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NAVINCHANDRA RAMANLAL

KALIDAS BHUDA:RBHM AND ANR.

Bebruary 2.1, 1979

(P.N. SHINGHAL AND D. A. DESAI, JJ.] •

Bombay Tenancy & Agric1iltural Lands Act, "1956-Ss. 43C and 88(1) (b'J- Scope of.

Sections 43C and 88 of the Bombay Tenancy and A, gricultural Lands Act, 1948 exempted _certain lands from .the qperation .of the _Act.

Section 43C provided that nothing in s. 32 to s. 32R (both inclusive) and s. 43 shall apply C to lands in the "area within the limits" .of a Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1948. The Gujarat Amendment Act, 1965 substituted the words "areas -wliich .On the date of coming into force of the Amending Act, 1956 and within the limits of" for the words "areas within the limits of" occurring in the original section. Similarly s. 88(1)

(b) conferred power on -the State Govei:nment to exempt land from the operation of the provision of the Act which the State Government may, from time to B time, by notification in the official Gazette, specify as being reserved for nonagricultural or industrial development. The Amendment Act, 36 of 1965 engraftcd a proviso to cl. (b) of s. 88(1), providing that if after a notification in respect of any area specified in. th.e notification is issued under the said .clause, whether before or after the commencement of the Bombay Tenancy and Agicultu:cal Lands Act, 1965 the limits of the area so specified are enlarged on account of the addition of any other area thereto, then, merely by reason E of such addition the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added.

The aprellant v;•as the owner of survey No. 165 situated within the revenue limits of village A.cher near Ahmedabad. For sometime prior to 1946 the respondent had been a tenant of this land.

By virtue of the provisions of the Bombay Tenancy Act, 1939 the respondent became a protected tenant and F continued to be so under the Tenancy Act, 1948. The Amendment Act of 1956 provided for the transfer of ownership of the land from the landlord to the tenant by operation of law. The day was styled as tillers' day. Under this section every tenant was deemed to have purchased from his landlord free from all encumbrances subsisting thereon on the tillers' day the land held by him as tenant. By virtue of this provision the tenant claimed himself to be the owner of the land G

On August 9, 1956 the Government issued a notification specifying the area within the 1imits of the Municipal Corporation of Ahmednbad as being_ reserved for urban non-agricultural and industrial development. This notification was superseded by another notification dated the 14th February, 1957 by which the Government specified, amongst others, the areas within the limits of the Municipal Corporation of the city of Ahmedabad "8 being reserved for the above mentioned purpose. Subsequently the Government extended the limits of the Ahmedabad Municipal Corporation by reason of which survey

No. 165 which was formerly outside the Municipal limits, was included within the area of the Municipal Corporation of AhmedaOOd as from May 30, 1959.

In an inquiry by the Agricultural Lands Tribunal for determining the purchase price of the land the appellant-landlord contended before the Tribunal that in view of s. 88(1)(b) read with the notification of Februnry 14, 1957 the land (survey No. 165) was exempt from the operation of the 1948 Act and that the inquiry should be dropped. This contention was negatived and the appeal by the landlord failed. In revision preferred by the landlord, the Revenue Tribunal was of the opinion that not merely the lands which were in the Ahmedabad Municipal Corporation area at the date of the notification would be exempted from the operation of the Tenancy Act but the exemption wou1d also extend to the lands brought within the Corporation area from time to time without any fresh notification for reervation.

In the repondents-tenant5' writ petition the High Court held that the exemption would apply only to the lands included within the limits of the Municipal Corporation as on the date of the notification and in the absence of fresh reservation by a fresh notification the land included in the Mc.nicipal area on extension of the limits of the Municipal Corporation subsequent to the notification would not enjoy the exemption from the operation of the Tenancy Act.

Dismissing the appeal,

HEW : l(a) From the language of the amendment• made in s. 43C and s. i8(1)(b) it is clear that both the amendments are retroactive from August 1, 1956 i.e. from the date the Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 came into force.

In other \Vords the amended s. 43C E and s. 88(1) (b) with its proviso will have to be read as if they have been introduced in their amended form from August 1, 1956. 1336 A-Bl

(b) The land of survey No. 165 would be governed by the Tenancy Act,

1948. The land which was originally within the revenue limits of the village was included in the area of the Ahmedabad Municipal Corporation from May 30, 1959. When the amended s.43C and s.88(1)(b) with its proviso came into force on August l, 1956, the land not being in the Municipal Cor- .> poration area, would not enjoy the exemption as conferred on the land within the Municipal Corporation area by the notification issued on August 9, 1956 superseded by the subsequent notification of February 14, 1957. [3360-E]

2(a) The respondent was a tenant on the tillers' day and has by operation of law become the owner and a deemed purchaser. [338 F]

(b) The land (Survey No. 165) was not within the Municipal Corporation area either on February 14, 1957, the date on which the exemption was

granted or on August 1, 1956 when Bombay Act XIII of 1956 was put into operation or on April l, 1957 the tillers' day when title to land would stand transferred to the tenant by sheer operation of Jaw without anything more.

Therefore the Notification dated February f4, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmedabad Municipal Corporation area.

Subsequent e:r.tension of the area of Municipal Corporation would not ipso facto qualify the lands falling within the extended area for exemption in view of the proviso to s. 88(1) (b) and the opening word of s. 43C, both of which clearly recite that the exemp-

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tion would apply to the land included in the Municipal Corporation area on August I, 1956, the date on which the Bombay Act 13, 1956 came into force and not to any subsequently added area to the area of Municipal Corporation.

Since the land was brought within the Municipal Corporation area after August I, 1956 the Notification dated February 14, 1957 would not cover such added or extended Brea and there would be no exemption under that Notification for the land in the extended area. [338B-E]

(c) The ratio in the decisions in Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli [1963] 2 S.C.R. 707 and Sidram Narasappa Kamble v.

Sho/apur Borough Municipality [1966] I S.C.R. 618 would not apply because those cases turned upon the construction of s. 88 ( 1) (b) as it stood at the relevant time.

Presumably in order to combat the effect of some judgments which purported to lay down thla.t the exemption once granted would apply to any area that may be included in the Corporation area at a date C much later to the date of the issue of the Notification, the amendment of s. 88(1) (b) was made.

The law :having undergone substantive amendment bearing on the iubject, the earlier decision would be of no assistance, [339 A-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2200 of 1969.

Appeal by Special Leave from the Judgment and Decree dated 26/ 28th March, 1969 of the Gujarat High Court in S.C.A. No. 543 of 1964.

I. N. Shroff, R. P. Kapur and H. S. Parihar for the Appellant.

l. C. Shah and Vineet Kumar for the Respondents.

The Judgment of the Court was delivered by DESAI, J.-Thili appeal by special leave arises from a judgment rendered by the Gujarat High Court in Special Civil Application No. 542 of 1%4 filed by the present respondent No. 1 against the present appellant contending that the land involved in the dispute is not exempt from the operation of the Bombay Tenancy and Agricultural Lands Act. 1948 ('Tenancy Act' for short).

A brief recital of the facts will put the point of law raised herein in proper perspective.

Appellant is the owner of Survey No. 165 measuring 2 acres 21 gunthas situated in Village Acher, City Taluka, District Ahmedabad.

Respondent is and has been the tenant of this land since before 1946. He became a protected tenant under the Bombay Tenancy Act 1939 and his name appeared in the Register of protected tenants maintained nnder that Act. On the introduction of the Tenancy Act of 1948 the respondent continued to be the protected tenant under it.

A very comprehensive amendment was made in the Tenancy Act of 1948 by the Bombay Tenancy and Agricultural Lands .(Amendment) Act, 1956 (Bomaby Act XIIl of 1956) ('1956

S0PR1!MH COURT REPORTS [1979] 3 s.c.R.

Act' for short'). Section 32 as amended by 1956 Act provided for transfer of ownership of the land from a landlord to the tenant of the land by operationof law. 'f.he day was styled as 'tiller's day' and section 32 provided that snbject to the other provisions of the section and provisions of the next succeeding section every tenant shall be deemed to have purchased from this landlord free from all encumbrances subsisting thereon on the said day, the land held by him as tenant.

The land involved in this appeal was one to which the Tenancy Act of 1948 as amended by the Amending Act of 1956 applied and by the operation of law the tenant-the respondent claimed to be the owner of the land.

Section 88 of the Tenancy Act of 1948 as it stood at the relevant time provided for exemption of certain lands from its provisions,. one such exemption being in respect of any area which the State Government may, by notification in the official gazette, specify as being reserved for urban non-agricultural or industrial development. Armed with this power the Government issued Notification No. TNC/5156/ 101955-F dated 9th August, 1956 whereby amongst others the Government specified the area within the limits of the Mun'cipal Corporations of the cities of Poona and Ahmedabad as being reserved for urban non-agricnltural and industrial deelopment. This Notification was superseded by another Notification No. TNC/5156/ J 69426-M 'dated 14th February 1957 whereby the Government specified amongst others the areas within the limits of the Municipal Corporations of the cities of Poona and Ahmedabad as 'being reserved for the above-mentioned purpose.

Neither of the Notifications at the date of issue had any relevance to the land involved in this appeal because it was not situated within the area of the Mun; cipal Corporation of Ahmedabad.

