S.A.No.665 of 2019

Abdul Gafoor Rep. by its power agent R.Chidambaram …Appellant
Vs.
1. Abdul Razak Ummal Huda (died)
2. Nazer …Respondents

Cause title accepted vide order of court dated 01.02.2019 made in CMP No.9400 of 2005 in SA SR No.61109/04.

R2 brought on record as legal heir of the deceased Ummal Huda vide order of court dated 01.02.2019 made in CMP No.9401/05 in SA SR. No.61109/04.

Prayer:

Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 18.12.2003 in A.S.No.65 of 2003 on the file of District Court, Nagapattinam dismissing the judgment against the order dated 19.03.2003 in O.S.No.282 of 1998 on the file of Principal Subordinate Judge, Nagapattinam.

For Appellant : No appearance.

T.RAVINDRAN,J.

bga

JUDGMENT

Today, when the matter is called, there is no representation for the appellant. Appellant called absent.

2. In the light of the above position, the second appeal is dismissed for non prosecution. Consequently, connected miscellaneous petition, if any, is also dismissed.

13.06.2019

Index : Yes/No
Internet:Yes/No

bga

Copy to

1. District Court, Nagapattinam
2. Principal Subordinate Court, Nagapattinam.
3. The Section officer, V.R.Section, High Court, Madras

S.A.No.665 of 2019

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Civil Miscellaneous Appeal No.1550 of 1995 is filed against the judgment dated 14.11.1994 in M.O.P.No.94 of 1991 and Civil Miscellaneous Appeal No.1758 of 1996 is filed against the judgment dated 7-8-1996 in M.O.P.No.110 of 1995, on the file of the Family Court, Pondicherry.

For Appellant : Mr. V.K.Muthusamy, S.C., for Mr.N.Jothi

For Respondent : Mr.Lakshmi Narayanan.

Dated: 10/01/2003

JUDGMENT

A.K.RAJAN, J.

The appellant and the respondent are husband and wife; the marriage between them took place on 4.7.1984 at Pondicherry, according to Hindu rites and custom; It was also registered before the Registrar, Pondicherry.The husband was working in the Ministry of Civil Aviation, New Delhi.Soon after the marriage, the husband and wife were residing at Delhi till 1988; they are living separately from 1988. There were some earlier judicial proceedings between the parties.Presently, the husband filed M.O.P.94 of 1991 on the file of the Family Court, Pondicherry against the wife seeking dissolution of marriage. The Family Court dismissed his petition. C.M.A.No.1550 of 1995 is againstchallenging the judgment dismissing his petition for divorce. Subsequent to the dismissal of M.O.P.94 of 1991, the wife filed M.O.P.110 of 1995 seeking restoration of conjugal rights. The Court granted a decree of restitution of conjugal rights;Challengingthat, the husband has preferred C.M.A.No.1758 of 1996.Thus in both the C.M.As., the husband is the appellant. In view of the nature of dispute, both the C.M.As. are heard together.

C.M.A.No.1550 of 1995:

2. The husband in his petition, M.O.P.94 of 1991 has stated that the wife had an overwhelming attachment towards her father and had an irresistible temptation to meet her father and hence very often she visited Pondicherry and stayed there for months together.The father of his wife is a wealthy person in the locality; He wanted his daughter by his side in Pondicherry; hence he requested the husband to get a job in Pondicherry;It was not to the liking of the husband.In the year 1988, the wife left the matrimonial home at Delhi and did not return thereafter, in spite of repeated requests made by the husband.This compelled the husband for making an application to the University of Pondicherry for a job;But he did not get the job.The father of the wife did not send her back on the ground of giving medical treatment;When he asked for a proof of her daughter’s treatment, he abused him. A child was born to them on 5.7.1987.The petitioner was always prepared to condone the failings of his wife and take her and lead a peaceful life;Therefore, he filed a petition for restitution of conjugal rights in H.M.A.409 of 1988 before the District Judge, Delhi.But, the wife filed a petition before the Principal Sub-Judge, Pondicherry in M.O.P.No.96 of 1988 (re-numbered as M.O.P.25 of 1990) seeking judicial separation. The wife obtained stay of the proceedings of the Delhi Court. In view of the stay order granted by the Supreme Court, he withdrew that petition and presented another petition with the same prayer before the Family Court, Pondicherry in M.O.P.182 of 1990.The respondent/wife invented a string of stories of cruelties in her petition for judicial separation.They are only imaginary and invented only for the purpose of counter-blasting his petition for restitution of conjugal rights.Further, the wife sent petitions to his higher officersin the year 1990 making false allegations; and in the year 1990 also requested to take disciplinary action against the petitioner; in that, she has stated the purpose of the petitioner seeking a relief of restitution of conjugal rights was only to take her to Delhi and to kill her.The respondent/wife also filed a complaint before the Pondicherry Police Station on 25.9.1988.The false allegations made by the respondent against the petitioner are only to cover up the abnormal relations of the respondent with her father. Theabove conduct of the wifeamounts to cruelty.

3. It is further stated that the Family Court at Pondicherry heard M.O.P.25 of 1990 and 182 of 1990 and by a common order dated 5.9.1990 granted judicial separation for none months in M.O.P.25 of 1990, it also directed the petitioner to pay Rs.600/- per month as maintenance to the child and adjourned the matter to 10.6.1991 in order to see whether the parties could come together.But the respondent/wife filed appeals against the order of the Family Court, dated 5.9.1990 before the High Court in C.M.As.1016and 1017 of 1990.This makes it clear that the respondent/wife was not prepared for re-union; she was bent upon separation.Even the suggestion made by the Judges of the High Court during the hearing of the C.M.As. was not heeded by the wife.The behaviour of the respondent/wife shows that she is having the doubtful integrity and character. The petitioner was ready and willing to take her back though she left the house without just and reasonable cause.But the respondent did not join the petitioner.The conduct of the wife in withdrawing from the company of the petitioner without any just cause amounts to desertion.Further, the respondent has unjustifiably withdrawn from the society of the petitioner for more than three years. By the conduct of the wife, it is not possible for the husband to live with the wife any longer. Her continued stay with her father is wilful and intentional and amounts to desertion. Hence, he is entitled for a decree of divorce.

4. In the counter filed by the wife in M.O.P.94 of 1991, she has stated that, the husband shifted the residence in Delhi for more than four times between May and October 1988 with a view to extract money from the respondent’s father; that the petitionerwas always keen in getting money from her father by ill-treating her with cruelty; It is only the petitioner who approached her father seeking a job at Pondicherry;The petitioner received huge money from the respondent’s father on several occasions. The statement that the respondent was having abnormal relationship with her father is mischievous and defamatory; The petitioner has filed several proceedings against the respondent, but could not substantiate his case.The petitioner initiated proceedings for restitution of conjugal rights but subsequently has withdrawn it.Hence, the present petition for dissolution of marriage is unsustainable in law.Further, it is stated that thepetitioner used to beat the respondent mercilessly at Delhi; As the obedient wife, shetolerated hisbrutal treatment while she was in Delhi.The petitioner even threatened the respondent that he would endanger the life of the respondent at Delhi.The petitioner refused to take the respondent in spite of the order of the Court.It is not correct to say that the respondent unjustifiably withdrew from the society of the petitioner.The only motive of the respondent is to get money by threatening.

5. The wife filed M.O.P.110 of 1995 for restitution of conjugal rights; she has stated in that petition that the differences arose between the spousesdue to the attitude of the husband, leading to misunderstandingresulting in series of litigations.The parties resorted to legal proceedings on burst of emotions; In 1988, both parties approached the Court of Law against each other.M.O.P.No.96 of 1988, renumbered as M.O.P.No.25 of 1990 was filed by the wife for judicial separation; M.O.P.182 of 1990 was filed by the husband for restitution of conjugal rights.The Family Court, Pondicherry passed a common judgment in M.O.P.25/1990 and M.O.P.182 of 1990, to the effect that the parties must live separately, “for a period of nine months and if the parties forget their differences and come to an understanding, they can unite together.”that the husband shouldpay Rs. 600/- per month for the maintenance of the child.The husband did not file any appeal against that order.Instead, husband filed a petition for divorce on the groundof desertion and cruelty in M.O.P.94/1991.The Family Court in its order, dated 17.8.1992 granted a decree of divorce.Aggrieved by the decree of divorce,the wife preferred an appeal before the High Court in C.M.A.1021 of 1992.A Division Bench of this Court attempted to reconcile the dispute and tried to re-unite the parties; but to the recalcitrant attitude of the husband,it could not succeed. Therefore, C.M.A.1021 of 1992 was decided on merits; and ultimately, the case was remandedpointing out four infirmities in the order of grant of divorce.The husband went on appeal to the Supreme Court, but the S.L.P. was dismissed.Thereafter, the Family Court heard the matter and ultimately dismissed M.O.P.No.94 of 1991 on 14.11.1994.Pursuant to that order, the petitioner made various attempts to join the respondent; she has written several lettersto take her back to the matrimonialhome.She even contacted over phone; Her repeated appeals for re-union went unheeded.The petitioner was always willing to join the respondent.The High Court during the hearing suggested that both the parties to go to New Delhi.The respondent booked tickets and reported to the Court; butwhen the petitioner was ready to go back to her matrimonial home, the respondent refused to take her back; no reason was assigned for the refusal.TheDivision Bench of the High Court also suggested both parties to go and meet the parents of the husband at Akkur village along with the respective parties to effect a conciliation;A date was fixed by both the sides and the petitioner along with her son, mother and father, her counsel went to meet the parents; but, neither the respondent nor his counsel turned up and hence, thatattempt failed. All these incidents revealed that the petitioner was always willing to join her husband and it is the respondentwho without any reasonable cause had withdrawn from the conjugal home.The respondent remained silent even after dismissal of the divorce petition.Therefore, the petitionfor restitution of conjugal rights has been filed.The respondent’s failure to protect the conjugal rights of the petitioner has compelled the petitioner to move the present application for restitution of conjugal rights. Further, it is stated that the respondent is bound to take care of the minor son Sankaranarayanan;but no steps were taken by him;He did not even visit once to see the child.In law, he is bound to maintain the child.The child is studying in a convent; for his education, clothing , food and other expenditure, a sum of Rs.1,000/- is spent by her every month.Further the basic requirement of the petitioner’s maintenance works out to Rs.2,000/-.Thus, in all, the petitionerhas to be paid Rs.3,000/- per month for maintenance.The respondent is working asUnder Secretary in CentralGovernment and earns Rs.10,000/- per month.

