MUDDADA CHAYANA A

KARNAM NARAYANA AND ANR. ETC. ' February 14, 1979 B

(D. A. DESAI AND Q. CHINNAPPA REDDY, JJ.]

k Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act (A.P. Act 26 of 1948), Sections 56(1)(c) 55, 11 and 15- • Whether operation of Section 56(1) (c) is limited only to the purposes of sec- lions 55 and 56(1)(a) ond (b)-lnterpretation of a statute. ,..,

Uilder Section 56(1)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and conversion into Ryotwari) Act, 1948, "where, after an estate is notified, a dispute {1.<rises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, th>! dispute shall be decided l>y the Settlement Officer". Section 56(2) of the Act provides for an appeal to the Estates Abolition Tribunal agtdnst the decision of the Settlement Officer whose decision was final and not to be questioned in any court of law.

The petition filed before the Tahsildar, Pathapatn<lm under section 13 of the Andhra Tenancy Act by the appellant, for the eviction of the respondents

on the ground of default in i:tiyment of rent was dismissed on the ground, among others that the respondents had occupancy rights in the land. The E appeal before the Revenue Divisional Officer Tekkali \Vas dismissed on the ground that the petition for eviction wafj not maintainable since the question as to who was the lawful ryot in respect of lany holding in an estate had to be decided by the Settlement Officer under Section 56(l)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act and that the decision of such question was within the exclusive competence of the Settlement Offi'Cer.

In the revision petition filed before it under Art. 227 F f the Constitution, the High Court of Andhra Pradesh agreed with the ,.._ r appellate order.

Disn1issi11g the appeal by special leave the Court. • HELD : l. Interpretation of a statute contextual or otherwise must further G and not frustrate the object of the statute. [207 DJ

The object of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 is to protect ryots_ and not to leave them

i~ wilderness.

When the Act provides a machinery in Section 56(1) (c) to discover who the lti.wful ryot of a holding \Vas, it is not for the Court to denude the Act of a11 meaning by confining the pruvisions to the bounds of

H Section 55 and 56(1) (a) and (b) on the ground of "contextual interpreta tion". [207 C-DJ 14-196 SCl/79

2. The scope of section 56(1) (c) cannot be restricted to mean that it waa

controlled by Section 55 and 56(1)(a} and (b) and that an enquiry into the que&tion as to who was the lawful tyot of a holding under that section was permissible only for the purpose of identifying the person liable to pay the arrear of rent which had accrued in respect of the holding before the taking over of the estate. [204 E-G]

... ..

It would indeed be anomalous and ludicrous and reduce the Act to an - oddity, if the Act avowedly aimed at reform by the conferment of ryotwari --4 pattas oo ryots and the <!ibolition of intermediaries is to be held not to cont.a.in

any provision for the determination of the vital question as to who was the * lawful ryot of a holding. Section 56(1)(c) is indeed such a provision. A con• textual interpretation may not be quite appropri~, te in view of the fact that ..

Sections 55 and 56(l)(a) and (b) occur under the heading 'Miscelluneous',-l._ Any other interpretation would lea, d to conflict of jurisdiction and the imp1e~ r--- raentation of the Act would be thrown into disarray. (206 F, 207 A, B-C] i..

Munuswami Naidu (died) & Ors., v. R. Venkata Reddy and Ors., A.LR. 1978 A.P. 200 (F.B.); approved.

3. The Andhra Pradesh Estates Abolition Act is a self contained Code 'in

which a provision is olso made for the adjudication of various types of disputes arising after an estate is notified by specially constituted Tribunals.

On gene~ ral principles, the special Tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide disputes entrusted by the statute to them for their adjudication. [204 D-EJ

Appanna v. Sriramamurthy, [1958] 1 Andh. W.R. 420; npproved.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1760-1763/ 69.

the Judgment and Decree dated

High Court in Civil Revision Appeals by Special Leave from 25-10-1967 of the Andhra Pradesh Application Nos. 342-345 /64. ---..

Vepa P. Sarathi and A. V. Rangam for the Appellant.

Ex-parte for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-The petitioner who lost before the Subordinate Tribmrals and the High Court is the appellant in this appeal by special leave.

Alleging that he was the landlord and that the respondents were his tenants in respect of certain lands, in Bhommika village, the appellant filed petition before the Tehsildar, Pathapatnam under Section 13 of the Andhra Tenancy Act for the eviction of the respon-

.......

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M. CHAY ANA v. K. NARAYANA (Chinnappa Reddy, J.)

20 J

dents on the ground of default in payment of rent.

The respondents pleaded that the lands were situated in an Inam Estate which had been taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, and that, they and their ancestors, who had occupancy rights were always in cultivating possession of the lands. It was also pleaded that after the taking over of the estate by the Govern·

ment there was no longer any relationship of landlord and tenant between the petitioner and the respondents.

The Tehsildar dismissed the petition for eviction on the ground, among others, that the respondents had occupancy rights in the land.

The landlord preferred an appeal before the Revenue Divisional Officer, Tekkali.

The Revenue Divisional Officer rejected the appeal on the ground that the petition for eviction was not maintainable since the question as to who was the 1'awful ryot in respect of any holding in an estate had to be decided by the Settlement Officer under Section 56(1) (c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) A.ct, and that th_e decision of such question was within the exclusive competence of the Settlement Officer.

A revision petition filed before the High Court of Andhra Pradesh under Article 227 of the Constitution was dismissed by the High Court again for the reason that the question as to who was entitled to the grant of ryotwari patta had to be decided by the Settlement Officer under Section

56 of the A.ndhra Pradesh (Andhra Area) Estates (Abolition and, Conversion into Ryotwari) Act and that the decision of such question was within the exclusive jurisdiction of the Settlement Officer.

The appellant has preferred this appeal by special leave of this Court.

Shri Vepa P. Sarathi, learned Counsel for the appellant argued that the view expressed by the High Court regarding the exclusive jurisdiction of the Settlement Officer to decide the question as to who was the lawful ryot of a holding was not good law in view of the decisior: of a Full Bench of three Judges of the Andhra Pradesh High Court in Cherukuru Muthayya v. Gadde Gopalakrishnayya & Ors.(1)

it is not disputed that the lands are situated in Bhommika village.

It is not also disputed that Bhommika village was in Inam estate and that it was taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act. The appellant claims that he is the lawful ryot of the lands in dispute and that the respondents are his tenants. On the other hand the respondents claim that they are the lawful ryots of

(1) A. I. R 1974 A. P. 85.

204 SuFREME COURT REPORTS

[J 979] 3 S.C.R.

th~ holding. The question at issue between the parties therefore is, whether the appellant or the respondents are the lawful ryots of the holding.

Under Section 56(1) (e) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act "where, after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer". Section 56(2) provides for an appeal to the Estates Abolition Tribunal against the decision of the Settlement Officer and further provides that the decision of the Tribunal shall be final and shall not be liable to be questioned in any Court of law. Prima facie, therefore, the question as to who is the lawfnl ryot of any holding, if such question arises for decision after &n estate is notified, has to be resolved by the Settlement Officer and by the Estates Abolition Trib0nal under Section 56 (1) (c) and 56(2) of the Andhra Pradesh Estates Abolition Act The Andhra Pradesh

Esmtes Abolition AClt is a self contained code in which provision is

0 also made for the adjudication of various types of disputes arising after an estate is notified, by specially constituted Tribunals.

On general ; irinciples, the special Tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide disputes entrusted by the statute to them for their adjudication.