Subsequently the Government extended the limits of Ahmedabad Municipal Corporation whereby Acher Village in which Survey No. 165 is situated was included in the area of Municipal Corporation of Ahmedabad on and from 30th May, 1959.

G In January 1960 Agricultural Lands Tribunal having jurisdiction over the area wherein the Survey No. 165 is situated, commenced an enquiry under s. 32G of the Tenancy Act of 1948 for determining the purchase price of the land on the footing that under s. 32 respondent/tenant has become the deemed purchaser of it.

Jn the course of this enquiry the appellant landlord gave an application that II the land in respect of which the enquiry is being held is now included within the limits of Municipal Corporation at Ahmedabad and hence in view of s. 88(1) {b) read with the Notification dated 14th February,

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1957" it was exempted from the operation of ss. 1 to 87 of t1w Tenancy Act of 1948 and, therefore, the enquiry should be dropped.

The Agricultnral Lands Tribunal rejected the application of the appellantlandlonl and proceded further with the enquiry.

The appelfant-landlord' appealed to the Collector which met with the same fate, Appellant carried' the matter to the Gujarat Revenue Tribunal.

The Revenue Tribunal was of the opinion that on a true and correct interpretation of s. 88 ( 1) (b) read with the relevant notification, not merely the lands which were in Ahmedabad Municipal Corporation area at the date of the Notification would be exempted from the operation of the Tenancy Act but the exemption would also extend to the lands brought within the Corporation area from time to time without any fresh Notification for reservation and accordingly allowed the Revision Application of the appellant-landlord and directed that the enquiry under s. 32G be dropped. The respondent no. I-tenant approached the High Court of Gujarat under Article 227 of the Constitution, The High Court held that the exemption would apply only to the lands included within the limit~ of the Municipal Corporation of Ahmedabad as on the date of Notification and in the absence of the fresh reservation by a fresh notification the lands included in the Municipal area on extension of the limits of the Municipal Corporation subsequent to the Notification would not be exempted from the operation of the Tenancy Act.

In reaching this conclusion one aspect that impressed the High Court was that while power to exempt the land from the operation of the Tenancy Act vests in the Government, the area of the Municipal Corporation may be extended by the Corporation authority and if to such extended area the exemption were to apply, the power of granting exemption would be enjoyed by Municipal Corporation which was not the legislative delegate and on which the power to exempt was not concerned and simultaneously, the legislative delegate, namely, State Government would completely abdicate its function.

This aspect is specifically referred to as it proceeds on an erroneous assumption that Municipal Corporation can extend its own area.

A reference to section 3 of the Bombay Provincial Municipal Corporation Act would show that unless the State Government in exercise of the power conferred upon it, extends the limits, the Municipal Corporation on its own cannot extend the limit.

The assumption being incorrect, it cannot be called in aid of the conclusion , reached by the High Court.

Mr. J. C. Shah for the respondent, however, frankly stated that he could not support the aforementioned reason of the High Court and, therefore, the Court should ignore it.

We would say no more about it. In accordance with its opinion that

334 SUPRl!ME COUll.T 11.EPOll.TS [1979] 3 s.c.R.

.. the land falling in the iubsequently extended limit would not 1njoy

the benefit of exemption, the High Court quashed the order of the Gujarat Revenue Tribunal and directed the authority under the Tenancy Act to proceed further with the enquiry under s. 32G.

Mr. I. N. Shroff, learned counsel who appeared for the appellant

8 urged that the High Court was in error in putting a narrow construction on s. 88(1) (b) because the power to exempt an area situate within the Municipal Corporation limit was to be exercised for urban nonagricultural or industrial development and that once such powt!f is exercised, it should cover the entire area situate JVithin the limits of Municipal Corporation at any given point of time, and this cons1ruc- C tion adopted by Gujarat Revenue Tribunal deserves acceptance by this Court as it effectuates the purpose for which power is conferred.

It was further contended that once a Notification exempting the land from the operation of the Tenancy Act is issued under s. 88(1) (b), the exemption would become operative retrospectively and no vested

right could thereafter be claimed.

The contention raised by Mr. Shroff would have necessitated examination ot the heme of the various provisions of the Te:m1ncy Act as illls been done by the High Court but in our opinion the High Court unnecessarily undertook this exercise wholly overlooking and by passing two important amendments introduced in the relevant provisions of the Tenancy Act of 1948, viz., 43C and 88(1) both of which were in force at the timo when the petition was heard and upon proper construction both amendments being retroactive in their operation from the commencement of the Amendment Act of 1956 w:iich came into force on ht August, 1956 would have clinched the issue.

Therefore, it is not necessary to examine the contention from the angle from which the High Court has done but the contention of Mr. Shroff can be disposed of by a mere reference to the two relevant provisions.

The two sections relevant for considering the exemption from the operation of the Tenancy Act of 1948 are 43C and 88. Section 43C as it stood before its amendment by Gujarat Act 36 of 1965 read as G under :

"43C. Nothing in ss. 32 to 32R, both inclusive, and 43 shall apply to lands in the areas within the limits of- ( a) xxx xxx xxx xxx

(b) Municipal Corporation constituted under Bombay H Provincial Municipal Corporations Act, 1948".

Section 88 ( 1) (b) as it stood prior to the introduction of a proviso by Gujarat Act 36 of 1965 reads as under :

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' .x.

"88.(1) Save as otherwise expressly provided in subS.

(2) uothing in the foregoing provisions of this Act shall apply-

( a). x x x x

(b) to any area which the State Government may from time to time by Notification in the official gazette specify as being reserved for non-agricultural or industrial development".

The Tenancy Act of 1948 was amended by the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965, (Gujarat Act 36 of 1965). Section 7 of the Amendment Act of 1965 reads as under :-

"7. Amendment of section 43C of Born.

LXVII of 1948-In section 43C of the principal Act, for the word 'areas within the limits of', the words 'areas which on the date of the coming into force of the Amending Act, 1955 are within the limits of' shall be substituted and shall be deemed to have been substituted with effect on and from 1st August, 1956".

Section 18 of the Amending Act reads as under :

"18. Amendment of section 88 of Born.

LXVII of 1948-In section 88 of the principal Act,-

(1) in sub-section ( 1),

(i) x x x x x x x x x x

(ii) to clause (b) the following provisios shall be added, namely

Provided that if after a notification in respect of any area specified in the notification is issued under this clause, whether before or after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965 (Guj. 36 of 1965), the limits of the area so specified are enlarged on account of the addition of any other area thereto, then merely by reason of such addition, the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added, notwithstanding anything to the contrary contained in any judgment, decree. or order of any court, tribunal or any other authority".

2-253SCI/79

Both these amendments to the Principal Act were introduced by Gujarat Act 36 of 1965 which came into force from 29th December, 1965.

However, looking to the language of the amendments made in s. 43C and s. 88(1) (b), both the amendments are retroactive from !st August 1956, i.e. from the date Bombay Act 13 of 1956 came into force.

In other words, amended s. 43C and s. 88 ( 1) (b) with its proviso will have to be read as if they were introduced in that very form from !st August, 1956.

Having noticed the amendments let us look to its impad on the question of application of the Tenancy Act of 1948 to the lands included in the Municipal Corporation area of Ahmedabad after 1st August, 1956.

Indisputably, Survey No. 165, the land involved in this appeal, being situated within the revenue limits of Acher Village, was included in the area of Ahmedabad Municipal Corporation from 30th May, 1959.

Therefore, on 1st August 1956 when the amended sections 43C and 88(1) (b) with its proviso as amended by Act 36 of 1965 came into force, the land being not in Municipal Corporation area, would not enjoy the exemption as conferred on the land within the Municipal Corporation area by the Notification issued on 9th August, 1956, superseded by the subsequent Notification dated 14th February, 1957 in exercise of the power conferred bys. 88(1)(b). Accordingly, this land Survey No'. 165 would be governed by the Tenancy Act of

1948. The consequences of the application of the Tenancy Act of 1948 to land Survey No. 165 may now be examined.

By Bombay Act 13 of 1956 a revolutionary amendment of far reaching consequence was made in the Tenancy Act of 1948 and F the amended Act came into force with effect from 1st August, 1956.

The most important provision of the Amending Act was s. 32 as amended by the Amending Act which provided for transfer of the ownership of land by operation of law from the landlord to the tenant.

The title to the land which vested in the landlord on 1st April, 1957, the tiller's day, passed to the tenant by operation of law. What is the effect of this transfer of title was examined by this Court in Sri Ram Ram Narain Medhi v. State of Bombay.(') The Court held as under.

"The title of the landlord to the land passes immediately to the tenant on the tiller's day and there is a completed purchase or sale thereof as between the landlord and the tenant. The tenant is no doubt given a locus penitentiae and an option of declaring whether he is or is not willing to

Cl) [1959] Suppl. I S.C.R. 489.

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MVINCHANDRA v. KALIDAS (Desai, !.) 3 37

purchase the land held by him as a tenant. If he fails to appear or makes a statement that he is not willing to pur chase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective. It is only by such a declaration by the Tribunal that the purchase becomes ineffective. If no such declaration is made by the Tribunal the purchase would stand as statutorily effected on the tiller's day and will continue to be operative, the only obligation on the tenant then being the payment of price in the mode determined by the Tribunal. If the tenant commits default in the payment of such price either in lump or by instalments as determined by the Tribunal, s. 32M declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein.

