) H

MOHINDER SINGH & ANR. v

STATE 0!' HARYANA March 5, 1974 [H. R. KHANNA AND V. R. KRISHNA IYER, JJ.j

Indian Penal Code, Ss.409, read with s.109-Whether conviction could be sustabred 11n oral evidence ir. the Jae~ flf negative written evidence-Illiteracy -Hov for benefit could be given.

The complainant who was Sarpanch of gram panchayat asked the secor.~ appellant, his pre, decessor, to make over the records of the gram panchayat, transfer its accounts and hand over the money belonging to the gram panchayat to him. The second appellant put him off. \Vhen he made a complaint to higher authorities the second appelJant transferred some amount to the complainant, but not the whole of it. The complainant tiled a suit in Civil Court for recovery Or the balance and rendition of accounts in respect of the unpaid amount which was also large. The suit of the complainant for rendition of accounts was dismissed by the Civil Court. accepting the evidence of the second appellant and his plea that the accounts bet\1.'ecn the parties had been settled. The complainant filed a complaint alleging that the first appellant, an advocate and the second appellant had made him sign an official receipt of the gram panchayat with its official seal affixed on the receipt and took it without making the payment of money to him. The second appellant was tried for offences under sections 409, 461 read with 109 and 474 Indian Penal Code and the first appellant under s.409 read with s.109, section 467 read with s.109 Indiah Penal Code and were convicted and sentenced to various terms of imprisonment and fine. The High Court confirmed their conviction and sentences. Before the trial court the complainant led oral evidence to prove that the appellants had taken advantage of his il!iteracy and a trick was played upon him by them.

AI1owing the appeals to this Court,

1-IELD : There are de<ir infirrrdties in the prosecution ca<; e.

It is not possible to sustain the conviction of the accused. Oral evidence which runs counter to an ac!rnission contained in writing signed by a party in the very nature of things is a , ery \\'eak piece of evidence and cannot be accepted without a grain of salt. Jn the face of the finding of the Civil Court it would be incongruous to convict the second appellant on th! bisis that th! amJT1t of th~ Gra.m PJn.; hayat \\'as still due from him. The complainant may be illiterate but there must be a limit up to which the benefit of illiteracy can be extended to him. The fact that the complainant was illiterate could not induce the court to ignore the infirmities in his evidence or to fill in lacunae in the prosecution case.[524B--C,525D-D,526A-B]

This fact would also not justify the benefit cf the doubt Peing given to the prosecution instead of to the accused. [526B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 221 of 1970 A-S 47 of 1971.

Appoals by spocial leave from the judgment and order dated the 8th October, 1970 of the Punjab and Haryana High Court at Chandigarh in Criminal Appoals Nos. 374 and 376of19(0.

Nuruddin Ahmad and U.P. Singh, for the appellant,.

N. N. Goswamy and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

KHANNA, J.-Surat Singh and Mohinder Singh Advocate were tried in the court of Additional Sessions Judge Karna! for various.

offences. The learned Additional Sessions Judge convicted Surat Singh under section 409 Indian Penal Code, section 467 read with section 109 Indian Penal Code and section 474 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 25,000 or in default to undergo rigorous imprisonment for a further period of eight months on the irst count, to undergo rigorous imprisonment for a period of one year on the second count and rigorous imprisonment for a period of one year on the third count. Mohinder Singh accused was convicted under section 409 read with section 109 Indian l"enal Code and section 467 read with section 109 Indian Penal Code and was s.entenced to undergo rigorous imprisonment for a period of two years and to pay a inc of Rs. 25,000 or in default to undergo rigorous imprisonment for a further period of eight months on the first count and to undergo rigorou• imprisonment for a period of one year on the second count.

The oubstantive sentences of imprisonment in the case of each' of the t1110 accused were ordered to run concurrently. It was also directed that out of the fine, if realised, Rs. 46,875 should be paid to the

Gram Panchayat Neemwala. On appeal the Punjab and Haryana High Court affirmed the decision of the trial court. By special leave Mohinder Singh has filed criminal appal No. 221 of 1970 while Surat

Singh has filed criminal appeal No. 4, of 1971. This judgment would dispose of both the appeals.

The prosecution case i<J. that prior tp the year 1961, four villagi;:s, namely, Seonsar, Hailwa, Neemwala an.J Ramgarh Ror had a common Gram Panchyat known as Gram Panchyat Seonsar. Surat Singh accused was the Sarpanch of the Gram Panchyat. Ram Kishan was then a member of the Gram Panchyat and he represented village Ramgarh Ror. Each of the other three villages was also represented by a Panch. Jn 1957-58 the Government acquired large areas of shamlat land of villages Ramgarh Ror, Seonsar and Hailwa for the purpose ot establishing a big forest plantation. The shamlat land of these villages had already vested in the Panchyat under the Punjab Village Common Lands (Regulation) Act. On the acquisition of those lands, the Government paid compensation amounting to Rs. 3,51,844. Out of that amount, Rs. 1,68,844 represented the compensation for the acquisition of •hamlat land in village Ramgarh Ror. Surat Singh in his capacity as Sarpanch of the Gram Panchyat received those amounts and the compensation for each of the villages was kept distinct and separate, so that the benefit of the money should accrue only to the respective

villaes. The compen,.tion amount of Rs. 1,68,800 relating to Ram- :arh Ror was invested as follows :

(i) Rs. 1,00,000 deposited in the Kaithal Mandi Post Office

(ii) Rs. 50,000 deposited in the Reserve Bank of India New Delhi

(iii) Rs. 18,800 deposited in the Central Co-operative Bank Kai- . thal

The Gram Panchyat of Seonsar continued to function up to the beginaioC of 1961. Some amounts out of the compensation deposited were withdrawn for beini: spent for those villaecs.

In the beginning of 1961 the Government split the area of Gram Panchyat Seonsar into two separate areas and constituted two Gram Panchyats. In this new arrangement the Gram Panchyat Seonsar functioned only for two villages, namely, Seonsar and Hailwa. For villages Neemwala and Ramgarh Ror a new Gram Panchyat known as Gram Panch>at Neemwala was constituted. After the frrmat"rn of the new Paoi,;; h)at Ram Kishan PW was elected Sarpanch of Grcm Panchyat Neemwala, while Surat Singh continued as Sarpar ct of Gram Panchyat Seonsar. After the elections Ram Kishan as Sa1pa1 'b of Gram Panchyat Neemwala made a demand for the custody ot tt.e

Pancbyat record relating to the two villages Neemwala and Ramgarb Ror and also asked for the payment of the amount standing in the account of village Ramgarh Ror. Surat Singh eccused, however, put off Ram Kishan PW. Ram Kishan thereupon made an application to the higher authorities. Surat Singh accu!'Cd thereafter transferred the deposit of Rs. 1,00,000 in the name of Ram Kfahan as Sarpanch of the new Panchyat. No steps were, however, taken by Surat Singh accused to transfer the remaining amount. As Surat Singh did not render accounts, Ram Kishan PW consulted Mohinder Singh Advocate accused and on the latter's advice filed a suit for rendition of the accounts against Surat Singh in the Court of Sub Judge at Kaith.al, Mohinder Singh accused was also engaged by Ram Kifhan PW as his counsel in that cllfe. Ram Kishan then learnt that Mohinder Singh accused had good relations with Surat Singh and he, therefore, requested Mohinder Singh for his help for the return of the balance of the amount lying with Surat Singh. On the advice given by Mohinder

Singh, Ram Kishan got passed resolution DB/I by Gram Panchyat Neemwala on May 14, 1963 whereby Ram Kishan was authorised on behalf of the Panchyat to receive the amount due from Gram Panchyat Seonsar. Ram Kishan also handed over memorandum PWJ/A which had been issued by the Reserve Bank of India for the deposit of Rs. 50,000 to Mohinder Singh accused. Ram K.ishan thereafter made enquiries from Mohinder Singh about the amount of Rs. 50,000 but on each occasion Ram Kishan was put off by Mohinder Singh by saying that the amount had not been transferred and that as soon as it was done, he would get in touch with Ram Kishan. As the payment of the amount was being delayed and some funds were needed for the school building, Ram Kishan talked to Mohinder Singh in the first week of December 1963 about the payment of Rs. 6,000 which WM due as interest. Mohinder Singh then told Rain Kishan to come to his office on December 13, 1963 with the receipt book of the Panchyat and its official seal. Mohinder Singh also mentioned that he would send for Surat Singh accus, d on that day and would secure the payment of the interest amount of Rs. 6,000 as well as of the principal amount if the same too was received.

On December 13, 1963 at about 10 a. m., it is stated, Ram Kishan PW accompanied by Mussadi PW went to the office of Mo hinder Singh accu, ed with the official receipt book and seal of Neemwala Pancbyat.

Both the accused were present in the office. Mo hinder Singh accused then called a boy aged about 14 or 15 years and got something written 5-M 45.Sup CIJ7~

522 SUPRE;\fE COURT REPORTS [19741 3 s.c .•.

on the official receipt book which had been brought by Ram Kishan.