Shri Vepa P. Sarathi's submission was that Section 56(1) (c) did not enable the Settlement Officer to decide the question as to who was the lawful ryot of a holding every time such question arose and for all purposes but only when such qnestion arose in connection with the mr.tters dealt with by Section 5 5 and Section 5 6 ( 1) (a) and (b) . In other words the argument was that Section 56(1) (c) was controlled by Section 55 and Section 56(1) (a) and (b) and that an enquiry into the question as to who was the lawful ryot of a holding under Section 56(1) (c) was permissible only for the purpose of identifying the per-· son liable to pay the arrear of rent which had accrued in respect of the holding before the taking over of the estate. The submission of Shri Vepa P. Sarathi is supported by the decision of the Full Bench of the Andhra Pradesh High Court in Cherukuru Muthayya v. Gadde Gopnlakrishnayya & Ors. (supra). We are, however, unable to see any

jusification for restricting the scope of Section 56(1) (c) in the manner suggested by Shri Sarathi. We will briefly indica•e our rearnns for holding that the scope of Section 56(l)(c) is not to be restricted as was done by the Full Bench of Andhra Pradesh High Court in Cherukuru Muthayya v. Gadde Gopalakrishnayya & Ors. (supra). We

• •

are fortunately relieved of the necessity of considering the matter more elaborately in view of the fact that the decision in Cherukuru Muthayya

v. Gad de Gopalakrishnayya & Ors. on this part of the case has since beeu over-ruled by a Full Bench of five Judges of the High Court of Andhra Pradesh in I. Munuswami Naidu (died) & Ors. v. R. Venkata Reddy & Ors.(!) after a thorough and exhaustive consideration of the question. We may also add here that until the decision in Cherukuru Muthayya v. Gadde Gopalakrishnayya & Ors., for several years it was understood that Section 56(1) (c) conferred complete and exclusive • __.l_. jurisdiction on the Settlement Officer to decide rival claims of ryots for ,, the grant of ryotwari patta and Section 55 or 56(1) (a) and (b) were ; never understood as controlling Section 56(1)(c).

A brief resume of the provisions of the Andhra Pradesh ( Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act relevant for onr present purpose is permissible here. As stated in the preamble

the Act was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the Rights of land-holders in permanently D Eetlled and certain other estates and the introduction of the ryotwari settlement in such estates. Section 1 ( 4) provides for the notification of estates and Section 3 enumerates the consequences of notifying an estate under Section l ( 4) of the Act. In particular Section 3 (b) provides that the entire estate shall stand transferred to the Government and vest in them free of all encumbrances Section 3 ( c) provides that all rights and interests created in/or over the estate by the land-holder shall cease and determine as against the Government. Section 3(d) empowers the Government to take possession of the estate but saves from dispossession any person who the Government considers is prirna

. _ facie entitled to a ryotwari patta until the question whether he is actually _., J•r entitled to snch patta is decided by the Settlement Officer in the case of a ryot or by the Settlement Officer and the Tribunal on appeal in the ca''" of a land-holder.

Section 3 (f) provides that the relationship of • 1 be landholder and ryot shall, as between them, be extinguished .

Section 3 (g) provides that ryots in the estate shall, as against the Government be entitled only to such rights and privileges as are recognised or conferred on them by or under the Act. Section 11 confers on every ryot in an estate the right to obtain a ryotwari patta in respect of ryoti land which was included or ought to have been included in the holding on the notified date. Sections 12, 13 and 14 confer on the land-holder the right to obtain a ryotwari patra in respect of private

land in a Zamindari, Inam and Under-tenure estate respectively. Section 15(1) provides for enquiry by the Settlement Officer into claims

(I) A. I. R. 1978 A. P. 200.

by a land-holder for a ryotwari patta, Under Sections 12, 13 and 14.

Seciion 15 (2) provides for an appeal to the Tribnnal from the decision of the Settlement Officer and it declares that the decision of the Tribunal shall be final and not liable to be questioned in any Court of law.

Section 16 imposes on every person, whether a land-holder or a ryot who becomes entitled to a ryotwari patta under the Act in respect of any land, the liability to pay to the Government the assessment that may be lawfully imposed on the land. Section 21 to 23 provide for the survey of estates, the manner of affecting ryotwari settlement and the determination of the land-revenue. Sections 55 to 68 occur under the heading "Miscellaneous". Section 55 provides for the collection of ren: which had accrued before the notified date. Section 56 provides for the decision of certain disputes arising after an estate is notified.

It provides for the decision of a dispute as to (a) whether any rent due

fron• a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is. The dispute is required to be decided by the Settlement Officer. Against the decision of the Settlement Officer, an appeal is provided to the Tribunal and the decision of the Tribunal is declared final and not liable to be questioned in any Court of law.

Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were inc:uded F. or ought to have been included in his holding before the notified date and on the land-holder the right to obtain a ryotwari patta in respect of lands which belonged to him before the notified date as his private lands. The Act makes express provision for the determination of claims by landholders for the grant of ryotwari patta in respect of the alleged private

lands.

If there is provision for the determination of the claims of a landholder for the grant of ryotwari patta in respect of his alleged private lands, surely, in an Act aimed at the abolition of intermediaries and the introduction of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta. Section 56(1) is clearly snch a provision. But in Cherukuru Muthayya

v. Gadde Gopalakrishnayya & Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose.

The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held ihat Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1) (a) and (b), that the applicability of Section 56(1)(c) musl be held to be "intimately and integrally connected"

with those provisions.

We think that the approach of the Full Bench was wrong.

Apart from the fact that Section 55 and 56(1) (a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench overlooked the serious anomaly created by its conclusion.

The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land-holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claim's by ryots for the grant of ryotwari pattas.

It would indeed be _J.. anomalous and ludicrous and reduce the Act to an oddity, if the Act ,... avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding.

The object of the Act is to protect ryots and not to leave them in the wilderness.

When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding was, it is not for the Court to denudi' the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation".

Interpretation of a statute, con. textural or otherwise must further and not frustrate the object of the statute.

We are, therefore, of the view that Cherukuru Muthayya v. Gadde Gopalakrishnayya & Ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Sec.tion 56('l)(a) and (b).

We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) & Ors v. R. Venkata Reddi & Ors. (supra) except to add that to adopt

Y .. the reasoning of the Full Bench of three Judges in Cherukuru Muthayya

v. Gadde Gopalakrishnayya & Ors. would lead to contlict of jurisdiction and the implementation of the Act would be thrown into disarray.

In this connection we' may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna v. Sriramamurry(I)

"Where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwiSe expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.

Unde.r the ---··--

(1) (1958) I And. W. R. 420.

S.R.

Act, old rights were abolished and new rights were created. A lawful ryot is entitled to a patta, when a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act".

In view of the above discussion the appeal is dismissed.

Appeal dismissed.

MUDDADA CHAYANA

A

KARNAM NARAYANA AND ANR. ETC

February 14, 1979

D. A. DESAI

Q. CHINNAPPA REDDY, JJ.

Sections 56(1)(c)

Section 56(1)

Section 56(1)(c)

Section 56(2)

section 13

Section 56(l)(c)

Art. 227

High Court of Andhra Pradesh

Section 56(1)

Section 55 and 56(1)

section 56(1)

Section 55 and 56(1)(a} and (b)

Section 56(1)(c)

Sections 55 and 56(l)(a)

Vepa P. Sarathi

A. V. Rangam

CHINNAPPA REDDY

Section 13

Chinnappa Reddy

Revenue Divisional Officer, Tekkali

Section 56(1)

Article 227

Section

56

Andhra Pradesh High Court

Bhommika village

Section 56(1)

Section 56(2)

Section 56

Section 56(1)

Section 5

Section 5

Section 56(1)

Section 55

Section 56(1)

Section 56(1)

Section 56(1)

Sarathi

Section 56(l)(c)

Cherukuru Muthayya

Section 56(1)

Section 55

Section 56(1)(c)

Section 1

Section 3

Section 3

Section 3

Section 3(d)

Section 3

Section 3

Section 11

Sections 12, 13 and 14

Section 15(1)

Sections 12, 13 and 14

Section 16

Section 21 to 23

Sections 55 to 68

Section 55

Section 56

Section 56(1)

Section 56(1)

Section 56(1)

Section 55

Section 56(1)

Section 56(1)(c)

Section 55 and 56(1)

Section 15

Section 56(1)

Section 55 and 56(1)

Section 56(1)(c)

Section 55

Subba Rao


_J...__ ,.

BADRI NATH & ANR.

MST. PUNNA (DEAD) BY LRS & ORS.

February 15, 1979

[V. R. KRISHNA !YER, D A. DESAI AND A. D. KosHAL, JJ.]

Hindu Succession Act, 1956-S. 4-Scope of-Share of a baridar (turnhulder) ill the ofJerings of a temple-If a heritage right nature of office of baridar-C11ston1 that offerings should go to specified sub-castes-if valid .

The plaintiff's (respondent's) father and the defendants (appellants) were entitled to receive a defined share in the offerings made at a holy shrine.

OB her father's death the plaintiff claimed his share in the offering~ alleging that both under the law of inheritance and by virtue of her father's wt11 executed in her favour, she was entitled to his share; but the defendants interfered with her right to collect that share.