Here also the purchase continues to be effective as from the tiller's day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant.

The title to the land which was vested originally in the landlord passes to the tenant on the tiller's day or the alternative period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal.

The tenant gets a vested interest in the land defcasible only in either of those cases and it cannot therefore be said that the title of landlord to the land is suspended for any period definite or

F x' indefinite''.

) • If the effect of the land being governed by s. 32 on tiller's day is to transfer the title of the landlord to the tenant by operation of law, dcfeasible only in the event of tenant declining to purchase the land or committing default in payment of price as determined by the G Tribunal, the next question is : if the land is subsequently brought within the Municipal Corporation area which area enjoys the exemption under s. 88(1)(b), would the vested title be vested:

This question can be answered shortly by referring to the amended H s. 43C ands. 88(1)(b) with its proviso, both of which clearly assert that the exemption granted under s. 88 ( 1) (b) by a Notification

issued by the Government would enure for the benefit of the land which was within the Municipal Corporation area on lst August, 1956 and in no case the additional area which may be included within the Municipal Corporation area after 1st August, 1956 would enjoy the exemption granted by the Notification unless a fresh J\:otification is issued. Admitiedly, since 14th February, 1957 no fresh Notification is issued.

The land bearing Survey No. 165 was not within the Municipal Corporation area either on 14th February, 1957, the day on which exemption was granted, or on 1st August, 1956 when Bombay Act VIII of 1956 was put into operation or on 1st April, 1957, the tiller's day, when title to land would stand transferred to the tenant by sheer operation of law without anything more.

Therefore, the Notification dated 14th February, 1957 would not cover the land which was at the date of the issue of the Notification not included in Ahmcdabad Municipal Corporation area.

Subsequent ex ten; ion of the area of Municipal Corporation would not enjoy the benefit of exemption in view of the proviso to s. 88(1) (b) and the opening words of s. 43C both of which clearly recite that the exemption would apply to the land included in the Municipal Corporation area on 1st August, 1956, the day on which Bombay Act 13 of 1956 came into force, and not to any subsequently added area to the area of Municipal Corporation. Land bearing Survey No. 165 was brought within the Municipal Corporation area after 1st August, 1956 and, therefore, the Notification dated 14th February, 1957 would not cover such added or extended area and there would be no exemption under that Notification for the land in the extended area.

If the land bearing Survey No. 165 does not enjoy the benefit of exemption under s. 88(1) (b) and it being agricultural land in respect of which the respondent was tenant on the tiller's day, the respondent has, by operation of law, become the owner and is a deemed purchaser.

The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by s. 32G.

Mr. Shroff, however, contended that the decisions of this Court in Mohan/al Chunilal Kothari v. Tribhovan Haribhai Tamboli,(') and Sldram Narsappa Kamble v. Sholapur Borough Municipality,(2) would clearly indicate that whenever a Notification under s. 88(1) (b) is issued by the appropriate Government granting exemption to any area from the operation of the Tenancy Act for the purposes mentioned in the sub-section, such exemption will apply retrospectively

(!) [1963] 2 SCR 707. l (2) [1966] I SCR 618.

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and no vested right under the Tenancy Act 1948 or even one under the Bombay Tenancy Act, 1939, could be claimed by any one. It is not necessary to examine this contention because subsequent to the later decision in Sidram Narsappa Kamble (supra) the Tenancy Act of 1948 was amended by Gujarat Act 36 of 1965 making it abundantly clear that if there is any Notification exempting any area from the operation of the Tenancy Act issued by the appropriate Government under s. 88(1) (b), the exemption would enure for the benefit of that area included in the Municipal Corporation as on 1st August, 1956 and in the absence of a fresh Notification such exemption would not be available to the extended or area added to the area of Municipal Corporation and this amendment is made effective notwithstanding any judgment, order or decision of the Court or Tribunal to the contrary .

Presumably, in order to combat the effect of some judgments which purported to lay down that the exemption once granted would apply to any area that may be included in the Corporation area at a date much later to the date of issue of the Notification, the amendment was made. Accordingly, law having undergone a substantive amendment bearing on the subject, the ratio in the decision of Mohan/a! Chunilal Kothari and Sidram Narsappa Kamble (supra) which turned upon the construction of s. 88 (1) (b) as it stood at the relevant time, would not be of any assistance.

Therefore, for the reasons herein stated, this appeal fails and is dismissed with costs.

N.K.A.

Appeal dismissed.

NAVINCHANDRA RAMANLAL

KALIDAS BHUDA:RBHM AND ANR

Bebruary 2.1, 1979

D. A. DESAI, JJ.

Ss. 43C and 88(1)

Sections 43C and 88

Lands Act, 1948

Section 43C

s. 32

s. 32R

s. 43

Gujarat Amendment Act, 1965

s. 88(1)

s. 88(1)

Lands Act, 1965

A.cher

Ahmedabad

Tenancy Act, 1948

August 9, 1956

Ahmednbad

14th February, 1957

Ahmedabad Municipal Corporation

AhmedaOOd

May 30, 1959

s. 88(1)(b)

Februnry 14, 1957

s. 43C

s. 43C

s. 88(1)

Tenancy Act

August l, 1956

February 14, 1957

Bombay Act XIII of 1956

April l, 1957

February f4, 1957

s. 88(1)

s. 43C

[1963] 2 S.C.R. 707

s. 88

s. 88(1)

I. N. Shroff

R. P. Kapur

H. S. Parihar

C. Shah

Vineet Kumar

DESAI

On the introduction of the Tenancy Act

Section 32

section 32

Section 88

30th May, 1959

s. 32G

s. 32

s. 88(1)

ss. 1 to 87

Agricultnral Lands Tribunal

Gujarat Revenue Tribunal

s. 88

s. 32G

High Court of Gujarat

Article 227

section 3

J. C. Shah

s. 32G

I. N. Shroff

s. 88(1)

s. 88(1)

Shroff

Section 43C

ss. 32 to 32R

Section 88

Section 7

section 43C

section 43C

Amending Act, 1955

1st August, 1956

Section 18

section 88

section 88

29th December, 1965

s. 43C

s. 88(1)

s. 43C

s. 88

1st August 1956

sections 43C and 88(1)

9th August, 1956

s. 32

1st April, 1957

s. 32M

s. 32

s. 88(1)(b)

s. 43C

s. 88

Bombay Act VIII of 1956

Ahmcdabad Municipal Corporation

s. 88(1)

s. 43C

s. 88(1)

s. 32G

s. 88(1)

[1963] 2 SCR 707

Tenancy Act 1948

Bombay Tenancy Act, 1939

Sidram Narsappa Kamble

s. 88(1)

Mohan

Chunilal Kothari

s. 88


JAGAT SINGH KISHOR SINGH DARBAR ETC. v.

THE STATE OF GUJARAT

February 6, 1979

[P. s. KAILASAM, D. A. DESAI AND A. D. KosiiAL, JJ.]

Bon1bay PJ'ei•ention. of Gan1bli11g Act, 1887-S. 3(ii)-Scope of-Direct ,.relation lVitlz use of the premises or with instrument of gaming-If necessary to bring the place withln the scope of the definition-Mere probability or expectation of profit-If snfficient-Presun1ption under s. 1-When raised.

The term "common gaming house" has been defined in s. 3 of the Bombay i:'Prevention of Gambling Act, 1887. Under cl. (i) of the section a house or

-pklce in which any of six different types of gaming enun1erated therein takes

place or in which instruments of gaming are kept or used for such gaming would fall within the definition.

Clause (ii) of that section states that in the ·-case of any other form of gaming (a) any house, room or place whatsoever in which any instn1ments of gaming \J.'fe kept or used (b) for the profit or gain.of the person owning, occupying, using or keeping such house, etc., (c) by way of charge for the use of such house, roon1 or instrument or otherwise holvsoever, would be a common gaming house.

Certain instruments of gaming were seized by the po1ice from the premises -of appellant no. 1 in both the appeals.

He was convicted for keeping a common gaming house while the other appe11ants we:re convicted of an offence under s. 5 of the Act.

On appeal, rejecting the appellants' contention that a mere expectation or probability of profit arising from gaming, without establishing a direct relation with the use of the premises or v-:ith instruments of gaming, would not be sufficient to bring the p1ace within the scope of the definition, the High :Court held that the purpose of occupying or using the premises must be such profit or gain as meant a probability or expectation of profit or gain and not necessarily a certainty of it.

The argument urged before the High Court was reiterated in appeal before this Court.

Dismissing the appeals,

HEID : 1. The expression "or otherwise hO'-''Soever" is of the widest Omplitude and cannot be restricted to the words immediately preceding it, G namely, "for profit or gain. . . . by way of charge for the use of the pre- mises."

[37F]

2. For proving that a particular house, room or place was a common gaming house, it would be sufficient if it was shown that the house was one in which instruments of gaming were kept or were used for the profit or gain of the person keeping or using such place, that is, where . the person "keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming.

Profit or gain may not actually result from such use. Even the hope of making a profit out of the

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SUPRJ/ME COURT REPORTS [1979] 3 s.c.R.

gambling would be sufficient to satisfy the definition. In a given case the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making profit although he may not necessarily make it every time.