Ram Kishan knows only Landa character and is otherwise .illiterate.

Mussadi too is illiterate. Both Ram Kishan and Mussadi kept sitting at some distance smoking Hookah. Ram Kishan was then called by Mohinder Singh accusod and his signatures were obtained on receipt DA a• well as counterfoil Pl of that receipt. The official seal of the Gram Panchyat was also taken from Ram Kishan and wa• affixed both on the receipt and the counterfoil thereof under the signotures of Ram Kishan. Receipt DA was torn off from the receipt book by Mohinder Singh accused and was handed over to Surat Singh accused. When Ram Kishan protested that the receipt had been taken from him without his being handed over any money, he was assured by Mohinder Singh accused that he would be taken to the bank and paid the money there. Ram Kishan, Mussadi and the two accu•ed then went to Cooperative Bank Kaithal. The clerk on duty in the bank told Mohinder

Singh that the sum of Rs. 6,000 on account of interest could not be paid in cash without sanction but he would transfer the amount in the name of Gram Panchyat Neemwala from the account of Gram Panchyat Seonsar by a book entry. The amount of Rs. 6,000 in this way transferred to the account of Gram Panchyat Neemwala. Surat Singh accused then went away, while Ram Kishan, Mussadi and Mohinder Singh went to the office of Mohinder Singh. At the office Ram Kishan demanded back the receipt from Mohinder Singh as the amount had not b>en paid in ca.h. Ram Kishan w.,, howeve•, told by Mohinder Singh that the receipt was with Surat Singh. Mussadi PW was then sent to call Surat Singh but the latrer declined to come.

Mohin4er Singh told Ram Kishan that he need not worry. Mohinder Singh also wrote the word "Cancelled" on the counterfoil Pl. Mohinder Singh further promised to get the original receipt back from Surat Singh. Ram Kishan and Mussadi then came back to the village. Some days later a fresh election was held and Mehar Chand became the Sarpanch of Neemwala Panchyat.

According further to the .pro>ecution case, about a month after the fresh election! Ram Kishan learnt from an overseer of Block Samiti Chika that Surat Singh had withdrawn the amount of Rs. 50,000 from the bank and was giving out that ~~ had paid that money to Ram Kisban and got a receipt from Ram Kishaoi for that11mount. Ram Kishan at first did not attach. much importance to that talk but when the rumour persisted, Ram Kishan learnt on en11uiry that the amount ha<! already been withdrawn by' Surat Singh accused some months earlier. Ram Kish.an then made a complaint to the District Magistrate Karna! on June 12, 1964 praying that a caso might be registered against. the

accusod under sections 1208, 409, 467, 468 and 471 Indian Ponal Code. A case wa~ threaftcr registered against the accused.

During the investigation of the case it transpired that an amount of Rs. 46,8/S Which was lying in deposit with the Reserve Bank of India in the accaunt of Gram Panchyat Seonsar was sent on July 12. 1963 by bank draft lo Surat Singh. The aforesaid amount was credited in the nccaunt of Snrnt Singh whh tho Co-oporati\'e Bank Kaithal

on July 18, 1963. The same day, i.e. July 18, 1963 Surat Singh withdrew the amount of Rs. 46,875 from the bank by means of a cheque. 11 further transpired during the investigation that receipt DA which was got signed from Ram Kishan was for an amount of Rs. 46,875 and that the said receipt bore the date July 18, 1963. Writing marked A was also made on copy DB of resolution DB/I. The writing was as under :

"Rs. 46,875 received.

Receipt accordingly issued.

Thumb lmpres.ion, Ram Kishan Sarpanch, Neemwala

18-7-63."

The charge which was framed agaimt Surat Singh was that he had committed criminal breach of tru't in respect of Rs. 46,875 while that framed against Mohinder Singh wa0 that he had abetted the commission of the above offence. There were also charges against the two accused about their having forged the writings purporting to be receipts issued by Ram Kishan in respect of the amounts of Rs. 46,875. Surat Singh was further charged for keeping in his poFSession the forged receipts for fraudulent and dishonest U>e of the same.

Al the trial Surat Singh accused admitted that a sum of Rs. 1,68,844 had been received as compensation for acquisition of the land of village Ramgarh Ror. Surat Singh furthe1 admitted that out of that amount, Rs. 50,000 had been deposited in the Reserve Bank of India.

It was not disputed by Surat Singh that the Gram Panchyat Seonsar had been split into two Panchyats. According to Surat singh, he withdrew on July 18, 1963 Rs. 46,875 found due on the basis of

depsitcertificate of the value of Rs. 50,000 and he paid the same amount to Ram Kishan PW as per receipt Ex. A. on DB as well as the official receipt DA. Surat Singh denied having gone to the office of Mohinder Singh on December 13, 1963. The allegation that the receipts were fabricated or that any amount had been misappropriated by Surat Singh were denied by him.

Mohinder Singh accused admitted aving filed a suit as counsel of Gram Panchyat Neemwala against Surat Singh. Mohinder Singh denied the other allegations against him. Mohinder Singh expressed ignorance about the withdrawal of money from the bank by Surat Singh on July 18, 1963: Likewise the allegation that Ram Kishan and Mussadi had visited his office on December 13. 1963 was demed by Mohinder Singh.

Mohinder Singh also denied that the word "Cancelled" on counterfoil Pt of receipt DA was in his hand.

The trial Court,.as mentioned earlier, accepted the prosecution allegations and convicted and sentenced the two accused as above. On ,1pp.!al the High Court .affirmed the jt1dgmcnt of the tna1 court.

In appeal before us Mr. Nuruddin, learned council for the appell ants has taken us through the evidence on record and has contended that the amount of Rs. 46,875 after being withdrawn from the bank on July 18, 1963 was paid by Surat Singh to Ram Kishan. It is farther contended that Ram Kishan instead of accounting for that amount bas falsely involved the two accused in this case. As against that, Mr. Goswami on behalf of the state has supJiOrted the judgments of the High Court and the trial court and has urged that no case has been made for interference with the view taken by those courts.

We have given the matter our consideration and find that there are 11Jaring infirmities in the prosecution case and as such, it is not possible to sustain the conviction of the accused. It is in the evidence of Kitab Singh (PW 4) who was posted as an official in the Kaithal Co-operative Bank that on July 18, 1963 Surat Singh withdrew the amount of Rs. 46,875 from that bank after that amount had been transferred from the Reserve Bank of India New Delhi. The accused have brought on the record receipt DA. It is a printed receipt in Hindi in the prescribed form. The necessary particulars have been filled in this receipt. The receipt is dated July 18, 1963 and according to it, Rs. 46,875 were received by Ram Kishan PW from Surat Singh Sarpanch Seonsar. This receipt admittedly bears the signatures of Ram Kishan in Landa character and also bears the seal of Gram Panchayat Neemwala. In addition to receipt DA, the accused have produced another receipt about the payment of Rs. 46,875 by Surat

Singh to Ram Kishan. This receipt is on copy DB of resolution DBjl which had been passed by Gram Panchayat Neemwala on May 14,1963. Ram Kishan PW was authorised by this resolution to receive the amount of Rs. 50,000 which had been deposited in the Reserve Bank of India and to issue a receipt after receiving that amount. Copy Ex. DB is admittedly in the hand of Mukand Lal (PW 13), who wa• the Secretary of Panchayat Neemwala and is signed by him. The receipt is in the form of writing A wherein it is recited that Rs. 46,875 had been received by Ram Kishan and he had also issued a receipt in token of his having received that amount. The writing is dated July

I~, 1963 .. The accused exami_ned Gian Parkash Sharma (OW 3) Fmger. Prmt Expert, whose evidence shows that the thumb impression on writing marked A tallied with the admitted thumb impression of Ram Kishan PW. Ram Kishan PW also did not deny that the thumb impr; ession undernath wr.iting !'larked A was his own. According to him, the thumb 1mpresSion might be hIS own. There is in addition evidence on the record that the writing marked A was in the hand of Chaudhry Daryao Singh, who was the Manager ofro-operative Bank in July, 1963. Chaudhry Daryao Singh is now dead, but the fact that the writing marked A on Ex. DB is in the hand of Chaudhry Daryao Sin&h is proved by the testimony of Kitab Singh (PW 4) who was ihchar30 of the Co-oprative Bank, as wen as by that of Nihal Singh

(DW I), who 19 a first cousm of Daryao Singh deceased and is familiar with his handwriting. The receipt DA as well as the writing marked A on which were signed and thumb marked by Ram Kishan PW sow tht Surat Singh immediately after withdrawing the amount of . ..

got the date and amount scored off and got inserted another date and A amount. Ram Kishan may be illiterate but there must be a limit µp to which the benefit of illiteracy can be extended to him. The fact that Ram Kishan is illiterate cannot induce the court to ignore the infirmities in his evidence or to fill in lacunae in the pr.osecution case.

In any case, this fact would not justify the benefit of the doubt being given to the prosecution, instead of to the accused.