In the plaintiff's suit the defendants contended that only members belong~

ing to four specified sub-castes were entitled to receive the offerings and the D plaintiff lm'Ving lost her sub-caste by reason of her marriage outside those sub-castes she was not entitled to her fs.ther's share. But this argument was rejected by the trial court which held that on the dea.th of the baridar (lumholder) his heirs inherited his right to receive offerings just as they inherited !his other property and that therefore, the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father.

On appeal a Division Bench of the High Court held that where offerings were received by persons independently of any obligation to render services, they were alienable and attachable and that the custom which restricted the right to a share in the offerings only to members of the four specified subcastes, could not be given effect tG in Yiew of the provisions of the Hindu Succession Act and that therefore, the plaintiff \Vas entitled to succeed to the right though she did not belong to any of the sub-castes.

On further appeal to this Court it was contended on behalf of the appellants that (1) the right of the baridar was not a trans[erable right and (2) the right to a share in the offerings and the duties attached to it must be regarded as an office like that of a shebait and cannot be regarded as heritable property.

Dismissing the appeal,

HELD : The right of the baridar was a transferable right.

1. To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and 01 resolution passed by the Dharmarth Committee, was restricted to the four sub-castes, and similarly the baridars did not perform any duties in return. Sometime later, liowever, certain obligations, such as to provide permanent servant~, to look after visitors and the like, were superimposed on that right. Though the fight to receive & share in the offerings was subject to the performance of those duties, none of them

.. '-- was in nature priestly or required a personal qualification. All of them were of a non-religious or secular character which could be performed by the baridar's agents or servants incurring expense on his account. When the right to receive !.he offerings made at a teinple is independent of rin obligation to -.. render services involving qualifications of personal nature, (such as offi.c; ating the worship) such a right is heritle as well as alienable. [217 B-H] ., B Balmukand & ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.

2. (0•) The right of the baridars cannot be equated with the right and ' duties of a shebait. The haridars were not managers of the shrine in the sense that a shebait is in relation to a temple in his charge. The overall • management of the temple vested in the Board of Trustees known as Dhar -....4..... marth Committee. (218 EJ '"

(b) It is not correct to say that shebaitship is neither more nor less than an office and is not heritable property. Shebaitship cannot be described as a mere office. In addition to certain responsibilities it carries with it a definite right to property. It is well-established that in the concept, CJf Shebait, both the elements of office and property, duties and personal interst are mixed up and one element cannot be detached from the other.

Old texts as ¥; ell as courts have recognised heriditary office of shebaitship as itnmovablc property.

(218 F; 220 A-BJ

Angurbala Mullick v. Debabrata Mullick, [1951] SCI{ 1125; Rain Ratran v.

Bajrang Lal & ors. [1978] 3 SCR 963 follo\ved.

3. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and being heritable property, it will descend in accordance with the dictates of the I-Tindu Succession Act in supersession of all customs to the contrary in view of s. 4 of thrit Act. [220 EJ

In the instant case, in the light of s. 4 of the Hindu Succession Act the requirement that the right could not be exercised by a person not belonging to any of the four sub-castes becomes ineffective. [220 H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1118 of 1972

(Appeal by Special Leave from the Judgment and Order dated 18-1-72 of the Jammu and Kashmir High Court in L.P.A. No. 6 of 1969.)

L. N. Sinha, Satish Gupta, K. J. John and P. P. Singh, for the appellant.

R. K. Bhat and D. C. Anand for respondent lB--iK.

The Judgment of the Court was delivered by

KosHAL, J.-This appeal by special leave has arisen out of a suit brought by Sm!. Punna, respondent No. 1, against the two appellants

H and respondent No. 2 for the issuance of a perpetual injunction rest- • raining the three defendants from interfering with her right to recover her father's share of six annas in a rupee in the offerings made

BADRI NATH V. MST~ I'UNNA (lfoshal; J;) 211

at the sacred shrine of Shri Vaishno Devi Ji which is situated on the Trikutta Hills.

The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, in a second appeal by a learned Single Judge of the High Court of Jammu & Kashmir and in a Letters Patent Appeal by a Full Bench of that Court.

It is the judgment of the Full Bench (which is dated the 18th of January, 1972) that is impugned before us.

2. The averments made in the plaint may be summarised thus. • , l The plaintiff is the daughter of one Bagu who died in or about the ,.- year 1959.

During his life time Bagu and the three defendants were

j entitled to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain days falling within every seventh Bikrami year so that Bagu would have 6/16th share therein and the defendants collectively a similar share.

After the death of the plaintiff's father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff having succeeded to th•e share of her father both under the law of inheritance and by virtue of a will executed by him in her favour.

The plaintiff had to resort to the suit as the defendants had started interfering with her right to collect her share of the offerings.

3. The defenda"nts contested the suit.

They challenged the will set up by the plaintiff as a forged one and further pleaded that only members of four sub-castes namely, Khas Thakars, Darora Thakars, Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings and that while Bagu was entitled to a share in the same, th<:

plaintiff was not as she had lost her original sub-caste by marriage outside the four sub-castes mentioned above.

The offerings, aecordying to the defendants, were also not liable to devolve by iiiheritance

- <JI demise.

----~

4. The findings arrived at by the trial court were these :

(i) On the death of a baridar (which expression, when literally translated, means turn-holder) belonging to any of the aforementioned sub-castes, his heirs inherited his right to receive offerings just as they inherited his other property.

(ii) Under section 4 of the Hindu Succession Act, any custom or usage inconsistent with the provisions of that Act becomes ineffective.

(iii) Even under section 6 of the Hindu Succession Act read with the Schedule appended therto the property of Bagu would devolve on the plaintifi in case Bagu died intestate.

(iv) Gagu executed a valid will in favour of the plaintiff devising to her the right to receive the offerings, apart from other properties.

(v) The plaintiff was entitled, in view of the above four findings to inherit the right to receive offerings not only by reason of the provision of sections 4 and 6 of the Hindu Succession Act, but also because of the will.

(5) At the hearing of the Letters Patent Appeal by the Full

Bench, the following four contentions were raised on behalf of the defendants :

(i) The chance of future worshippers making offerings to the deity is a mere possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act and is not property which can be transferred or inherited.

(ii) The right to receive offerings is not a transferable or heritable right.

(iii) The provisions of the Hindu Succession Act do not apply to the case in hand.

(iv) According to the custom governing the shrine of Shri

Vaishno Devi Ji, only the abovementioned four subcastes were entitled to share the offerings.

All these contentious were rejected by the Full Bench as untenable. - ---..I

l '- In regard to the first of them the Full Bench followed Ba mukand and Others v. Tula Ram and Others(') ih which it was held that the right to receive offerings when made is a definite and fixed right "nd does not depend on any possibility of the nature referred to in clause

(a) of section 6 of the Transfer of Property Act. because the fact that offerings whether large or small are bound to be made is a certainty.

In relation to the second contention, the Full Bench noted the contents of paragraph 422 of "Principles of Hindu Law" by Mnlla

which states, inter alia, that where offerings, though made to idols, are received by persons independently of any obligation to render ser-

(I) AIR 1928 Allahabad 721.

vices, they are alienable and attachable.

Reference in this connection was also made to Balmukand and Others v. Tulia Ram and Others (supra) wherein the following passage occurs :

"but when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature, such as officiating at the worship we are unable to discover any Justification for holding that such a right is not transferable. That the right to receive the offerings when made is a valuable right and is property, admits of no doubt and, therefore, that right must, in view of the provisions of section 6 of Transfer of Property Act, be held to be transferable, unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force."

In view of these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh Dass,(') the Full Bench, being in agreement therewith, proceeded to determine whether the right to re- D <:eive the offerings in the present case was or was not independent of services of a priestly or personal nature.

The following translation of an extract from the Wajib-ul-Arz relating to village Purana Daiur wherein the holy shrine is situated, was then taken up for consideration : E "Leaving aside cash, whatever is the 'Charatth' at the temples of 'Ad Kanwari' and 'Sri Trikutta Devi' the entire Darora community distributes that among itself and of (?) other attached areas of Pangal, Sarron, Batan, Kotli, Gran, Parhtal etc. according to hereditary shares.

And the castes 'Thakar Khas' and 'Minatra' are included in it.

Darora

cste take two shares and Manotra and Khas castes also take one equal share of Charatth'. That is divided as per hereditary shares.

There is no service in lieu thereof.