6. The husband in the counter filed by him in M.O.P.110 of 1995 raisedsomepreliminary objections; that the dismissal of O.P.94/91 is pending in appealbeforethisCourt;The petitioner/wife cannot take advantage of her own wrong;When the husband/respondent filed a petition for restitution of conjugal rights in Delhi during 1988, the wife filed a suit for judicial separation before PondicherryCourt; subsequent to the order passed by the Supreme Courttransferring the petition pending in Delhi to Pondicherry that petition was withdrawn by the husband.But in the petition for judicial separation, the wife had stated that she apprehended danger for her life ifshe was to livewith the husband in Delhi.She has also alleged that the husband attempted to pour kerosene on her to burn her alive.If really the intention of the wife was to return to the matrimonial home, she would not have filed a petition for judicial separation.Even after the grant of decree of judicial separation for nine months, the wife never showed any intention of rejoining.The petition for divorce filed under Section 13(1)(i-a) and (b) was after one year from the completion of judicial separation.

7. Further, the husband stated in his counter in M.O.P.110 of 1995 that this petition is not maintainable.She wrote letters to the Ministers, Secretaries and Joint Secretaries of Department of Civil Aviation in which he was working wherein it was stated that the main purpose of the husband filing a petition for restitution of conjugal rights was to take the wife to Delhi and to kill her;In view of such numerous letters written to his superior authorities, his career had been spoiled which amounts to cruelty.Shealso lodged false complaints to police against him;nearly three years after the marriage, differences arose between the spouses due to the insistence and persistence of the petitioner/wife to go to her father’s house very often and due to the constant pressure exerted by the father of the wife to get a job and settle at Pondicherry;The father of the petitioner/wife is a pensioner getting Rs.40,000/- per month;Apart from that, they are having vast agricultural lands and they are also doing business in auto spare parts business in Karaikal.The petitioner has also completed her post-graduation in Sociology and she is drawing a salary of Rs.10,000/-;She is working as a teacher.It is only the petitioner/wife who deserted the matrimonial home.Even though the husband filed a petition for restitution of conjugal rights, the wife filed a petition for judicial separation and the Court also granted judicial separation; the present petition for restitution of conjugal rights is not bonafide and is designedly filed for consideration other than re-union;This petition has been filed after eight years of separation which was brought about by the petitioner herself;Therefore, this petition is liable to be dismissed on the ground of laches also. The suggestion made by the Hon’ble Judges of the High Court are conciliatory in nature.The respondent is the natural guardian for his son.The respondent has means to educate the child.In the circumstances, the custody of the child should be given to the respondent.The sole intention of the petitioner is only to harass the respondent.The petitioner is trying to take advantage of her own wrong.

8. The Family Court, Pondicherry framed seven points for consideration in M.O.P.94 of 1991. The husband was examined as P.W.1 and Exs.P.1 to P.31 were marked; On the side of the respondent, the wife was examined as R.W.1;R.W.2 has also has been examined;Exs.R.1 to R.8 were marked. Considering the evidence on record, the Family Court dismissed the petition for divorce.

9. On the Point No.1 as to whether the wife deserted the husband without any reasonable cause, the Family Court relying upon the letters written by both parties prior to the date of separate living has held that, ” Ex.P.24 demolishes the plea of the petitioner.”The Family Court also refers to Ex.P.9, dated 26.5.1990 sent by the respondent to Joint Secretary, Ministry of Civil Aviation, New Delhi and Ex.P.10, the copy of the police complaint given by the wife against the respondent and found that, “It is the rudimentary principle of social behaviour that between husband and wife, whenever there is any trouble, all in a sudden, they would not go to the extreme, but after harbouring their individual grievances in a part of the heart, they move normally. “Relying on these letters, the Family Court comes to the conclusion that the departure in May, 1988 by the wife was not due to the attachment to her father, but because she could not tolerate the behaviour of the petitioner.Therefore, the Family Courtheld that in these circumstances, it cannot be stated that the respondent/wife had animus deserendi and hence, there was no desertion on the part of the wife.

10. The Family Court also held that without any reason, simply for the love and affection towards the father, no married daughter would stay with her father abandoning her husband. The theory of abnormal relationship has not been established by the petitioner and it is totally false.Further, it held, “the ego problem on both sides preventedthem from amicably settling the differences between them, but it took a litigation course and it got snowballed to the present stage.”; Therefore, there is no desertion by the wife.

11. The Family Court further observed that the wife could have refrained from resorting to legal course even when the husband has filed a petition for restitution of conjugal rights;the act of the wife in filing a petition for judicial separation was nothing but, “a hasty counter-blast which triggered the anger of the husband further. ” Relying upon the failure on the part of the husband to take back his wife to Delhi on the advice given by the Division Bench of this Court, the Court came to the conclusion that the wife was not at fault.

12. With respect to Point No.2 as to whether desertion, if any, by the wife got terminated on the expressing ofwillingness to join the husband, the Family Court has come to the conclusion that assuming that previously the wife deserted the husband, it got terminated by the unconditional acceptance of the wife to accompany the husband to resume conjugal life.

13. With respect to Point No.3 whether the desertion if any by the respondent/wife was condoned by the petitioner/husband, the Family Court held that, “mere filing of the petition for restitution of conjugal rights would not amount to condoning of cruelty.”Though it is not happily worded, it appears that this issue has been decided in favour of the husband.

14. With respect to Point No.4 as to whether there was desertion, if any,for a continuous period of two years preceding the date of filing of the petition for divorce, the Court held that since the finding of the Court is that there is no desertion on the part of the wife, this point is held against the petitioner.The Family Court has also stated,

” For complying with the High Court’s direction only the Point No.4 has been framed and considered.As such, Point No.4 is decided in favour of the respondent and as against the petitioner to the effect that there was no desertion for a continuous period for two years anterior to the filing of petition for divorce. ”

15. With respect Point No.5, the Court also found that the respondent/wife is not relying on it to live away from her husband, but she likes to live with her husband.Therefore, this point has been answered against the husband; Thus the Family Court has held that due to the act of cruelty committed bythe husband, he was not entitled for the decree of dissolution of marriage.

16. (i) In M.O.P.No.110 of 1995, the Family Court has framed four points for consideration.With respect to Point No.1, the Court has found that there was no insincerity in filing the present application.With reference to the earlier petition for judicial separation, the Family Court has found that she was misguided by her counsel for filing the petition for judicial separation.Even if the fact is not proved, the respondent herein expressed her desire to join her husband.From this, this Court concludes that there was no insincerity on the part of the wife.

(ii) In respect of Point No.2, whether the petitioner was entitled for the decree of restitution of conjugal rights with the respondent, the Family Court held that the respondent/husband was not able to prove any reasonable excuse for his withdrawal from the society of the petitioner.Therefore, this issue has been decided in affirmative holding that the petitioner/wife was entitled for the decree of restitution of conjugal rights as against the respondent.

(iii) With respect to Point No.3 whether the petitioner was entitled for award of maintenance of Rs.3,000/-, the Family Court has held that the evidence of the wife that the husband is earning Rs.10,000/- is acceptable and grant of 30 per cent of his salary towards the maintenance of his wife and child is reasonable.

(iv) Point No.4 is only for consequential relief.

17. The learned counsel for the appellant submitted thatEx.P.24, a letter written on 5.9.1984almost three years prior to the date of separate living,cannot be the basis to decide the issue.This argument is acceptable. There is no dispute that parties were living cordially till the birth of the child in July, 1987.Inasmuch as this letter is three years prior to that date, this letter cannot be the basis to decide the issue.

18. The Family Court refers to various letters written prior to May, 1988.Only the letters, Ex.P.17 and P.19 are the letters subsequent to May, 1988;Ex.P.19 refers to the departure by the wife on 30.5.1988; the husband apologized for his conduct on that date and Ex.P.17 reveals that he intended to her back on 22.7.1988;Thereafter, there was an attempt made by the wife to get a job for the husband in Pondicherry University; From these letters, the Court concluded that there was no intention of the wife leaving the matrimonial home. This conclusion of the Court does not appear to be correct.If the wife had no intention of leaving the matrimonial home, the wife would have joined the husband on the earliest opportunity; but even when the husband filed a petition for restitution of conjugal rights in the years 1988, the wife resisted that by filing a petition for judicial separation on the ground of cruelty.Hence, the finding of the Court is not sustainable.

19. Further, the counsel for appellant contended that it cannot be said that the cruelty or desertion committed by the wife has been condoned by the husband.Learned counsel relied upon a decision in Dastane v. Dastane ((1975) 2 S.C.C. 326, wherein the Supreme Court held,

” Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed.To constitute condonation there must be, therefore, two things: forgiveness and restoration.

But condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety.` No matrimonial offence is erased by condonation.It is obscured but not obliterated.’ Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence.Condoned cruelty can therefore be revived, say by desertion or adultery.`Condonation’ under Section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. ”

The Learned counsel next relied upon thedecision in Emmanualv. Mandakini (A.I.R. (33) 1946 Nagpur 69) wherein it was held that,

” Condonation means forgiveness of a conjugal offence with full knowledge of all the circumstances.It is not a question of law but of fact.Cohabitation which means connubial intercourse is prima facie evidence of condonation.There is a distinction between forgiveness and condonation and the distinction lies in the fact that condonation implies a complete reconciliation in the sense of reinstating the offender to conjugal cohabitation or intercourse. ”

The counsel also referred to the judgment in W. v. W. (No.2) 1954 (2) All England Reporter 829 for the proposition that whether the offer for re-union is genuine has to be decided bearing in mind the background of the case. He also referred to the following paragraph in Halbury’s Law of England with reference to “offer” of return.

” The offer must be genuine, that is it must be made in good faith in the sense that it is an offer to return permanently which, if accepted, will be implemented, and is an offer containing an assurance to terminate the conduct, if any, that caused the separation.An offer must likewise be made in good faith where the parties separated consensually. ”

Relying upon the above judgments and observations, the learned senior counsel submitted that the alleged offer by the wife to come and live with the husband is not genuine and hence, it has to be held that it is not bonafide.

20. Therefore, learned senior counsel for the appellant submitted that the Court erred in its conclusion that even assuming that the wife deserted, it got terminated when the wife unconditionally agreed to accompany the husband to Delhi. The counsel submitted that the mere offer does not prove animus revertendi.This argument of the counsel for appellant is acceptable.The desertion does not get terminated on the mere offer to go back to the matrimonial home. When the wife did not in fact join the husband, the desertion cannot be said to have been terminated.Therefore, the conclusion of the Court is not legally sustainable.