An attempt was made by the prosecution to show that the receipt book from which receipt DA was issued had been purchased on October 24, 1963 from Harish Chander (PW JO), as per cash memo PWl/D. This cash memo, however, relates to the sale of receipt book No. 9.

There can be hundrede of such receipt books and it is admitted by Harish Chander that he cannot say whether the cash memo relates to the receipt book from which receipt DA had been issued or to some other receipt book. It, therefore, cannot be said to have been proved that receipt book from which receipt DA we.s issued had been purchased on October, 1963.

There are alsG "Some other circumstances which create a doubt about the correctness of the prosecution allegati0ns, It is admitted by Ram Kishan PW that long before he made a complaint to the District Magistrate, he came to know that SuraLSingh was npresenting that he had paid the amount of compensation which was lying in deposit with the Reserve Bank of India to Ram Kishan and that Surat Singh was in possession of receipt for the payment of that amount. Surat Singh also mentioned in a suit brought by him in August 1964 against Ram Kishan that he had paid the amount of Rs. 46,875 to Ram Kishan as per receipt dated July 18, 1963. It would, therefore, follow that Surat Singh has always been taking the stand that he had paid the amount of Rs. 46,875 to Ram Kishan on July 18, 1963 as per receipt issued by the latter and that the plea taken by him at the trial was not the result of an afterthought.

Another fact which may also be mentioned in the above context i' that a suit was brought in September 1962 by Ram Kishan PW on hehalf of Gram Panchayat Neemwala against Gram Panchayat Seonsar through Surat Singh accused for rendition of account in respect of the assets of Gram Panchayat Neemwala. Jn that suit the plea of Surat

Singh was that the account between the parties had been settled.

Evidence was also led by Surat Singh to that effect. The court accepted this evidence and held as per judgment dated October 19, 1963 that the accounts between the parties had boen settled. The plaintiff's suit was accordingly dismissed. In the face of that finding of the civil court, it would appear to be incongruous to convict Surat Singh on the basis that the amount of Gram Panchayat Neemwala was still due from him.

MOHINDER SlNGH v. HARYANA (Khanna, /.) 527

We thus find that the prosecutic>n case suffers from glaring infirmities.

In fact, there are some circumstances which lend credence to the plea of the accused. rt is, in our opinion, not pos'iible to sustain the conviction of the accused on the material brought on reeord.

We accordingly accept the appoals, set aside the conviction of the accused and acquit them.

Before parting with this case, we would like to refer to one aspect.

A huge amount belonging to the Gram Panchayat Neemwala is alleged to have been misappropriated by smeone. The case of the prosecutic;>n is that misappropriation of the amount was facilitated by the illiteracy of the Sarpanch of the Gram Panchayat. It may, therefore be necesliary that some sillutary directions are issued or rules made so that because of the illiteracy of a Sarpanch the funds of the Panchayat are not emh.zzled or used for any purpose other than that of the Panchayat.

P.ll.R.

Appeals allowed

H

MOHINDER SINGH & ANR

v

STATE 0!' HARYANA March

H. R. KHANNA

V. R. KRISHNA IYER, JJ

Indian Penal Code

sections 409, 461 read with 109 and 474

Indian Penal Code

section 467

Indiah Penal Code

S 47

Nuruddin Ahmad

U.P. Singh

N. N. Goswamy

R. N. Sachthey

KHANNA

Mohinder Singh

Additional Sessions Judge Karna!

Surat Singh

section 409

Indian Penal Code

section 467

section 109

Indian Penal Code

section 474

Indian Penal Code

section 409

section 109

section 467

section 109

Indian Penal Code

Surat

Singh

J Ramgarh Ror

Ram Kishan

Ramgarh Ror

Seonsar

Hailwa

Ramgarh Ror. Surat Singh

Ram- :arh Ror

Kaithal Mandi Post Office

Reserve Bank of India New Delhi

Central Co-operative Bank Kai- . thal

Neemwala

Ram Kishan

Ramgarb Ror

Ramgarh Ror

Ram Kfahan

Court of Sub Judge at Kaith.al

Ram Kifhan

Mohinder

Singh

Gram Panchyat Neemwala

May 14, 1963

Gram Panchyat Seonsar

Reserve Bank of India

Ram K.ishan

Rain Kishan

December 13, 1963

Mussadi

Mo hinder Singh

Neemwala Pancbyat

Landa

Mussadi

Cooperative Bank Kaithal

Gram Panchyat Neemwala

Gram Panchyat Seonsar

Mohin4er Singh

Mehar Chand

Neemwala Panchyat

Block Samiti Chika

Ram Kisban

Ram Kishaoi

Ram Kish.an

District Magistrate Karna

June 12, 1964

sections 1208, 409, 467, 468 and 471

Indian Ponal Code

July 12. 1963

Snrnt Singh

July 18, 1963

Ram Kishan Sarpanch

Surat singh

December 13. 1963

Nuruddin

Goswami

Kitab Singh

Kaithal Co-operative Bank

Surat Singh Sarpanch Seonsar

Gram Panchayat Neemwala

May 14,1963

Mukand Lal

Gian Parkash Sharma

Chaudhry Daryao Singh

Chaudhry Daryao Sin&h

Nihal Singh

Daryao Singh

October 24, 1963

Harish Chander

Harish Chander

SuraLSingh

Gram Panchayat Seonsar

October 19, 1963


DAYA SINGH (dead) THROUGH L.RS. & ANR. v.

DHAN KAUR March 5, 1974

[K. K. MATHEW AND A. ALAGIR!SWAMI, JJ, J

Hbu!u Succession. Act, 1956, sec. 8--Whether effects change in old Hindu Law- B Death of female limited owner who succeeds last male holder-Customary Law of Punjab whether app/icable-Held, succession opens on death of limited owner and

would be governed by law then in force-Interpretation of statUtes.

The respondent's father, W,· who owned the suit property died in 1933. His widow, who succeeded to the estate, gifted-the property to her daughter, the res. pondent. The appellants :filed a suit as reversioners ofW questioning the gift. The suit was decreed and the decree was confirmed on appeal After coming into force C of tho Hindu Succession Act on 17-6-.1956, the widow again made a gift of the same lands to the respondent. She died in 1963. The appellants then filed the sui~ out of which this appeal arose, for possession of the lands alleging that the second gift \Vas void. The trial court decreed their.suit but on appeal the respondent succeeded in the first Appellate Court as well as in the High Court on second appeal.

On appeal by.special Ieave_to this Court,

Dismissing the appeal,

HELD - (i) Following the decisions of the Privy Council in Moniram Kolita v.

Keri Kofitani, I.LR. S Calcutta 776 at 789 and Duni Chand v. Anar Kali. A.I.R. 1946 P.C.173, (infra) the words .. dying intestate" in Sec. 8 of the Act must be interpreted as merely meaning .. in the case of intestacy of a Hindu male'" and to place this inter- pretation on the Act is not to give retrospective effect to its provisions. The refe- . rence is only to the fact of intestacy. The material point of time is the date when the succes.sion opens, namely, the death of the widow. Thus this propositions follow (i) Succession opens on the death of the limited owner, and (ii) the law then in force would govern the succession.

[532D-O]

Moniram Kolita v. Keri Ko/itani, l.L.R. S, Calcutta 776 789 and Duni Chand

v. Anar Kali, A.I.R. 1946 P.C. 173, followed.

Eramma v. Verrupanna, (1966) 2 S.C.R. 626, explained and distinguished.

Banso v. Charan Singh, A.I.R. 1961, Punjab 45 and Kuldip Sing v. Karnail Singh, A.I.R. 1961, Pwtjab, 573, approved.

Kempiah v. Giriga1nma, 'A.I.R. 1966, Mysore 189, overruled. __ - F Renuka Bal~ v. Aswini Kumar A.I.R. 1961,_Patna -499 ind Sam p, thla.n:liri v.

Lakshmi Ammal, A.I.R. 1963 Madras, 50, distinguished.

(it) Succession to wS-Cstate in the present case opened when his widow died and it would have to be decided on the basis tJ:lat W died in 1963 when his widow died. In that case succession to his estate would have to be decided on the basis of s. 8 of the Hindu Succession Act. The accepted position under the Hindu law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. If, therefore. succession opens and is to be decided on the basis of the last full ,

owner dying on the date of the death of the limited owner it is onJy the law in force at the time of the death of the limited owner that should govern the case. To bold that the old Hindu law pplies to such a case is to allow your imaWaation to boggle. [5331<1.-c, GHJ

Eastoid Dwellings Co. Ltd. v. Fmsbury Borough Council, 1952 A.C. 109, 132,

per Lord Acsquit and Venka taclta/am v. Bornbay Dyeing & Mfg. Co. Ltd., (1959) H S.C.R. 703, referred to.

 The reversioners• right being a mere Spes succeSsionis there is no quesHon of impairing existing rights by adopting the interpretation we place on s. 8 apart from

DAYA SINGH v. OHAN KAUR (A/agiriswami, l.) / 529

the fact that it does not amount to giving retrospective operation to s. 8 . Of course, if the property had already vested in a person under the old Hindu Law, it cannot be 1 divested. We can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the A.ct. In the view we have taken it is s. 8 of the Act that applies and not the Customary Law.

