• i

BABU RAM GUPTA

v • •

SUDHIR BHASIN & ANR.

April 12, 1979

[S. MURTAZA FAZAL ALI AND A. D. KosHAL JJ.J

Conten1pt of Courts Act 1971-S. 2(b)-Consent order passed at the instance of 1he parties and undertaking given' by one of the parties-El]tct of breacll-DiJtincti.on between-When a1nounts to contempt of Court .

Pending the decision of a dispute between the -parties referred to an arbi~ C trator, the High Court passed \Vith the agreement of the parties a consent order appointing a receiver.

The Court'~ order directed that the receiver should te.ke charge of the property forthwith from the appellant and submit periodical reports to the Court regarding the running of the business.

Without making an express direction to the appellant that the property in his possession should be handed over to the receiver, the High Court directed the appellant not to interfere with the receiver in the running of the business D and that the appellant should 2:ive to the Teceiver all cooperation that the receiver might require .

In a petition filed before the High Court , the respondent alleged that by failing to hand over possession of the property to the receiver, in terms of the consent order the appellant had committed breach of the undertaking given to the court and thereby committed an offence punishable under E S. 2 (b) o[ the Contempt of Courts Act.

The High Court held the appellant to be guilty of contempt of court and sentenced him to undergo civil imprisonment.

In appeal to this Court the appellant contended that there was no breach o:f the undertaking on his part because he had given no express or implied F undert-aking to. handover possession of the disputed property to the receiver.

Allowing the appeal

HEID : 1. The act of the appellant in not complying with the terms of the consent order did not amount to an offence under S. 2(b), however im proper or reprehensible his conduct might be. [693 G]

2. When a persOn appearing before a court file5 an 'application or affidavit giving an undertaking to the court or when he clearly and expressly gives an oral undertaking v..hich is incorporated by the court in its order and fails to honour that undertaking then a wilful breach of the undertaking would amount to an offence punishable under the Act. An undertaking given by one of the parties should be carefully construed by the Court to find out the nature and extent of the undertaking given by the pen1on concerned, It is not open to the Court to assume an implied undertakingwhen there is none on the record. f69QC-D. 691 GJ

686 SUPRl!MI! COURT REP OR TS

[1979] 3 S.C.R.

3. While it is the duty of the court to punish a person who tries to obstruct

the course of justice or brings into disrepute the institution of judiciary this power has to be exercist.d not casually or lightly, but with great care and circumspection.

Contempt proceedings serve a dual , purpose of vindication of the public interest by punishment of the contumacious conduct and coercion to compel the contemner to do what the law requires of him. [691 H, 692 C]

4.r The reason why a breach of clear undertaking amounts to contempt of court is that the contemner by making false representation would obtain the benefit and if he failed to honour that undertaking he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings the judicial institution into disrepute.

The same cannot, be said of a consent order or a compromise decree \vhere the fraud is played not on the court but on one of the partie1. The offence committed is qua a party and not qua the court and therefore the very foundation for proceeding for contempt of court is completely absent ia •uch ca.es. [693 D-E[

5. If it is held tat non-compliance of a compromise decree or consent order would amount to contempt of court the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all by the parties. [693 CJ

6. In the in!tant case no application or affidavit or undertaking was given by the appellant that he '\\"OUld cooperate with the receiver or that he would hand over possession of the property to the receiver. The consent order did not incorporate expressly that any such undertaking had been given either by the appellant or by his lawyer before the Court. In the absence of such an u~1dertaking it cannot b'e said that he wilfully disobeyed or committed E breach of such an undertaking.

The High Court assumed that the appellant had given an undertaking to carry out its directions. [692 E-G]

Bhatnagar & Co. Ltd. v. The Union of India, [1957] SCR. 701, The Aligar/1 Municipal Board & Ors. v. Ekka Tanga Mazdoor Union & Ors. [1970] 3 SCR.

98; referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 501 of 1978.

From the Judgment and Order dated 27-10-1978 of the Delhi High Court in Criminal Original No. 61 /77.

K. B. Asthana, Salish Chandra, Sarai Chandra and P. D. Sharma G for the Appellant.

Miss Seita Vaidialingam for respondent I.

Nemo for respondent 2.

The Judgment of the Court was delivered by

FAZAL ALI, J.-This is an appeal by the contemner under section 19 of the Contempt of Courts Act, 1971 against a Division Bench decision of the Delhi High Court dated 27th October, 1978 convicting

the appellant under section 2(b) ot the Contempt o~ Courts Act, 1971 (hereinafter referred to as the Act) and sentencing him to detention in civil prison for a period of fom months.

A detailed narrative of the facts culminating in the order impugned ill to be found in the judgment of the High Court and it is not uecessary for us to repeat the same all over again except giving a brief resume of the important facts in order to appreciate the points of law that arise in the appeal. It appears that there was a_partnersl1ip between

- - Sudhir Bhasin and Jagatri Lal Bhasin as a result of which a firm • '.11//11 under the style of Sitapur Theatres with its !lead Office at Delhi was

.llllf constituted. The partnership deed was executed as far back as 19-11-1965 and clause 25 of that deed contained the usual arbitration

• ..

clause.

Disputes arose between the partners as a result of which an application uuder section 20 of the Arbitration Act was made before the High Court and the High Court on hearing the application referred the dispute to the sole arbitration of a retired Judge of the Allahabad High Court. Along with the aforesaid application, the respondent Sudhir Bhasin had filed an application for appointment of a Nceiver as he apprehended that the appellant would misappropriate the fund~ of the partnership property. The application for appointment of a receiver was allowed and the respondent Sudhir Bhasin himself was appointed as a receiver of Laxmi Talkies, Sitapur.

Thereafter the appellant being aggrieved by this order filed an appeal before the Division Bench of the Delhi High Court. In the appeal it appears that a consent order was passed with the agreement of the parties by which Shri Mahabir Prasad, Advocate and Secretary, Bar Association of Sitapur was appointed as a receiver of the Laxmi Talkies pending the decision of the arbitrator and was directed to run the said cinema after taking possession from the appellant.

This order passed by the High Court may be quoted in extenso as it forms the solid basis for the proceedings for contempt taken against the appellant by the High Conrt:

"After hearing !J:\e learned counsel for sometime on previous hearings, a suggestion has been mooted that if the receiver is changed, the applicant would not prosecute the present appeal except to the extent of getting the Receiver changed.

We accordingly di.reeled the Registrar to address letters to the District Judges, Sitapur and Luckllow to send names of three Advocates each from whom we could pick out one name for appointment as a Receiver in place of Sudhir Bhasin, who had been appointed Receiver by the learned Single Judge.

Three names have been received from

the District Judge, Sitapur. Shri S. C. Bhat\acharya, President of the Bar Association, is not acceptable because he had been connected with the Cinema in question in the capacity of a Receiver previously.

With the consent of the learned counsel of the parties, we therefore, appoint Shri Mahabir Prasad, Advocate and Secretary of the Bar Association, Sitapur, to be the Receiver of Laxmi Talkies pending decision of the disputes between the parties which have been referred to arbitration.

The Receiver so appointed, will take charge of the Laxmi Talkies forthwith from the appellant, who is at present running the said Cinema. Shri Mahabir Prasad will run the Cinema himself through such Managers as he may appoint.