Such a hope would be sufficient to make the house a common gaming house and the occupier liable for keeping such a house. At the same time the prosecution must establish that the purpose of keeping or using the instrun1ents was profit or gain, which may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place or in any other manner that may be possible having regard to the nature of the gan1e carried on. [38E, 39E-Fl

3. The profit or gain and the other requirements mentioned in cl. (ii) of the definition are a matter of peremptory presumption which has to be raised by the court as soon as seizure of instruments of gaming from the place is prorcd. Section 7 which allows a presumption to be raised against the accused, provides that seizure Of instruments of gaming from the premises shall be evidence, until the contrary was proved, that they were used as a common

- gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually s'een.

In the instant case there is no evidence in rebuttal of the presumption. [40F-GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 126- 127 of 1972.

(From the Judgment and Order dt. 21-4-72 of the Gnjarat High Collrt in Criminal Revision App!n. Nos. 490-491 of 1971).

S. K. Dholakia and R. Ramachandran for the appellants.

S. P. Nayar and M. N. Shroff for the respondents.

The Judgment of the Court was delivered by

KosHAL, J. By this judgment we shall dispose of Criminal Appeals Nos. 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 134 (1 )( c) of the Constitution of India by the High Court of Gujarat against the judgment dated April 21, 1972 of a Division Bench of that Court upholding the conviction of each of the appellants under section 4 or section 5 of the Bombay Pr"vention of Gambling Act 1887 (hereinafter referred to as the Bombay Act) and a sentence of imprisonment coupled with fine.

2. Appeal No. 126 of 1972 has been filed by eight persons.

Appellant No. 1 has been convicted of an offence under section 4 of the Bombay Act for keeping a common gaming house, while his seven co-appellants were found guilty of an offence under section 5 of that Act. In Criminal Appeal No. 127 of 1972, appellant No. 1 is the same person who figures as appellant No. 1 in the former appeal and the conviction recorded against him is one for an offence under section 4 or, in the alternative, under section 5 of the Bombay Act. His two co-appellants have earned a conviction under. the section last mentioned ..

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3. The two appeals have arisen from Criminal Revisions Nos. 490 and 491 of 1971 both of which were dismissed by the High Court through the impugned judgment. In Appeal No. 126 of 1972, appel- Ja;1t No. 1 was said to be keeping or using house No. 1408 situate in Ward No. 1 of Himatnagar town as a common gaming house and appellants Nos. 2 and 3 were said to have been employed by him for carrying on in that house the business of betting on Worli Matka figures.

On a search by the police, appellants Nos. 2 to 8 were found present in the house from which numerous betting slips and boards indicating the opening and closing figures of Worli Malka betting were recovered.

A personal search of appellants Nos. 2 and 3 yielded

col1l1erfoils of the said slips.

The allegations against the three appellants in criminal appeal No. 127 of 1972 were that all of them were found present for the purpose of gaming in the said house which was, as already stated, being run by appellant No. 1 as a common gaming house.

4. The only contention raised on behalf of the appellants before the High Court was that the said house had not been proved to be a

"common gaming house" within the meaning of tbe definition of that expression occurring in section 3 of the Bombay Act. That definition runs i:hus:

'111 this Act, "common gaming-house" means- ( i) in the case of gaming- ( a) on the market price of cotton, opium or other commodity or on the digits of the number used is stating such price, or

(b) on the amount of variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation, or

( c) on the market price of any stock or share or on the digits of the number used in stating such price, r

( d) on the occurrence or non-occurrence of rain or other natural event, or

( e) on the quantity of rainfall or on the digits of the number used in stating such quantity, or

(f) on the pictures, digits or fignres of one or more 8 playing cards or other documents or objects bearing numbers, or on the total of such digits

or figures, or on the basis of the occurrence or non-occurrence of any uncertain future event, or on the result of any draw, or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws,

any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming :

(ii) in the case of any other form of gaming, any house, room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instrument or otherwise howsoever."

Clause (i) of the definition is obviously inapplicable to the cases in hand and the plea of the prosecution has throughout been that the house in question squarely falls within clause (ii) thereof. This plea

was challenged before the High Court on behalf of the appellants with the contention that the house abovementioned had not been shown to be kept for use "for the profit or gain of the person owning, occupying ........ " because, according to their learned counsel, the profit or gain mentioned in the definition must have a direct relation with the use of the premises or with the instruments of gaming and a mere expectation or probability of profit arising from gaming itself would not be sufficient to bring the place within the definition of a common gaming house. The High Court noted that there was a clear distinction between the language employed in the two clauses of the definition so that while the element of profit or gain of the person owning or occupying the premises in question was immaterial under clause (i), it was an essential requirement of clause (ii) which deals with forms of gaming not covered by sub-clauses (a) to (f) of clause (i). The High Court therefore analysed the provisions of clause (ii)• and formed the opinion that the expression "or otherwise howsoever" occurring therein had the widest amplitude and did not take its colour from the immediately preceding portion of the clause which employs the words "by way of charge for the use of such house, room or place or instrument".

Discussing the matter further the High Court was of the opinion that the uqnirement of the expression "for the profit and gain of the person owning, occupying ........ " was that the purpose of occupying or using the premises must be such profit or gain as meant a probability

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or expectation of p.rofit or gain and not necessarily a certainty of it and that the expression would embrace even a case where the keeper of the premises expected to gain by the process of gaming itself. In coming to this conclusion, the High Court relied upon two Division Bench judgments of the Bombay High Court reported in Emperor v.

Daltatraya Shankar Paranjpe and another(') and Emperor v. Chimanlal Sankalchand(2) and rejected as untenable an opinion to the contrary expressed in some Allahabad cases and a single Bench decision of the Bombay High Court in State v. Vardilal Natuchand, (Criminal Appeal No. 551 of 1964 decided on the 14th of January 1965).

5. The argument raised before the High Court on behalf of the appellants has been reiterated before us by their learned counsel, Shri S. K. Dholakia, but on a consideration of the definition extracted above, we cannot agree with him. It is common ground between the parties that the present case is not covered by clause (i) of the definition, o that what has to be considered is the language of clause (ii) thereof.

For the applicability of the clause last mentioned, the following co"liitions have to be fulfilled :-

(1) Instruments of gaming must be kept or used in the premises in question.

(2) The keeping or using of the instruments aforesaid must be for the profit or gain of the person owning, occupying, using or keeping such premises.

(3) Such profit or gain may be by way of charge for the use of the premises or of the instruments or in any other manner whatsoever.

We fully agree with the High Court that the expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted in its scope by the words immediately preceding it which Jay down that the profit or gain may be by way of charge for the use of the premises.

In this connection we may usefully quote from the judgment of Shah, Acting C.J., who delivered the judgment of the Division Bene!. in Emperor v. Dattatraya Shankar Paran; pe, (Supra).

"It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in the house, room or place for profit or gain of the person owning, occupying, using or keeping the house, room or place. It may be done by establishing that the persori did so either by a charge for use of the instruments of gaming or of the house, room or place, or otherwise howsoever. The <n 25 Bombay Law Reporter 1089 A.I.R. 1924 Bombay 184

(2) 47 Bombay Law Reporter 75 A.I.R. 1945 Bombay 305. ·

expression "otherwise howsoever" appears to be very comprehensive, and does not suggest any limitation, such as is contended on behalf of the accused."

.......................... . . . . . . . . . . . . . . . . . . . . . . . . . . "We have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court; and after a careful consideration cf the arguments urged on either side, and with great respect to the learned Judges, I have come to the conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction.

I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular honse, room or place is a common gaming house, to the twp

alternatives mentioned in the case of Lachchi Ram v.

Emperor('). It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knows that profit or gain will in all probability resnlt from the use of the instruments of gaming.

The profit or gain may not actnally result from such use.

But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instrnments, it would be .sufficient, in my opinion, to bring the case within the scope of the definition.

At the same time it is clear that the prosecution must establish that the purpose is profit or gain.

This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place, or in any other manner that may be possible under the circumstances of the case, having regard to the nature of the game carried on in that house."

The opinion of Shah, Acting C.J., was noted with approval in Emperor v.

Chimanlal Sankalchand (supra), the reasoning adopted in which may be reproduced with advantage:

fJ "Lachchi Ram's case was considered by a Division Bench of this Court in Emperor v. Dattatraya (1923) 25 Bombay

(I) A.I.R. 1922 All. 61.

. ---r ,.

f y

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Law Reporter (1089) and was dissented from.

It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gamrng were kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming.

The profit or gain may not actually result from such use.

But if profit or gain is the probable and expected result of the game itself and if that is (he purpose of keeping or using the instruments, it would be sufficient to bring the case within the scope of the definition.

"It is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that 'the prosecution must establish that the purpose was profit or gain and tha1 that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner.' The words 'or in any otheamanner,' (which were used there instead of the words appearing at the end of the definition' ·•or otherwise howsoever') cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem genea-is with what pre- cedes those words, and hence even the hope of making a profit out of the gambling itself is suflicient to satisfy the -requirement of the definition of common gaming house. It may happen that the occupier of a house may allow it to be used by the public for gambling and he. himself may take part in it in the hope of making a profit, although he may not necessarily make it every time.

Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house."

We fully agree with the interpretation of the definition of the te.rm "'common gaming house" occurring in section 3 of the Bombay Act as propounded in the two Bombay authorities cited above, as also iii the impugned judgment, that interpretation being in conformity with ihe unambiguous language employed by the legislature.