[534C-D, E-F.535G]

Clv1L AppELLATE JURISD1CTION: Civil Appeal No. 1825 of 1967.

Appeal by special leave from the judgment and order dated the 18th May, 1967 oft he Punjab and Haryana High Court in L.P.A. No. 158 of 1967.

Naunit Lal and La/it Kohli, for the appellant. 0.P. Verma, for the respondent The Judgment of the Court was delivered by

ALAGIR!SWAMI, J.-The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent. After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in April,

1933. The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift.

The suit was decreed and the decreo wli confirm'd on app, al. After coming into force of the Hindu Succession Act on 17-6-1956 the widow again made a gift of the same lands to the respondent. She died in 1963. The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging that the second gift was void. The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal.

There is no doubt that Wadhawa Singh'swidow had no right to make a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husband's estate would bind the respondent who wa' also a party to that suit. The question then is whether the coming into force of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference. Had not the widow made the gift to the respondent in 1933, she would ave become an absolute owner of the property as a result of s. 14 of the Hindu Succession Act and the gift made by hei subsequently in favour of the respondent could not have been questioned. But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and, therefore, did not become a full owner with the result that the subsequent gift made by hei in favour of the respondent was of no effect. This point that unless the limited owner is in possession of the property section 14 does not apply has now been settled by decisions of this Court beyond dispute.

What then is the effect of the provision of s. 8 of the Hindu Succession Act in the circumstances of this case. The Punjab High Court in its decisions in Banso v. Charan Singh (AIR 1961 Punjab 45), and Ku/dip Singh v. Karnail Singh (AIR 1961 Punjab 573). where the facts

were similar to the present case, has taken the viev..' that when a widow dies after the coming into force of the Hindu Succession Act the next heir to h'C h'.lsband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husand and held that the daughter succeeded in preference to the reversioners.

Tile Mysore High Court on the other hand in Kempiah v; Girigamma (AIR 1966 Mysore 189) has held that on the death of the widow succession would bi; governed by the Hindu Law which was in force when the last male holder actually died. The Patna High Court in Renuka Bala v. Aswini Kumar (AIR 1961 Patna 498) was disposed to take a similar view though the case before it was concerned with succession to the property of a female under s.15. The Madras High Court in Sampathkumari v. Lakshmi Ammal (AIR 1963 Madras 50) also took the view that in such circumstances s. 8 of the Hindu Succession Act would not apply. But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession, and therefore, s. 14 was applicable.

Lastly, we have the decisibn of this Court in Eramma v. Verrupanna (1966 2 SCR 626). In that case this.Court after setting out the provisions of s. 6 of the Hindu Succession Act observed:

"It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of s. 8 must be construed in the context of s. 6 of the Act.

We accordingly hold that the provisions of s. 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, s. 8 of the Act will have no application."

Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts exceptthe Punjab High Court.

But it should be noticed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did not arise before this Court on the earlier occasion.

Th.e decisions of the Madras High Court and the Patna High Court are not directly in point.

In the case before this Court the two women were in possession of property whose last male holder, who had died before coming into force of the Hindu Succession Act, was their step son. They were not, therefore in legal possession of the properties of the last male holder. The question that had to be decided was whether because of the coming into force of the Hindu Succession Act they were entitled to succeed under s. 8, and the further question whether s. 14 would be attracted as they were actually in possession. It was held that as they were not legally in possession s. 14 would not apply. It "'"" in that context that it was said that where a male Hindu died before the Act came into force i.e.; where succession opened before the Act, s. 8' of the Act will have no application. The poi11i that succession

DAYA SINGH v. OHAN KAUR. (Alagiriswami, /.) 531.!

might open not only when the male Hindu died but also subsequently. again when a limited owner who succeeds him dies was not taken. into account. There was no need and no occasion to consider suCh a. contingency i'n that case. There was the further fact that the last male holder was succeeded on his death by persons who were then his nearest heirs and the property vested in them could not be divested by the Hindu Succession Act coming into force subsequently though. this fact was not adverted to in the udgment. This Court had, therefore also no occasion to consider the effect of the earlier decisions on the question as to what happens when a female limited owner, whether. she is a widow. mother or daughter who succeeds the last inale holder. dies.

That position may now be cunsidered. It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita v. Kerb Kaliteni (\LR 5 Calcutta 776 at 789) that :

"According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship-as to which see the Shivagunga case (!)-does not take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest.

Her estate is an anomalous one, and has been compared to that of a tenant-in-tail. It would perhaps be more correct 'to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the tern1ination of it, it is impossible. to say who are the persons who will be entitled to succeed as heirs of the husband (2). The succession does not open to the heirs of the husband until the termination of the widow's estate.

Upon the termination of that estate the property descends to those who would ha1•e been the heirs of the husband if he had lh•ed up to and died at the moment of her death (l)."

In the subsequent decision in Duni Chand v. Anar Kali (AIR 1946 PC 173) the Privy Council observed :

" .... during the lifetime of the widow, the reversioners in Hindu Law have no vested interest in the 'estate but have a

mre spes successioniS or chance of succession, which is a purely contingent right which may or may not accrue, that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force. ---- (!) 9 Moore's I.A., 604:-·-

(2) lei., 604

(3) Id., 601.

In the argument before their Lordships, reliance was placed upon the words "dying intestate" in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in 17 Lah 356(1) at p. 367, that the words are a description of the status of the deceased and have no reference and are not intended to have any reference (o the time of the death of a Hindu male. The expression merely means "in the case of intestacy of a Hindu male". To place this interpretation on the Act is not to give a retrospective effect to its provisions, the materials point of time being the date when the .succession opens, nan1ely, the death o_fthe widow.

On the position of reversioners in Hindu Law, opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All. 1041(2) mentioned above, are in agreement. It was said, for jnstance, that until the termination of the widow's estate, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband; 9 M.l.A. 539 (') at p. 604. Tlze succession does not open to the heirs of the husband until the termination of the widow's estate. Upon its termination, the property descends to those who would hare been the heirs Of the husband !f lze lzad lived up to and died at the moment of her death 7 /. A. i1 S (4) at p. 154."

'It would be noticed that the Privy Council interpreted the words ·"dying intestate" as merely meaning "in the case of intestacy ofa Hindu male" and said that to place this interpretation on the Act is not to give r.etrospective effect to its provisions. Those are the very words found in s. 8. These may be contrasted with the words of s. 6 "where 'a male Hindu dies after the commencement of this Act." Here the reference is clearly to the time of the death. In section 8 it is only to the fact of intestacy. The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow. It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 where the two contrasting expressions found in the Hindu Succession Act, 1956 are not found. The case for the interpretation .of the words "dying intestate" under the Hindu Succes sion Act is stronger. The words "where a male Hindu dies after the •commencement of this Act" in section 6 and their absence in section s, are extremely significant. Thus two propositions follow: (I) 'Succession opens on the death of the limited owner. and (2) the law

' 11en in force would govern the succession.

Now if this proposition is correct, as we hold it is, that wnere a female heir succeeds to an estate, the person entitled to succeed on the basis as if the last male holder had lived up to and died at the

(I) Mt. Rajpali Kunwer v. Su1ju Rai (58 All. 1041).

(2) Shakunta{a Devi v. Kauhsalya Devi (11 Lah 356).

(3) Katama Natchiar v. Rajah of Shiva G11nga (9 MIA 539).

(4) Mo11ira111 Kolita v. Kerry Kolita11g (1 TA 115: S Cal 776).

DAYA SINGH v. DHAN KAUR (Alagiriswami, /.) 533:

death of the limited owner, succession io Wadhawa Singh's estate in the present case opened when his widow died and it would have to be decided on the basis that Wadhawa Singh had died in 1963 when ms widow died. In that case the succession to his estate would have to be decided on the basis of s.8 of the Hindu Succession Act. 1 he various High Courts which have held otherwise seem to have been oppressed by the feeling that this amounted to giving retrospective effect to s. 8 of the Hindu Succession Act whereas it is only prospective.

As the Privy Council pointed out it. means no such thing. The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. It would be un-reasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to. If the person who is likely t~ succeed at the time of the limited owner's death is not, as happens very often; likely to be the person who would have succeeded if the limited owner had not intervened, there is nothing unrearnnable in holding that the law as to the person who is entitled to succeed on the limited owner's death should be the law then in force and not the la'\ in force at the time of the last full owner's death.

The Madras High Court thought that the decision of the Privy Council in Dimi Chand v. Anar Kali (supra) was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose. The Mysore High Court also thought that the death referred to in section is actual death and not fictional death. Jn East end Dwellings Co., Ltd. v.