He will be-responsible to keep account, make disbursements and deposit the net proceeds in a Bank account to be opened by him in the name of Laxmi Talkies.

The Receiver will submit quarterly reports to this Court regarding the running of the business of the said Cinema. The first report should be submitted to this Court on or before 14th August,

1977. Each subsequent report should be submitted by the middle of the month in which the quarter gets completed.

The appellant is directed not to interfere with the Receiver appointed or with the business of the running of the Laxmi E Talkies. He will, however, give to the Receiver appointed, all cooperation that the Receiver may require.

The licence for running the Cinema will be taken out by the Receiver in the name of Laxmi Talkies. He will approach the Deputy Commissioner, Sitapur for issue of this licence accordance with the above direction of this Court ...... ".

(Emphasis ours)

A perusal of the order extracted above clearly shows that there was no express direction to the appellant to hand over possession to the G receiver although certain directions were given by the Court to the receiver for filing quarterly reports etc. The only direction given to the appellant was that he would not interfere with the receiver appointed or with the. business of running of the Laxmi Talkies. The appellant was also directed to give all cooperation that the receiver may require.

There was thus no specific direction to the appellant to hand over B possession of the property to the receiver although impliedly this was meant to be done because the order was passed with the conSCflt of the parties. ·

..,;-.

In the instant case the gravamen of the charge against the appellant was that he had committed a serious breach of the undertaking given to the Court to hand over possession to the receiver and having failed to honour the undertaking, he was liable to be hauled up for an offence under the Act.

The High Court held that the conduct of the appellant was unrelenting and inexorable and he had wilfully disobeyed the order of the Court passed with his consent.

Mr. Asthana, learned counsel for the appellant raised two important cont•entions before us.

In the first place, he submitted that taking the order ex facie there is no express or implied undertaking given by the appellant to hand over possession to the receiver and hence the question of breach of the undertaking on the part of the appellant does not arise, and, therefore, the conviction of the appellant was not legally sustainable.

Secondly, it was argued that eve'n assuming that an undertaking was given to the Court, as the appeal before the Division Bench was wholly incompetent, the proceedings before the Division Bench were non est and the order passed by the High Court being a nullity a disobedience of such an order would not attract the provisions of the Act.

Miss Seita Vaidialingam who argued this case before us with great ingenuity and persuasiveness submitted that even if the order of the High Court was void, it was not open to the appellant as a litigant to assume the role of a Judge and unilaterally decide that the order of the High Court being non est he was not bound to obey the same.

In other words, It was contended that he having himself filed an appeal before the Division Bench and thereby having invited the Court to pass a consent order which was agreed to by the appellant he could not by virtue of the rule of estoppel by judgment be heard to say that the appeal filed by the appellant himself being incompetent, the judgment was void, hence the appellant could disobey the same with impunity.

In support of her submission, the learned counsel cited the cases of State of Uttar Pradesh v. Ratan Shukla('), Umrao Singh v.

Man Singh & Ors. (2), Joseph F. Maggio v. Raymond Zeitz(") and

United States of America v. United Mine Workers of America.(•) While we do find co'nsiderable force in the argument of Miss Seita Vaidyalingam, counsel for the respondent we are of the opinion that the point is not free from difficulty and in the view that we have decid- ------

0) A.LR. 1956 AH 258.

(2) I. L. R. (1971) 2 Delhi 44.

(3) 92 L. Ed : 476, 487.

(4) 91 L. Ed. 884, 911.

A. ed to take on the first point raised by counsel for the appellant, the second point does not fall for determination. We, therefore, refraia from going into this point and leave the matter to be decided in a more proper and suitable case.

Coming to the first point, the contention of Mr. Astha'na was that there was no undertaking give'n by the appellant to the court at all.

Our attention has not been drawn by counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the re- • ceiver appointed by the High Conrt by virtue of the impugned order.

It is manifest that any person appearing before the Court can give an undertaking in two way: ( 1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act.

Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemner, we are unable to find any material on record which contains such undertakings.

It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking given by the appellant.

Here the High Court has undoubtedly committed ?n error of law.

There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the court at the instance of t]!e parties and a clear and categorical undertaking given by any of the parties.

In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by either executing the order or getting an injunction from the court.

In the case of Bhatnagars & Co. Ltd. v. The Union of India(') although an undertaking appears to haye been given by learned counsel on behalf of his client that certain goods confiscated by the Customs authorities wonld be sold within a certain period of time, it was interpreted by the petitioner as an undertaking to decide the revision petition within the period fixed, and as this was not done it was argued before this Court that the customs authorities had committed a serious B contempt of this Court. Repelling the argument of the petiioner, his

(l) [1957] S.C.R. 701.

• ,!

<Court observed as follows:-

"The order passed by this Court would show that the

}arned Solicitor General of India made a statement to the Court indicating that the goods which had been confiscated by the Customs Authorities would not be sold or otherwise dealt with for a month from the date of the communication to the petitioner of the final order that the Central Government may pass in the revisional petition preferred by him bfore them.

Acting on this undertaking, this Court allowed the petitioner a period of one month from the date of the communication to him of the final order which the Central Government might pass on his revisional petition to enable him to file a petition for Special Leave to Appeal if he was so advised.

Then the order recorded the undertak ing given by the Solicitor-General ......•......•..•••

Indeed the petition seeks to suggest that the undertaking was that the revisional petition would be disposed immediately in a day or two, and, since the revisional petition was not disposed of within the time mentioned by the So!icitor- General, the petitioner says that all the respondents are gnilty of contempt.

It is clear that the petitio'ner's grievance and the prayer for a writ are entirely misconceived. The petitioner is entirely in error in assuming that, on behalf of the Union of India, any undertaking was given that his revisional petition would be disposed of within a day or two . . . . . . . . . . . . . . . . The petitioner presumably thinks that the Court's order required that his revisional petition should be disposed of by the Central Government within a month.

This assumption is entirely unwarranted".

This decision, therefore, clearly shows that even if them was an >nndertaki'ng given by the counsel on behalf of his client the undertaking should be carefully construed to find out the extent and nature of ·!he undertaking actually given by the person concerned. It is not open to the Court to assume an implied undertaking when !her~ is :none on the record. It was on this ground that this Court negatived the plea of contempt of court. It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course <Jf justice or brings into disrepute the institution of judiciary, this ; power has to be exercised not casually or lightly but with great care .and circumspection and only in such cases where it is neeessary to

J>unish the conternner in order to uphold the majesty of law and the .dignity of the courts.

In the case of The Aligarh Municipal Board & Ors. v. Ekka T•ng/ll Mazdoor Union & Ors.(') this Court observed as follows :-

"It may also be pointed out that in order to justify action for contempt of court for breach of a prohibitive order it is not necessary that the order should have been officially served on the party against whom it is grankd if it is proved that he has notice of the order aliunde and he knew that it was intended to be enforced.

Contempt proceeding against a person '\\'.ho has failed to comply with the Court's order serves a dual purpose: ( 1) vindication of the public interest by puuishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him.

The sentence imposed should effectuate both these purposes.

It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Court's order about which there could be no reasonable doubt n; iay in certain circumstances aggravate the contempt".

These are the tests laid down by this Court in order to determinec whether a contempt of court has been committed in the case of vio-· lation of a prohibitive order.