The opinion 'lo the contrary expressed in Lachchi Ram's case (supra) and in either

decisions is found to be incorrect.

6. The learned counsel for the appellants concedes that if the interpretation placed on clause (ii) of the definition by the impugned judgment be upheld, t}le conviction of the appellants in the two appeals

is well-founded.

However, we ma}' state that there. is anothe.r go~' reason for up holding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which> states:

"When, any instrument of gaming has been seized in any house, room of place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the conrt is satisfied that the Police Officer who entered snch house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizur() of such instrument or thin, g shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for th~ purpose of gaming, although no! gaming was actually seen by the Magistrnte or the Police Officer or by any person acting under the authority of either of them: ·

Provided that the aforesaid presumption shall be made, notwithstanding any defect in th~ warrant or order in pnrc suance of which the house, room or place was eniered under section 6, if the Court considers the defect not to be a material one.'' It is not disputed that instruments of gaming were seized from the premises in question in both the appeals. That circumstances, according to the section, "shall be evidence, until the contrary is proved, that such house, room or place is used as a comon gaming-l1ouse and the persons found therein were present for the purpose of gaming, although no gaming was actually seen .......... " . The profit or gain mentioned in clause (ii) of the definition and also the other requirements of tliat clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here.

Admittedly, there is no evidence in reouttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants.

7. In the result both the appeals fail and are dismissed.

P.B.R.

Appeals dismissed.

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JAGAT SINGH KISHOR SINGH DARBAR ETC

THE STATE OF GUJARAT

February 6, 1979

P. s. KAILASAM

D. A. DESAI

S. 3(ii)

s. 1

s. 3

Prevention of Gambling Act, 1887

s. 5

Section 7

S. K. Dholakia

R. Ramachandran

S. P. Nayar

M. N. Shroff

KosHAL

Article 134

Constitution of India

High Court of Gujarat

section 4

section 5

Gambling Act 1887

section 4

section 5

section 4

section 5

Himatnagar town

section 3

Bombay High Court

Allahabad

14th of January 1965

S. K. Dholakia

Shah

Allahabad High Court

Lachchi Ram

Pochaji

section 3

section 7

section 6

section 6


TARINIKAMAL PANDIT AND ORS.

PERFULLA KUMAR CHATTERJEE (DEAD) BY L.RS.

February 21, 1979

I [V. R. KRISHNA IYER, P. S. KAILASAM AND A. D. KosHAL, JJ.]

Plea, which is a pure question of lalv taken for the first time may be permitted to be raised even at the last tier of appellate stage fn the Sr1preme Court.

Suit against purchaser, non-n1aintainability on ground of purchase being C on behalf of plaintiff-Whether applies to an auction sale by a Receiver appointed under Order 40 Rule 1 of the Civil Procedure Code--Scope of section 66 of the C.P.C. read wlih Order XX/ Rule 82 and Order XL Rule I.

"Purchase certified by the Court" in Section 66 refers only to 1he cirti ficate issued by the Court to the Purchaser under Order XXl Rule 94 C.P.C~.

D The plaintiffs-appellants filed a suit against the defendants-respondents claiming their title on an unregistered document to the suit property and premises purchased by the latter through a sale by the Receiver under the orders of the Court, on the ground that they were co-owners thereof by virtue of the said document.

The trial conrt decreed the suit but th;?J High Court, on appeal, accepted the appeal and dismissed the suit.

E Allowing the appeal by certificate, the Court

HELD : 1. A pure question of la"'' on the facts and circumstances of a case can be taken for the first time in the Supreme Court. [351 B-C]

(a) In the instant case, the plea that "as the title has vested in the respon dent by virtue of the confirmation of sale and the registered conveyance, the plaintiffs-appellants cannot rely on an unregistered document" is a pure qucs tion of law not involving any investigation of the facts.

[35IC-E]

Yaswant Deorao Deshmukh v. Walchand Ramchand Kothari, [1950] S.C.R. 852 @ 861; Raia Sri Sailendra Narayan Bhanja Rao v. State of Orissa [1956J S.C.R. 72; Seth Badri Prasad and Ors. v. Seth Nagarmal and Ors., [1959] Suppl. I S.C.R. 769 @ 773; State of U.P. and Anr. v. Anand Swarup, (1974] 2 S.C.R. 188; T. A. Appanda Mudaliar v. State of Madras, A.I.R. 1976 S.C. 2459; applied.

2. In a suit against the purchaser on the ground that the purchase was made on behalf of plaintiff or on behalf of some one through whom the plaintiff c1aims, the plaintiff cannot succeed in displacing the title of the - defendant on the basis of the unregistered agreement. [352 C]

ff On the pleadings, in the instant case, the question of law raised cannot result in the suit being dismissed as not maintainable. The claim of the appellant as a real owner was not based on the unregistered agreement alone.

TAiUN!KAMAL V. P. K. CHATTERJEE .341

The suit was basied on the plea that the suit property and the premises werA A purchased in ownership (i.e.) on the claim that the appellants-plaintiffs were the real owners of the property. [352 C-D]

G. H. C. Arifi v. Jadunath Mazumdar Bo.hadur, Aferitin1e Electric Co. Ltd. v. General Dairies Ltd., ferred to.

A.LR. 1931

P.C. 79, A.LR. 1937 PC 114; re-

3. Section 66 of the Civil Procedure Code prohibits any person claiming that a purchase certified by the Court in such manner as may be prescribed iu, favour of a person was made on behalf of the plaintiff. In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintained is a person claiming title under a purchase certified by the Court in such manner as may be prescrjbed. A certificate by the Court for the purchase in the manner prescribed is. therefore. C'sscntial. [353 B-C]

The word "prescribed" is defined under section 2(16) of the Civil Procedure Code, as meaning prescribed by Rules. The provision as to grant of a certificate by a court under a purchase is prescribed in Order 21. Order 21, Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 103 prescribe the procedHre relating to sale of immovable property.

When the Court makes an order confirming the aale under Order 21, Rule 92, the sale becomes "'bgolute.

After the sale becomes absolute under Rule 94 the Court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale i! declared to be the purchaser.

Such certificate is required to bear the day and the date on which the sale became absolute. (353 C-E]

The certificates by the Court referred to in Section 66 C.P.C. is a certificate under Order 21, Rule 94. The procedure envisaged for sale generally and sale of immovable property under Order 21 i~ sale by a public auction. S!le by a Court through the Receiver appointed by Court is not contemplated under these provisions. In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, i~ not given by the Court. Therefore, the prohibition under Sec. 66 cannot be invoked in the case of a sale by the Receiver.

A Receiver is appointed. under Order 40 Rule 1, and a property can be sold' by the Receiver on the directions of the Court even by private negotiations.

The requirement of Sec. 66 of the C.P.C., i~ a certificate by the Court as prescribed. Since Section 66 is not applicable to sales by Receiver it is not necessary to go into the question whether a ale by the Receiver under the Rules of the Calcutta High Court v; ould come within the purview of s. 66.

Section 66 refers to execution of sales only and has 110 application to a sale held by a Receiver~ In this case, the conveyance Ex. 5 was in accordance with the original side Rule of the High Court. [353 E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of 1973.

Appeal by Special Leave from the Judgment and Order dated 16-9-1971 of the Calcutta High Court in Appeal from Original Decree No. 209/66.

S. N. Andley, K. C. Sharma, Prem Malhotra and Uma Datta for the appellant.

A L. N. Sinha, G. S. Chatterjee, D. N. Mukherjee and D. P. Mukherjee

for the Respondent.

The Judgment and Order of the Court was delivered by

KAILASAM, J.-This appeal is by plaintiff 1, legal representatives of plaintiff 2 and plaintiff 3 by certificate granted by the High Court of Calcutta against its judgment dismissing the suit.

The suit was filed by the plaintiffs for the declaration of each of the plaintiffs' title to the extent of I/4th share each and in all 3/4th for all the plaintiffs of the suit property and the premises with the findings that the suit property and the premises were purchased in co-ownership awarding the plaintiffs and the defendants equal I/4th share each in terms of the agreement dated 2.4.1960 and for partition of the suit property and premises in equal 1/4th share each and for a decree of Rs. 45,000 with further accruals by way of receipt of further rent till full realisation of the claim. In the alternative a decree for accounts of the dissolvr.d partnership on declaration of dissolution of the same and partition of the suit property and premises in equal 1/4th share to each of the plaintiffs and the defe'1dant by metes and bounds.

The defendant in his written statement denied the claim of the plaintiff and contended that the suit property was ne.ver purchased in coownership or that the plaintiffs were entitled to 3 /4th share. He contended that plaintiffs 2 and 3 advanced Rs. 10,000 each as loan and that they had no claim to the property he having purchased the property in court auction as the absolute owner.

The trial court decreed the suit.

The defendant preferred an appeal to the High Court which accepted the appeal and dismissed the suit.

The facts of the case may be shortly stated. The suit property in Darjeeling belonged to one Harbhajan Singh Wesal.

He executed a mortgage in favour of the Calcutta National Bank Ltd.

The bank instituted a suit against Harbhajan Singh Wesal for recovery of Rs. l ,82,4CJ3-11-3 and for enforcement of the mortgage. Pending suit the Calcutta National Bank was wound up and the High Court of Calcutta passed a decree against Harbhajan Singh and appointed the Official Liquidator of the Calcntta National Bank as Receiver of the mortgaged property including the suit properties. On 5-9-1959 a final decree was passed directing the sale of the mortgaged property including the suit properties at Darjeeling by public auction subject to confirmation by the Court.