Only it is described as the blessings of Goddess.

Rupees twenty one hundred (two thousand one hundred rupees) go to the Government.

Every baridar keeps his man present in the temple who receives the 'Charatth'. Pujaries get pay from us."

an<l it was interpreted to mean that the right to share in the offerings made at the holy shrine had no connection with any priestly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as alienable right.

This very con-

(1' A.1.R. 1936 Allahabad 131.

clusion was reached by the Full Bench on a consideration of the deposition of the Patwari of the concerned circle and the Ain-i-Dharamarth which purports to be the constitution of a Board of Trustees appointed by the State to manage the shrine.

In relation to the third contention, the Full Bench noted that the properties to which the Hindu Successio11 Act does not apply are only those which find enumeration in section 5 thereof, that the right to share the offerings is not one of those properties and that, therefore, such a right could not but be governed by the provisions of the Act. •

In repelling the last contention the Full Bench relied upon the • provisions of the Hindu Succession Act which over-rides all custom~ ,.__ or usage being part of the Hindu Law as in force immediately prior

"' to the commencement of the Act and concluded that the custom. of the right to share in the offerings being restricted to members of the four sub-castes abovemcntioned could not be given effoct to and that the plaintiff was fulJy entitled to succeed to that right in spite of the. fact that she did not belong to any of those sub-castes.

It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.

6. At the very outset Mr. L. N. Sinha, learned counsel for the appellant, has drawn our attention to the fact that the extract from the Wajib-ul-Arz taken note of by the Full Bench of the High Court relates not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity, namely, the temples of 'Ad Kanwari' and 'Sri Trikutta Devi' and has urged that the extract could not possibly relate to the temple of Shri Vaishno Devi Ji which was the main temple in the complex and a reference to which could not have been omitted from the extract in case it was intended to apply to that t•omple also.

A carefnl perusal of the extract shows that Mr.~ Sinha's contention is well-founded because there is not so much as a ' hint to the main temple in the extract.

According . to Mr. Sinha, the ,.__.

• duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965-66 Bikrami and a resolution passed by the -;,> Dharamarth Committee on Sawan 27, 1983 Bikrami. These documents may be set out in extenso :

Settlement Record

"In the column of ownership, the State is entered as owner; in the column of possession-Dharmarth Trust entered as in possession. 'Mandir Gupha' situate on land compris- •

t •

BADRI NATH v. MST. PUNNA (Kasha/, J.) 215

ing 7 marlas bearing Khasra No. 166 and 'Bhawan' situate on land comprising 4 marlas bearing Khasra No. 167.

The sub-caste Thakar Darora, Manotra, Khas, and Brahmin Samnotra have been sharing the offerings according to the shapes mentioned be:ow from the very beginning.

Thakar Daroras and Brahmin Samnotra are entitled to three shares and one share respectively out of 213 of the total offerings whereas Thakar Manotras and Khas are entitled to share equally in the rest J/3 of the total offerings.

"Darora Thakars are sub-divided into further four subcastes namely; (i) Darora Sunk (ii) Darora Jaga (iii) Darora Pai and (iv) Darora Deoeh and each one of them has one equal share.

Similarly Brahmin (Samnotra) have also divided their share into four shares which are received as under :

Samnotra Brahmins from the branch of 'Darya' one share, Brahmins from the branch of 'Bairaj' one share; Brahmins from the branch of 'Gobind' one share; and Brahmins from the branch of 'Ganesh' one .share.

Therefore 'Darora Sunk' and Samnotras from the branch of 'Bairaj' have their turn together in om year and they divide the offerings for that in the proportion of 3.1 (i.e. 3 shares of Darora Sunk and I share to Samnotras from the branch of Dairaj). Similarly Brahmins from the branch of 'Darya' have their turn with 'Darora Jaga' Brahmins from the branch of 'Ganesh' with 'Darora Parath' and Brahmins from the branch of 'Gobind' with 'Darora Deoch' and Brahmins in each case recei, c I/4th share and Darora Thakars have 3/4th share.

"In the beginning nothing was taken from these persons ( bm idara11) in co"nsideration of their receiving the offerings.

But because the Sadhus would often go to the shrine and due to the mismanagement of their stay and meals over there, there were always riots at the shrine.

Therefore, in the year 1907 Bikrami during the regime of Maharaja Guiab Singh an amount of Rs. 11501was fixed as 'Aian' to be oaid by the baridars for the management of stay and meals for Sadhus

at the shrine.

The said amount was to be deposited in the State Treasury.

Thereafter in 1920 Bikrami another hundred rupees were added to the above said amount and thenceforth Rs. 1250 /- were fixed per annum which was being deposited in the State Treasury. After 1940 Bikrami the said

amount of Rs. 1250 /- was being deposited with the Dhar

marth Trust and this continues till today.

The said amount is recovered from Thakar sub-castes. Besides this, so many other things (such as silk chunis etc.) are received from the said Thakar baridars.

Thakar baridars aro~ also liable to provide three permanent servants and six more peons during the season and will be liable to pay them.

The said Thakars are liable to arrange the carriage and pay for the 'Parshad', etc., from Katra to Vaishno Devi temple. With regard to the cattle kept by the Dharmarth Trustees, the said Thakars are liable to arrange for taking them from one place to another. If any Government servant visits the shrine the said Thakars will be liable to arrange for the carriage of his luggage, etc.

The said Thakars are also liable to perform the following duties :

(1) Qeanliness of the Gupha (Vaishno Devi temple) and the compound appurtenan\ thereto.

(2) To carry Puja material inside the Gupha (temple along with the Pujari.

(3) If during mela season there is any trouble to any pilgrim or he becomes, sick, etc, the said Thakars are liable to make proper arrangements for the removal of any such trouble."

RESOLUTION OF THE DHARMARTH COMMITTEE

"(a) Dharmarth Trust shall charge its usual Aian

(rent) from the baridaran which shall b~ paid by them before they distribute their share of the offering.

The baridar who refuses or avoids the payment of rent to Dharmarth shall not be entitled to receive his share of the offering and the same shall be attached and deposited with the manager, Dharmarth Trust.

The baridar whose share has been thus attached can receive his share on payment of tltc rent due to the Dharmarth Trust."

"(b) Unanimously it is passed that the strangers or persons other than baridars (i.e. four sub-castes) shall have no right to get the Puja performed in the shrine."

"(c) In case any baridar or his legal representative, due to any reason, cannot attend in person then it will be the duty of other co-sharer to deposit the absentee's share with

• ,,_ "

' •

• _j._

the Manager, Dharmarth Trust and when that baridar comes present, the Manager, Dharmarth Trust shall, after deduct ing the due, if any, from him to the Dharmarth, pay his share to him.

The baridaran shall be bound to perform the duties (such as Kah, Kunda, Argi etc. as being performed by them previously)."

According to these documents the right to share the offeri'ngs is restricted to members of the four sub castes abovementioned, and although to begin with baridars did not perform any duties in return, certain obligations were superimposed on the right from the year 1907 Bikarmi onwards.

Those obligations are:

(a) A duty to deposit a fixed annual sum with the Dharmarth Trust to be spent on arrangements for lodging and boarding of Sadhus visiting the shrine.

(b) To provide three permanent servants, in addition to six peons, during the "season".

( c) To pay for the 'prasad' and to arrange its transport from Katra to Vaishno Devi temple .

(d) To arrange for the cattle owned by the Dharmarth Trust being taken from one place to another.

(c) To arrange for the carriage of the luggage of Government servants visiting the shrine.

(f) To keep the temple and the compound appurtenant thereto

in a state of cleanliness.

(g) To carry inside the temple the material required for worship by the priest.

(h) To look after visitors to the shrine who fall ill and to make proper arrangements for the restoration or their health.

There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. _ But then it is apparent that none of those duties is in nature priestly or requiring a personal qualification.

On the other hand all of tl1em arc of a 'non-religions or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense.

If the baridar chooses to perform those duties personally he is at liberty to do so.

But then the obligation extends merely to tbe making of necessary arrangements which may be secured on oayment

5-196 SC!/79

of money to others, the actual physical or mental effort involvec' beiug undertaken by those others. The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukand and other v. Tula Ram and others (supra) which has not beeu challenged before us as erroneous and which we regard as laying down the law correctly.

The contentions raised by Mr. Sinha to the contrary is' thas repelled.