In the instant case, however, as indicated above, there is no application nor any affidavit nor any written• undertaking given by the appellant that he would cctoperate with thee receiver or that he would hand over possession of the Cinema to the receiver.

Apart from this, even the consent order does '.not incorporate expressly or clearly that any such undertaking had been given• either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking: incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an under-· taking.

What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by whiclr a receiver was appointed, to include ah undertaking given by the con-· telllner to carry out the directions contained in the order.

With due respects, we are unable to agree with this view taken by the Higlr Court. A few examples would show how unsustainable in law the view taken by the High Court is.

Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be pasi; ed>. against him and the court accordingly passes the decree.

The defendant does not pay the decree.

Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer muit neces- ------·-

(1)[1970] 35.C.R 98.

• •

B. R. GUPTA v. SUDHIR BHASJN (Fazal Ali, J.) 6 93

'.Sarily be in the negative.

Take another instance where a compromise is arrived at between the parties a'nd a particular property having been .allotted to A, he has to be put in possession thereof by B.

B does not give possession of this property to A Can it be said th[ft because the compromise decree has not been implemented by B, he commits the -0ffence of contempt of conrt?

Here also the answer must . be in the negative and the remedy of B would be not to pray for drawing up proce-"dings for contempt of court agai'nst B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure.

Indeed, if we were to hold that non compliance of a compromise d•<cree or consent order amount to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all.

In fact, the reason why a breach of clear undertaking given to the conrt amounts to contempt of court is that the contemner by making a false representation to the Court obtains a benefit for himsel! and if he fails to hononr the undertaki'ng, he plays a &<rious fraud on the court itself and thereby obstructs the course of justice a.nd Q.rings foto disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the court but on one of the parties.

Thus, the offence committed by the person concerned is qua the party not qutz the court, and, therefore, the very foundation for proceeding for contempt of conrt is completely absent in such cases.

In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporared by the court in its order, there can be no question of wilful disobedience of such an undertaking.

In the insta'nt case, we have already held that there is neither any written undertaking filed 'by the app; o:llarrt nor was any such undertaking impliedly or expressly incorporated in the order impugned.

Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

For these reasons, therefore, we are of the opinion that however improper or reprehensible the conduct of the appellant may be yet the act of the appellant in not complying with the terms of the consent order does not amount to an offence under section 2 (b) of the .i\ct and his conviction and order of detention in civil prison for four months is wholly unwarranted by law.

The appeal is accordingly allowed. The judgment of the High Court is set aside and the order passed by the High Court directing the appellant to be detained in civil prison for four months is hereby quashed and the appellant is acquitted of the offence lll100r section 2 (b) of the Act.

N.V.K.

Apptal allowed.

i

BABU RAM GUPTA

SUDHIR BHASIN & ANR

April 12, 1979

S. MURTAZA FAZAL ALI

A. D. KosHAL JJ

Courts Act 1971

S. 2(b)

S. 2

Contempt of Courts Act

S. 2(b)

[1979] 3 S.C.R.

3

the Code of Civil Procedure

[1970] 3 SCR.

98

K. B. Asthana

Salish Chandra

Sarai Chandra

P. D. Sharma

Seita Vaidialingam

FAZAL ALI

section 19

Contempt of Courts Act, 1971

section 2(b)

Courts Act, 1971

Sudhir Bhasin

It appears that there was a_partnersl1ip between
- Sudhir Bhasin and Jagatri Lal Bhasin as a result of which a firm • '.11//11 under the style of Sitapur Theatres with its !

Jagatri Lal Bhasin

Sitapur Theatres

Delhi

clause 25

section 20

Allahabad High Court

Sudhir Bhasin

Sitapur

Division Bench of the Delhi High Court

Mahabir Prasad

Bar Association of Sitapur

Luckllow

District Judge, Sitapur

S. C. Bhat\acharya

Bar Association, Sitapur

14th August,

1977

Asthana

Seita Vaidialingam

Seita Vaidyalingam

Astha'na

India

Central Government

Union of India

the Code of Civil Procedure

the Code of Civil Procedure

section 2

section 2

N.V.K.


694 ..

CONCORD OF INDIA INSURANCE CO. L1D. v.

NIRMALA DEVI AND ORS.

April 16, 1979

[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.]

Negligence of Counsel which misleads a litigant into delayed pursuit of his.- remedy-Propriety and reasonableness of cofnpanies and other persons relying upon legal opinion in the niatter of co1nputation of liniitation--Lirni-· tation Act, 1963 (Act XXXVl) Section 5.

Need for no fault tortious liability by State-LeKal rights, literacy in the case of automobile, accidents and the processual 1nodalities which secure redressal of grievances, explained.

, A doctor and his brother riding a motor cycle were hit by a jeep driver ..,, and both \\'ere killed in November 1971, but the Motor Accident claims Tri· bunal delivered judgment on 5·9 1976 five years later awarding sums of Rs. 80,000/- and Rs. 73,500 ;- to the two sets of claimants.

The appeal in this case had to be filed on or before 19-1-77 but was. actually filed 30 days later with an application for condonation under S. 5 of the Limitation Act on the ground of Counsel's mistake in the calculationof the period of limitation.

The High Court dismissed the appeal and the~ application.

Dismissing the special leave petitions, the Court

HELD : A company relies on its Legal Adviser and the Manager's. expertise is in company management and not in law.

There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counse1.

Of course, if there is gross delay too patent even for layman or if there is i.tL comprehensible indifference the shield of legal opinion may still be .vulnerable.

If legal Adviser's opinions are to be subjected by company managers to. further legal scrutiny of their own, an impossible situation may arise.

Inde_ed Government, a large litigant in this country, may find itself in difficulty •. [697EF. 698 F-Gl

This does not automatically secure a visa for the petitioner into this )C Court under Art. 136.. There musf be manifest injustice or gross misappreciation or perversity in factual findings.

[698H] ,.-·

State of Kerala v. Krishna Kurup Madhava Kurup, A.I.R. 1971 Keralai 211; approved.

State of West Bengal v. Howrah Z..funicipal Corporation, AIR 1972 SC.- 749; referred to.

Obser; ations

1~ The jurispfudence of compensation for motor accidentS IDus't develop in. the direction, of no-fault liability and the determination of the quantum !DU$\ be liberal, not niggardly since the law values life and limb in 'a 'freet

country in generous scales.

Social justice, the command of the Constitution A is being violated by the State itself by neglecting road repairs, ignoring deadly over-loads and contesting liability after nationalising the bulk of bus transport and the whole of general insurMtce business. [696CDl

2. Medieval roads \\'ith treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non-enforcement of traffic regulations_ designed for safety but offering opportunities for systematised corruption and little else and, as a cumulative effect, mounting high\vay accidents, demand a new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensation claims caseo. [696B-C]

3. If only no-fault liability, automatic reporting by the police who investigate the accident in a statutory pro-forma signed by the claimants and forwarded to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof \'\it:re introduced-easy and inexpensive, if the State has the will to help the poor who mostly die in such accidents-law's. delays in this compassionate jurisdiction can be banished.

Social justice in action is the measure of the State's constitutional sensitivity. [696F-G]

CIVIL Al'PELLATE JURISDICTION : Special Leave Petition (Civil) Nos. 5228 and 5286 of 1977.