21. Learned senior counsel also referred to the judgment in Adhyatma Bhatta Alwar v. Adhyatma Bhattar Sri Devi ((2002) 1 Supreme Court Cases 308) wherein the Supreme Court has held that,

” “Desertion” in the context of matrimonial law represents a legal conception.It is difficult to give a comprehensive definition of the term.The essential ingredients of this offence in order that it may furnish a ground for relief are:

” 1. the factum of separation;

2. the intention to bring cohabitation permanently to an end-animus deserendi;

3. the element of permanence which is a prima condition requires that both these essential ingredients should continue during the entire statutory period. ”

Relying upon this judgment, learned senior counsel submitted that during the entire period after the wife left the matrimonial home till the date of filing of the petition, the first two ingredients are proved to have existed.Therefore, the trial Court should have granted decree of divorce.This argument of the counsel for appellant is acceptable.From the date on which the wife left the house at Delhi on 30.5.1988, she never returned to Delhi; nor the husband and wife lived together even for a single day.Therefore, the factum of separation is proved.As already stated, the fact that the wife resisted the petition filed by the husband for restitution of conjugal rights by filing a petition for judicial separation proves animus non-revertendi; it proves the intention of the wife not to return to the matrimonial home.Thus, the first two ingredients mentioned above are proved to have existed.

22. That apart, the learned senior counsel submitted that for the past 14 years, the parties are living separately and therefore, it is not possible for them to re-unite and therefore, on that ground also the husband is entitled to for decree of divorce.In support of that, learned senior relied upon the decisionin Sudhakar v. Smt. Kalavati (II (2001) DMC 155), wherein it was held that,

” No Marital relationship existing between parties for last 16 years; reconciliation not possible. ”

and on that ground,divorce was granted.

He also referred to another judgment of the Orissa High Court in Mrs. Gayatri Mishra v. Pramod Kumar Nanda (I (2000) DMC 102 (DB)), (Divorce and Matrimonial cases), wherein it was held,

” that the wife is voluntarily depriving her husband of her society and cohabitation for years.The husband, therefore, can definitely be said to be under the strain of wilful separation for years and complete denial of conjugal relationship.This would amount to causing mental cruelty.The husband is in his thirties-the prime of his life-and once he entered into the wedlock, he could naturally like to have conjugal relationship with the wife and in case the latter refuses to cohabit with him for years together, it is bound to cause him both mental and physical torture which, would be covered by the expression “cruelty” as used in connection with matrimonial matters covered by Section 13(1)(i-a) of the Act. ”

Learned counsel also referred to the judgment of the Supreme Court in Romesh Chander v. Savitri ((1995) 2 S.C.C. 7), wherein the Supreme Court held that,

” marriage being dead, both emotionally and practically, continuance of marital alliance for namesake would to prolonging the agony and affliction and would be cruelty; hence in exercise of power under Article 142, the marriage between appellant and respondent directed to stand dissolved subject to the appellant transferring his house in the name of his wife. ”

23. Placing reliance on these decisions, the learned senior counsel submitted that even in this case, the spouses are living separately for nearly 14 years now and hence following the decision of the Supreme Court, the husband has to be granted divorce, as prayed for.

24. Learned counsel for the respondent submitted that the decision of the Supreme Court exercising the power under Article 142 of the Constitution of India is not a ratio decidendi and therefore, a similar relief granted therein cannot be granted by this Court, since the High Court has no power similar to Article 142 of the Constitution.Therefore, the fact that Supreme Court has dissolved a marriage on the ground that there was no marital relationship for a period of 14 years cannot be said to be aratio decedendi and hence is not a binding precedent; hence on that ground, divorce cannot be granted.This argument of the counsel for the respondent is acceptable.The Supreme Court has power under Article 142 to decide an issue even outside the scope of a statute; the Supreme Court can supplement the legal provisions in order to render complete justice in a given case, as held by the Supreme Court in the casein Delhi Development Authority v. Skipper Construction Co.(P) Limited ( A.I.R. 1996, S.C.2005).Therefore, merely because the parties were living separately for more than 14 years, this Court cannot grant a decree of divorce presuming that the marriage is dead between the parties, unless the relief can be granted otherwise, in accordance with law.

25. Learned senior counsel further submitted that the Supreme Court inKameswara Rao v. G.Jabilli ((2002) 2 S.C.C. 296 has held that false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse would amount to cruelty. On the same ground, since the wife has given a false complaint to police and that amounts to mental cruelty and on that ground also, the husband is entitled for divorce.

26. Learned senior counsel further relied upon a decision in Devram Bilve v. Indumati ((2000) 10 S.C.C. 540), wherein the Supreme Court has held that letters written to superiors containing false and baseless allegations amount to cruelty.Admittedly, the counsel submitted, the respondent/wifehas written letters to the superiors of the husband alleging falsity; therefore, that act amounts to cruelty and therefore, in any even, the Family Court should have granted divorce, as prayed for.

27. Learned counsel for the respondent relies upon a decision of the Supreme Court reported in Bipinchandra Shah v. Prabhavati (A.I.R.1957 S.C. 176), where the concept of desertion has been elaborately dealt with; he mainly relied upon the following passage,

” Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former.Hence, it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable.It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt.Hence, though corroboration is not required as an absolute rule of law the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court. ”

Therefore, the counsel for the respondent submitted that since the wife had expressed her desire to go back to the marital house, the desertion comes to an end and applying that principle to the present case, since the wife has filed a petition for restitution of conjugal rights, it has to be concluded that desertion has come to an end.

28.This argument of the counsel for the respondent is not acceptable. For the reasons stated above, the “offer” of the wife was not genuine.Therefore, the desertion of the wife has not come to an on the date when the petition for divorce was filed by the husband.Therefore, this decision will not help the respondent, in any manner.

29. According to the Family Court, when the wifeexpressed her desire to join him and to go along with him to Delhi on the advice of the Division Bench, the desertion got terminated. The Court has held that” As opined by the Family Court in its judgment, dated 5.9.1988, the wife aptly agreed to resume cohabitation forgetting the past and the husband alone negatived it. “According to the Family Court, the animus revertendi on the part of the wife was clearly established; therefore, that point was also decided in favour of the wife and against the husband.There is no judgment dated 5.9.1988 by any of the Courts. Presumably,the Family Court refers to the order dated 5.9.1990 whereby the Family Court ordered “the wife shall live away from her husband for a period of nine months.”

30.The Family Court refers to the ingredients to the act of desertion in an earlier paragraph, that “animus” and “factum deserendi” must be proved. The Court has come to the conclusion that it cannot be stated that the wife had “animus deserendi” and therefore, the Court has held that it proves the animus revertendi and therefore, it came to the conclusion that desertion has not been proved against the wife. Admittedly, after 30.5.1988, the parties never resided together; that is, the wife had not returned to the matrimonial home after that date.Assuming for the sake of argument that the wife had the intention of resuming cohabitation, that alone is not sufficient. Admittedly, the wife left the house with her father and thereafter never returned.The case of the husband is that the wife had left the house with the intention to leave the matrimonial home; therefore,the mere statement/expression of intention to return is not sufficient; that is, mere animus revertendi is not sufficient to terminate the act of desertion; that intention must be coupled with factum revertendi, that is the wife should have in fact returned to the matrimonial home. In the above circumstances, it cannot be held that the desertion had come to an end.The conclusion of the Family Court that the expression of willingness to come back to the home is sufficient and it terminates the desertion is erroneous. Therefore, the finding of the Family Court regarding points-1 and 2 is not legally sustainable and hence are liable to be set aside and hence set aside.

31. By order dated 5.9.1990 as seen from Ex.P.11,the Family Court, Pondicherry has passed a very strange order of judicial separation for a period of nine months.As per Section-10 of the Hindu Marriage Act, either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section(1) of Section 13 of the Act and the Court can come to a conclusion that whether the petitioner was entitled to a decree of judicial separation or not.If the Court comes to the conclusion that there are sufficient grounds to grant judicial separation, it shall grant judicial separation.If it finds that the grounds are not sufficient to grant judicial separation, it has to dismiss the petition for judicial separation.It is not legal for any Court to grant a decree for judicial separation only for a period of nine months or for any specified period.

32. Aggrieved by the common order passed by the Family Court on 5.9.1990 in M.O.P.25 of 1990 and 182 of 1990, the wife filed two appeals in A.A.O.1016 of 1990 and 1017 of 1990; one appeal was to enhance the award of Rs.600/- per month as maintenance for the child and another appeal was against the grant of judicial separation only for a limited period of nine months.A Division Bench of this Court has dismissed those appeals on 8.10.1991 holding that it was only an interim order since the case was posted for further hearing; it did not go into the merits of the order.Thereafter, on 28.2.1992, the Family Court, Pondicherry dismissed M.O.P.25 of 1990 for the reason that the husband filed a petition for divorce; on the same day, M.O.P.182 of 1990 was dismissed as not pressed.No appeal was filed against the dismissal of M.O.P.25 of 1990 by the wife.

33. Therefore, the present C.M.A.No.1550 of 1995 (filed against the dismissal of M.O.P.94 of 1991) M.O.P.94 of 1991 has to be decided on the basis of evidence on record. Admittedly the wife left the matrimonial home at Delhi on 30th May, 1988.The reason stated by her, viz., that was due to cruelty of the husband for the reasonsalready stated is not acceptable; Therefore, the act of leaving the matrimonial home by the wife is not justifiable under Section 13(1) of the Hindu Marriage Act.Even thereafter, the husband filed a petition for restitution of conjugal rights, as early as 5.9.1988 before the Delhi Court; but the wife resisted it and filed a petition for judicial separation before the Family Court, Pondicherry. Thereafter, the husband withdrew the petition filed before the Delhi High Court and filed a similar petition for restitution of conjugal rights before the Family Court, Pondicherry.But even then, the wife did not withdraw her petition for judicial separation, but contested her petition for judicial separation. This proves beyond any doubt that the wife had no intention of returning to the matrimonial home.Therefore, there was no animus revertendi for the wife on any date.This one factor is sufficient to hold that the Family Court has come to an erroneous conclusion that the wife was always willing to join the matrimonial home.