7. Another challenge made by Mr. Sinha to the impugned judgment is that the right to share offerings coupled with the duties to • which, it was subject must in its totality be regarded as an office (like • that of a she bait) only and not as property and that therefore no. --l .._ question of its heritability could arise.

In this connection reference was made to the following observations made by Mukherjea, J ., who delivered the judgment of the majority of this Court in Angurbala Mullick v. Debabrata Mullick.(')

"In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deit'y or the. institution itself as a juristic person and the shebait or mahant is a mere manager."

There is nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge.

On the other band it appears that the overall management of the shrine vests in the Board of Trustees known as Dbarmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights a'.nd duties of a shebait. However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right to property. This is a proposition on which emphasis was laid by this Court in Angurbala's . '- case (supra) itself. Mukherjea, J., observed in this connection:

"But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebtaitship as a mere office.

The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property.

As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even

(1) [1951] SCR 1125.

I I

( ...

where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right.

Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this pzrsonal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.

This was elaborately discussed by a Full Bench of the Calcutta High Court in Monohar Mukherji v. Bhupendra Nath Mukherji(') and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v.

Lal Behary(2), and again in Bhabatarini v. Ashalata(•). The effect of the first two decisions, as the Privy Cmncil pointed out in the last case, was to emphasise the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejee v.

Rumanlollji Gossammee(') "when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shehaitship in any particular manner-and this right of disposition is inherrent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder."

Angurbala's case was followed by this Court in a recent decisioh reported as Ram Rattan v. Bajrang Lal & Others(') wherein Desai, J., who delivered the judgment of the Court observed :

(!) I. L. R. 60 Calcutta 452.

(2) 63 I. A. 448.

(3) 70 I. A. 57

14) 16 I. A. 137

(5) [1978] 3 S, C, R. 963

"In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other.

Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable, properly, and it has all along been treated as immovable property almost uniformly.

While examining the nature and character of an office as envisaged by Hindu iaw it would be correct to accept and designate it in the same

manner as has been done by the Hindu Jaw text writers and accepted by courts over a long period. It is, therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property."

The&e observations as also those made ih Angurbala's case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing more or less than an office and is not heritable property.

8. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that Act, Sub-section (1) of which state:

(a) Save as otherwise expressly provided in this Act-any

text, rule or interpretation of Hindu law or any custom _ --J or usage as part of that law in force immediately before , ·" the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:

(b) any other Jaw in force immediately before the commencement of this Act shall cease to apply to Hindus in_ so far as it is inconsistent with any of the provision's contained in this Act."

The requirements of the custom reli•ed upon by the appellants to the effect that the right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the

• ,

{)rder of succession laid down in Chapter II of the Hindu Succession A Act under which the right devolves on the plaintiff-respondent.

7. The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to a decree.

This contention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no repudiation on her part of tl1e obligations to render the services abovementioned,

_>- her claim must ~~ regarded for the enforcement of that right coupled

A with those services and the decree construed accordingly even though

-i it may be silent on the point.

9. In the result the appeal fails and is dismissed, but the parties are left to bear their own costs throughout.

P.B.R.

Appeal dismissed.

BADRI NATH & ANR

MST. PUNNA (DEAD) BY LRS & ORS

February 15, 1979

D A. DESAI

A. D. KosHAL, JJ.

Hindu Succession Act, 1956

S. 4

Hindu Succession Act

Dharmarth Committee

[1978] 3 SCR 963

Tindu Succession Act

s. 4

s. 4

Hindu Succession Act

CIVIL APPELLATE JURISDICTION

L. N. Sinha

Satish Gupta

K. J. John

P. P. Singh

R. K. Bhat

D. C. Anand

KosHAL

BADRI NATH V. MST~ I'UNNA (lfoshal

Vaishno Devi Ji

High Court of Jammu & Kashmir

18th of January, 1972

Bagu

Khas Thakars

Darora Thakars

Manotra Thakars

Samnotra Brahmins

section 4

Hindu Succession Act

section 6

Hindu Succession Act

Gagu

sections 4 and 6

Hindu Succession Act

section 6

Transfer of Property Act

Hindu Succession Act

section 6

Transfer of Property Act

Mnlla

section 6

Transfer of Property Act

Transfer of Property Act

Purana Daiur

Trikutta Devi

Pangal

Sarron

Batan

Kotli

Gran

Parhtal

Darora

section 5

Hindu Succession Act

Sinha

Vaishno Devi Ji

to Mr. Sinha, the ,..

• duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965-66 Bikrami and a resolution passed by the -;,> Dharamarth Committee on Sawan 27, 1983 Bikrami.

Dharmarth Trust

Thakar Darora

Manotra

Brahmin Samnotra

Thakar Daroras

Thakar Manotras

Darora Jaga

Darora Pai

Darora Deoeh

Brahmin

Samnotra Brahmins

Darora Sunk

Darora Jaga' Brahmins

Darora Parath

Darora Deoch

Bikrami

Maharaja Guiab Singh

Dhar

marth Trust

Katra

Dharmarth Trustees

Dharmarth

Bikarmi

Mukherjea

Angurbala

Calcutta High Court

Hobhouse

Desai

Hindu Succession Act

section 4


ZILA SlNGH & ORS.

HAZARI & ORS. •

February 25, 1979

[P. N. SHINGHAL AND D. A. DESAI, JJ.]

Code of Civil Procedure 1908-S. 47, Or. XX r. !4(1)(b), Or. XXI r. I&

, and S. 146-Whether purchaser -of land from a pre-emptor who has secured a decree for pre-emption and possession, could execute the decree to obtain posse&S1on of the iand. • The original vendor of the lands in dispute sold them to the first vendee~-- \ .-_,_ In the meantime three decrees for pre-emption were passed in favour of the pre-emptor and 0-gainst the vendor and his vendees. After satisfying the k" conditions imposed in the decrees regarding deposit of certain sums of money the pre-emptor sold the lands to the appellants.

In the execution petition filed by the appellants the original vendor as well as the first vendees filed their objections challenging the right of thtt appellants to execute the decrees on the ground that the right of pre-emption being a personal right of the pre-emptor, the decrees could not be assigned and thG:t the present appellants being subsequent vendees from the pre-emptor were not entitled to execute the decrees granted in his favour.

Rejecting the objections of the first vendees the executine court held thal the appellants were entitled to execute the decrees.

On appeal the Additional District Judge held that the pre-emptor having complied with the directions contained in the decree his title to the lands was perfected and that the appellants were entitled to recover possel!ion under o.146, CPC.

In execution second appeals of the first vendees the High Court held that the right of pre-emption being a personal right, the decree for pre-emption would be a personal decree and was not assignable and even if the pre-emptor had complied with the provisions of Or. XX r. 14 CPC, the appellants would not be entitled to execute the decree for possession because the decree was not assigned and s. 146 would not help the present appellaiits.

Allowing the appeals,

HELD : 1 (i) The question whether the right of pre-emption was a personal right or it created an interest in property was concluded by the decision of this Court between the same parties in an earlier round of litigation. The earlier litigation being inter partes and, therefore, binding on the respondents, it cannot be reopened or re-examined at the instance of the respondents. (226

H-227 B]

(ii) The contention that decree in a suit for pre-emption is a personal decree and creates no interest in land must fail.

[228 B]

(iii) The distinction between a voluntary inter vivos transfer and an involuntary transfer such as by way of inheritance is immaterial as for as the present case is concerned because the question in terms disposed of by

this Court in the earlier case is that the pre-emptor having complied with A

0. XX, r. 14 bad become the owner of the lands and bis legal representatives on bis death were rightly substituted in the proceedings. [227 H-228 Al

Hazari & Ors. v. Neki & Ors., [19681 2 SCR 833; referred to.

Section 146 CPC provides that where some proceedings could be taken or application could be made by a person under the Code of Civil Procedure any other person clniming under him is entitled to make and maintain such an application. The only limitation on the exercise of this right is in tho expression, 'save as otherwise provided by this O:>de,' occurring in the •ection. [229 El

3. If the assignee of a decree can avail himself of the provisions contained under Or. XX! R. 16 by establishing that he is such an assignee he must only avail himself of thnt provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within tho meaning of Or. XXI r. 16, there is nothing in that proviGion which prohibits him from availing himself of s. 146 if the provision of that section can be availed of by him. [230 El

lugal Kishor< Saraf v. Raw Cotton Co. Ltd., [195'] SCR 1369; referred to.