From the Judgment and Order dated 8-8-1977 of the Pnnjab E and Haryana High Court in F.A.O. No. 81 and 82 of 1977.

P. P. Malhotra and R. N. Dikshit for the Petitioner.

S. K. Gambhir for the Respondent.

The Order of the Court was delivered by

KRISHNA IYER, J. An explosive escalation of automobile acci dents, accounting for more deaths than the most deadly diseases, has become a lethal phenomenon on Indian Roads everywhere.

The jural impact of this tragic development on our IgJslatures, courts G and law enforcing agencies is insufficient, with the result that the poor, who are, by and large, the casualty iu most of these cases, suffer losses of life or limb and are deprived of expeditious legal remedies in the shape of reasonably quantified compensation promptly paid-and this, even after compulsory motor insurance and nationalisatkm of insurance business.

The facts of this special leave peti- Fi

tins;. which we dismiss by this order, raise two serious issues which o:mstrain us to make a speaking order.

The first deals with legal

rights, literacy in the case of automobile accidents and the processual modalities which secure redressal of grievances.

The second relates to the consequences of negligence of counsel which misleads a litigant into delayed pursuit of his remedy.

B Medieval roads with treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non-enforcement of traffic regulations designed for safety but offering opportunities for systematised corruption and little else and, as a cumulative effect, mounting highway C accidents demand a new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensation claims cases.

Social justice, the command of the Constitution is being violated by the State itself by neglecting road repairs, ignoring deadly overloads and contesting liability after nationalising the bulk of bus transport and the whole of general insurance business.

The D jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.

In the present case, a doctor and his brother riding a motor cycle were hit, by a jeep driver and both were killed. The fatal event occurred in November 1971 but the E Motor Accident Claims Tribunal delivered judgment five years later awarding sums of Rs. 80,000/- and Rs. 73,500/- to the two sets of claimants.

The delay of five years in such cases is a terrible commentary on the judicial process.

If only no-fault liability, automatic reporting by the police who investigate the accident in a statutory pro-forma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof were introduced-easy and inexpensive if the State has the will to help the poor who mostly die in such accidents-law's delays in this compassionate jurisdiction can be banished. Social justice in action is the measure of the State's constitutional sensitivity.

Anyway, we have made these observation hopefully to help focus the attention of the Union and the States.

The nationalised insurance company appealed to the High Court against the award.

We have no doubt that the finding on both the

• •

culpability and the quantum as rendered by the trial court are correct.

But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under S. 5 of the Limitation Act.

The Accident Claims Tribunal pronounced its award on Septem ber, 15, 1976, after making the necessary computations and deduc tions.

The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later.

Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation.

He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late.

The High Court took the view that the lawyer's ignorance about the law was no ground for condonation of delay.

Reliance was placed on some decisions of the Punjab High Court and th_ere was reference also to a ruling of the Supreme Court in AIR 1972 SC 7 49 ('). The con clusion was couched in these words :

"The Assistant Divisional Manager of the Company appellant is not an illiterate or so ignorant person who could not calculate the period of limitation.

Such like appeals are filed by such companies daily. The facts of this case clearly show, as observed earlier, that the mistake is not bonafide and the appellant has failed to show sufficient cause to condone the delay."

We are not able to agre.i;. with this reasoning.

A company relies on its Legal Adviser and the Manager's expertise is in company management and not in law.

There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel.

Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable.

The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in AIR 1971 Ker. 211 :

"The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as !aches

(1) State of West Bengal v. Howrah:Municipa/ Corporation.

6-330SCI/79

on the part of the litigant or an attempt to save limitation in an underhand way.

The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation."

"The High Court took the view that Mr. Raizada being afi Advocate of 34 years' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39 (1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under Section 5 of the Limitation Act.

The Supreme Court upset this approach."

"I am of the view that legal advice given by the mem bers of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong.

An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice.

The court must of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse.

If neither is present, legal advice honestly sought and actually given, must be treated as sufli cient cause when an application under Section 5 of the Limitation Act is being considered.

The State has not acted improperly in relying on its legal advisers."

We haV'e clarified the legal position regarding the propriety and . • reasonableness of companies and other persons relying upon legal '!- opinion in the matter of computation of limitation since it is a pro blem which may arise frequently.

If Legal Adviser's opinions are to be subj•ected by company managers to further legal scrutiny of their own, an impossible situation may arise.

Indeed Government, a large litigant in this country, may find itself in difficulty.

That is the reason why. we have chosen to explain at this length the application of S. 5 vis'a-vis counsel's mistake.

This does not automatically secure a visa for the petitioner into this Court under Article 136.

There must be manifest injustice or gross misappreciation or perversity in factual findings.

We have

• •

examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner.

He has hardly convinced us that the merits of the case call for any intervention at all.

In this view we are constrained to dismiss the Special Leave Petitions now that we have expressed ourselves or both the points

dealt with above.

s. R.

Petitions dismissed.

CONCORD OF INDIA INSURANCE CO. L1D

NIRMALA DEVI AND ORS

V. R. KRISHNA IYER

R. S. PATHAK, JJ.

Section 5

5·9 1976

S. 5

Limitation Act

Inde_ed Government

Art. 136

Tamil Nadu

P. P. Malhotra

R. N. Dikshit

S. K. Gambhir

KRISHNA IYER

S. 5

Limitation Act

Septem ber, 15, 1976

Punjab High Court

Supreme Court

AIR 1972 SC 7

Limitation Act

Raizada

Section 39

Section 5

Limitation Act

Section 5

Limitation Act

S. 5

Article 136


STATE OF RAJASTHAN

RAGHUVEER SINGH & ORS.

February 5, 1979

(R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Interest Act 1839 (32 of 1839)-Suit for recovery of aniount due in respect of building contract-Claim if a "sum certain" under the Act,

Notice oj demand for payment clain1ing "los.r by way of intcrest"-If, valid and suffecient-Notice not to be strictly construed.

The Interest Ac~ 1839 (32 of 1839) empowers the Court to allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certaifl time by virtue of a written instrument at lei rate not exceeding the current rate of interest from the time when such amounts were payable and if the amount payable otherwise, then from the time when the demand of payment !hall have been made in writing.

D As the amounts due in respect of a building work! contract renl6ined unpaid despite demands and notices, the re, pondent (plaintiff) filed a suit for its recovery together with interest.

Decreeing the suit, the trial court awarded interest at 4t per cent. But in appeal, the High Court enhanced the rate of interest pendente Ute from 4t per cent to 6 per cent.

In the further appeal to this Court it vAl• contended that the Interest Act 1839, was not applicable as no sum certain was payable and there was no demand for payment of interest.

Dismissing the appeal,

HELD : 1. The claim was for la "sum certainl! within the meaning of the Act. [9F]

The claim was ascertainable on a calculation made in terms of the agreement and was therefore a sum certain within the meaning of the Act. It is "a sum of money which is now payable or will become payable in the future by reason of a present obligation" and in any case it was not for the payment of any unliquidated damages or for the payn1ent of any amount arising out of an inchoate obligation.

[9E-F]

2. The respondent issued hvo notices. In the second notice it dc; finite claim of interest had been made by them. The term "loss by way of interest" mentioned in the first notice suggested that what was being claimed was compensation for the damages suffered by them. The notice should not be construed literally or technically. The mention of loss was only explann~ tory. Without any manner of doubt the respondents were claiming interest as such. [9G-10DJ

3. Nor again ctln it be said that there was no claim for future interest.

A claim for past interest would necessarily imply a claim for future interest.