34. On the other hand, the stand of the wife was that she was afraid to go to Delhi and join the matrimonial home because according to her, the intention of the husband was to take her to Delhi only to kill her.She also alleges that during the stay at Delhi before her return to Pondicherry in 1988, there was an attempt by the husband to set her on fire pouring kerosene, but in her evidence, the wife admits that in Ex.P.9,she has not stated that the husband filed the petition for restitution of conjugal rights with intention to kill her in Delhi.If it was true that the husband attempted to kill by pouring kerosene on her when they were living in Delhi, she would not have omitted to say that in her petition in M.O.P.No.25 of 1990 or in the counter in M.O.P.182 of 1990. Therefore, the reason given by the wife does not appear to be true. This conclusion is fortified by subsequent letters as referred already that the father of the wife wanted him to take a job at Pondicherry and he also applied for a post in Pondicherry University on such advice.Thus, the reason given by the wife for not willing to join the husband when he filed a petition for restitution of conjugal rights does not appear to be true.

35. The other reason alleged by the wife for separate living was that the husband was demanding money on various occasions and that he alleged that the wife had abnormal relationship with her father.In so far as the demand of money is concerned, that cannot be the reason for living separately when it is not coupled with any other act of cruelty.With respect to the “abnormal relationship”, the husband has deposed in the cross-examination as follows:

” By abnormal relationship as stated in the petition, I meant that my father-in-law could not leave his daughter and my wife could not live without her father. But after marriage, one does not accept so much attachment towards her father.Except this, I do not mean anything. ”

Therefore, such a statement does not amount to cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act.Therefore, the reasons stated by the wife for living separately is not a justifiable reasons under the Act. Therefore, the act of the wife, withdrawal from the matrimonial home amounts to desertion within the meaning of Section 13(1) of the Hindu marriage Act, as held by the Supreme Court in the case G.V.N. Kameswara Rao v. G.Jabilla (2002(2)S.C.C. 296).

36.The High Court in C.M.A.1021 of 1992 set aside the earlier order of the Court and remanded the case for fresh disposal.In that, the High Court has held that,

“Judicial separation for a period of nine months ordered by the Family Court has to be excluded while calculating the period of two years immediately preceeding the date of filing of the petition for divorce on the ground of desertion.So calculated, the present petition for divorce in M.O.P.94 of 1991 does not satisfy the two years’ period.Therefore, the petition is liable to be dismissed on that ground alone.”

Even excluding the nine months, the period of two years was complete on the date when the petition was filed. This Court has been misled to believe that the two years period was not complete on that date.Admittedly, the wife left the matrimonial home on 30th May, 1988.M.O.P.94 of 1991 has been filed on 12.6.1991.Therefore, it is 3 years and 12 days from 30.5.1988.Even excluding nine months’ period of judicial separation, it comes to 2 years, 3 months and 12 days.Therefore, viewed from any angle, this petition has been filed only after completion of two years immediately before the presentation of the petition. Since the petition has been presented after two years, it should have been allowed by the Family Court. C.M.A.No.1758 of 1996:

37. Admittedly, the wife has given police complaint against the husband containing false allegations.The wife has also written letters to the higher officers of the department in which the husband was working; the allegations stated therein was not proved by the wife and hence such act of the wife amounts to cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act as per the judgment of the Supreme Court in Devram Bilve v. Indumati ((2000) 10 S.C.C. 540).

38. Therefore, the dismissal of the petition for divorce is not legally sustainable.Hence the judgment of the Family Court is set aside the petition, M.O.P.94 of 1991 is allowed as prayed for.

39. As seen already, initially it was the husband who filed the petition for restitution of conjugal rights in M.O.P.182 of 1990, but that was opposed by the wife by filing a petition in M.O.P.25 of 1990 for judicial separation and both the petitions were dismissed.Therefore, the present M.O.P.110 of 1995 has been filed by the wife for restitution of conjugal rights long after, the husband filed the petition in M.O.P.94 of 1991 for dissolution of marriage on the ground of desertion.Even assuming that the wife’s intention to join the matrimonial home terminates the act of desertion, that should have been expressed before the expiry of two years from the date of leaving the home or atleast before a petition for divorce was filed by the husband as per the decision of the Supreme Court relied on by the counsel for the respondent, Bipinchandra Shah v. Prabavathi (A.I.R.1957 S.C. 176).Inasmuch as the husband had filed the petition for divorce already in the year 1991, the offer of the wife to join the matrimonial home by filing the present petition for restitution of conjugal rights in the year, 1995 does not help the wife.It is also to be seen that the wife filed the petition in M.O.P.110 of 1995 for restitution of conjugal rights only after the Family Court had dismissed the petition in M.O.P.No.94 of 1991 filed by the husband for divorce was dismissed on 14.11.1994. The finding of the Court that when the wife expressed her willingness to go to Delhi before the Division Bench of this Court terminates the desertion, if any, is not legally sustainable for the reasons stated above.Therefore the grant of decree of restitution of conjugal rights is liable to be set aside and hence set aside.Consequently, this appeal is allowed.

40. Admittedly, the minor son is liable to be maintained by the husband.Considering the fact that the child is studying and the fact that the husband/father of the minor is a highly placed Central Government employee and the award of Rs.1,000/- per month is reasonable.Hence, we confirm the order of maintenance towards the son.

41. In so far as the maintenance of the wife, the Family Court awarded maintenance of Rs.2,000/- per month, taking into account the salary of the husband.Section 25 1) of the Hindu Marriage Act reads as follows:

“S.25. Permanent alimony and maintenance:

(1) Any court exercising jurisdiction under this Act, may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. ”

42. This Court in the case Rajagopalan v. Kamalammal (A.I.R. 1982, Madras, 187) has held that under Section 25 of the Hindu Marriage Act, permanent alimony can be granted even to an erring spouse.Therefore, even though the decree of divorce is granted on the ground of desertion by the wife and hence the wife is the erring spouse, yet it does not preclude the Court from passing the order of maintenance.After considering this provision and the above decision as well as the the fact that the husband is the highly placed civil servant in the Central Government, the award of maintenance granted by the Family Court is confirmed. With this modification, this appeal is allowed.

43. In the result, C.M.A.No.1550 of 1995 is allowed and C.M.A.No.1758 of 1996 is partly allowed.

The post P.Kalyanasundaram Vs. K.Paquialatchamy appeared first on B&B Associates LLP.

For the Petitioners: Mr. U.N.R. Rao, M/s. Daniel, Advocate. For the Respondent: Mr. David of Messrs. Kurian & Associates Advocate.

Judgment

1. The matter arises under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The Petitioner filed this petition under Ss. 32(c), 46, 107 of the Act praying that the entry in the register in respect of registered Trade Mark No. 170403 in class-34 in Part-A in the name of the respondent K.B. Venkatachalam trading as Golden Match Works, Gudiyatham, dated 13-8-1955 may be removed from the Register.

2. The facts as stated in the petition in brief are as follows: The first petitioner K.R. Jadavappa Mudaliar is trading in Match Works under the name and style of M/s. Sarasu Match Works at Gudiyatham, North Arcot District. The second petitioner is the son of the first petitioner, who is also trading in the same trade under the name and style of M/s. Vanaja Match Works, at Thottidurai Mottur Village, Murasappalli (Post), Gudiyatham. The petitioners are represented by their counsel Mr. C. Daniel. The matte r was argued at length by the learned Senior Counsel Mr. U.N.R. Rao on behalf of the petitioners. The petitioners and the respondent are engaged in the business of manufacturing safety matches. They are competitors and rivals in the said business. The respondent has secured registration under the Act for a Trade Mark with the name National Park’ in class-34 in Part-A under No. 170403 since 13.3.1955. The mark was registered with the authorities and used in black and white. According to the petitioners, the respondent although had registered the mark has not used Trade Mark for the product of his manufacture except for short periods, and also has been licencing simultaneously in favour of 22 different manufacturers for the use of the Trade Mark. It is stated in the petition that with the written permission given by the respondent the Central Excise has been granting Central Excise licence to manufacture safety matches with ‘National Park’ as shown in document No. 1 as the trade mark under Rule 71(3) of Central Excise Rules, 1944. It is further stated that the second petitioner has also been using ‘National Park’ and was also using the same design with the alteration of the name as ‘Running Deer’. In March, 1986, the respondent filed C.S. No. 156 of 1986 in this Court under Ss. 105 and 106 of the Act, against the second petitioner for the alleged infringement of the respondent’s registered Trade mark of ‘National Park’ by the second Petitioner’s ‘Running Deer’ trade mark. The suit was for a permanent injunction against the use of ‘ Running Deer’ trade mark on account of the alleged infringement and passing off of the registered ‘National Park’ trade mark. The suit was however withdrawn on 13.1.1988 and the injunction order granted on 20.3.1986 in Application No. 1402 of 1986 came to an end with the withdrawal of the suit. According to the petitioner, the respondent had also filed O.S. No. 16 of 1987 a few days prior to withdrawal of C.S. No. 156 of 1986, before the District Court, North Arcot at Vellore against both the petitioners herein. However, in O.S. No. 16 of 1987 the respondent made both the petitioners as defendants. His complaint was that the first petitioner was committing infringement and passing off by the use of the ‘Standing Stag’ and the second petitioner is committing infringement and passing off with respect to ‘Running Deer’ vis-a-vis respondent’s registered Trade Mark of ‘National Park’. The second petitioner filed written statement in the said suit and urged that the registered Trade Mark ‘National Park’ having been used continuously since 1979 for about 10 years by several other manufacturers with the permission of the respondent, the mark has lost its distinctiveness and has become publici juris . Consequently, the plaintiff/respondent herein has lost his exclusive right with respect to the mark ‘National Park’. The petitioners, are aggrieved persons under the Act entitled to file this petition as they are in the same trade and filed the present petition alleging that the respondent is guilty of trafficking in trade mark which is not permissible under the Act.