The defendant Prafulla Kumar Chatterjee was interested in buying the property in Darjeeling. He was negotiating with the Receiver for

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TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, J.) 343

the purchase of Darjeeling properties.

On 10.6.1959 he received a letter from D. N. Mukherjee Advocate advising him to give an offer to the Rece\yer and on 22:6.59 the defendant obtained an engineering estim_ate and made an offer to the Receiver to purchase the property for .Rs. 32,000.

On 20.11.59 an advertisement appeared in the newspaper by P.W. 1, K. K. l{shetry, Solicitor of the bank, for auction of the suit property.

Tue property was auctioned on 15th December, 1959 and the defendant offered the highest bid for Rs. 30,000.

On the same day the defendant deposited Rs. 7,500/-. While the sale was awaiting confirmation by the High Court a higher offer was made by one Baidyanath Ga"i and thereupon the defendant offered Rs. 40,000 which was accepted by the court and the sale in favour of the defendant was confirmed by the the High Court for a sum of Rs. 40,000 tm 19.1.60. The defendant deposited a sum of Rs. 2,500 in addition to Rs. 7,500 that had already

ben .::!...-posited.

The t.1e[cndant \Vas granted,, three months' time for depositing the balance sum of Rs. 30,000. Tue defendant did not have funds to pay the bqlancc of Rs. 30,000 and had to raise the amount.

On 2.4.1960 an agreement was entered into between the three plaintiffs and the defendant.

The suit by the plaintiffs is mainly based on this agreement P-45 dated 2.4.60.

Tue agreement is signed by the three plaintiffs as well as by the defendant. ·. According tothe recital in the agreement the parties after learning from the notification in the newspaper of the sale of the suit proPerty agreed between themselves to call the bid jointly in co-o\vnership in the nanie of the defendant and that in pursuance of the agreement the defendant was deputed to call the bid. Tue agreement further states that accordingly the defendant w1s. s, nt to Calcutta and the bid at the auctiort which was finally knocked down on 19.1.60 for a sum of Rs. 40,000 in the name of the defendant.· Tue agreement also provided that the plaintiffs and the defendants would be entitled to equal shares in the property. Another term of the agreeIIlent provided that the conveyance shall be drawn in the joint

names f the parties by obtaining kave from the High Court.

 On 7.4.60 the defendant executed two receipts Exs. 22 and 22A in 'favour of the second and the third plaintiffs respectively.

It is recited in the receipt that the defendant received a sum of Rs. 10,000 as the share of the purchase price of the property sold in public auction by the Official Liquidator in pursuance of the agreement amongst themselves. Though the receipt was typed in Darjeeling on 7.4.60 the defendant signed the receipt at Calcutta on 11-4-60; In the meantime en 8.4.60 the ddendant filed an application in the High Court of Calcutta praying that the time for completion of the sale be extended by three. months from 19-4-60 and the conveyance be executed in

• n:

favour of the three plaintiffs and himself. On 11-4-60 a sum of Rs. 30,000 was paid to M. R. Kshetry. The request for the conveyance to be made in favour of the three plaintiffs and the defendant was given up and the court directed the execution of the conveyance in favour of the defendant alone. On 17-6-60.a conveyance was executed by the Registrar of the High Court and the Receiver in favwr of the defendant alone in pursuance of the order of the court dated 11-4-60.

On 2-1-61 the plaintiffs served a notice on the defendant calling upon him to partition the property and deliver their shares and render accounts. On 3-6-61 the plaint in the suit was filed.

The plaintiffs apart from oral evidence very strongly rely on three documents to prove that they are joint owners and are entitled to 3 /4th share in the suit property.

The first document is the agreement between the parties dated 2.4.60.

The second are two receipts dated 7.4.60 is'sued by the defendant in favour of plaintiffs 2 and 3.

The third document is the application filed by the defendant on 8-4-60 in the High Court praying that the conveyance may be effected in favour of the three plaintiffs and himself.

The case for the plaintiffs is that between 20th and 23rd November, 1959 there was an advertisement in the newspapers by the Official Receiver announcing the sale of the suit property. According to the plaintiffs the three plaintiffs and the defendant mutually agreed to call the bid jointly in co-ownership in the name of the defendant and to purchase the property in equal shares contributing equolly foe bid money and the other costs as might be. incurred for the conveyance of the property.

It was further agreed that the plaintiffs and defendaot would have equal share in the property. According to the plaintiffs in pursuance of the agreement the. defendant was sent to Calcutta where he bid on 15.12.59 for Rs. 30,000 and the bid was confirmed by the High Court on 19.1.60 for a sum of Rs. 40,000.

Out of the bid money a sum of Rs. 7,500 was paid to the Receiver on 15.12.59 and a sum of Rs. '.!,500 on 19-1-60 and the balance of Rs. 30,000 on 11-4-60. In the meantime it is stated that the plaintiffs and the defendants considered i.t advisable to have the verbal agreement between them reduced to writing and thus the agreement dated 2.4.60 came into existence.

After the full bid money was paid, the plaintiffs contributing equally, a deed of conveyance was executed on 17-6-60 and registered at Darjeeling.

According to the mutual agreement the parties were entitled as cosharers to enjoy and occupy the suit property in co-ownership and were also e"citled to income from them. It was further agre<d that the defendant would manage thei joint property for the co-owners of the property and the defendant would realise the .rents for and on behalf of the parties with liability to pay the respective shares

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TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, !.) 345

to each of the plaintiffs.

The defendant, on the other hand, submitted that he was trying to purchase the suit property from the previous owner Harbhajan Singh by private negotiations before the proceeding was started for auction sale. The defendants efforts to purchase the property from the owner proved abortive and he decided to purchase the snit property in the auction sale when the property was advertised for sale. As the defendant was not acquainted with the procedure of court's sale he approached the first plaintiff for legal service and the first plaintiff gave directions as to how the defendant 'should proceed.

The defendant denied that he was sent by the plaintiffs to Calcutta for calling the bid.

According to him he went of his own accord, attended the public auction on 15.12.59 and offered Rs. 30,000 for purchasing the property and when the bid was accepted he paid Rs. 7,500 and that money belonged to him alone. Eventually, the sale was confirmed in favour of the defendant for Rs. 40,.000 and he paid a sum of Rs. 2,500 in court to make up Rs. 10,000 i.e. one-fourth of the bid-amount all by himself.

As the defendant had to pay the balance of Rs. 30,000 and as he was in short of funds he approached the first plaintiff who was his lawyer and asked for his advice. As the time for payment of balance amount was fast approaching the defendant frantically tried to find a person who could advance him temporary loan of Rs. 20,000 which amount he needed for completing the purchase.

As he was not successful he. requested the first plaintiff to find from amongst his clients persons who could make temporary advance of the amount.

According to the defendant in the first week of April, 1960 the first plaintiff informed the defendant that two of his clients, namely plaintiff Nos. 2 and 3, were agreeable to advanoe the requisite amount but in view of the provisions of Bengal Money Lenders' Act they were not willing to advance the amount unless some sort of safeguards were provided for and the transaction was not described as loan.

The first plaintiff drafted a document in the form of an agreement and the defendant signed it under the advice. and suggestion of the first plaintiff on the understanding that the document was not intended to be acted upon and was only to remain as a security for the loan and that the recitals in the said document do not represent the real nature of the transaction.

The defendant admitted that plaintiffs 2 and 3 advanced to the defendant a sum of Rs. 110,000 each by way of .loan and the defendant had to sign in their favour the documents acknowledging the receipt of the loan.

The defendant denied that the plaintiffs and the defendant contributed equally for payment of the bid money or in defraying the incidental costs in equal shares.

The defendant asserted that he alone paid the entire bid money and bore all the incidental expenses and that there was never any co-ownership or co-

partnership. He submitted that as the conveyance was executed exclusively in his favour the plaintiffs had no right to the property.

The plaintiffs have sought to prove that the parties after learning from the notification in the newspaper of the sale of the property agreed betwem themselves to call the bid jointly in co-ownership in the name of the defendant and in pursuance of that agreement the defendant paid the deposit Further it is the plaintiffs' case that in pursuance of the agreement the defendant was sent to Calcutta where he bid at the auc;. tion which was finally knocked down for the benefit of all. The plaintiffs' claim that they contributed I/4th of the price of the property and the expenses i.e. Rs. 13,500 each.

Further, it was, contended by the plaintiffs that the bid by the defendant was for the benefit of the three plaintiffs and the defendant and that it was agreed that the conveyance should also be in favour of all of them.

It is seen from the evidence that the defendant was interested in buying the property alone before the advertisement appeared in the newspapers on 20-11-59 and 23-11-59. The defendant received Ex. V a letter dated 10-6-59 from D. N. Mukherjee advocate, advising him to give an offer to the Receiver so that he can place the matter to the court for an order for sale by private negotiation.

Soon after, the defendant obtained an engineering estimate of the value of the property under Ex.

M and in accordance with the valuation wrote Ex. L on 22 .6.59 to K. K.

Kshctry offering Rs. 32,000 for the property. On 15-12-79 the defendant went to Calcutta by himself and made a bid for Rs. 30,000 and deposited Rs. 7,500 of his money.