[!OE]

. ,

' t I

.r Kuppusanii Pillai v. Madras Electric Tramway Co. Ltd., ILR 23 Mad. 41; A Sita Ram & Ors. v. Mrs. S. Sullivan, [1901] 2 Punjab Law Reporter 464; referred to.

Mahabir Prashad Rungta v. Durga Datt, [1961] 3 SCR 639 and Union of India v. A.. L. Rallia Ram, [1964] 3 SCR 164; distinguished.

4. Having regard to the various continuous default'5 committed by the B appe1lant and its officers the High Court v.i justified in enhancing the rate

of interest to 6 per cent. [1 lE]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2008 of 1969. ,-4;- From the Judgment and Order dated 7-4-1965 of the Rajasthan

r High Court in D. B. Civil Regular Appeal No. 67153.

' .

S. M. Jain for the Appellant.

B. D. Sharma, Ramesh Chandra and B. P. Maheshwari for the Respondent.

The Judgme_nt of the Court was delivered by

CHINNAPPA REDDY, J.-The Staie of Rajasthan, defendant in Civil Suit No. 9 of 1963 in the Court of the Senior Civil Judge, Udaipur, is the appellant in this appeal filed pursuant to a certificate granted under Article 133(1) (a) of the Constitntion of India (as it itood prior to the 30th amendment). The plaintiff respondent took a building work on contract from the erstwhile Government of the

State of Udaipur.

He completed the work on 6th June, 1950.

Despite demands and notices issued by the plaintiff a considerable amount due to him remained unpaid. He, therefore, filed the suit out of which the appeal arises to recover a sum of Rs. 3,19,458111/-

together with interest at the rate of 12 % .

The suit was contested by the State of Rajasthan.

An interim decree for a sum of Rs. 66,517/- was passed on 7th November, 1955.

After full trial a decree for Rs. 1,67,6191- (including the sum of Rs. 66,517 /- for which a preliminary decree had already been passed) was passed ou 11-6-1958/30-6-1958. The decree also awarded interest at the rate of 4!% on the amount decreed from the date of suit till the date of realisation.

The plaintiff and the defendant preferred appeals to the High Court of Rajasthan.

The High Court reduced the decreetal amount by a sum of Rs. 9,991/-.

The High Court, however, held that the plaintiff was entitled to interest from 1st January, 1951, and not merely from the date of suit. The High Court also enhanced the rate of interest pendente lite from 4!% to 6%. The High Court having varied the decree of the Trial Court, the State of Rajasthan

A sought an<l obtained a certificate under Article 133(1) \a) of the Constitution and has filed this appeal.

The controversy in the High Court related primarily to (i) conveyance and lift charges; (ii) alleged double benefit in regard to bond-stones, lintels and sills; (iii) use of Jodhpur slabs and their high cost; (iv) charge for C. P. Teak wood at the same rates as for Burma Teak.

In regard to conveyance and lift charges the High Court pointed out that no question was raised in the Memorandum of grounds of appeal and there as, therefore, no justification for permitting the learned Counsel for the State to assail the finding of the Trial Court relating to those charges. We do not see any reason either why the learned Counsel should be permitted to agitate this question in this appeal.

Regarding double-charge for bond-stone, lintels and sills, the complaint of the appe!Iant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed.

From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice uptill then to allow payment for bond-stones, lintels and sills separately without deducting their

ubic contents from the general wa!I masonry. This had always been the practice and this was never objected to by the Accountant General. In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond-stones, lintels and sills.

The nse of Jodhpnr slabs was not questioned in the written statement.

All that was said was that the rate was high but at the trial there was no evidence worth the name, as observed by the High Court to show that the charge was excessive. Again there was no objection to the use of C.P.Teak-wood instead of Burma teak wood as the latter was not available. According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. Teak wood was used, the rates specified for Burma teak wood should be taken for C.P. teak wood. It could not, therefore, be said that the contractor had charged more than what he should for C.P. Teak wood.

The last question which was argued before us by Shri Jain, learned Counsel for the State of Rajasthan was that no interest should have been awarded for the period before the filing of the suit and that the rate of interest should not have been enhanced by the High Court for the period subsequent to the filing of the suit. It was

. '

' I

submitted that the Interest Act, 1839, was not applicable as no sum certain was payable and there was no demand for payment of interes~.

It was argued that what was demanded by the plaintiff was damages and not interest. It was also contended that the Trial Court having, in exercise of its discretion, awarded interest at the rate of 4t%

pendente lite, the High Court ought not to have interfered with the discretion of the Trial Court. Reliance was placed upon the decision in Maha]lir Prasad Rungta v. Durga Datt(') and Union of India v. A. L. Ral/ia Ram(2 ).

We are unable to agree with the submission of the learned Counsel for the appellant.

Under the Interest Act, 1839, "upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment : provided that interest shall be payable in all cases in which it is now payable by law".

The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a "sum certain" within the meaning of the Interest Act. In any case it would be a debt, i.e., "a sum of money which is now payable or will become payable in the future by reason of a present obligation".

The further question for consideration is whether the plaintiff had made a demand of payment, "so as such demand shall give notice that interest will be claimed from the, date of such demand until the term of p11.yment''.

The plaintiff issued two notices to the defendant demanding payment.

The first was on 21st December, 1950, and the second was on 5th April, 1953. There is no dispute that in the second notice of demand of payment of definite claim for interest had been made. In the first notice it wall said "by with:holding payment of his bills absolutely, the Government h!!.S put my client to enormous loss by way of interest also .......... I intimate to you

(I) !I %11 3 S.C.R. 639. (2l r1%4J 3 S.C.R. 164.

2-196SCI!79

:A through this notice that the said Sbri Ramsingh claims a sum of Rs. 2, s0,519/- from the Rajastban State as under :

1. Unpaid bills for work done

2. Interest on the above. 3. 4. 5. 6.

Total :

Rs. l,37,177/- ll,511/-

R•. 2,50,519/-

The learned counsel submitted that what was claimed by the plaintiff in this notice was damages and not interest and that too for the past, without any indication that future interest was also being claimed. It is true that the plaintiff mentioned "loss by way of interest", suggesting that what he was claiming was compensation for the damage suffered by him.

We are, however, not prepared to construe the notice so literally cir technically.

The mention of loss was only explanatory. The plaintiff was, without any manner or doubt clai{ning interest as such.

Nor are we impressed with the argument that there was no claim for future interest .. In our opinion a claim for past interest would necessarily imply a claim for future interest, vide Kuppuswami Pillai v. Madras Electric Tramway Co.

Ltd.(') and Sita Ram & Ors. v. Mrs. S. Sulliv(m( 2).

In Mahabir Pras(ld Rungta v. Durga Datt(3) interest was disallowed on the ground that the notice which was given did not specify the sum which was demanded and therefore, the Interest Act did not ap_ply.

On the question whether interest could be awarded on grounds of equi- F, ty it was held that what was claimed by Durga Datt was interest as damages and that it could not, therefore, be awarded. The suit itself was one for damages for breach of contract. We do not think that this case is of any assistance to the appellant. In Union of India v.