3. The respondent filed a detailed counter statement by raising the following defence: The trade mark ‘National Park’ owned by the respondent was registered in 1955 and it is distinctive to the manufacture and trading style of the respondent and the respondent alone. Hence Section. 32 (c) of the Act cannot be invoked which is subject to Sections 35 and 46. The distinctiveness of the respondent’s trade mark has not been lost because no other manufacturer of safety matches other than the petitioners have in fringed the trade mark or used it on their own. The respondent entered into agreement with various parties to manufacture matches, but the terms and conditions stipulated therein would go to reveal that at no point of time did the respondent give up his right in the Registered Trade Mark that he possesses. All the persons with whom agreements were entered into have undertaken to manufacture and give the respondent the labels supplied by the respondent and on no account the agreement holders could exploit the said brand in the open market without the consent of the respondent. Hence it could not be contended that the respondent has lost the distinctiveness in the trade mark owned by him nor the same has become Publici juris nor can it be said that the respondent is trafficking in his trade mark. The respondent is manufacturing and selling matches under its Trade Mark ‘National Park’ with device of a deer ever since 1955 and the respondent has been manufacturing and selling by himself, apart from affixing his labels on the goods manufctured by other match producers but strictly in accordance with the terms of the agreement entered into. It is stated that the parties listed in the petition are parties to the agreement with the respondent to manufacture and supply safety matches. It is seen from the agreements entered into with various parties listed in the petition that they have expressly mentioned that the agreement holder acknowledges the absolute proprietorship of the respondent over his trade mark ‘National Park’ and ‘Running Deer’ together with the colour scheme thereof. Each of the parties has also undertaken not to use the said label in respect of safety matches except exclusively for supply to be made only to the respondent.

Hence the other manufacturers were manufacturing matches only on behalf of the repondent and they had no right to use the said label bearing the trade mark of the respondent for their independent use; and for manufacture and sale in the open market. Therefore at no point of time did the respondent abandon its trade mark; neither did the respondent indulge in trafficking in its trade mark nor could it be said that the distinctiveness has been lost especially at the time of commencement of these proceedings. The respondent has also not violated Section 46 of the Act. There is ample evidence to prove that the respondent did make use of its trade mark in its manufacturing process ever since its mark was conceived and was very much in proper and effective use at the commencement of these proceedings.

It is not in dispute that the respondent is the owner of the trade mark ‘National Park’ with a device of the ‘Running Deer’ having an exclusive colour combination. It may be true that the device of a deer was endorsed to be common to the trade, but the get up and the colour combination together with the trade mark ‘National Park’ can never be said to be common to the trade. The respondent was forced to file a suit before this Court for an infringment of his trade mark, because the petitioners were openly manufacturing and trading with the respondent’s trade mark which directly affected the respondent in many ways, not to speak of the monetary loss that the respondent was suffering because of the infringement committed by the petitioners. The respondent on advice withdrew the said suit and were advised to be filed another suit before District Court, Vellore without prejudice to the rights of the respondent. It is the privilege of the respondent to choose the forum. The allegation of the respondent’s trade mark becoming public ijuris is not correct since the infringers of the trade mark are only the petitioners and there are no other infringers to say that it has become publici juris . The occurence of a few fraudulent infringements of the respondent’s trade mark by the petitioners without the knowledge of the respondent who is the proprietor of the trade mark ‘National Park’ with a device of a standing or Running Deer with the exclusive colour scheme and combination will not make the mark common to the trade. The use of the respondent’s trade mark by the petitioners is nothing but an illegal act, calculated to deceive the public. The parties with whom the agreements have been signe d by the respondent would go to prove that the tenor of the agreements does not give any permitted use to the manufacturers to use the trade mark of the respondent to bring it under the scope of S. 2(m) of the Act. It is denied that the respondent never permitted any trade/manufacturer in safety matches to use his registered mark. So far as the respondent is concerned the business dealings with the other safety matches manufacturers were pure and simple governed by the agreement and the question of permitted user and the registration under the Act does not arise. There is no force in any of the contentions raised by the petitioners to make out a prima facie case, much less under Sections 32 (c), 46 and 107 of the Act. This petition has been filed by the petitioners only as counterblast to see that the maximum nuisance is caused to the respondent because the respondent took action for the crime of infringing upon the mark of the respondent.

4. No oral evidence was let in by both the parties. By consent of parties Document Nos. 1 to 9 have been marked on behalf of the petitioners, and Documents Nos. 1 to 44 and additional documents 1 to 13 have also been marked by on behalf of the respondent.

5. On the above pleadings the following issues have been framed for consideration.

1. Has the respondent’s Trade Mark lost its distinctiveness on the date of this O.P. Proceedings?

2. Has the respondent’s Trade Mark become publici juris?

3. Is the respondent guilty of trafficking in its trade mark?

4. Was the respondent’s Trade Mark registeredwithout any bona fide, intention to use in relation tothe goods for which the registration is granted?

5. Has the petitioner discharged his onus of proof by invoking Sections 32 (c) and 46 of the Act?

6. Should the Trade Mark usage be taken (into account) while deciding matters of this nature under the Act?

6. Issue No. 1 : Has the respondent’s Trade Mark lost its distinctiveness on the date of these proceedings in O.P. No. 182 of 1988?

According to the petitioner, the respondent had authorised 19 different traders and permitted them to affix the Trade mark of National Park and that one single mark is sought to be utilised to locate the origin of the products of 19 different manufacturers. The concept of distinctiveness means a trade mark is to be utilised to distinguish the goods of the proprietor of trade mark from the goods manufactured by the others. By the conduct of the respondent, same mark is now accepted to indicate 19 differe nt sources of matches in Gudiyatham. It is submitted by the learned counsel for the petitioner that the conduct of the respondent in permitting a large number of manufacturers to affix the same mark on their respective goods has resulted in destroying the original distinctiveness of the trade mark ‘National Park’. It is further submitted that under the definition of Trade Mark in Section 2 (v) (ii), it is only the proprietor Of the Trade Mark who can use the mark on goods. In the present case the respon dent has permitted 19 different persons using the same mark, each claiming to the public that he is the proprietor of the mark.

7. Per contra Mr. David, learned counsel for the respondent invited my attention to look into the definition of a Trade Mark as under :

‘A Trade Mark is a symbol which is applied or attached to goods Offered for sale in the Market , so as tc distinguish them from similar goods and to identify them with a particular Trader or with his successors as the owners of a particular business, as being made, worked upon, imported, selected, certified or sold by him or them, or which has been properly registered under the Act as the Trade mark of a particular Trader’.

According to the learned counsel for the respondent, the goods must be offered for sale in the market and the agreement holders as such do not offer the matches manufactured for the respondent with the Trade Mark label of the respondent direct to the market without the consent of the respondent. Hence, according to him the entire control of the Trade Mark of the respondent is with the respondent and the same is in tact. Moreover the distinctive nature of the trade mark is well established by the respond ent for the following reasons as submitted by him :-

a) The Trade Mark was registered in the year 1955 and through the years it has become distinctive with that of the goods of the respondent.

b) The respondent is very much in the market and to establish the same the learned counsel for the respondent drew my attention to documentary evidence filed by the respondent as per Ex. R. 32, to R. 35 and R. 43 to prove the same.

c) Through the decades that have passed the Trade mark of the respondent has become so associated with that of the respondent’s goods.

8. In this connection the learned counsel for the respondent has also invited my attention to paragraph 796 of Narayanan’s Trade Mark and Passing-off III Edition, where Radiation Case 1 has been referred to. In the said case, an application for registration of a trade mark was opposed on the ground inter alia that the applicants themselves had not used the mark as a trade mark within the meaning of the definition of a trade mark in the Trade Marks Act of 1905. It was observed in the said case that a merchant can select goods by ordering them to be made by a manufacturer according to a given specification, and that he could in such a case arrange for his mark to be applied to the goods when they were made and for the goods to be sent direct from the factory to his customer or to his agent to be sold on his behalf.

9. Applying the said principle it was argued that in the instant case also the similar practice is being adopted. Hence the learned counsel for the respondent has contended that the mere permission by the agreement holder to affix the trade mark label on the goods manufactured and given to the respondent is nothing but a mere licence given to the agreement holder to do a particular act without in any way divesting one’s right, title and interest in the Mark and it does not dilute the ownership of the Title to the property in the Trade Mark as such. In London Rubber Co. v. Durex Products 2 (Paragraph 19) Justice Mukerjee observes as follows :

‘Trade mark is a kind of property and is entitled to protection under the law, irrespective of its value in money, so long as it has some business of commercial values, not merely the interest of the public, but also the interests of the owner are the subject of concern of Trade Mark legislation.’

Hence the learned counsel placing reliance on the said decision submitted that his Trade Mark which has-been his property from 1955 has to be safeguarded and the petitioner cannot impute any motive on untenable grounds and get the mark removed on the ground of distinctiveness being lost just because by agreement other manufacturers were permitted to affix the respondent’s Trade Mark label on the goods manufactured and supplied only to the respondent and none other.

10 . The learned counsel for the respondent also drew my attention to the evidence available with regard to distinctiveness. They are as under;

a) The respondent has been manufacturing matches from 1955 onwards till date without break;

b) The Sales details are proof which is seen from Ex. R. 32;

c) Duplicate Bills from 4.4.1983 to 29.7.1988 under Ex. R. 33

d) Gate pass duplicates from 4.4.1983 to 29.7.1988 under Ex. R. 34.

The other distinctive features are the lay out as well as the marking on the labels on the matches manufactured and sold directly or through and by the agreement holder. It is further contended by the respondent that the Trade Mark of the respondent was at the commencement of these proceedings distinctive in nature and not otherwise for the petitioner to invoke Section 32(c) of the Act, on which the Issue No. 1 has been framed. The extracts obtained from the Central Excise authorities and furnished in the petition would only reveal that the agreements and the approval to affix the labels of the respodent related to the year 1979 and thereafter. By that time the respondent’s label had already acquired distinctiveness. Hence, even according to the petitioner, since more than seven years had elapsed when such agreements were entered into it does not entail removal of the respondent’s mark because of the adequate safeguard given to the respondent under Section 32 of the Act, which says that after seven years from the date of registration the original registration shall be taken to be valid in all respects. Hence I find force in the contention of the respondent that his Trade Mark is deemed to be valid in all respects.