In the instant case though the sale deed in respect of land would show that the decree itself was not assigned, the lands having been sold by the decree-holder after perfecting his title and purchased by the present appel-/ !ants, they would be person11 claiming under the original pre-emptor decree-1 holder and if he could have made an application for execution of the decree as decree-holder, the l\pplications for execution by the present appellants would be maintainable under s. 146, and they are therefore entitled to execute tho decrees for possession. [231 C..D]

Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi & Anr., [1958] SCR 1287; referred to. • r ..

Civil APPELLATE JURISDICTION: Civil Appeal Nos. 1806-1808 of 1969.

F -· From the Judgment and Order dated 30-5-1969 of tho Punjab and Haryana High Court in Executive Second Appeals Nos. 1131-1133 0£ 1968.

H. K. Puri and V. K. Bahl for the Appellant.

JaMrdhan Sharma and Jitendra Sharma for the Respondent

The Judgment of the Court was delivered by

DESAI, J.

These appeals by certificate under Article 133(1) (c) of the Constitution granted by the High Court of Punjab & Haryana arise H from three Execution Petitions filed by the present appellants for executing three decrees obtained by one Neki (since deceased) in three

suits bearing Nos. 313, 360 and 369 of 1961 filed by him for preemption, to recove.r physical possession of the lands involved in the suits.

The decrees in favour of Neki were confirmed finally by this Court in Civil Appeals Nos. 1148, 1656 and 2341 of 1966 decided on 25th J_anuary 1968.

The Judgment of this Court is reported in Hazari & Ors. v. Neki & Ors.(') The facts which nltimately resulted in decrees for pre-emption in favour of Neki are fully set out at pages 834-835 of the reported judgment and repeating the same would merely add to the length of this judgment.

Suffice to state that there is no dispute that decrees for pre-emption were passed in favour of Neki against the original vendor Dhara Singh and his vendees Hazari and others and the satisfaction of the condition in the decrees of pre-emption for payment or deposit of the amounts as directed by the Court within the stipulated time is not questioned in the present proceedings.

It appears that the trial court decreed the suits for pre-emption in favour of Neki on 7th November 1962 simultaneously imposing the condition fo deposit certain amounts in the three suits by or before 3rd December 1962.

The various amounts we.re duly deposited in the three decrees by Neki, the decree holder, on 3rd December 1962.

Sooh thereafter, on 5th December 1962 Neki sold the lands in respect of which he got the decrees to Zila Singh and others, the present appellants.

The present appellants are subsequent vendees but they will be referred to as the appellants, in this judgment. The former vendeea

would be referred to as 'first vendees', the sale in whose favour gave rise to the cause of actiou for pre-emption in favour of Neki against the original vendor Dhara Singh.

After the sale in favour of the present appellants, they applied to

be joined as parties to the appeals preferred by the first vendees against , the decrees for pre-emption which we.re then pending in the High Court-~ and the Court directed by its order dated 13th Jnly, 1963 that the present appellants be joined as parties to the appeah; subject to just legal exceptions.

The appellants then filed Execution Applications Nos. 295, 296, 297 /64 seeking to execute the decrees to reccwer actual possession of the lands purchased by them from Neki.

Original Vendor Dharn Singh and the first vendees filed their objections challenging the right of the present vendees to execute the decrees.

Principal contention raised was that the sale deed of lands in favour of the appellants did not envisage assignment of the decrees and that the right of preemption being a personal right, the decrees could not be assigned and, therefore, the present appellants who were subsequent vendees from pre-emptor Neki, were not entitled and had no locus standi to execute

(!) [1968] 2 S.C.R-833.

the decrees granted in favour of Neki.

The executing court after -examining the relevant provisions contained in section 4 7 and Order

XXI, Rule 16, of the Code of Civil Procedure rejected the objections raised by the first vendees and held that the present appellants were entitled to execute the decrees and ditected warrant for possession to be issued.

The first vendees preferred three appeals being Nos. 25/14, 26/14 aud 27 /14 of 1968 to the District Court at Rohtak.

The learned Additional District Judge who heard these appeals, by a common order rejected the appeals and confirmed the order of the trial

1 I Court observing that the pre-emptor having deposited the purchase ~-> iJrice as directed by the Court, in accordance with the terms of the <lecrees, his title to the lands was perfected from the date of depopit as provided in Order XX, Rule 14 (l)(b), C.P.C., the appellants as purchasers of lands from the pre-emptor in whose favour the decrees fat pre-emption including the one for possession had become final, were entitled to recover possession under section 146 C.P.C.

Hazari, Amar Singh and Bhan Singh the first vendees preferred three Execution Second Appeals Nos. 1131, 1132 and 1133/68 to the High Court of Punjab & Haryana.

When these appeals came up before a learned single Judge of the High Court it was contended that in view of the decision in Ram Singh & Ors. v. Gainda Ram & Ors.( 1), The assignee of a holder of a decree for pre-emption cannot seek the assistance of the Court for executing the decree for pre-emption because the decree is a personal one and, therefore, non-assignable.

On behalf of the present appellants who were respondents before the High Court, reliance was placed on the decision in Satyanarayana v. Arun Naik(') and Ravi Parkash and Anr. v. Chunilal & Ors.(') The learned single Judge had certain reservations about the correctness of the decision in ' _.Ram Singh's case and, therefore, he considered it prudent to refer the

<- ,._..- matter to a Division Bench.

The matter ultimately had to be referred to a Full Bench because there was another decision in Mehrkha11 and Shah Din v. Ghulam Rasul('), which also required reconsideration. -·

That is how the matter came before a Full Bench.

The Full Bench ..formulated the question for its consideration as under:-

"Whether the purchaser of land from a pre-emptor, of which the pre-emptor has become the owner in pursuance of a pre-emption decree after complying' with the

(1) AIR 1953 Punjab 163.

(2) AIR 1965 AP 81.

(3) AIR 1967 Punjab & Hariana 268.

(4) 2 Lahore 282.

provisions of Order XX, Rule 14 Civil Procedure Code could execute the decree in order to obtain possession of the land purchased by him."

All the three Judges of the Full Bench wrote separate opinions.

D. K. Mahajan, J. was of the opinion that assuming that a decree of pre-emption is a personal decree, the transferees of the land from the pre-emptor whose title was perfected by deposit as envisaged in

0. XX, Rule 14 (1) (b) were entitled to execute the decree granted

by the Court in favour of the pre-emptor and can seek assistance of • the Court for recovering actual possession from the first vendees who had no right to continue in possession, apart from 0. XX, Rule 16 '-- c under section 146 C.P.C. P. C. Pandit, J. and H. R. Sodhi, J., the ~

other two members of the Full Bench were of the opinion that the right of pre-emption being a personal right, a decree for pre-emption will be a personal decree and is not assignable and even if title to the land passed to the vendees who purchased the land from the preemptor after the pre-emptor complied with the provisions contained in Order XX, Rule 14 yet tbey would not be entitled to execute the decree for possession because decree is not assigned and section 146 would not help the present appellants. In accordance with this majority opinion, the appeals preferred by the first vendees were allowed and tbe applications for execution filed by the present appellants were dismissed.

The High Conrt granted a certificate under Article 133 (1) ( c) ef the Constitution because in its opinion tbe question involved in the appeals was of considerable importance and was likely to arise frequently and that it deserved to be decided finally by the Supreme

r eonrt. '

Mr. Janardan Sharma, learned counsel for tbe respondents urged ijiat looking to the scheme of SS. 4, 6 and 15 of the Punjab Preemption Act, 1930, it is incontrovertible that foundation of the right of pre-emption being close personal relationship, it is a personal G right and can be exercised only by the person in .whom it vests, under the Jaw and if in exercise of such right snch a qualified person seeks to pre-empt a sale by instituting an action in a Court of Jaw, the resultant decree would be a personal decree.

Urged Mr. Sharma further that if" the decree is a personal one, obviously it cannot be assigned and the assignee gets no interest in a decree so as to enable H him to execute the decree.