A. L. Ral/ia Ram, (supra)° the Arbitrator had awarded interest by way

of compensation since the party had to borrow a large amount of money from its banker to meet its obligation under the contract. The Supreme Court pointed out that interest 'could not be awarded by way of damages. The Supreme Court also noticed that an Arbitrator was not a Court within the meaning of the Interest Act. No question . arose before the Supreme Court whether interest could not be awarded

under the Interest Act merely because the notice demanding payment

(I) l.L.R. 23 Mad. 41.

(2) !l901J 2 P.L.R. 464 .

. !3) [1961) 3 S.G.R. 639.

• •

' •

mentioned that the plaintiff IJ!!d snfl't.inw IP.SS of interest also.

In our view the condition prescribed by the Interest Act that such demand shall give notice to the debtor t)lat iµterest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand

explains that Joss by way of loss of interest has been suffered.

To take any qther view would be to be over teehni_cal in the copstruetion of pleadings, including notices preceeding the action.

We 11m&t notice here an argument acjvanced by the learned counsel for the appellant that the contract prohibited the award of interest. • H~ re)id upon the following sentence ocrnrring in paragraph lo of vr. the Coµtract dated 1 Jth Mi!Y 1947: "Neither the earnest money -/ deposit nor the with-held amount shall bear any interest".

This sen- • tence far from supporting the case of the appellant appears to s4pp, c.ct the ca&e of the plaintiff.

The reference to "tile wi\)1-):)e\d amounts" is tq the al!IOl!nts represe11iflg jiye per cent of tl!e ruµning bills which are required to be with-held at the time of payment of the rumiing bills.

The provision that the contractor is not entitled to interest on these with-held amounts appears to imply that inten, st is claimable on otjier a111ounts pue to the contractor.

' .

While awarding interest pendente lite the Trial Court adopted the rate of 4t% but the Trial Court gave no reasons for so doing.

The Uigh court considered the matt!'!' in som1> detail a11d having regard to the variQ!lS contjnqous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%.

The High Court was jl)stified in doing so and we see no reason to interefere with th" c]jscretion exercised PY the Uigh Court. ln the resiilt !lie appeal is dismissed with costs.

N.V.\{.

Appeal dismissed.

Ii\

STATE OF RAJASTHAN

RAGHUVEER SINGH & ORS

February 5, 1979

February 5, 1979

(R. S. SARKARIA AND 0.

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Interest Act 1839

Interest Act 1839

[1961] 3 SCR 639

[1964] 3 SCR 164

CIVIL APPELLATE JURISDICTION

S. M. Jain

B. D. Sharma

Ramesh Chandra

B. P. Maheshwari

Article 133(1)

6th June, 1950

State of Rajasthan

7th November, 1955

High Court of Rajasthan

1st January, 1951

Article 133(1)

United State of Rajasthan

12th July, 1948

6th February, 1950

Jain

State of Rajasthan

Interest Act, 1839

Interest Act, 1839

Interest Act

21st December, 1950

5th April, 1953

Interest Act

Durga Datt

Supreme Court

Interest Act

Interest Act

Interest Act


' . A

N. KRIS'HNAMMAL

R. EKAMBARAM & ORS.

April 16, 1979

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]

Hindu Succession Act, 1956-Ss. 8 to 10- Scope of.

Test at or's will stated that in case his son died sonless ''my heirs s/1(lll take the properties" bequeathed to him-Testator's son died without leaving behind a male issue-Expression "my heirs'' nleaning of-Testator whether created an artificial class of hefrs-Term heirs used in a will-How construed-The point of time when heirs should be ascertained.

By a will the testator bequeathed certain properties to each of his three sons.

With regard to his third son (NP) the testator provided in Clause 5 of the will that if he had no male issues "my heirs shall take the aforesaid properties" after his life time.

NP died in 1957 without any male issue, His widow (plaintiff-appellant) filed a suit for declaration of her title to the properties on the ground that her husband got the same absolutely by way of partition and that she, as his heir, inherited the properties or in the alternative for a declaration of her right to the properties on a true construction of the testator's will. (Defendants 1 and 2 were the sons of the testator's eldest son while defendants 3 to 7 were the daughters and defendant 8 the widowed daughter-in-law of the testator's second son.)

E The trial judge of the High Court decreed the plaintiff's suit holding that

on the termination of the life interest given to NP who died sonless the properties devolved on the heirs of the testator as if on intestacy, that the plaintiff was entitled to 1 /3 share of the properties, and that the remaining 2/3 share should be shared by the defendants.

Defendants 1 and 2 appealed to a Division Bench of the High Court, claiming that as the only heirs of the testator they were entitled to get the entire property of NP who had only a life interest in it Construing cl. 5 of the "ill, the Division Bench held : (1) that by his will the testator had made his heirs as an "artificial" class of ultimate residuary legatees; (2) that the mandate implicit in the words "if there are no male issues as aforesaid" is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when NP died sonless and at no other;

(3) that this class of heirs of the testator was to be ascertnined on the death of NP on the hypothesis that the testator had been upto the time of NP's death, but according to orthodox Hindu Law prevailing at the time of the testator's death in 1928; (4) that neitb:er Hindu Women's Right to Property Act, 1937, nor the Hindu Succession Act, 1956 was applicable because the testator actually died long before the coming into force of these two enactments and he did not die intestate; (5) that according to Hindu Law prevailing at the time of the testator's death in 1928, respondents 1 and 2 would be the only persons entitled to the property on the death of NP, to the exclusion of the latter's widowi the plaintiff.

.~ .

• •

~} ..

Allowing the appeal.

HELD : I(•) On a proper construction of the will the testator could not be said to have created or carved out an "artificial" class of heirs and made a residuary bequest in their favour. It is well established that the term "heirs"

used in a will must be construed in a legal sense and cannot normally be limited to "issues" only. It must mean all persons who are entitled to the property of another under the law of i\1heritance. [705E-F[

Angurbala Mullick v. Dcbabrala Mullick, [1951] 2 SCR 1125 at p. 1144; referred to .

(b) The expression "my heirs" used in cl. 5 of the will must be construed as equivalent to "my legal heirs". The words "if there are no male issues my heirs shall take the aforesaid properties" are not words of gift over to any

rtificial class of heirs.

[705G]

2. Construction of clause 5 of the will brings out expressly or by inevitable implication, these instructions of the testator

(a) In the event of NP's death, without male issue, the property v;.uuld devolve on the testator's heir.

(b) Such heirs of the testator would be ascertained according to Hindu Law of intestate succession.

(c) A!certainment of these "heirs" of the testator, is to be done at the time of NP's death on the hypothesis that the testator lived up to and died a moment after NP's death.

(d) It logically follows from (a), (b) and (c) that these heirs of the E testator would be ascertained according to the Hindu Succession Act 1956, which wa! the law in force on 31-1-57 when NP died sonless and succession opened out. [706 D-F]

3. On the mport and scope of cl. 5 of the will, as spelled out above, ascertainment of the testator's heirs on whom the property would devolve on NP's death, is to be done according to ss. 8 to 10 of the Hindu Succession Act. At that point of time, the plaintiff (who would be assumed to be the widow of a "predeceased" son) and the defendants would all be the heirs of the testator, falling in Class I of the Schedule referred to in s. 8, and in accordance with Rules 3 and 4 in Section 10 of the Act, the plaintiff would be entitled to 1/3rd share, in the property, while the remaining 2/3rd share shall go equally to the branches of Ramaswami and Vedivelu. [707 DE]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2085 of 1969.

