the factory could be shifted. It appears that E inspection had been made of a plot at Rajbandh but the idea of shifting the factory to that site had to be given up because of the unavailability of high tension clectric line. The intention to close down the factory is also apparent from letters written by it to several authorities including the Controller of Purchase and Stores, Durgapur Steel Plant, , Bunlwan dated November 12, 1963 and to F the Executive Enineer Ganga Barrage Investigation Division, Berhampore dated Jilly 1\J, 1964 showing that in view of the intended closure of the factory it would not be in a position to execute the orders from the Barakar factory.

On September 23, 1964 the company served notices on twelve of its workmen to the effect that their services had become surplus G to the appellant's requirement and they were beinl? given one month's notice of termination of service and would be paid all legal dues i.e., earned wal!'!S, leave wa~, retrenchment compensation etc. on October 23, 1964. At the intercession of the Assistant LabOur Commissioner, Government of West Bengal, the appellant agreed .to retain these 12 workmen in their employment H at firs!!il! Novemher 4, 1964 and then bl! December 12, 1964.

On December 31. 1964 the company µvc notice of closure and termination of service to al! the workmen individually.

The

workmen were intimated that they would be paid one month's notice wages in lieu of one month's notice, retrenchment compensation as per provisions of .the Industrial Disputes Act, 1947, wages in lieu of earned leave due, if any, as on to-date as also for the proportionate earned leave for the current year till the last day of service, gratuity amount, if due, as per terms of settlement award, earned wages and such other legally due amounts, if any. Mention was also made of the bonus for the years 1962-63 and 1963-64.

There is no dispute that the factory was closed on December 31, 1964 and the dispute raised was referred to the Industrial Tribunal in April, 1965. The Tribunal noted inits award that the factory was closed by the appellant with effect from January l, 1965 but it went into the question as to whether the closure of the factory was bona fide and justified in the circumstances of the

case and came to the conclusion that the reason given by the company to justify the closure was mala fide for the purpose of dispensing with the services of the Barakar factory workrs who had since the formation of their union been fighting the appellant for betterment of their service conditions.

There can be no doubt that there had been disputes between the appellant and its workers from 1957 to 1961 and that other Industrial Tribunals had in the past criticised strongiy the labour practice of the appellant. Examining the evidence before it, the Tribunal was of the view that the decision of the heacl office of the appellant at Bombay to close the factory was in retaliation of the strike notice given by the Union in the middle of August 1963 over the question of bonus for 1961-62. The Tribunal sought to fortify its conclusion observing that the factory was not closed immediately or at a reasonable time after the actual subsidences in December 1962 or May 1963 and that it made no effort to render the factory area safe from further su.bsidence by sand stowing, a method which had been resorted to in respect of the subsidence of the Grand Trunk road.

It also referred to the evidence to the effect that several other concerns which had factories in the neighbourhood of the appellant did not close down their factories.

In our opinion, it was not open to the Tribunal to go into the question as to the motive of the appellant in closing down iis factory at Barakat and to enquire whether it was bona fide, or ma/a fide with some oblique purpose, namely to punish the workmen for the union activities in fighting the appeJlant. It has been laid down by this Court in a series of decisions that it is not for Industrial Tribunals to enquire into the motive to find out whether the closure is justified or not. As far back as 1957, it was

134 SUPllEMJ! COURT llEPORTS

[1968) 3 S.C.R.

observed by this Court in Pipraich Sugar Mills Ltd. v. P. S. M.

Mazdoor Union(') that:

"where the business has been closed and it is either admitted or found that the .closure is real and bona fide any dispute arising with reference thereto would, as held in K. M. Padmanabha Ayyar v. State of Madras('), fall outside the purview of the Industrial pules Act.

And that will a fortiori be so, if a dispute arises--if one such can be conceived-after the closure of the business between the quondam employer and employees."

The use of the expression 'bona fide' in the! above quotation does not refer to the motive behind the closure but to the fact of the closure. The question about the bona {ides of the closure had to be examined in the case of Tea Districts Labour Association, Calcutta v. Ex-employees of Tea Districts Labour Association and another(3 ). There two agencies of the appellant at Koraput and

Berhmpur were closed by the appellant and that was the finding of the Tribunal. This Court held that once it was established that the agencies had in fact been closed the finding about the ma/a {ides of the closure would not "justify the conclusion that the said

two agencies should be deemed to continue" and allow the Tribunal to make an award on that basis.