Finsbury Borough Council (1952 A.C. 109

132) Lord Asquith of Bishopstone observed :

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, ifthe putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that.having done so, you must .cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". ~

This observation was cited with approval by this Court in Venkatachalam v. Bombay Dyeing & Mfg. Co., Ltd. (1959 S.C.R. 703) If, the!'l'fore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner th" inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case. J"o hold that the old Hindu Law applies to such a case is to allow your imagination to bcggle, In the case decided by the Privy Council in Duni Chand

v. Anar Kali (supra) if. this principle had been applied the new heirs

introduced by the Hindu Law of inheritance (Amendment) Act, 1929 . could not have then come in. We are not impressed with the reasoning of the Patna Highcourt that because the change brought about by that Act is different from the change brought about by the Hindu Succession Act a different conclusion follows. We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance( Amendment) Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the .Hindu Succession Act which makes a much more radical change in the Hindu Law should have similar application. The Mysore High Court thought that the Hindu Succession Act not being a mere declaratory Act, retrospective effect shoul.d not be given to it so as to impair existing rights and obligations. But the reversioners' right being a mere spes successionis there is no question of imp1iring existing rights by adopting the interpretation we place on section 8 apart from the fact that, as earlir pointed out, the interpretation does not amount to givig retrospective effect to section 8.

Of course, if the prop:rty had already vested in a person under the old Hindu Law it cannot be divested.

We must also point out that the classes of cases where such a question is likely to arise is very limited. Where a widow, mother or daughter was in possession of the estate on the coming into force of the Hindu Succession Act she would become full owner under the provisions of the s. 14 of the Act.

Even if a widow was in possession of the share belonging to her in the joint family estate under the provisions of the Hindu Women's Right to property.Act, 1937, she would become a full owner under s. 14. In both those cases s. 8 would have no op.ration. It is only in rare cases, like the present, that .the ues tion is likely to arise at all and we can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Hindu Succession Act.

Mr. Naunit Lal appearing for the appellant argued that the result of the decision of this Court in Eramma v. Verrupanna (supra) is that on the death of Wadhawa Singh's widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled' to succeed to the ancestral property .of the father i.n preference to the reversioners should apply and the appellants are entitled to succeed. There is no doubt about the position under the Customary Law of Punjab before coming into force .of the Hindu Succession .f.-ct. In Rattigan's Digest of the Customary Law' y, ubf; eh:~· by the University Book Agency (14th Ed.), paragraph

.r~ at page 132 it is stated :

"23.(1) A daughter only succeeds to the ancestral landed prop:rty. of h•r fllther, if an agriculturist, in default :-

(IJ Of the heirs mentioned in the preceding paragraph; and

DAYA SINGH \', DHA~ KAUR (AlagirisW(lf'Jli, J.) 535

(2) Of near male collaterals of her father, provid<d that a married daughter ometimes excludes near male collaterals, especially amongst Muhammadan tribes :

(a) where she has married a near collateral descendant from the same common ancestor as her father; or

(b) w:1ere she has, w; th her husband continuously Jived with her father since her marriage; looking after his domestic wants, and assisting him in the management~ of his estate; or

(c) where being married to a collateral of the father's family, she has been appointed by her father as his heir. ·

(2) But in regard to the acquired property of her father, the daughter is preferred to collaterals."

It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent's mother to her. There is no doubt that Rattigan's work is an authoritative one on the subject of Customary Law in Punjab.

This Court in Mahan/ Salig Ram v. Musammat Maya Deii (1955) SCR 1191 at '1196) said : •

"Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and nonancestral lands are stated in paragraph 23 uf Rattigan 's Digest of Customary Law. It is categorically stated in sub-paragraph (2} of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree, Rattigan's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab''. Indeed the correctness of this paragraph was not disputed before this Court in Gopa/ Singh v, Ujagar Singh (1).

It is not now open to the respondent to show whether any of the circumstances mentioned in sub-paragraph (2} of paragraph 23 of Rattigan's Digest of Customary Law is present here as the previous decision is res judicata between the parties anci in any case it has not been attempted to be shown m this case, But in the view we have taken that it is s, 8 of the Hindu Succession Act that applies and not the Customary Law the appellants cannot succeed in this appeal.

In the result the appeal is dismissed, The appellants will pay the respondant's costs.

s. 8. w.

Appeal dis111iss('d.

(I) 1955

S.C.R, 86.

DAYA SINGH (dead) THROUGH L.RS. & ANR

DHAN KAUR

K. K. MATHEW

sec. 8

Hindu Succession Act

Sec. 8

(1966) 2 S.C.R. 626

s. 8

Hindu Succession Act

s. 8

s. 8

s. 8

Naunit Lal

La/it Kohli

0.P. Verma

ALAGIR!SWAMI

Wadhawa Singh

Wadhawa Singh'swidow

Hindu succession Act

s. 14

Hindu Succession Act

section 14

s. 8

Hindu Succession Act

Punjab High Court

Hindu Succession Act

Mysore High Court

Patna High Court

Madras High Court

s. 8

Hindu Succession Act

s. 14

(1966 2 SCR 626

s. 6

Hindu Succession Act

s. 8

s. 6

s. 8

Hindu Succession Act

s. 8

Punjab and Mysore High Courts

Hindu Succession Act

Hindu Succession Act

s. 8

s. 14

s. 14

s. 8

Hindu Succession Act

Lahore High Court

s. 8

s. 6

section 8

Hindu Succession Act, 1956

section 6

Hindu Succession Act

s. 8

Hindu Succession Act

Patna Highcourt that

Hindu Succession Act

Hindu Succession Act

Hindu Succession Act

section 8

section 8

Hindu Succession Act

s. 14

s. 14

s. 8

Hindu Succession Act

Punjab

DAYA SINGH

Rattigan

Hindu Succession Act

s. 8


KUMARPASHUPATINATHMULLAH (DEAD)BY L. RS.

STATE OF WEST BENGAL

March 5, 1974 (K. K. MATHEW AND A. ALAGIRISWAMl, 1J.J

West Bengal Estate Acq,, i.ition .Act, 1953, s. SA-Scope of.

B Under s. SA, West Bengal Estates Acquisition Act, 1953, if it was found after an enquiry that a transfer made after May S, 1953, was not bonafidc, the transfer shall stand cancelled. Under SA (7). a transfer shall be held to be not bonafide if it was made principally or partially with the object of increasing the amount of land which a person may retan, or with the object of increasing the amount of compensation payable. Under s. 6, an intermediary, holding land under a trust may retain such land; and under s. 16, in determining the net income of an inter. mediary, for purposes of determining the compensation payable to him, one of the C items to be deducted from the gross income is the amount payable by the intermedi~ afY, to a re1igious or charitable trust, out Of the income of the estate.

In 1928, a charge had been created upon an estate for the maiiltenance and seva puja of a family deity and for the performance of certain specified charitable purposes. In October 1953, the appellant, whO had inherited a half share of the estate executed a document whereby a half share in his share of the estate was set apart exclusively for the purpose for which the charge had been created earlier and the rest of the property was to be treated as absolutely free and absolved from the D claims in respect of the religious and charitable purposes. The appellant appointed him self as a trustee in respect of the property set apart for the religious and charitable purposes. He transferred his interest in the remaining portif>n of the estate to bis son and wife. The Settlement Officer held, under the Act, that tlie 1953-document executed by the appellant was not bonafi.de. His appeal, and petition in the High Court, failed

Allowing the appeal to this Court, and remanding the matter to ihe High Court for disposal afresh, E

HELD : (1) Jf the substance of the transaction of 1953 by which properties are endowed in favour of the deity is looked into there is no reason why Jt should not be called a girt. Therefore, the transaction was a transfer within the meaning of the Act [539 B-C)~

Chan1pa Bibi v. Panchira1n Nallata AIR 1963 Cal. '51 approved.

(2) 'fhe High Court ; lnd the authorities below erred in holding thnt the transfer F was not bonafide.

(a) The Settlement Officer found that the total expenditure on seva and charitable purposes was Rs. 30,000 and appellant's share therein would be Rs. J 5,000/-. It was also found that the income of the land absolutely transferred for the religiou~ and charitable purposes under the deed of 1953, is Rs. 23,000(-. But ror the execution of the document the appellant would have been .in possession of the whole of his share of the estate with only a charge amounting to Rs. 15,000/-. But the result of the document was that land yielding a larger incoine was transferred absolutely G to the deity the Settlement Officer should therefore, have given his reason as to how he arrived at the conclusion that the transfer would enable the appellant to retain a lar_gcr extent of land or entitle him to a larger amount of compensation. The Special Judge in appeal and the High Court did not go into the question at all.

[539F-H, 5408]

(b) Whether the appellant was entitled to free a portion of the estate from the charge and confine the charge to only a portion Of the estate does not affect the question whether the transfer was bonafidl? in terms of the Act.

[539H] H

(c) Merely because he transferred 'the remaining~ portion to his son and wife could not establish want of bona tides. [539HJ

(3) No question under s. 6(1) (i) of the Act arises on the facts of this case.

(S40B-C] . .

Far/u/ Rabbi Pradhan v. State of Wm Ii<n1a/ (136S] 3 SCR 307, foollwed.