From the Judgment and Decree dated 15-11-68 of the Madras High Court in Criminal Side Appeal No. 45 /65.

M. Natesan and Mrs. S. Gopalakrishnan for the Appellants.

V. S. Desai, P. G. Gokhale and S. R. Agarwala for the Respondents 1-2.

Ex parte for the Respondents JS.

The Judgment of the Court was delivered by

SARKARIA, J.-Thi's appeal by certificate is directed against an Appellate Judgment and Decree, dated November 15, 196.8, of the High Court of Madras.

The facts leading to this appeal are as follows : The following pedigree table will be helpful in understanding the relationships of the parties :

Palaniandi Pillai (died on 19-5-1928)

Ramaswami Pi11ai Vadivelu Pillai

(died in 1953) Dharmr.mbal (died in 1940)

R. Ekambaram (!st Defdt.) . . . .

R. Balasubrarnanian : (2nd Defdt.)

R .1 . aJaman1 Kamala Padma Sar ad a Lalitha

Nataraja Pillai (died on 31-1-57)

(3rd Defdt.) (4th Defdt.) (5th Defdt.) (6th Defdt.) (7th Defdt.)

Selvaraj (died in 1952) = Rajammal (8th Defdt.)

Palaniandi Pillai, shown in the above pedigree-table, owned considerable properties.

On December 12, 1927, he executed a Will whereby he bequeathed certain properties to each of his three sons.

He appointed his sons, Ramaswami Pillai and Vadivelu Pillai, as Executors of his Will.

In regard to his third son, Nataraja Pillai, the testator in clause 5 of the Will stated :

"My third son, Nataraja Pillai, shall take the income accruing from the properties, namely, my cart-stand, house and ground, situate in the Western Row of Mint Street, bearing Municipal Door No. 278, Re-survey No. 600, Collector's Certificate No. 750 and the 5 Godowns, namely, 2 Godowns situate in Varadaraja Mudali St., bearing Municipal Door No. 90 and 91, and 3 Godowns situate in 3rd North Beach Road bearing Municipal Door Nos. 5, 6 and 7 to 9, Re-survey No. 3158 and 3187, Collector's Certificate No. 2550. After his life-time, if he leaves any male issue, they shall take the aforesaid properties, with

• • "f.

• ,.

powers of alienations such as gift, usufructuary mortgage A and sale. If there are no male issue as aforesaid, my heirs shall take the aforesaid properties."

Although the Will had not been probated, yet, by mutual arrangements between the first two sons who were named Executors in the Will, and the third son, Nataraja Pillai, the properties were distributed in consonance with the terms of the Will and the Executors conveyed and transferred the same to the respective legatees, and mutual release deeds were, also, executed by the three sons.

Ramaswamy Pillai died in 1954 and Vadivelu Pillai in 1953, Nataraja Pillai died on January 31, 1957, without leaving any issue.

His widow, Krishnammal, the appellant herein, filed the suit (C. S .

No. 7 of 1959) out of which this appeal has arisen. She claimed-

(a) partition and separate possession of one-third share in the (plaint-schedule) properties left by her husband Palaniandi Pillai, alleging that the properties' were in the possession of the joint family consisting of his sons, or in the alternative, (b) for a declaration of D her title and for possession of the properties on the ground that her husband Nataraja Pillai got the same absolutely by way of partition under the deed, dated July 14, 1928, and she, as his heir, inherited the properties; in the alternative, (c) for a declaration of her rights to the properties on a true construction of the Will of her father-inlaw, Palaniandi Pillai, and for possession of the properties.

The sons of Ramaswamy Pillai, respondents 1 and 2 herein, were impleaded as defendants 1 and 2, and the daughters of Vadivelu Pillai, respondents 3 to 7, were defendants 3 to 7. The daughter-inlaw of Vadivelu Pillai, respondent 8 herein, was added as 8th defendant.

The findings of the learned trial Judge, material for our purpose, were as follows :

(i) Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint; (ii) the contingent interest in favour of

the heirs of Palaniandi Pillai became vestoo only on the death of G Nataraja Pillai, (iii) it is not open to the plaintiff, Krishnammal, to invoke Section 8 of the Hindu Succession Act, 1956; (iv) on the termination of the life interest given to Nataraja Pillai, the gift over in favour of the male issues could not take effect as he did not leave any male issue, with the consequence, that the properties, in effect; became revested in Palaniandi Pillai, but devolved on his heirs H as if on intestacy; (v) Section 111 of the Indian succession Act would be applicable.

In the result, the appellants' suit was decreed and it was held that she was entitled to one-third share and separate possession of the same by partition of the Plaint-Schedule 1 properties, and defendants 3 to 8 were equally entitled to one-third share together with mesne profits relating to their shares in the said properties, while defendants 1 and 2 were entitled to the remaining one-third share.

Aggrieved, defendants 1 and 2 PH'ferred Letters Patent Appeal in the High Court, contending that, according to the terms of the Will of Palaniandi Pillai, they were his only heirs and entitled to get the entire properties in which Nataraja Pillai held only a life interest; and that neither the plaintiff nor defendants 3 to 8 were entitled to any share.

The Appellate Bench of the High Court purporting to proceed mainly on the scope and construction of Clause 5 of the Will of Palaniandi Pillai, held :

D (!) By his Will (Ex. P. 2) the testator had made "my heirs", i.e. the testator's heirs as an "artificial" class of ultimate residuary legatees. .>o '

(2) This class of legatees or "my heirs" did not acquire a vested interest in the residuary bequest on the death of the testator.

(3) The ultimate bequest in their favour would become vested

only in the event of Nataraja dying son!ess.

( 4) The mandate implicit in the words "if there are no male issues as aforesaid" occurring in Clause 5 of the Will (Ex. P. 2) is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when Nataraja died sonless, and at no other.

(5) This class of "my heirs" of the testator would be ascertained with reference to the point of Nataraja's death (without a son) on January 31, 1957, when succession opened out and the bequest became distributable, "on the hypothesis that Palaniandi Pillai had lived up to that time" i.e. January 31, 1957.

(6) Although this class of the heirs of the testator was to be ascertained on January 31, 1957 on the hypothesis that the testator and Nataraja died simultaneously, such ascertainment could not be done either by resorting to the Hindu Women's Rights to Property

H Act, 1937 or to the Hindu Succession Act, 1956, because Palaniandi '\- Pillai actually died in 1928, long before the corning into force of these two enactments and he did not die intestate.

(7) Such class of heirs of the testator were to be determined according to the orthodox Hindu Law prevailing at the time of the testator's death on May 19, 1928.

( 8) Section 111 of the Indian Succession Act was not applicable.

On the above reasoning, the Appellate Bench of the High Court reversing the decree of the learned trial Judge, held that Respondents 1 and 2 herein were the only persons entitled to the entire Schedule 1 property on the death of Nataraja Pillai, to the exclusion of the latter's widow, the plaintiff.

Thus the appeal was allowed and the plaintiff's suit dismissed.

After obtaining a certificate under Article 133 of the Constitution C from the. High Court, the plaintiff, Krishnammal, has come in appeal before this Court.