11 . It is relevant at this juncture to refer to the definition of the word distinctiveness. The word distinctiveness is defined under Section 9(3) of the Act. The said Section starts with words, Tor the purpose of this Act, the expression distinctive in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the Trade Mark is or may be connected in the course of trade from goods in the case of which no such connec tion subsists either generally or where the trade mark is proposed to be registered subject to the limitation in relation to use within the extent of the registration.’ The expression ‘distinctiveness’ appears also in Sections 10, 31 (2) and 32 (c) of the Act. It must be considered in relation to the particular goods in respect of which registration is proposed. But in the case of the respondent, the mark is not proposed to be registered, but it is already registered and remaining on the register withou t any blemish whatsoever from the year 1955 continuously thereafter. Hence there can be no doubt by all standards the respondent’s mark is distinctive in nature. Secondly as submitted by the learned counsel for the respondent that mark must be adapted to distinguish the goods of the applicant from similar goods of other traders. The vital test would be that even if the traders’ name is not used along with the mark. It is also seen that the respondent to prove the evidence of user of a trade mark or of its distinctiveness, has fulfilled all the requirements as per section 99 and Rule 116. It is also seen that the trade mark of the respondent is definitely distinctive because of the exclusive colour combination and use. The trade Mark label of the respondent is exclusive in so far as the colour combination is concerned and this is a vital aspect which has to be taken into consideration to decide whether the respondent’s registered Trade Mark is distinctive to its goods or not.

12 . The next aspect would be whether the respondent’s Trade Mark has acquired distinctiveness by virtue of use. The mark, as already stated above, has acquired distinctiveness’ through the years because of the lengthy use of the Trade Mark by the respondent from the year 1955 till date. It would be worthwhile referring in this context to the decision reported in The Imperial Tobacco Company of India v. Registrar of Trade Marks 1 . The Calcutta High Court held :

‘Even so, the acquisition of distinctiveness should be on the date when the application is filed for registration and the law does not require or provide for acceptance of evidence of subsequent events.’

Paragraph 326 of Narayanan’s Third Edition of Trade Marks and Passing-off, also deals with the Test of acquired distinctiveness as under :

‘The test cf acquired distinctiveness is that the mark when applied to the goods should indicate to the purchaser that they are the goods of a particular person and of nobody else. Distinctiveness must carry with it the feature that the goods distinguished are the goods manufactured by a particular person and by no other. A word or words to be really distinctive of a person’s goods must generally speaking be incapable of application to the goods of any one else.’ Cheviers v. Cheviers 2 ‘

The above tests squarely apply to the Trade Mark of the respondent herein.

13 . The next point that would emerge is the point of disclaimer which was highlighted by Mr. U.N. Rao, learned counsel for the petitioner, by referring to Exhibit P. 6 to say that the device of the Deer on the Trade Mark label has been disclaimed by the respondent. The answer is that the respondent’s mark was considered registerable subject to the proprietor disclaiming right over the device of a Deer, but this would not affect the question of distinctiveness. In this context, it is useful to refer to paragraph 332 of Narayanan’s Trade Marks and Passing-off, Third Edition, wherein it has been observed that for deciding whether a mark is distinctive, attention must be focussed upon the content of the Mark and not upon the content of the protection sought for the mark. With reference to Section 17, the totality of the mark may be considered distinctive if the combination produces a net impression of distinctiveness as is existing in the respondent’s mark. It is further stated that when a device is common to the trade a word describing the device is not considered distinctive. This follows from the principle that Trade Mark appeals to the ear as much as to the eye and distinctiveness must be judged from the visual as well as the phonetic aspects. Just because the device of a deer was disclaimed, it would not mean that it is common to the trade as alleged by the learned counsel for the petitioner. In my view, the petitioner has to prove the same which he has failed to do before this court. The device of the deer is not used by anybody except the agreement holders who have only manufactured and affixed the respondent’s Trade Mark label and sold such goods only to the respondent and none else in the course of trade. The fact that a matter is or is not common to the trade is a question of fact and it has not been adequately proved by the petitioner that the device of deer is common to the match manufacturing industry. No evidence whatsoever has been let on the part of the petitioner. Thus, the respondent’s mark taken as a whole is distinctive of the goods manufactured and marked by the respondent.

14 . In a decision reported in Registrar of Trade Marks v. Ashok Chandra 1 , Das, J. held that the object of the disclaimer is to prevent any likelihood of misapprehension as to the rights conferred by the registration, and the discretion under Section 17 is wide enough to enable the appropriate disclaimer to be framed to meet the requirement in any particular case. The learned Judge, further held that a long user acquired by the proprietor of a trade mark cannot be affected in any way by the concept of disclaimer. In my opinion this is precisely the case with the respondent’s Trade Mark. The most important aspect is that in spite of the admission that the device of a Deer is common to the trade the respondent was granted registration of his Trade Mark because the Registrar was satisfied that the respondent’s mark was distinctive in nature. Hence for the aforesaid reasons I am unable to hold that the respondent’s Trade Mark has lost its distinctiveness on the date of this proceedings. Thus, I hold issue No. 1 against the petitioner.

15 . Issue No. 2 :- Has the registered Trade Mark become public ijuris? On this point the learned counsel for the petitioner submits that by permitting several other manufacturers to use the registered Trade Mark ‘National Park’ it has lost its distinctiveness and has become public ijuris . Consequently the learned counsel submits that the respondent has lost his exclusive right with respect to the mark ‘National Park’. The learned counsel for the respondent, in answer to the said submission, submits that there is no exhaustive definition for the terms ‘ public ijuris ‘ in the Act, and that each case mustdepend upon the facts and circumstances of that case. The proper test to decide whether a mark which was originally a Trade Mark has become public ijuris is to see whether the use of it by other persons is still calculatedto deceive the public. It is also to be seen whether the Mark has become so public and in such universal use that nobody can be deceived of it or can be induced from the use of it to believe that he is buying the goods of the original trader.

16 . To say that a mark has become common to the trade is another way of saying that it has ceased to be distinctive of a particular trader’s goods. In this connection it will be useful to refer to the dicta laid down by the Supreme Court in National Bell Co. v. Metal Goods Manufacturing Co. (P) Ltd. 1, wherein the Supreme Court held that to establish common use, use by other persons should be substantial. Now coming to the present case and facts that exist, the agreements marked as Exhibits R. 2 to R. 7 have to be referred to. On a perusal of the agreement entered into between K.B. Venkatachalam of Golden Match Industries, Gudiyatham with other traders under Exhibits R. 2 to R. 7, it is seen that the respondent has only allowed the other manufacturers, the affixture of the Trade Mark label of the respondent on the goods manufactured and sold to the respondent. Much was highlighted by Mr. U.N. Rao, learned counsel fot the petitioner stating that even though the labels belong to the respondent, the name of the respondent is not found on the label. I am unable to appreciate the said contention. If the label affixed by the agreement holder is carefully scrutinised, the name of the agreement holder is displayed in very small print just to satisfy the Central Excise Act and Rules which is apparently invisible to the naked eye. Whereas the Trade Mark, get up and colour scheme and combination alone catch and attract the eye of the consumer, the consumer only goes by the pictorial representation of the Trade Mark label on the match box and not from the source of manufacture to decide to buy the said product or not. Hence at no point of time could it be said that the act of the respondent is calculated to deceive the public. The more important aspect is whether such a situation has ever arisen in this trade for the petitioner to allege the same. No evidence whatsoever has been produced before me in the form of affidavits as required by Section 99 and Rule 116 to show that complaints have been received from the public regarding the alleged act by the respondent. The mere allegation that the respondent’s registered trade mark has become publici juris or lost its distinctiveness is not enough. The onus is heavily on the petitioner to prove the same with concrete evidence which is totally lacking in this case.

17. The next question will be whether the use by other persons exists on the facts of the present case. In so far as the agreement holders do not exploit the matches manufactured by them with the Trade Mark labels of the respondent, there cannot exist the concept of substantial use by other persons. The name of the agreement-holder on the labels does not constitute a disappearance of the right of the respondent over its trade mark. The mark still remains to be distinctive with that of the respondent and as per the facts enumerated above, the Trade Mark of the respondent, by any stretch of imagination, has not become common to the trade as alleged by the petitioner. Then the mode and method adopted as per the agreement between the parties cannot be said to show that the mark came to be public that nobody can be deceived nor can it be said that by such usage of the labels as per the agreements anybody could be induced that they are buying the goods of the original Trade mark holder. In the instant case the agreement holders do not sell the matches manufactured for the respondent to the outside public. Hence the question of anybody being deceived or otherwise does not arise. This being so, the concept of registered user or permitted use does not arise. A mere reading of the agreement entered into between the parties will go to show that the agreements are plain and in unambiguous terms. In my opinion, there is perfect indication for entering into such agreement. The argument of the learned counsel for the petitioner that only registered users should be permitted to use the Trade Mark and not the agreement holders, is far-fetched and hard to believe and digest. The Act does not expressly prohibit licencing of Trade Marks whether registered or unregistered. An attempt was made by the learned counsel for the petitioner by contending that the Radiation Case 1 was one which was decided before the 1938 Act came into force in United Kingdom, and hence the same could not be relied upon. But the learned counsel has not noted that even if the said Act was in force, which provisions are very much similar to 1958 Act, there is an identical decision that has been decided in 1969 reported in G.E. Trade Mark 2 , In the said case, Graham, J. expressed his views on the effect of licensing of a Common law trade mark as follows :-

‘An examination in particular of the Bowden case , Thome & Sons Ltd. v. Pimms Ltd. and other relevant cases show that if the principles in relation to confusion and deception to be derived from those cases are applied to the changed circumstances of trade today, the same connection in the course of trade today, which it is now recognised is proper by the registered user provisions of the Act in the case of the registered mark is also proper in the case of an unregistered mark. It is a matter of common knowledge and experience that the conditions of trade and the practices of the trading community have very greatly changed since the middle of the last century when our trade mark law began to assume the present form. The development of the sciences and the application of technology in industry, the growth of great manufacturing and holding companies with large numbers of subsidiaries, the exchange of technical know-how not only between companies in this country but on an international scale and, not the least important, very great changes which have been and are still being made in the presentation, packaging and methods of marketing goods, have all had their effects on the use and significance of trade marks. These changes have been reflected in our statutory trade mark law in, for example, the broadening of the definition of a trade mark, in the recent provisions of assignment without goodwill and in the recognition in the registered user provisions that a trade mark can be licensed without causing deception or confusion provided the owner of the trade mark retains control over t he character and quality of the goods sold under the mark.’

Again in ‘paragraph 803 of Narayanan’s Trade Mark and Passing-off, Third Edition, the learned author in dealing with the said issue has remarked as follows:-

‘In so far as unregistered common law trade marks are concerned, the principle to be derived from the cases are quite consistent with and can be applied in present day conditions and, in my judgment, result in the position at common law being parallel with the provisions under the statute.’

In the same case it was observed that there is no reason for holding that the Bostitch Case is an authority for saying that the same principle cannot or should not be applied in the case of a common law mark used on goods outside the registration. There is no good reason why it should not be so applied and I hold, for the reasons given above, that in the changed circumstances of today the same principle does so apply.’