The question whether the right of preemption conferred by the provisions of Punjab Pre-emption Act, 1913, is a personal right or it creates an interest in the property is

. '11 _~

no more res integra and is concluded by a decision of this Court between the very parties who are parties to the present appeals, in an earlier round of litigation wherin the first vendees, the present respondents had challenged the right of Neki deceased pre-emptor to obtain a decree for pre-emption. Apart from the fact that the point is concluded by a decision of a Bench of three Judges of the Court, it is inter-partes and, there.fore, binding on the respondents whom Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re-opened or re-examined. As the matter calls for

4 no examination at the hands of the Court it would suffice to quote

j,..__what has ben held in Hazari & Ors. v. Neki & Ors.(') Ramaswami, -' J. speaking for the Court, observed as under:

"1 "In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki W0re not e'ntitled to be granted a decree for pre-emption.

The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no

decree for pre-emption should have been passed by the lower court in favour of the legal representatives as re- ;:iresenting the estate of Neki.

We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre-emption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vendee who has already become the '.lWner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecendently to the sale, the foundation of the right

Jeing the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land.

The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's right of sale and compels him to sell the property to the person entitled to pre-emption under the statute.

In other words, the statutory right of pre-emption though . not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt." Mr. Janardan Sharma, however, sought to position under a voluntary inter vivas transfer and

(1) [1968] 2 S.C.R. 833-836.

distinguish the an involuntary

transfor such as by way of inheritance and urged that in this case Neki having sold the lands to the present appellants by sale inter vivas they cannot enjoy the fruits of the decree.

This distinction is immaterial as far as the present case is concerned because the question in terms disposed of by the Court is that Neki having complied with Order XX, Rule 14, had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings.

The contention, therefore, that decree in a suit for pre-emption is a personal decree and creates no interest in land, the

• •

subject matter of pre-emption, must accordingly fail. • _--l_ c

The next contention is that the deed evidencing the sale of lands 1-.

Ext. D-1 dated 15th February, 1963 merely transferred the lands t but does not purport to assign the decree, then in the absence of such an assignment the purported assignee cannot execute the decree in view of the provision contained in Order XXI, Rule 16, and therefore, the execution applications at the instance of the prese'nt appellants are not maintainable.

The Additional District Judge did not decide the contention whether the Execution Applications at the instance of the present appellants, (namely, subsequent transferees were maintainable under O. XXI, Rule 16, because in his opinion the present appellants were entitled to execute the decree under section 146 of the Code of Civil Procedure.

The majority view of the High Court is that the subsequent transferees, the present appellants, were not entitled to execute the decree under 0. XXI, Rule 16 because the decree for pre-emption being a personal one cannot he assigned and alternatively if it could be assigned, as a matter of fact. it has not been assigned and therefore the applications for execution at their instance are not maintainable.

They were further of the view that section 146 would not assist the appellants as provisions. contained in 0. XXI, Rule 16 being a specific contrary provisions, section 146 cannot be invoked.

Order XXI, Rule 16 permits an execution of a decree at the instanoe of an assignee by transfer of a decree, the assignment may G be in writing or by operation of law and if such an application is made, the court to which an application is made shall issue a notice to the transferor of the decree and the judgment debtor and the decree cannot be executed until the Court heard their obj•ctions, if any, to its execution.

Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was pass-

R ed, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.

Explanation appended to

section 4 7 provides that for the purposes of that section amongst others a purchaser at a sale in execution of the decree is deemed to be a party to the suit. It would have been interesting to examine the question whether the purchaser of land from a pre-emptor in whose favour a decree for pre-emption has been passed and who subsequent to the decree complied with the requiremnt of Order XX, Rule 14 and thereby perfected his title would be, on the analogy of a purchaser al a sale in execution of a decree, a party to the suit or at any rate the representative of the decree-holder or a successor in interest of the decree-holder, but as we are of the opinion that the applications for execution filed by the present appellants are maintainable under section 146 C.P.C. the larger qnestion need not be decided in these appeals.

Section 146 reads as under :

"Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

Shorn of unessentials the section provides that where some proceeding could be taken or application could be made by a person under the Code of Civil Procedure any other person claiming under him is entitled to make and maintain snch an application.

The limitation on the exercise of this right is to be found in the expression, 'save as otherwise provided by this Code'. It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in the absence of a provision to the contrary, sec- .¥-tion 146 would enable any one claiming under such person as well • to make the same application.

The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right to maintain an application is beyond dispute.

Section 146 came in for consideration in Jugalkishore Saraf v.

Raw Cotton Co. Ltd.(') In that case the facts were that the plain- . tiffs in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit.

The transferees did 'not apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree.

Subsequently the

(l) [1955] S.C.R. 1369.

transferees as decree-holders applied for execution of the decree against the judgment-debtor and upon a notice being issued, a contntion was raised that the application was not maintainable under Order XXI, Rule 16.

One submission was that even if ihe application for execution was not maintainable under 0. XXI, Rule 16, it would certainly l>~ maintainable at the instance of the transferees of the original debt under section 146.

Accepting this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law.

In that ituation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder.

It was further held in. that case that the transferees of the debt derived their title to the debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to make an application for execution under section 146 of the Code of Civil Procedure.

Bhagwati, J. in a separate and concurring judgment on this point observed that the only meaning that can be assigned to the expression 'save as otherwise provided by this Code' in sec.

146 is that if a transferee of the decree can avail himself of the provision contained under Order XXI, Rule 16 by establishing that he is such a transferee he must only avail himself of that provision. Bnt if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of 0. XXI, Rule 16 there is nothing in that provision which prohibits him from availing himself of section 146 if the provision of that section can be availed of by him.

It would thus appear that if the sale-deed in respect of land on its proper construction would show that the decree itself

was assigned obviously the application for execution would be main-·- -,{ tainable under 0. XXI, Rule 16. But if the appellants do not fall ·> within the four corners of 0. XXI, Rule 16 and they appear not to fall within the four corners of it, because though the land, the subject matter of the decree is sold to appellants, the decree itself is not assigned, they would nonetheless be able to maintain application for execution under section 146 as persons claiming under the decree-holder.

The respondents cannot have both the ways.

If the deed evidenced transfer of deree by assignment then 0. XXI, Rule 16 weula be attracted but if, as it appears, there is no transfer of decree by assignment, the lands having been sold by the decree-holder after perfecting his title and purchased by the present appellants they would be persons claiming under the original pre-emptor decreeholder Neki and if Neki could have made an application for

- •

execution of the decree as decree-holder, the present appellants, as A purchasers of land from Neki would certainly be claiming under Neki • and, therefore, their application for execution would certainly be maintainable under section 146. In this connection it wonld be advantageous to refer to Smt. Saila BaU. Dassi v.

Smt.

Nirma/a Sundari Dassi and Another(') wherein it has been in terms held that section 146 was introduced for the first time in Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision should be construed liberally so as to • _, l advance justice and not in a restricted or technical sense.

Viewed _, from this angle the present appellants must succeed because they pur- .,, chased land from pre-emptor Neki and the validity of sale being now beyond dispute, they are persons claiming under Neki whose right

to execute the decree was never disputed and, therefore, appellants claiming under the vendor Neki would be able to maintain an application for execution under section 146 of the Code of Civil Procedure.

Appellants are thus entitled to execute the decree for possession.

Accordingly these three appeals are allowed and the decision of the High Court dated 30th May, 1969 in Execution Appeals Nos. 1131, 1132 and 1133 of 1968 is set aside and the decision of the Additional District Judge dated 15th July, 1968 is restored, but in the circumstances of the case there would be no order as to costs.

N.V.K.

Appeals allowed.

(I) [1958] S.C.R. 1287.

ZILA SlNGH & ORS

HAZARI & ORS

February 25, 1979

D. A. DESAI, JJ.

Code of Civil Procedure 1908

S. 47

S. 146

CPC

CPC

s. 146

Section 146

CPC

the Code of Civil Procedure

s. 146

s. 146

H. K. Puri

V. K. Bahl

JaMrdhan Sharma

Jitendra Sharma

DESAI

Article 133(1)

Neki

25th J_anuary 1968

Dhara Singh

Hazari

3rd December 1962

5th December 1962

Zila Singh

Dharn Singh

section 4

the Code of Civil Procedure

District Court at Rohtak

C.P.C

section 146

C.P.C

Hazari

Amar Singh

Bhan Singh

High Court of Punjab & Haryana

.Ram Singh

AIR 1965 AP 81

Civil Procedure Code

D. K. Mahajan

section 146

C.P.C

P. C. Pandit

H. R. Sodhi

section 146

Article 133

Supreme

Janardan Sharma

SS. 4, 6 and 15

Punjab Preemption Act, 1930

Sharma

Ramaswami

Neki W0re

[1968] 2 S.C.R. 833

15th February, 1963

section 146

the Code of Civil Procedure

section 146

section 146

Section 47

C.P.C

section 4

section 146

C.P.C

Section 146

the Code of Civil Procedure

Section 146

section 146

Das

section 146

the Code of Civil Procedure

Bhagwati

sec.