CIVIL APPELLATE JUR.ISDICTION : Civil Appeal No. 1838 of 1967.

Appeal by special leave from the Judgment and Order dated the 23rd May, 1967 of the Calcutta High Court in Civil Rule No. 1119 of 1962.

Purshottam Chatterjee and Ganpat Rai for the appellant,

P. K. Chakrabarty and G. S. Chatterjee for the respondent.

The Judgment of the Court was delivered by

ALAGIR.ISWAMI, J. Gobinda Prosad Pandit, the founder of the Scarsole Raj Estate died in the year 1861 leaving a will. Aller his death in a suit between his widow and certain other claimants regarding the title to the estate it was held that a charge had been created upon the entire estate for the maintenance and seva puja of the family deity and for the performance of certain pecified charitable purposes. In 1928 thc appellant, his brother and their father who succeeded to the estate executed an arpannamah in favour of the family deity reiterating the charge created by Gobinda Prosad Pandit. On October 12, 1953 the appellant executed a document whereby a half share in a part of the estate was set apart exclusively for the purpose for which the charge biid been created earlier,.and the rest of the property was to be treated as al>Solutely free and absolved from the claims in respect of the reli gious and charitable purposes. The appellant appointed himself as the trustee. The West Bengal Estates Acquisition Act, 1953 came into force on 12·2·1954. Under that Act, the main provisions of which, in so far as they arc relevant for the purposes of thi' appeal, we shall refer to later, the estate vested in the State on 14-4-1955. Subsequently the Act was amended by introducing section 5A therein with retrospective cffeot from 5-5-1953, the date prior to that on which the bill, . which later became the West Bengal fatales Acquisition Act, was published in the Gazette. After an enquiry the Settlement Officer held that the document executed by the appellant on Octobor 12, 1953 was not bona fide. The appeal against thb decision to the Special Judge failed and so also a petition filed befvre the High Court under Art. 227 of the Co'nstitution. This appeal ha' been filed in pursuance of the special leave granted by this Court.

We shall now set torth the provisions of the Act in brief :

Under s. 4(1) of the Act a notification may be issued by the State Government that all estates and the rights of every intermediary in each such estate shall vest in the State free from all incumbranccs .

Under s. 5(1) upon the publication of such a notification the estates H and the rights of intermediaries in the estates shall vest in the State fret frC1m all it1eumbrances. It may bo stated even at thil stage that the appellant is an intermediary. Under s. SA the State Government 6-M45Sup.C.I.{7S

may enquire into any case of transfer of any land by an intermediary made botween the 5th day of May, 1953 and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was not bona fide, and if after such an enquiry the State Government finds that such tramfer was not bona fide, it shall make an. order to that effect and thereupon the transfer shall stand cancdled as from the date on which it was made or purported to have been made: Against an order passed by the State Government an appeal lies to a Special . Judge. Sub-section (7) of this s.ction lays down that a transfer shall be held to be not bona fide if it was made principally or partially With the object of increasing the amourit of land which a person may retain,. or principally or partially with the object of increasing the amount of compensaJion payable. 'Transfer' means a transfer by sale, mortgage, lease, exchange or gift.

Under section 6 an intermediary is entitled to retain various categories of land. of which it is only mcessary to refer to the category mention.id in $ection 6(1) (i) which reads :

'_'where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for apurpose which is charitable or religious or both-land held in khas by such corporation or institution, or person, for such purpose including land held by any person, not being a tenant, by leave or license of such corporation or institution or person;" •

Section 16 provides for the calculation of the gross income and the E .~ .net income of an interm>_diary. Among. the items which have to be deducted from the gro; s income in order to.arrive at the net income is • the one under section 16(1) (b) (vi) which reads as follows :

"any sum payable by such intermediary out of the income . of an estate or interest which has vested iii the State under section 5, to a corporation or an institution established exclusively for a religious or a charitable purpose or both, or to a person holding under a .. trust or an endowment or other legal obligation exclusively for a purpne which is charitable or religious or both, where such estate or interest wa~ [held partly for a religious or charitable purpose and partly for a purpose other than religious or charitable." .

Section 17 provides for the determination of the amount of compensation payable to intermediaries. ·

. The Settlement Officer held that "a charitable trust is ex-hypothesi a voluntary transfer by way of gift and it has been held that one of the various modes of giving property for religious purpose is to give it to the . trustees" and therefore it was a transfer. Before the . Special Judg! it wa> argued tli1t th!re was no tran>fer at all inasmuch as it was not an act of conveying the property from one living person to another, and that it was not at all a gift since there was no transfer •

H •

1 >..-.

• '

The. learned Special Judge rejected that contention. Similar rguments were repeated before the High Court which also -rejected that con tention. We are of opinion that the High Court as well as the authori~ ties below were right in this conclusion. The definition of the terni 'transfer' does not attract all the definitions given in the Tramfer of Property Act for th~ transactions hich are defined as transfers in the Act. If the substance of the transaction by which properties are endowed in favour of a deity is looked into we do not see why it cannot be called a gift. In Champa Bibi v. Panchiram Nahata (AIR 1963 Calcutta 551) a Division Bench of the Calcutta High Court held that 'a transfer of property by dedication to a Hindu deity is a transfer by gift within the meaning of s. 5A(7)(iii) of the West Bengal Estates Acquisition Act.

As regards the seoond point whether the transfer was bona fide or not the Settlement Officer did not apply his mind to ihe provisions of the Act which lay down what transfers would

0 be held to be not bona fide. He did not consider whether the transfer was made principally or partially with the object of increasing the amount of land which the transferor may retain or increasing the amount of compensation payable to him. He only took into consideration the fact that certain lands were transferred to the appellant's son and his wife and held that it was clear from them that the deed was made pnncipally or partially with the object of increasing the amount of land which the appellant could retain, and also with the object of increasing the amount of compensation payable under the Act. He did not go into the facts of the case 'but merely repeated the words of the section. It is found from that order itself that the total expenditure on the seva and charitable pur- poses was Rs. 30,000/- and the appellant's share therein would be

Rs.15,000/-. It is also found thattheincome of the land_absolutelytrans-. ferred under the deed of October 12, 1953 is Rs. 23,000/-. But for the

c execution of the document the appellant would have been in possession of the whole of the estate with only a charge amounting to Rs. 15,000/-.

As a reult of the document land yielding a larger income was trans- : ferred absolutely to the deity. The Settlement Officer should, therefore, have given his reasons as to how he arrived at the conclusion that the transfer would enable the appellant to. retain a larger extent of land or entitle him to a larger amount of compensation. The Special Judge merely considered that it was difficult to understand how the appellant who inherited the moiety share of the estate subject to the charge was legally competent to free a portion of the estate from the charge and confine the charge to only a portion of the estate. But that does not affect the question whether the transfer was bona fide in terms of the

Act. He took the view that the Act considered alongwith the fact that A the appellant transferred his interest in the remaining portion of the estate to his son and wife clearly established want of bona fides on the part of the appellant, and that it was done to defeat the purpose of legislation. It would be noticed that he has also not gone into the question whether the impugned transaction enables the appellant to retain a larger extent of land or claim a larger amount of compensation. The High Court did not go into this question at all. 8.

We do not consider that the facts of this case raise any question under section 6(1) (i) at all. That can arise only with regard to the situation as it existed before the execution of the impugned documen.t and under the unamended Act. The earlier document of 1928 as well as.the prior decree would not bring the lands under this section at all, as was held by this Co11rt in Faz/Ill Rabbi Pradhan v. State of West C Bengal [1965] 3 SCR. 307.

In the result this appeal is allowed. The High Court will dispose of the matte( a fresh in accordance with law. There will be no order as to costs.

V. P. S.

AppeaJ allowed •.

KUMARPASHUPATINATHMULLAH (DEAD)BY L. RS

KUMAR PASHUPATI NATH MULLAH (DEAD) BY L.RS

STATE OF WEST BENGAL

1974 (K. K. MATHEW

s. 6

s. 16

s. 6(1)

CIVIL APPELLATE JUR.ISDICTION

Calcutta High Court

Purshottam Chatterjee

Ganpat Rai

P. K. Chakrabarty

G. S. Chatterjee

ALAGIR.ISWAMI

Gobinda Prosad Pandit

Gobinda Prosad Pandit

October 12, 1953

section 5A

Octobor 12, 1953

Art. 227

s. 4(1)

s. 5(1)

5th day of May, 1953

section 6

Section 16

section 16(1)

section 5

Section 17

s. 5A(7)(iii)

section 6(1)

[1965] 3 SCR. 307

V. P. S.


l c

• G

LAX MAN

l'.

STATE INDUSTRIAL COURT & ORS.

I March p, 1974 ( P. JAGANMOllAN REDDY ANDS. N. DWIVEDI JJ.]'

C.P. and Berar Industrial Disputes Settlement Act 1947-s.16-JVhether a <lis- 1nissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the S:ate Act for obtaining redress. . _ .