Controversy in this case hinges around the scope and construction of Clause S of the Will (Ex. P-2). In that connec\ion, the first question that arises for consideration is : Did the testator by this Clause D create or carve out an "arificial" class of his heirs, and make a residuary bequest in their favour ?

In our opinion, on a proper construction of the Will, the answer to this question must be in the negative.

It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator.

The word "heirs", as pointed out by this Court in Angurbala Mullick v. Debabrata Mullick(') cannot normally be limited to "issues" only. It must mean all persons who are entitled to the property of another under the law of inheritance.

There is nothing in the language of Clause S of the Will which compels the construction that by use of the expression "my heirs" the testator meant somehing different from his 'heirs under the law.' The expression "my heirs" has therefore to be construed as equivalent to "my legal heirs".

Thus considered, the words used in the last two sentences of Clause S of the Will are not words of gift over to any 'artificial' class of heirs.

They only indicate that in the event of Nataraja's death without any male issue, further devolution of the estate that had been given to him for life, would be regulated in favour of the testator's heirs ascertained in accordance with Hindu Law of intestate succession.

That is to say, the testator did not specify or lay down any line of heirs, deviating from the Hindu Law of intestate succession.

(!) (1951] S.C.R. 1125 at p. 1144.

The ground is now clear to consider the second question which is pivotal to the whole problem : Whether the heirs of the testator, on whom the estate was to devolve in the event of Nataraja dying sonless, were to be ascertained according to Hindu Law in force at the time of Nataraja's death or according to Hindu Law, prevailing in 1928 when the testator died. This question, also, is one of reaching at the real intent of the testator.

In order to expatiate, the true import of the last two sentences of Clause 5 of the Will (Ex. P 2), the same can be legitimately expanded, parenthesized and eludicated so as to read like this :

"After Nataraja's life-time, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienation ... If Nataraja dies without leaving any male issue, then my heirs, then ascertained according to law of inheritance, shall take the aforesaid properties."

Thus amplified and elucidated, Clause 5 of the Will brings out, expressly or by inevitable implication, the intention and instructions of the testator in regard to the following :

(a) In the event of the termination of the life-estate of Nataraja .>. ~

on his death, without male issue, the property will devolve on "my heirs" i.e. the testator's heirs.

(b) Such heirs of the testator are to be ascertained according to the Hindu Law of intestate succession.

( c) Such ascertainment of the heirs of the testator is to be done on the date of Nataraja's death without male issue, when succession opens out in favour of those heirs, and not with reference to the date of the testator's death.

This necessarily implies that "my heirs" of the testator are required to be ascertained on the hypothesis that the testator lived upto and died a moment after Nataraja's death.

If what is spelled out at (a), (b) and (c) be the true construction of Clause 5 of the Will, it logically and inexorably follows therefrom, that ascertainment of the heirs of the testator, on whom the property G was intended to devolve in the event of Nataraja dying sonless, was to be made in accordance with Hindu Law of intestate Succession as in force on the date of Nataraja's death, on January 31, 1957, when succession opened out, and not in accordance with the orthodox Hindu Law prevailing in 1928, which on the relevant date, January 31, 1957, stood abrogated and superseded by the Hindu Succession H Act. 1956. The conclusion is therefore inescapable that "my heirs" referred to by the testator in Clause 5 of his Will, have to be ascertained in accordance with the Hindu Succession Act, 1956. In so

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N. KRJSHANAMMAL v. R. EKAMBARAM & ORS. (Sarkaria, J.) 707

doing, we are only giving effect to the import and construction of the A Will of the testator, and no question of giving retrospective operation to the statute is involved.

The learned Judges of the High Court have said that at the time of making the Will, the testator could not predicate that at the' time of Nataraja's death without leaving any son, the Hindu Law of Succession would be different from the one prevailing at the time of making the Will or the testator's death.

Nevertheless, the testator was definitely contemplating the contingency of Nataraja dying without any male issue, and the necessity of ascertaining the testator's heirs at that point of time for further devolution of the property. It cannot, therefore, be said that ascertainment of the testator's heirs according to the law in force at the time of happening of the contemplated contingency, was wholly beyond the ken of the testator.

In the view we take of the import and scope of Clause 5 of the Will (Ex. P. 2) ascertainment of the heirs of Palaniandi Pillai has

to be done on the assumption that he died intestate, a moment after D Nataraja Pillai's death, according to Sections 8 to 10 of the Hindu Succession Act.

At that point of time, the plaintiff (who would be assumed to be the widow of a "predeceased" son), and the defendants would all be heirs of the testator, falling in Class I of the Schedule referred to in Section 8.

According to Section 9, all the heirs in Class I of the Schedule shall take simultaneously, to the exclusion of all other heirs.

The distribution of the property among the plaintiff and defendants will be governed by Rules 3 and 4 in Section 10, which are as under :

"Rule 3. -The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share."

"Rule 4.-The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the predeceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of predeceased sons gets the same portion;

(ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions."

In accordance with the aforesaid provisions of the Hindu Succession Ac!, the plaintiff would be entitled to get 1 /3rd share in Schedule I property in which her husband had a life-interest, while the remaining 2/3rd share in the property shall be equally distributed among the two branches of the defendants, the branches of Ramaswami and Vadivelu getting 1 /3rd share each.

For the foregoing reasons, we allow this appeal, set aside the judgment of the High Court and pass a preliminary decree for partition and separate possession in favour of the plaintiff with respect to her l/3rd share in the snit property.

In the circumstances of the case, the parties are left to pay and bear !heir own costs.

P.B.R.

Appeal allowed.

A

N. KRIS'HNAMMAL

R. EKAMBARAM & ORS

April 16, 1979

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ.

Hindu Succession Act, 1956

Ss. 8 to 10

Clause 5

cl. 5

NP

Right to Property Act, 1937

Hindu Succession Act, 1956

[1951] 2 SCR 1125

cl. 5

clause 5

Hindu Succession Act 1956

cl. 5

ss. 8 to 10

Hindu Succession Act

s. 8

Section 10

Ramaswami

Vedivelu

M. Natesan

S. Gopalakrishnan

V. S. Desai

P. G. Gokhale

S. R. Agarwala

SARKARIA

High Court of Madras

Palaniandi Pillai

Ramaswami Pi11ai Vadivelu Pillai

R. Ekambaram

R. Balasubrarnanian

Kamala Padma Sar

Selvaraj

December 12, 1927

Ramaswami Pillai

Vadivelu Pillai

Nataraja Pillai

clause 5

Ramaswamy Pillai

January 31, 1957

Krishnammal

Palaniandi Pillai

July 14, 1928

Ramaswamy Pillai

Vadivelu Pillai

Schedule I

G Nataraja Pillai

Section 8

Hindu Succession Act, 1956

Section 111

Indian succession Act

Schedule 1

Clause 5

Nataraja

Clause 5

H Act, 1937

Hindu Succession Act, 1956

Palaniandi '\- Pillai

May 19, 1928

Section 111

Indian Succession Act

Schedule 1

Article 133

Krishnammal

Clause 5

Clause 5

Clause 5

Clause 5

Hindu Succession Act, 1956

Clause 5

D Nataraja Pillai

Sections 8 to 10

Hindu Succession Act

Section 8

Section 9

Section 10

Schedule I

Vadivelu