In Hatisingh Manufacturinf! Co. Ltd. v. Union of India(') it was observed that :

"Loss of service due to closure stands on the same footing as loss of service due to retrenchment, for in both cases, the. employee is thrown out of employment suddenly and for no fault of his and the hardships which he has to face are, whether unemployment is the result of retrenchment or closure of business, the sa)lle. If the true basis of the hnpugned provisions is the achie\lement of social justice, it is immaterial to consider the motives of the employer or to decide whether the closure is bona fide or otherwise."

Reference may also be made to Express Newspapers (P) Ltd. v.

The Workers(•). In this case the main questiQn was whether there was a closure or a lockout and it was observed by this Court (at p. 573):

"If the action taken by the appellant is not a lockout but is a cl6sure. bona fide and genuine, the dispute

(2) (1954] I L.L.J. 469. (I) [1957] 11.L.J. 235 at 239.

(l) (1960) 3 S.C.R. 2()7.

(4) (1960] 3 s.c.R. 528 at 537.

(5) A.l.R. 1%3 S.C. 569.

which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand, if, in fact and in substance it is a lockout, but the said action has adopted the disguise of a closure, and a dispute is raised in respect of such an action, it would be an industrial dispute which industrial adjudication is competent to deal with."

The question of the motive of the employer in closing an establishment had to be examined by this Court again in Andhra Prabha

v. Madras Umon of Journalists('). It was pointed out there that there might be more than one motive working in the mind of thee employer leading him to close his establishment and it was not for the Industrial Tribunal to examine that question meticulously and decide on the bona {ides of the motive.

In view of these decisions, our conclusion is that once thee Tribunal finds that an employer has closed its factory as a matter of fact it is not concerned to go into the questin as to the motivee

0 . which guided him and to come to a conclusion that because of the previous history of the dispute betweoo the employer and the employees the closure was not justified.

Such a closure cannot give rise to an industrial dispute.

The above conclusion is sufficient to allow the appeal, but one last point remains.

The Tribunal had evidence before it of at.

E least two workers of the Barakar factory having been transferred in the past to other places. On the basis of this evidence, the Tribunal werlt into the question as to whether the company even if it decided to effect a retrenchment of the 12 workmen should have applied the principle 'last come first go' and found out whether these workmen could be transferred to other places if they were

senior to those retained. It is not disputed that no such pleit was taken in the written statement of the union and with all respect to the Tribunal, it was not competent to go into that question at all. There is no evidence here as to the tenns of employment of the workers in other units of the factory.

The nearest units to the Barakar factory were the one at Konnagore and thee other at Patna at a distance of 200 miles from Barakar.

Thee point not having been raised by the union and without going intc the question as to whether it was feasible for the appellant to effect such transfers, the Tribunal should not have attempted to apply t)le principle of 'last come first go'.

In the result, we allow the appeal holding that me closure of' the factory at Barakar was bona fide and genuine. We also hold H that in view of that finding the Tribunal could not examine thee question of retrenchment of the 12 workmen and give them the-

(1} [1967) 3 S.C.R. 901.

:t36

SUPREME COURT REPORTS

(1968] 3 S.C.R.

relief it sought to do.

There is no dis;:iute that the appellant did offer to pay the workmen all their dues on the buis of the closure.

The appeal is allowed and the award is set aside. We do not how- .ever propose to make any order as to costs of' this appeal.

<J.C.

Appeal allowed.

February 8, 1968

G. K. MITTER

[1960) 3 S.C.R. 207

[1967) 3 S.C.R. 901

CIVIL APPELLATE JURISDICTION

M. C. Setalvad

P. Mookerjee

l. N. Shroff

lanqrdan Sharma

S. K. Nandi

Mitter

Government of West BC!lgal

April 23, 1965

s. 10

Industrial Disputes Act

their workmen

Barakar

Kuldip Goala

Chandra Bahadur

Gour Baidyakar

Pradip Kumar Dey

Dular Chand Prasad

Gangadhar Pandey

Mahendra Bhagat

Sunil Kumar Chatterjee

Balai Chandra Ghose

Surendra Kumbhakar

Sagar Chandra Ghose

Pares.h Gope

India

West Bengal

Calcutta

December 18, 1962

Barakar town

Barakar Electric Supply Co. Ltd.

Mines Department of India

Asansol

May' 4, 1963

May 15, 1963

Government of India

July 18, 1963

September 12, 1963

Bombay

Rajbandh

Durgapur Steel Plant, , Bunlwan

November 12, 1963

Berhampore

Jilly 1\J, 1964

Barakar factory

September 23, 1964

October 23, 1964

December 12, 1964

December 31. 1964

Industrial Disputes Act, 1947

December 31, 1964

January l, 1965

Barakat

Koraput

Berhmpur

(1960) 3 S.C.R. 2

Konnagore

Patna

[1967) 3 S.C.R. 901