Appellant, a motor driver in the Milk Scheme at Nagpur, v, ras dismissed from servitc by the order of Dairy Development Ccrnmissioner, Bombay. The appellani was on probation for 6 months after bis appointrr, ent and he continued in service more than 2 years y,.hen his services were terminated. The appellant filed an application, under s. 16 of the C.P. and Derar Industrial Disputes Settlement Act, 1947, before the Asstt. Labour Commissioner, praying for re-instatement with back \\-ages and continuity of employment, The Asstt. Labour Commissioner set aside the order of termination and directed respondents 3 to 5 to reinstate the appellant with back \Vages.

Respondents 3 to 5 filed a revision f:efore the State Industrial Court u/s. 16(5) of the Berar Act. That Court set aside the order and rCmandetl the case for a fresh decision as to whether the appeIIant was a pern anent employee and whether, he \vas illegally retrenched. After remand the Deputy Commissioner of Labour concluded that the appellant was not a permanent employee under the provisions of the Standing Orders. He, however held that as . the employee 'vas in continuous service, he had been retrenched illegally and in violation of s. 25F of the Industrial Disputes Ac~. the Central Act.

Against this Order, respondents 3 to 5 filed a. revision application u/s, 16(5) of the State Act before the State Industrial Court.

This Court set aside the retrenchment order and held that the appellant was entitled to retrenchmen't compensation and so remaned the case for determination of what that compensation should be, Against this order respondents 3 to 5 filed a petition before the High Court. The appellant also filed a petition under Art. 226 of the Constitution for modification of the order of the State Industrial Court and for renstatement with back wages . etc.

Both these petitions were heard together and by a common judgment, allowed the application of Respondents 3 to 5 holding that the appellant was not an ••employee within the meaning of s. 2(10) of the State Act as his dismissal. discharge

- or removal was not on account of an Industrial dispute and accordingly, the appellant's petition was_ dismissed. ·

Tue question which fell for consideration wa r,/J whether under the State Act a dismissed, discharged or retrenched employee was an .. employee" within the _meaning-of s.2(10) of the Act and could invoke the jurisdiction of the authority under the State Act for obtaining redress.

Allowing the appea1,

HELD : (i) A combined reading of the definition of an "emPloyee" ins. 2(10) with s.2 (12) & (13) would show that those who had ceased to be in service were also ic.cluded witin the definition of an "'employee". [546A-B]

(ii) Under s. 16(2), an employee working in an industry to which a notification under 5ub-s. (1) is applied can within 6 months of his dismissal, discharge, removal or suspension apply to the labour commissioner for re-instatement and payment of compensation for loss of wages. An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under s.2(10), and what is meant by an .. inustrial dispute'' can be ascertained by reference to s.2(12), under \\'hich any dispute or difference connected with an industrial matter arising between employer and employee or -between employers or employees is an industrial dispute.

[546C-;-EJ

Since the question of re-instaten1ent is an industrial dispute, in the present case, the appellant would be an employee within the n1eaning of s.2 (10) of the Act for the purposes of availing hin1self of the right under sub-s.(2) of sec. 16 of the Act. l546-F]

Central Provinces Transport Scrrices Ltd., /\'agp11r v. Ragl11111a1h Gopal Pat1rardha11, [1956j S.C.R. 956; Western India Automobile Association v. fndustria/ Tribunal, B0111bay, [1949] F.C.R. 321 and Bennett Co/en1a11 & Co. (Prirate) Ltd. v. Punya Pri.ia Das Guptu, [1969} L.L.J. 554, referred to .

. CIVIL APPELLATE JURISDICTION : Civil Appeal 1188 & 1189 of 1969.

Appeals from the judgment and order dated the I Ith March 1967 of the Bombay High Court (Nagpcr Bench) at Nagpur in Special Civil A1plication Nos. 345 and 575 of 1966.

S. W. Dhabe and A. G. Ratuaparkhi, for the appellant S. B. Wad and S. P. Nayar, for the respondenls 3 & 4 in (C.

A. l l88) and respondents 4 & 5 (in C. A 1189)

The Judgment of the Court was delivered by D

JAGANMOHAN REDDY, J. Tho appllant was appointed as a motor driver in the Milk Scheipe at Nagpur by the Regional Dairy development Ofticer on December 10, 1959andonFebruary28,1962 his services were terminated by the orders of the Dairy Development Commissioner, Bombay-Respondent No. 5 After the appointment the appellant was on probation for a period of six months and since that period was not extended it is his contention that he is a permanent employee inasmuch as the standing orders which came into force on September 30, 1961 made an employee on probation permanent after completion of one year's probationary period. On March 20, 1962, the appellant filed an application before the Assista11t Labour Commissioner, Nagpur, under s. 16 of the C. P. and Berar Industrial Disputes.

Settlement Act, 1947-hereinafter referred to as 'the Act" praying for

reinstatement with back wages and continuity of employment. In that application the appellant stated that if the order of termination amount. cc! to dismissal that order was void as it was made \Vithout any inquiry and if it was an order of retrenchment it was equally bad as no notice of change was given under s. 31 of the Act. The tern1ination '\Vll.3 also said to be illegal as it was brought about by an authority which had not appointed him. The Assistant Labour Commissioner who heard. the petition set aside the order of tern1ination and directed respondents 3 to 5 to reinstate the appella11t with back wages and continuity of service in as much as it was held that the appellant having completed the probationary period of one year became a pennanent e1nployee. In this vie\\', the other contentions raised by the appellant \vcre not decided.

LAXMAN v. STATE INDUSTRIAL COURT (Jaga11mohan Reddy,!.) 543

Respondents 3 to 5 filed a revision before the State Industrial Court un.dcr s. 16(5) of the Act. That Court set aside the order on August 12, 1953, and remanded the case for a fresh decision as to whe ther the appellant was a permanent employee and whether he was illegally retrenched. After remand the Deputy Commissioner of Labour at Nagpur after considering the evidence came to the conclusion that the appellant was not a permanent employee under the provisions of the Standing Orders. He, however, held that as the appellant was in continuous service, he had been retrenched illegally without following the provisions of s. 25-F of the Industrial Disputes Act-hereinafter called 'the Central Act.' In the result respondents 3 to 5 were directed to reinstate the appellant with back waees a11d continuity of service.

Against this order respondents 3 to 5 filed a revision application under s. 15(5) of the Act before the State Industrial Cou1t at Nagpur. In that revision, an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant being a retrenched employee was not an"employee" under the provisions of the Act. The State Industrial Court did not accept this plea and while setting aside the reinstatement order held that the appellant was entitled to retrenchment compensation and consequently remanded the case for determination of what that compensation should be. Against this order respondents 3 to 5 filed a petition under Arts. 226 and 227 of the Constitution of India. The appellant also file,\ a petition under Art. 226 of the Constitution in the High Court for modification of the order of the State Industrial Court and for reinstaterr.em with back wages and continuity of service along with all its privilege•.

Both these petitions were heard together by the Division Bench of the Bombay High Court at Nagpur. By a common judgment, the High Court allowed the application of respondents 3 to 5 holding that the appellant was not an "employee" within the meaning of s. 2(10) of the Act as his dismissal, discharge or removal \.Vas not on account of an industrial dispute. In this view, the appellant's petition wasdismissed. These two appeals are with certificate against that judg111cnt.

The question which falls for consideration is whether under the Act a dismissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the Act for obtaining redress, namely, whether an application for reinstatement and compensation by a dismissed employee is maintainable under s. 16 of the Act. The determination of this question would depend upon the interpretation of who the employee is for the purposes of the Act and what is meant by "On account of any industrial dispute" ins. 2(10) read withs. 2(12) & (13).

These provisions, as also s. 16, insofar as material, are given below :

s. 2(10)-"employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industr.v and includes an employee dismissed, discharged or rerr . ..>ved on <..ccount of any industrial dispute ;''

s. 2(12)-"industrial disput:" means any :iispute or diffcren :e connected with an industrial mat~r arising between employe• and employe~. or betwen employers or employees;"

" 2\13)-"industrial matter" means any matter relating to work, .pay, wage~. reward, hours, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refuse\ to employ and includes questions pertaining to-;

(a) the relationship between employer and employees, or to the dismissal or non-employment of any person, x x x . x" s. 16-"(l) Where the State Government by notification so directs, the labour Commissioner shall have power to decide an iniustrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any looal area as m•Y be spocified in the notification.

(2) Any employee, working in an industry to which the notification under sub-section (I) applied, may within six months fromthedate ofsuch dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and paymeat of compensa.tion for loss of wages. x x x x"

Both s. 2(\0) and 16 were amended by Act 21 of 1966.

The former E before its amendment was as follows:

s. 2(10)-"employee" means any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change in resjlect of which a notice is given under section 31 or 32 whether before or after the discharge;"

It may be observed that s. 2(10) before its amendment included an employee discharged on account of any dispute relating to a change in resjlect of which a notice was given under s. 31 or 32 of the Act.