‘Cross L.J. after examining the cases concluded that the authority given by the United States parent company in respect of the GE Trade Mark to its United Kingdom subsidiary to use the registered mark was not open to objection because the use by the subsidiary might fairly be considered as user by the parent itself and because the licencing of the mark, whether registered or not, did not deprive it of the character of a trade mark provided that the owner of the mark retained a sufficient connection in the course of trade with the mark and the goods bearing it.’

17 . In this connection the learned counsel for the respondent has relied on an extract of Paragraph 9.2., Common Law Licence Page 68 of Registration under Trade Marks Law by Directorate of Research, The Institute of Company Secretaries of India, New Delhi. The extract referred to above by the learned counsel for the respondent is extracted hereunder :-

‘Faced with the almost impossible prospects of recordal of registered user under the Act, many foreign trade mark owners and their licensees have resorted to use the marks under Common Law Licences, i.e. licences recognised by the English Common Law, the principles of which continue to be generally accepted in India. Even Common Law Licence must provide for quality control by the proprietor so that the distinctiveness of the mark is not diluted. The disadvantage is that use of the trade mark by a Common Law Licensee does not ensure to the benefit of the proprietor. By the same token, the licensee can neither initiate nor join in any legal proceedings for infringement of the mark.’

‘A word of caution, there is no decisive judicial precedent in India which determines the rights of the proprietor and licensee inter se or the rights of third parties who seek cancellation of the mark on the ground of non-use by the proprietors or deceptive use by an unregistered licensee. On the basis of the decisions of English Courts in a series of cases, it is believed that the Indian Courts may uphold the validity of the common law licences and further that it does not necessarily dilute the distinctiveness of ownership of the mark.’

18 . Section 2(1) (s) of the Act defines the term ‘registered user’ to mean a person who is for the time being registered as such under Section 49. Section 48 to 55 of the Act and Rules 82 to 93 deal with there gistered users. Hence in my opinion, thereis no need for a person to be a registereduser as contemplated under the Act to usethe Registered Trade Mark of another personso as to suggest that without it, it would beinvalid. Hence the agreements entered intoby the respondent and the third parties arevalid, binding and enforceable and not hitby any act as alleged by the counsel for thepetitioner, much less Sections 23 and 27 ofthe Indian Contract Act. Hence, consideringthe rival submissions made by both thelearned counsel, I am of the view that thesubmission made by the respondent that therespondent’s Trade Mark is very much in tactand totally controlled and monitored by himis wholly acceptable. I am unable to holdthat the mark has become publici juris asalleged by the counsel for the petitioner.

19 . Issue No. 3 : Is the respondent guiltyof trafficking in its trade Mark? Mr. U.N.R. Rao, on this question, submits that the respondent had made a declaration on 12.3.1982 that he was no longer manufacturing safety matches with the Trade Mark ‘National Park’, as found from the records of the office of the Central Excise. But, on the other hand, the respondent has permitted 22 others to use the Trade Mark extensively with his knowledge. According to the learned counsel this conduct of the respondent will go to show that the respondent had no longer any bonafide intention to use the trade mark to establish a commercial link between himself and the product in the minds of the public, and that the respondent is guilty of trafficking in trade mark which is totally prohibited under the Act. Learned counsel further submits that trafficking in Trade Mark means utilising the Trade Mark not for the purpose for which the registration is granted but for other collateral purposes like commercial exploitation throu gh others of the foodwill one has acquired on a trade mark, he learned counsel for this point invited my attention to pages 2, 6, 10, 14, 19, 23, 28 and 32 of the selected papers filed by the respondent evidencing a number of agreements by which the respondent has permitted the agreement holders to affix the ‘National Park’ on the respective matches with condition that their entire production should be sold exclusively to the respondent. Learned counsel also drew my attention to the various clauses in t he agreement and particularly paragraph No. 2 which states that

‘the second party are finding it difficult to market their safety matches on a profitable basis, involving in reduction in their output which in turn entails laying off of labour.’

In all the cases the consideration for the agreement holder to affix the respondent’s mark is that the entire stock of the agreement holder will be bought by the respondent. Elaborating the said contention extracted above, learned counsel contends that Clause 6 of the agreement which insists that the entire stock should be sold only to the respondent and none else is a restrictive clause under Section 33 (a) of MRTP Act, 1969. Further he submits that as the agreement is not registered, the agreement is void in law, and that the agreement is a text book example of utilisation of a trade mark for a purpose other than the purpose for which the registration was granted by the Registrar under Sections 18 and 28 of the Act for use by the respondent only. All the above agreements by which the respondent permits different persons to use these marks on their goods is impermissible under the Trade and Merchandise Marks Act. It is prohibited under the Act. Chapter-VI containing sections 45 to 55 deals with the subject of use of trade marks and registered users. Trade Marks Act contemplates the use of the registered trade mark either by the proprietor or by the registered user, if there is a registered user agreement. Outside the scope of this registered user agreement, it is not permissible for A to use the trade mark of B and still seek the protection under the Act. It is said that no man is compelled by the Trade Marks Act to register a user agreement. But if he does not register it under the Act he cannot claim protection under the Act, which means despite user of the trade mark by third parties, their use is for and on behalf of a registered proprietor. Hence the learned counsel submits that in a petition for rectification the proprietor of a registered trade mark can claim in defence that the user by registered users is as good as his own use. To sum up the said contention, the learned counsel submits that in the present case the use of the mark by a large number of non-registered users cannot in any way be for the benefit of the respondent. I have heard Mr. David, learned counsel for the responde nt, for M/s. Kurian & Associates, On this aspect. Learned counsel contends that the word ‘trafficking’ has not been defined in the Trade Marks Act, but the expression has been used in S. 48 of the Act. According to him, the word ‘trafficking’ would mean an unrestricted licence of a mark to a number of persons with the sole object of licencing to others without any bonaride intention to use the mark by the registered proprietor himself. Let me now see whether by applying the facts of the present case, th e ho objection letter given to the Central Excise authorities in Ex. R. 17, Exs. R. 18 and R. 19 for the affixing of the respondent’s labels, payment of the tax, and handing over such produce to the respondent would constitute trafficking thereof. The mere permission to affix the Trade Mark labels of the respondent does not constitute trafficking. Rule 71 (3) of the Central Excise Rules, 1944 stipulates that every packet, box or booklet, or the manufacturer s label affixed thereto shall bear in clealy discernible characters, the name of the factory or a distinguishing mark, which may take the form of a special design whereby the origin of the matches can be traced, and that specimens of all such label shall be submitted to the Collector for the approval and record before they are brought into use. To comply with this Rule, permission has been granted by the respondent to the agreement holders and nothing more and this would not constitute trafficking in the respondent’s Trade Mark as alleged by the petitioner. In this connection Exs. R. 9 to R. 14 were referred to by the learned counsel. The moment the permission is withdrawn by the respondent, the Central Excise Authorities would not allow the agreement holders to affix the labels on the goods manufactured by them as per the agreements thereof. Such letters of withdrawal have been filed by the respondent as per Ex. R. 15 and Ex. R. 16. Hence, in my view it cannot be construed as trafficking on the facts and circumstances of the case from any angle. The respondent through the agreements have been trading in goods and not their Mark to constitute trafficking as alleged by the petitioner.

20 . In this context, paragraph 806 of Narayan’s Trade Marks ana Passing-off, Third Edition, could be usefully referred to. It says that the lincensing of trade marks may be permitted provided;

a) The licensing does not result in causing confusion or deception among the public;

b) It does not destroy the distinctiveness of the Trade Mark before the public eye; continued to exist.

In my view all the requirements are fully satisfied and are existing as on date and time of filing of this Original Petition in this Court for rectification. It cannot be said that the respondent is guilty of trafficking in its trade mark as alleged by the petitioner.

21 . In American Home Products Corpn. v. MAC Laboratories Pvt, Ltd. 1 the Supreme Court has held as follows :-

‘To my mind, trafficking in a trade mark context conveys the notion of dealing in a trade mark primarily as a commodity in its own right and not primarily for the purpose of identifying or promoting merchandise in which the proprietor of the mark is interested. If there is no real trade connection between the proprietor of the mark and the licensee or his goods, there is room for the conclusion that the grant of the licence is a trafficking in the mark. It is a question of fact and degree in every case whether a sufficient trade connection exists.’

For all the reasons stated above, I am of the view that the respondent is not guilty of trafficking in his Trade Mark.

22 . Issue No. 4 : Was the respondent’s Trade Mark registered without any bonafideintention to use in relation to the goods forwhich the registration is granted?

On this question both the learned counsel have advanced elaborate arguments. It is seen from the records that the respondent has been manufacturing and selling its matches with its Trade Mark from the year 1955 onwards. The advertisement bills Exs. Rs. 35 to R. 44 would prove the same. In addition, Exs. Rs. 32, Rs. 33 and Rs. 34 which are sales details, from the year 1956 to 1988, will also go to prove the case of the respondent that the respondent has been manufacturing and selling the matches with its Trade Mark for all these years. I see only bonafide intention on the part of the respondent to use the same, or else the respondent would not have manufactured the product at all. Learned counsel for the petitioner has argued that the respondent has not made use of its Trade Mark as per Section 46 of the Act which, in my view, is not an acceptable proposition.

23 . Whether or not a party had a bonafideintention never to use the Trade Mark as registered must be established as a fact on the material placed on record as done by the respondent in the instant case. This has been decided in a judgment reported in Lachhmandas Biharilal v. Bhagwan Dass 2, wherein the Delhi High Court held as follows :

‘Whether or not a party had a bonafide intention never to use the trade mark as registered must be established as a fact on the material placed on the record. It is not possible to infer it as a matter of law merely from the use of the registered trade mark by the party with an alteration in breach of the conditions of the registration is broken, it may be open to the Assistant Registrar to remove the mark for this or any other reason, but not on the ground that the party never had the intention to use the registered trade mark.’