The plaintiffs admit that the entire deposit was, made by the defendant bnt pleaded that it was agreed that on accounts being taken the expenses will be shared by the plaintiffs.

Due to a third party making a higher offer the defendant had to raise the bid for Rs. 40,000.

It is also not in dispute that the defendant by himself paid Rs. 2,500 over Rs. 7,500 already paid to make l/4th of the bid amount.

The bid for Rs. 40,000 was made by the defendant alone.

On behalf of the plaintiffs it is 'stated that 2 or 3 days after the advertisement appeared the defendant went to the first plaintiff and told him that he did not have sufficient funds and requested the first plaintiff to join him to purchase the property and that 2 or 3 days later plaintiff 3 and son of plaintiff 2 came' to first plaintiff and expressed their desire to purchase the property and the plaintiff advised them to purchase the property jointly with the defendant in shares.

Plaintiff 3, Daluram Agarwala, deposing as P.W. 5 does not support this case. In crossexamination P.W. 5 stated that on November 24 or 25, 1959 he and one N. K. Aggarwala, who is the son of plaintiff No. 2, went to see thEl first

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TARINJKAMAL v. P. K. CHATTERJEE (Kailasam, !.)

3 J 7

plaintiff. It was decided among them that the property would be pur .. . chased in the names of all the four of them, the plaintiffs and the defendant.

He would further say that the defendant on return from Calcutta towards the end of December, 1959 stated that the property had been purchased in the names of three plaintiffs and the defendant.

It is thus the case of P.W. 5 that the defendant was sent by all the three plaintiffs to bid on their behalf and that the defendant bid on behalf of all of them.

P.W. 7, the son of the second plaintiff, would state that it was agreed that

the property would be bought in the name of the defendant and that there was no talk that it would be purchased in the names of all the four of them. It is rather inexplicable as to how plaintiffs 2 and 3 who wanted to buy the property separately for themselves agreed to purchase jointly for the benefit of all of them.

It i's also difficult to accept the plea that palintiffs 2 and 3 went to the first plaintiff who is an advocate and there agreed to purchase the property in equal shares between the defendant, first plaintiff and themselves.

The second plaintiff had an office in Calcutta and the Calcutta office had a Munim and three other partners in whom they had complete confidence.

In the circumstances it is strange that they wanted the first plaintiff to be a co-'sharer so that he could attend to all the legal questions.

There is no explanation as to why plaintiffs 2 and 3 who were independant businessmen would join to purchase the property.

The e.xplanation that the agreement was arrived at to keep the bid low is purile. The evidence discloses that the plaintiffs were taking active part in the transaction after 2.4.1960 while between November, 1959 when the advertisement appeared and the date of agreement, there was comparative quiet, which fact probablises that the plaintiffs were not taking any part in the activities of the defendant regarding the bid in the court auction of the property.

The dealings '\ • of plaintiffs 2 and 3 show that they were dealing with the defendant at arms' length insisting on passing of a receipt for their payment of Rs.

20,000 and accompanying the defendant and paying the money to the Receiver themselves. It is highly improbable that they would have deputed the first defendant to go and bid on their behalf. There is no explanation as to why their share of the bid of Rs. 30,000 or the subsequent bid for Rs. 40,000 was not paid by them.

The story that before the defendant bid for the property for Rs. 30,000 there was an agreement between the plaintiffs and the defendant that the bid should be on behalf of all of them cannot be accepted .

. The next questio~ at arises is whether the plaintiffs have proved their case th.at pla.mti!Is 1, 2 and 3 each of them paid Rs. 13,500, Rs. 10,000 bemg their share of the bid money and Rs. 3,500 towards expenses. The two receipts! Exs. 22 and 22A are acknowledgements by

the defendant of receipt of Rs. 1 o; ooo from each of the plaintiffs 2 and 3.

The defendant admits that he did receive Rs. 10,0-00 from each of the plaintiffs 2 and 3 bnt his case is that it is a loan.

There can be no doubt that •he defendant was paid Rs. 10,000 by each of the plaintiffs 2 and 3.

The case of the plaintiffs is that they paid in addition Rs. 3,500 each towards expenses.

There is no receipt for this extra payment.

But the plea on behalf of plaintiffs 2 and 3 is that the son of the second plaintiff paid Rs. 27,000 to the Receiver Kshetry personally representing the share of plaintiffs 2 and 3 of Rs. 13,500 each.

We, find it difficult to accept the story for plaintiffs 2 and. 3 were reluctant to part with Rs. 10,000 each without receipt even though the first plaintiff assured

that there was no need for a receipt.

In fact :he money was not parted with by them till the second plaintiff's son accompanied the defendant to Calcutta and paid it in person to the Receiver.

In such circumstances, it is not possible to accept the plea of plaintiffs 2 and 3 that they did not insist on a receipt for payment of Rs. 3,500 each.

In this connection, the evidence of P.W. 1 Kshetry that out of the sum of Rs. :.0,000 paid in cash Rs. 27,000 was handed over to him by Narendra Kumar Aggarwal and only the balance was paid by the defendant was relied on by the plaintiffs to show that the share of plaintiffs 2 and 3 of Rs. 13,500 ' each was paid.

According to the defendant second plaintiff's son Narendra gave him Rs. 20,000 and he had Rs. 10,000 and he and Narendra counted Rs. 30,000 and handed over the sum of Rs. 30, C-OO to Kshetry, in the presence of the Judge.

On the evidence th~ High Court came to lhc conclusion that the money was counted by Ne.rendra and the defendant before it was paid to Kshetry and if Narendra handed to the Solicitor a sum of Rs. 2 7 ,000 after counting, the inferen:e <hat Rs. 27,000 belonged to plaintiffs is not justified.

We agree with the view taken by the High Court.

We therefore find that plaintiffs 2 and 3 have not proved that they paid Rs. 3,500 each towards the expenses.

The evidence relating to payment by the first plaintiff is even worse. According to the first plaintiff, who examined himself as P.W. 2, on 2nd April, 1960 when the agreement was signed he paid Rs. 10,000 as his share of purchase price and Rs. 2,500 towards cost, Rs. 12,500 in all in cash to the defendant.

He did not consider it necessary to take a receipt in view of the signed agreement which he thought was sufficient acknowledgment of the liability by the defendant. The first plaintiff was cross-examined about the availability of the sum with him.

He admitted that he had no accounts and that the payment of Rs .. 12.500 is not recorded any where. The first plaintiff would add that he paid another Rs. 1,000 by issuing a cheque in favbur of the third plaintiff with a direction that the third plaintiff should pay te

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TARINJKAMAL v. P. K. CHATTERJEE (Kailasam, J.) 349

"um of Rs. 1,000 to the defendant towards expenses. A cheque was no doubt drawn by the first plaintiff in favour of the third plaintiff but there is nothing to indicate that this amount was to be paid to

*''" dcfemiant. The third plaintiff did not obtain any receipt from the defendant. The High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant. On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13,500 by the first plaintiff to the defendant or the paymc;1t of Rs. 3,500 each by the plaintiffs 2 and 3 to the defendant.

There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs md the dclcnc1ant jointly.

The agreement contemplated taking of the conve:, ancc in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs ancj the defendant and the conveyance issued in their joint names.

But the applica1 ion for confirmation in the joint names was not pre>~'cd and the conveyance was ultimately made in favour of the first defendant alone.

There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names. Equally on the side of the defendant there is no explamtion as to why he signed the agreement which povided tbat te sale should be for the benefit of all of them arnl as lo why he applied to the court praying for the confirmation of the sale in favour of all of them.

Neither has the defendant denied receipt of Rs. 10,000 from each of the plaintiffs 2 and 3. There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced. If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest. On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire troth. The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30,000 •nd later for Rs. 40,000 and paid the deposits amounting to Rs. 10,000 by himself. Plaintiffs 2 and 3 have failed to prove that they have paid Rs. 3,500 each towards expenses in addition to payment of Rs. 10,000 by each of them which is admitted. The first plaintiff has totally faiied in proving that he had paid any part of the consideration. On the side of the defendant there is no explanation as to why he subscribed to the

agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them.

Neither is there any explanation by him as to why plaintiffs 2 .md 3 advanced Rs. 20,000 without interest.

Taking ail the circumstances into account we feel the irresistible inn ference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount. In trying to find the money he sought the help of the plaintiffs and received paymeut of Rs. 20,000 from plaintiffs 2 and 3. The crucial question is whether this amount was received merely as a loan as contended by the defendant or given on the agreement that plain- C tiffs 2 and 3 should be entitled to a share each. The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount. Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them. It is clear that the money was not advanced as a loan. It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but D it cannot be denied in the circumstances in which the defcridar.t was placed that he had accepted it. The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influence. The relief to whkh the plaintiffs are entitled to under the agreement cannot

be denied. The High Court after observing that plaintiffs 2 and 3 whD' are businessmen would not have Jent a large sum of money without charging interest and that it is not likely that the plaintiffs would have been so chantable towards the defendant who was a stranger was of the view that it was not necessary to examine the defendant's financial position and record a finding on the point for the purpose of appeal.

While holding that the defendant's version also does not disclose the entire truth the High Court held that that would not help the plaintiffs who have to prove the case they set up in the plaint. On the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail.