It will be seen that s. 31 dealt with tho procedure to be followed by an employer desiring. change in the standing orders or in resjlect of any industrial matter mentioned in Sch. Jl s. 32 dealt with the procedure to be followed by a representative of employees desiring change in the standing orders or in respect of any other industrial matter. One of the industrial matters referred to in item 3 of Sch. lI is "Dismissal of any employee except in accordance with law or as provided for in the standing orders settled under section 30 of this Act". lhi> <ietinition of "employee" in s. 2(10) appears to have been enlarged by the amendment by including an employee dismissed, discharged or removed on account of any industrial dispute and not necessarily confined only toany dispute relating to a change in respect of which notice

LAXMAN v. STATE INDUSTRIAL COURT (laganmohan Reddy, 1.) 54S

is given under s. 31 or 32 of the Act. The High Court appears to have read the definition of "mployee" in s. 2(10) as contemplating two categories of persons (!) consisting of persons who are actually in the employment of the employer at the date of the application; and

(2) of tho>e who have ceased to be in the employment prior to the date of the application, the reason for ceasing to be an employee being "dismissal, discharge or removal on account of any industrial di:i• pute".

Jn its vi_w, the words of the definition U.ici not include all ex-employees but only specified categories which have to be corelated to any industrial dispute, and as there was no industrial dispute betwen Laxman and the employer prior to the termination of his service, Laxman cannot be considered to be an ''employee'' within the meaning of s. 2(10) of the Act. A decision of this Court in Central Provinces Transport Services Ltd.

Nagpur v. Rahunath Gopa/ Patwardhan(I) was referred to, but the High Court sought to distinguish it on the

round that in that case the employee had been dismissed after an mquiry which i\lvolved an industrial dis?ute. It then proceeded to state :

"As we have already pointed out, the definition has since been amended and the reference to ss. 31 and 32 has been dropped. As it now stands, the requirement of the definition is that if the applicant is not in service at the date of application he must have been dismissed, discharged or removed "on account of.any industrial dispute". We do not think that the ratio of the decision of the Supreme Court in that case that every dismissed employee. irrespective of the reason for his dismissal,

cntines to be an "employee" within the meaning of the definition ms. 2(10) of the Act so as to entitle him to approach the Labour Commissioner under s. 16(2) of tho Act,"

I~ .the view of the High Court, therefore, a plain reading of the definit10n qf the term "employee" ins. 2(10) shows that the only category of persons who, though not in actual employment at the date of the application included within that term is of persons who are ex-emp- !oyees and were dismissed, discharged or removed on account .of any mdustrial dispute, which dispute must precede the disll'jssal, discharge or removal, and that their dismis>al, discharge or removal must be the result of such dispute.

It is contended that an "employee" having been defined as a person employed, the Legislature intended that the provisions of the Act should be availed of only by persons who were still in the employment at the time when an application was filed under the Act, and even if the employee who invokes the provisions of the Act can be considered to be a person who is dismissed, discharged or retrenched, it is not every sue~ employee who has that right, but only tho:; e employees have the !•&ht to invoke the provisions of the Act.who have been dismissed, discharged or retrenched and in respect of whom an industrial

(1) (1956] S.C.R. 956.

dispute).? pl!nding. In Our view both tnesc contentions arc untenable.

A. combined reading of the definition of an "employee" in s. 2(10) with s. 2(12) & (13) would negative the submission that tho>e who had ceased to be in service were not intended to be included within the definition of an "employee". When the Legislature in defining a word or term refers to certain matters as being included therein it does so because either.tlr1t \.Vord or term dues not generically include what is sought to be inclrded or that it is anxious to dispel any doubt ae to v.•hat is included therein is not so included and by abundanti cauta/a it is specifically shown as having been included in order to repel any such contention to the contra. Under s. 16 (2) an •omp!oyee working in an industry to which a notification unJer sub-s. (I) is applied cn

within six month~ of his dismissal, discharge, rcn1oval or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for lo" of wages. A person who applies within six months from the date of his dismissal, di1charge, removal or suspension is certainly not employed on that date and yet if the argument of the re1pondent is accepted he is not an employee within the meaning of s. 2(l0) and hence has no right to apply under sub-s. (2) of s. 16 An employee dismissed, discharged or removed on accoun of any industrial dispute is certainly an employeed under s.2 (IO)~ but what is meant by an "industrial dispute" in this definition can be ascer tained by reference to s. 2(12) under which any dispute or difference connected with an industrial matter arising between employr ad employoe or between employers or employee is an Industnal d1Sute. No doubt it was contended in the Central Prol'inces Transport Serl'ices Ltd's case(') that where a person is dismissed, discharged or retrenched, the relationship of an employer and employee is terminated and there is no longer an industrial dispute. This very contention was negatived in that case for the obvious reason that the dispute or difference referred to ins. 2(12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined ins. 2(13) covers any matter relating o refusal to employ and includes questions pertaining to the dismissal or non-employment of any person. If so considered, since a question of reinstatement is an industrial dispute, the appellant would be an employee within the meaning of s. 2(10) of the Act for the purposes of avail_ing himself of the right under sub-s. (2) of s. 16. Even under a restricted definition of the word "employee" under s. 2(10) before the amendment, this Court in the Central Provinces Transport Senices Ltd's case (Su"ra) had held that a workman whose services had been terminated could have resort to sub-s. (2) of s. 16 of the Act The

High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employee's services were terminated which amounted to an industrial dispute, but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltd's case (Supra) is clearly applicable notwithstanding the amendment of s. 2(10) and s. 16 of the Act. After pointing out that s. 2(k)

LAxMAN v. STATE INDUSTRIAL COURT (Jaga11moha11 Reddy,/.) 547

of the Central Act and ss. 2 (12) and 2 (l3) of the Act are substantially in pari materia, the ratio of Western India Automobile Associat; oi v. Industrial Tribunal, Bombay(') will be as much applicable to the one enactment as to the other, this Court pointed out in• the Central Prorinces Transport Serrices Ltd's case (Supra) at pp .. 961-962 :

"We are also unable to accede to the contention of the appellant that the inclusive clause in s. 2(10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under ss. 31 and 32 of the Act would not fall withins. 2(10), and cannot be read as importing and intention generally to exclude dismissed empolyees from that definition. On the other hand, s. 16 of the Ac expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative, if we are to adopt the construction which the appellant seeks to put on the definition of employee ins. 2(10). We must accordingly held agreeing with the decision in Western India Automobile Association v Industrial Tribunal Bombay (supra) that the definition of "employee" in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application."

This case was referred to and considered in Bennett Cole1nan & Co .. (Private) Ltd v. Punya Priya Das Gupta.(') The case was under the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. , This Court took note of the amendment to the Act and even so held that both the decision in the Westem India Automobile Associatwn's case (supra) and the Central Pro1•inces Transport Services Ltd's case (supra) were authorities for the view that an exemployee would, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd v. State of Saurashtrp and others(3) and Workmen of Dimakuchi Tea Estate v. Dimakuc/ii Iea Estate (4) took a contrary view was examined and distinguished. It was, however, observeii

(I) ]1949) F.C.R. 321.

(1) 11957] I L.L.J. 477.

(2) [19691 2 L.L.J. 554.

(4) [1968] I L.L.J. 500.

'that even assuming that there is such a conflict as contended; it was

not necessary to resolve it for the purposes of the problem before •the Court, because the Act which was being considered there and the Central Act, the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under -which an ex-employee is permitted to avail of the benefits of those provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in emp- •loyment of the person against whom it is made.

In view of what has been stated, we think the High Court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow these appeals, set aside the judgment and decree of the High Court and remand the case to the High Court for disposal according to law. The appellant will have his costs in this court, one set.

s.c.

Appeals allowed.

STATE INDUSTRIAL COURT & ORS

s. 16

s. 16(5)

s. 25F

Art. 226

s. 2(10)

s. 16(2)

sec. 16

[1949] F.C.R. 321

S. W. Dhabe

A. G. Ratuaparkhi

S. B. Wad

S. P. Nayar

D

JAGANMOHAN REDDY

September 30, 1961

March 20, 1962

s. 16

Settlement Act, 1947

s. 31

LAXMAN

s. 16(5)

August 12, 1953

Nagpur

s. 25

Industrial Disputes Act

s. 15(5)

Arts. 226 and 227

Constitution of India

Art. 226

Bombay High Court at Nagpur

s. 2(10)

s. 16

s. 16

s. 2(10)

s. 2(12)

s. 16

s. 2(\0) and 16

s. 2(10)

section 31

s. 2(10)

s. 31

s. 31

s. 32

section 30

s. 2(10)

s. 31

s. 2(10)

Laxman

s. 2(10)

ss. 31 and 32

Supreme Court

s. 16(2)

s. 2(10)

s. 2(12)

s. 16

s. 2(l0)

s. 16

s. 2(12)

s. 2(10)

s. 16

s. 2(10)

Central Provinces Transport Senices Ltd

s. 16

s. 2(10)

s. 16

s. 2(k)

ss. 2

s. 2(10)

ss. 31 and 32

s. 16

Westem India Automobile Associatwn's

1949) F.C.R. 321

Minimum Wages Act, 1948