146

section 146

section 146

section 146

section 146

Civil Procedure Code 1908

section 146

the Code of Civil Procedure

30th May, 1969

15th July, 1968


SHAKUNTLA ETC. ETC.

STATE , OF HARYANA

February 16, 1979

[P. N. SHINGHAL AND D. A. DESAI, JJ.]

PEPSU 1 cna11cy and Agricultural Lands Act, 1955, S.

32 FF, whetherapplicable to gift of land by non-related donor. f

• '

The appellants were persons to whom gifts of agricultural lands were made .,_ before July 30, 1958, for love and affection, by non-related donors. The Reve- --4_

nue authorities decided that these gifts were not protected by s. 32FF of the i PEPSU Tenancy and Agricultural Lands Act, 1955, as there had been no valuable "consideration", within the meaning of that section. A Division Bench ot the Haryana High Court upheld the disn1issal of the appellants' writ petition,. by a single Judge of th(lt court.

Dismissing the app'eals the Court,

HELD : It is the essence of a gift as defined in the Transfer of Property 1\ct, that it should be without "consideration•· of the nature defined in s. 2(d) of the Contract Act, and as section 32FF of the Act saves 'only the transfer vr disposition of land for "consideration" upto the limit specified in it, the gifts under dispute, will not fall within the purview of that section.

Any other view of the section would defeat the purpose of Chapter IV-A of the Act, which provides for ceiling on land and acquisition and disposal of surplus area. [234 E, G, H-235 A]

James Newton v. Robert Hargreaves, 135 ER 905; distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1829-1831 of 1969.

Appeals by Special Leave from the Judgment and Order dated 14-1-69 of the Punjab and Haryana High Court in LP.A. Nos. 256- 258 of 1966.

Y. C. Mahajan and Mrs. Urmila Kapur for the Appellant.

B. Dutta and R. N. Sachthey for the Respondent.

The Judgment of the Court was delivered by

SHINGHAL, J.-The appellants in these three appeals are aggrieved against a common judgment of the Punjab and Haryana High Court dated January 14, 1969, by which the judgment of a learned Single Judge of that Court dismissing their writ petitions was upheld on the ground that the gifts to them did not fall within the purview of the saving clause of section 32FF of the PEPSU Tenancy and Agricultural Lands Act, 1955, hereinafter referred to as the Act.

~ •

I ..

' •

1 I

It is not in dispute that a gift was made in each of these cases before July 30, 1958, and in one case after August 21, 1956 but before July 30, 1958. The donees were not persons who were not related to the donors, and were persons to whom gifts were made of agricultural lands for love and affection.

The revenue authorities took the view that the gifts were not transfers of lands of the nature protected by section 32FF of the Act as there was no valuable consideration, and mere love and affection was not "consideration" within the meaning of that section.

As the High Court has upheld that view, the appellants feel aggrieved and have come up in appeal to this Court by special leave. .~ Section 32FF of the Act which deals with certain transfers which are not to affect the surplus area of a landowner provides as follows,-

"32FF. Save in the case of land acquired by the State Govermnent under any law for the time being in force or by an heir by inheritance or up to 30th July, 1958 by a landless person, or a small landowner, not being a relation as prescribed of the person making the transfer or disposition of land, for consideration up to an area which with oI without. the area owned or held by him does not in the aggregate exceed the permissible limit no transfer or other disposition of land effected after 21st August, 1956, shall affect the right of the State Govermnent under this Act to the surplus area to which it would be entitled but for such transfer or disposition :

Provided that any person who has received . any advantage under snch transfer or disposition of land shall be bound to restore it, or to make compensation for it, to the . person from whom he received it." .~-The section therefore provides that no transfer or other disposition

of land effected after August 21, 1956, shall affect the rights of the State Government under the Act to the surplus area to which it would be entitled but for such transfer or disposition "save" in the case of land acquired by the State Government under any law for the time being in force, or by an heir by inheritance or up to July 30, 1958

• by a landless person, or small landowner, not being a relation as prescribed of the person making the transfer or disposition of land, provided that it is for "consideration", up to an area' which with or without the area owned or held by him does not in the aggreate exceed the permissible limit. The only point in controversy before us is whether the gifts of land which were made in the three cases

16-196 SCI/79

SUPREME COURT REPORTS [1979] 3 s.c.R.

under appeal on account of natural love and affection, could be said to be transfers of the lands for consideration ? It has been argued on behalf of the appellants that the aforesaid gifts were in the nature of transfer of property as defined in section 5 of the Transfer of Property Act and it did not matter if they were by way of gift and did not amount to sale or exchange.

Section 5 of the Transfer of Property Act defines "transfer of property" to mean an act by which a living person conveys property, in present or in future, inter alia, to one or more other living persons.

Such transfer of property may be made by one of the several modes known to law e.g. by sale, exchange or gift etc. It is not the case of the appellants that the transfers under consideration were by way of sale or exchange or that they were made otherwise than by way of gift to them.

Section 122 of the Transfer of Property Act defines "gift" as follows,-

"122. "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another called the donee, and accepted by or on behalf of the donee."

It is therefore one of the essential requirements of a gift that it should be made by the donor "without consideration''.

The word "consideration" has not been defined in the Transfer of Property Act, but we have no doubt that it has been used in that Act in the same sense as in the Indian Contract Act and excludes natural love and affection. If it were to be otherwise, a transfer would really amount to a sale within the meaning of section 54 of the Transfer of Property Act, or to an exchange within the meaning of section 118 for each party will have the rights and be subject to the liabilities of a seller as to what he gives and have the rights a11d be subject to the liabi• lities of a buyer as to that which he takes.

It is not necessary for us to examine the , other modes of transfer, for they have no bearing on the nature of the controversy before us. It would thus appear 1!hat it is of the essence of a gift as defined in the Transfer of Property Act that it should be without "consideration" of the nature defined in section 2 ( d) of the Contract Act,

Now what section 32FF of the Act saves is transfer or dispo- B sition of land for "consideration" up to the limit specified in it, and as a gift is always without consideration, the gifts which are the subject matter of controversy before us will not fall within the purview of that section, and have rightly been excluded while calculat- A ing the surplus area in the three cases before us.

Any other view

--Of the section would defeat the purpose of Chapter IV-A of the Act which provides for ceiling on land and acquisition and disposal of surplus area.

Mr. Mahajan for the appellants tried to argue that "good consi- B

deration" has been defined in Black's Law Dictionary (fourth edition) to mean "such as is founded on natural duty and affection'', cand would amount to consideration within the meaning of section 32FF of the Act.

But even there it has been clarified that "good" ~· is generally used "in antithesis to valuable consideration". which has

A' necessarily to be excluded in the case of a gift by virtue of its defi- ., nition in section 122 of the Transfer of Property Act.

The rirgument of learned counsel becomes untenable on a reference to 17 C.J.S. Contract 91-92 on which he has placed considerable reliance.

We have also gone through James Newton v. Robert Hargreaves, Cl :but it cannot avail the appellants for there the conveyance was by the father to his two sons in consideration of natural Jove and affection and the law acknowledged that to be a "good" consideration, which is not so in the cases before us.

There is thus no force in these appeals and they arc dismissed with costs.

M.R.

Appeals dismissed.

(1) 135 E. R. 905,

SHAKUNTLA ETC. ETC

STATE , OF HARYANA

February 16, 1979

D. A. DESAI, JJ.

Agricultural Lands Act, 1955

S.

32

s. 32F

Haryana High Court

s. 2(d)

section 32F

Y. C. Mahajan

Urmila Kapur

B. Dutta

R. N. Sachthey

SHINGHAL

section 32F

July 30, 1958

21, 1956

section 32F

Section 32F

30th July, 1958

21st August, 1956

August 21, 1956

SUPREME COURT REPORTS [1979] 3 s.c.

section 5

Transfer of Property Act

Section 5

Transfer of Property Act

Section 122

Transfer of Property Act

Transfer of Property Act

section 54

Transfer of Property Act

section 118

Transfer of Property Act

section 2

section 32F

Mahajan

section 32F

section 122

Transfer of Property Act