We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be denied. In the circumstances, the plaintiff" 2 and 3 are entitled to I/4th share each in the property on their payment of their share of the expenses i.e. Rs. 3,500 each. The defendant has been in possession of the property ever since the purchase and the plaintiffs are entitled to their share of the rents collected by the defendant. We estimate the share of the rents collected for each of the plamtiffs at Rs. 25,000. The result is the appeal is allowed to the extent that there will be a decree for partition and separate possession of 1I4th share

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TARINIKAMAL v. P. K."CHATTERJEE (Kaila.mm, J.)

35 I

each of plaintiffs 2 and 3. Plaintiffs 2 and 3 will pay to the defendant

R~. 3,500 each and interest at 10 per cent per annum from the date of the conveyance and receive Rs. 25,000 each from the defendant towards their share of the rent collected upto date. The first plaintiff will not be entitled to any relief and the suit so far as he is concerned is dismissed.

There will be no order as to costs.

Before we conclude we will shortly refer to the question of law raised by Mr. L. N. Sinha on behalf of the defendant. He submitted that as the title in the property vested in the defendant by confirmation of the court sale and later by a registered conveyance, the plaintiffs cannot seek relief on the unregistered agreement Ex. 4 as conveying any title to them. This point was not taken in any of the courts below but learned counsel submitted that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the point to be taken. In support of his contention that a pure question of law in the circumstances can be taken for the first time in this Court he relied on the decisions of this Court. in Yaswant Deorao Deshmukh v.

Walchand Ramchand Kothari('), Raja Sri Sailendra Narayan Bhanja Dea v. The State of Orissa('), Seth Badri Prasad and Others v. Seth Nagarmal and Others('), State of Uttar Pradesh & Anr. v. Anand Swarup(4 ) and T. G. Appanda Mudaliar v. State of Madras(•). As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question. The plea of the learned counsel is that as the title has vested in him by virtue of the confirmotion of the sale and the registered conveyance the plaintiff cannot rely on the unregistered agreement. In support of his contention the learned counsel relied on the decision of the Privy Council in G. H. C. Arif] v. Jadunath Majumdar Bahadur(•) and Maritime Electric Co. Ltd. v. General Dairies Ltd. (7). In G. H. C. Arif] v. Jadunath Majumdar Bahadur it was doubted whether the English equitable doctrine can be applied so as to modify the effect of an Indian statute.

The court expressed itself thus : " .... but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy to such a 'statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only

(I) [1950] S.C.R. 852 at p. 861

(2) [1956] S.C.R. 72

(3) [1959] Supp. (I) S.C.R. 769 at 773

(4) [1974] 2 S.C.R. 188

(5) A.I.R. 1976 S.C. 2450

(6) A.LR. 1931 P.C. 79

(7) A.LR. 1937 P.C. 114

3-253SCI/79

be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible".

The Court further observed : "Their Lordships do not understand the dicta to mean that equity will hold people bound as if a contract existed, where no contract was in fact made : nor do they understand them to mean that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts shall be conferred only by a registered instrument." In Meritime Electric Co. Ltd. v. General Dairies Ltd. (supra) the court observed : " .... where as here the statute imposes a duty of a positivo kind, not avoidable by the performance of any formality, for the doing d the very act which the plaintiff seeks to do, it is not open to the defendant tCJ set up an estoppel to prevent it". The decisions are clear that the plaintiffs cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement. But this will not help the defrndant as the suit is based on the plea that the suit property and the premises were purchased in co-ownership i.e. on a claim that the plaintiffs were the real owners of the property.

The claims of the plaintiff as a real owner is not based on the unregistered agreement alone. On the pleadings in the case the question of law raised cannot result in the rnit being dismissed as not maintainable.

The sccor, d question the learned counsel raised was that the suit is barred under section 66 of the Civil Procedure Code. The trial court overruled the plea on the ground that although the sale in question is a court sale it is not according to the rules prescribed by the Civil Procedure Code but only according to the Rules of the Calcutta High Court on the Original Side.

The learned counsel submitted that the purpose of section 66, Civil Procedure Code, applies equally to court sales conducicd under Rules of Civil Procedure Code as well as those conducted under the High Court Rules. Reliance was placed on a decision of the Privy Council in Bishun Dayal v. Kesha Prasad and Anr. (I) where the only case pleaded by the plaintiff was that the person through whom he claimed derived his right to half of the village from the auction purchase having been made in part on his behalf by the auction purchaser, it was held that the claim was barred by section 66, Civil P10cedurc Code, inasmuch as no case independent of auction purchase and basing title upon subsequent possession was put forward in the plaint. Section 66 of the Civil Procedure Code runs as follows:-

"66(1). No suit shall be maintained against any persott claiming title under a purchase certified by the Court in such ----

(!) A.LR. 1940 P.C. 202.

TARINIKAMAL v. P. K. CHATTERJEE (Kailasam, !.) 353

m.inner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or ou behalf of some oue through whom the plaintiff claims."

(2) ' x x x x

s. 66 prohibits any person claiming that a purchase certified by the court in such manner as may be prescribed in favour of a person was made on behalf of the plaintiff. In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintaintd is a person claiming title under a purchase certified by

the court in such manner as may be prescribed. A certificate by the court for the purchase in the manner prescribed is therefore essential.

The word "prescribed" is defined under s. 2(16) of the Civil Procedure Code as meaning prescribed by Rules. The provisions as to grant of a certificate by a court under a purchase is prescribed in Order 21.

Order 21, Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 108 prescribe the procedure relating to sale of immovable property. When the court makes an order confirming the sale under Order 21, Rule 92, the sale becomes absolute. After the sale becomes absolute under Rule 94 the court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale is declared to be the purchaser.

Such certificate is required to bear the day and the date on whlch the sale became absolute. The certificate by the court referred to in sec. 66 is a certificate under Order 21, Rule 94. The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction. Sale by a court through the Receiver appointed by court is not contemplated under these provisions. In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, is not given by the Court. Therefore, the prohibition under sec. 66 cannot be invoked in the case of a sale by the Receiver. A Receiver is appointed under

Order 40, Rule 1, and a property can be sold by the Receiver on the directions of the court even by private negotiations. The requirement of s. -156 of the C.P.C. is a certificate by the court as prescribed. In this c:ise the conveyance Ex. 5 was in accordance with the original side Rules of the High Court. In the view we have taken that s. 66 is not

a_Pplicable to sales by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of s. 66. Section 66 refers to xecution of sales only and has no application to a sale held by a Receiver. In this view the objection raised by the learned counsel for the defendant has to be rejected.

ORDER

When the Judgment was delivered in Court on 16th January, 1979, allowing the appeal to the extent that there will be a decree for partition and separate possession of one-fourth share each of plaintiffs 2 and 3, the parties expressed their desire to agree amongst themselves and divide the properties finally and report a settlement to that effect and prayed that the Court may be pleased to pass a decree in terms of the compromise.

Leave was granted to the parties to enter into a compromise and report the matter to the Court for the passing of the decree in terms of the compromise. Accordingly the parties have entered into a compromise and have filed the compromise memo along with plans for passing of the final decree.

Accordingly we direct that a decree be passed in terms of the compromise.

S. R. . Appeal allowed.

TARINIKAMAL PANDIT AND ORS

February 21, 1979

V. R. KRISHNA IYER

P. S. KAILASAM

A. D. KosHAL, JJ.

Order 40 Rule 1

section 66

C.P.C

Order XL Rule

Section 66

C.P.C

Supreme Court

(1974] 2 S.C.R. 188

Section 66

section 2(16)

Order 21, Rules 64

Order 21, Rule 92

Section 66

C.P.C

Order 21, Rule 94

Order 21, Rule 94

Sec. 66

Order 40 Rule 1

Sec. 66

C.P.C

Section 66

Calcutta High Court

s. 66

Section 66

S. N. Andley

K. C. Sharma

Prem Malhotra

Uma Datta

A L. N. Sinha

G. S. Chatterjee

D. N. Mukherjee

D. P. Mukherjee

KAILASAM

High Court of Calcutta

Darjeeling

Harbhajan Singh Wesal

Calcutta National Bank Ltd.

Calcutta National Bank

Harbhajan Singh

Calcntta National Bank

Prafulla Kumar Chatterjee

D. N. Mukherjee

K. K. l{shetry

15th December, 1959

Baidyanath Ga"i

Calcutta

M. R. Kshetry

20th and 23rd November, 1959

22 .6.59 to

K. K.

Kshctry

Daluram Agarwala

November 24 or 25, 1959

N. K. Aggarwala

Kshetry

Kshetry

Narendra Kumar Aggarwal

Narendra

Ne.rendra

2nd April, 1960

Kailasam

1,000 by issuing a cheque in favbur of the third plaintiff with a direction that the third plaintiff should pay te
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TARINJKAMAL v. P. K. CHATTERJEE (Kailasam, J.) 349

"um of Rs.

L. N. Sinha

Transfer of Property Act

[1974] 2 S.C.R. 188

section 66

section 66

Civil Procedure Code

section 66

Section 66

s. 66

s. 2(16)

Order 21, Rules 64

Order 21, Rule 92

sec. 66

Order 21, Rule 94

Order 21, Rule 94

sec. 66

Order 40, Rule 1

C.P.C

s. 66

s. 66

Section 66

16th January, 1979