In this connection I would like to refer to the arguments advanced by the learned counsel for the petitioner that conduct and intention of the parties are irrelevant in these proceedings. In my opinion the said argument cannot be accepted because the words, ‘intention of the parties’ finds a place in Section 46 itself. Hence the intention of parties should have been looked into to find out what they have contracted among themselves and if the contract is looked into (Exs. R. 2 to R. 7) clause 4 reads as follows :

‘The second party hereby expressly covenant and acknowledges the absolute proprietorship of the First Party over their National Park label trade mark which are the subject matter of these presents, and undertake not to use the said label in respect of safety or any other kind of matches except exclusively for supply of safety matches to the first party. The second party also covenants, agrees and undertakes not to use at any time any colourable imitation of the said labels on a safety match or any other kind of matches manufactured by them. The second party also covenants that it will on all the labels as aforesaid acknowledge clearly that it has manufactured the matches on behalf of the first party.’

Clause 4 of the agreement extracted above clearly shows that the intention of the petitioners/third parties is to go back on the said terms to remove the respondent’s mark could only mean the ulterior motive on the part of the petitioners and nothing else. Thus, I hold that the respondent had only a bonafide intention to use the registered trade mark in relation to the goods for which the registration is granted. Hence I answer this issue in favour of the respondent.

24 . Issue No. 5 : Has the petitioner discharged his onus of proof by invoking Sections 32 (c) and 46 of the Act in respectof the respondent’s trade mark?

Submissions made by the learned counsel for the petitioners and the respondent on this point are considered as under. On the point that the respondent has not used National Park for over five years and one month on the date of application for rectification, learned counsel for the petitioners submits that the petition was filed on 25.11.1988 by the petitioners and also placed reliance on page 29 of the plaintiffs typed set to show; that on the request of the respondent Central Excise cancelled the authorisation given under Rule 73 of the Central Excise to affix National Park on 1.3.1983.

25 . According to the learned counsel forthe petitioners the respondent has notproduced any document to show that he hasapplied afresh for the approval of Nationalpark, which would lead to an irresistibleconclusion that from 1.3.1983 the respondenthad no legal authority to manufacture thematches with label, ‘National Park’. Learnedcounsel further submits that vouchers whichwere shown by the counsel for the respondentto indicate clearance of National Park matchboxes from the factory of the respondentcannot be accepted as evidence of user of National Park in the absence of authorityunder Excise Rules to use the mark. I amunable to countenance the above arguments. The concept of burden of proof has beeneffectively laid down by the Supreme Court in a judgment reported in Narayan v. Gopal 1 wherein the Supreme Court has held as follows :

‘The expression ‘burden of proof’ means one of two things (1) that a party has to prove an allegation before it is entitled to a judgment in its favour, or (3) that the one or the other of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if it failed tp discharge the same. Where issues are, however, joined, evidence is led and such evidence can be weighed in order to determine the issues, the question of burden becomes academic’

In this context paragraph 498 of Narayanan’s Trade Marks and Passing-off, Third Edition can also be looked into :

‘Onus of Proof : The question whether a mark is common to the trade being a question of fact, the onus of proof is on the party alleging this fact. The mere presence of a number of trade marks containing a common feature on the register in the name of different persons is not proof that the feature is common to the trade. The presence of a mark on the register does not prove its user.’

In Corn. Products v. Shangrila Food Products 2 the Supreme Court held as follows :

‘Where there are a ‘series’ of marks, registered or unregistered, having a common feature or a common syllable, if the marks in the series are owned by different persons, this tends to assist the applicant for a mark containing the common feature. But before the applicant can seek to derive assistance for the success of his application for registration from the presence of a number of marks having one or more common features which occur in his mark also, he has to prove that these marks had acquired a r eputation by user in the market.

The presence of a mark in the register does not prove its user at all. It is possible that the mark may have been registered but not used. It is not permissible to draw any inference as to their user from the presence of the marks on the register.’

Thus it is to be seen whether the petitioners have discharged their onus of proof and proved the non-user on the part of the respondent in respect of its registered Trade Mark without a bonafide intention to use the same, and actually has not at all used the said trade mark after its registration. It is also to be further proved that the respondent has been guilty of trafficking in its trade mark and hence should be removed from the register. In my view the: petitioners have failed to establish through proper evidence his allegations made in his petition for removal of the respondent’s registered trade mark. The petitioners have not proved anything to justify their action for invoking the said concept of ‘burden of proof through the Trade Marks Act to rectify the Register thereof by removing the respondent’s registered mark. Learned counsel for the respondent further submits that unless and until a prima facie case of non-use is established, the onus would not shift to the respondent who is the registered proprietor to prove actual use, if any. The petitioner in my view, has not proved beyond doubt that the respondent never used his Trade Mark in his business for five years and one month prior to the date of the application. But, on the contrary, the respondent has proved through Exs. R. 33 and R. 34 that during the five years and one month period prior to the date of the application for rectification, there had been continuous use of Trade Mark in the course of his business.

26 . Mr. U.N.R. Rao, learned counsel for the petitioners has raised another point that as per the respondent’s request to the Central Excise authorities the Trade mark of the respondent’s label was cancelled and after that, not approved. To meet the said contention of the learned counsel for the petitioner, the learned counsel for the respondent placed reliance on Exhibits R. 33 and R. 34 series and a look at the said Exhibits would go to prove that the respondent was manufacturing and selling the matches with its Trade Mark ‘National Park’. My attention was drawn to Exhibit R. 34 which would prove that the Central Excise gate passes duly signed by the authorities were issued indicating collection of Central Excise duty during the years 1986, 1987 and 1988 for the matches that were manufactured by the respondent with his Trade Mark as National Park. Hence, on this ground also, the petitioners’ case has to be rejected, since the petitioners have failed to establish their case by acceptable evidence.

27 . It is seen from the records that therespondent does have the label with its Trade Mark duly approved in March, 1982 itselfafter it had requested for a cancellation ofits mark to change the colour scheme tosatisfy the demand of one of its customers. In this connection the respondent’s counselhas also submitted that the Trade Mark ofthe respondent was not restricted to anycolours, and hence he was free to change itscolours on the Mark and sell. It is alsosubmitted that whenever change is effected, a fresh approval as per the Rules has to beobtained from the authorities, which isimperative. At any rate, I have to acceptthe contentions of the counsel for therespondent that the gate passes would onlyreveal manufacture on the part of therespondent and that the manufacturing operation was being carried on by the respondentwith his trade mark. In my view, that wouldsuffice to show that there was manufacturingoperation on the part of the respondent. ThusI hold that the petitioners have not dischargedtheir burden or proof.

28 . Issue No. 6 : Should the Trade Markusage be taken into account while decidingmatters of this nature under the Act?

The normal usage in a particular ‘trade has very much relevance when deciding whether there has been a misuse of one’s registered trade mark in the course of ‘trades. Exhibit R.1 filed by the respondent is an agreement signed by Golden Matches in favour of WIMCO and further Exhibit R. 36 are labels of various other traders who have given them to other manufacturers to affix their labels as done in the instant case. By doing so the right in the Trade Mark of the respondent is not lost and there cannot be any motive as attributed by the petitioners.

29 . It is now to be seen whether thepetitioner is an aggrieved person entitled tofile the rectification proceedings in this court. Learned counsel for the petitioners submitsthat anyone who is adversely affected by theexistence and retention of the registration ofthe trade mark is an aggrieved person.

Learned Counsel further submits as follows :

a) Petitioner is in the same trade.

b) Petitioner is prevented from using National Park because of registration.

c) Respondent has filed an infringement Proceedings against the petitioner.

30 . Per contra, the counsel for the respondent submits that the petitioner is not anaggrieved person to file this rectificationproceedings and drew my attention to paragraph 860 of Narayanan’s Trade Marks and Passing-off, Third Edition, wherein it is statedthat persons whose trading interests areaffected are aggrieved persons.

According to the learned counsel, an application for rectification can only be made by a person aggrieved. The expression ‘persons aggrieved’ has been construed liberally by English Courts while dealing with the corresponding provisions under the English Acts. Thus persons who are aggrieved are persons who are in some way or other substantially interested in having the mark removed from the register, or persons who would be substantially damaged if the mark remained. Though the petitioner has not clearl y spelt out his grievance on this issue in detail in the petition for rectification, the counsel for the petitioner at the time of the arguments submits that the petitioner is also in the same trade as the person who has registered the Trade Mark and wherever the Trade Mark, if remaining on the register, would limit legal rights of the petitioner so that by reason of the existence of the entry on the register the petitioners could not lawfully do that, and if but for the existence of the mark upon the register he could lawfully do, the petitioner has a locus standi to be heard as a person aggrieved. In the instant case, the petitioner, has been manufacturing the same product for some time and subsequently has been prevented from using the mark National Park because of registration. The mere fact that the petitioner is engaged in the same trade is not sufficient to make him a person aggrieved. In order to show that he is a person aggrieved the petitioner must establish in a practical sense that he may be damaged or injured if the Trade Mark is allowed to stand. He is not an aggrieved person or a person substantially interested in having the mark removed from the register. The petitioner has not proved what is nis substantial interest in having the mark removed nor has he made out a case that he is substantially damaged by the respondent’s registered mark remaining on the register. The petitioner has his own mark as stated by him in Ex. R. 45 and he could in no way be prejudiced by the respondent’s mark remaining on the register. Hence I hold that the petitioner is not an aggrieved person as per the yard sticks adopted by the various rulings and passages referred to above and hence could not sustain this petition for rectification and could not be granted the prayers asked for. Mr. U.N.R. Rao has also referred to Section 29 of the Act and submits that as per the said Section lawful use of a Trade Mark can be done either by the registered proprietor or by registered user, if any. According to the learned counsel, the use of the Trade Mark by third parties on behalf of the respondent amounts to infringement. He further submits that consent given by the respondent through unregistered agreement cannot alter the legal act of infringement, and does not belong to the category of permitted user. By concluding his argument the learned counsel further submits that when a mark suffers simultaneously by infringement by various persons to the knowledge of the proprietor, the original petition filed by the petitioner for rectification has to be ordered as the mark has become publici juris . I am unable to agree with the said contention for the reasons already stated in the paragraphs supra. I hold that the respondent has not violated Section 29 of the Act and the agreement entered into by him with various parties is lawful and valid. Hence I am unable to order the prayer for rectification as prayed for by the petitioners.

31 . I cannot also ignore one important factor which forced the petitioners to come forward with this present Original Petition for rectification. According to the respondent, the petitioner contacted the respondent and offered to manufacture and supply safety matches with the label of the respondent. The respondent agreed for the same but cautioned the petitioner that if the goods manufactured and given are not upto the specification and quality of the respondent, the agreement would be cancelled. The pet itioner did manufacture on three or four occasions and affixed the respondent’s label and sold the same to the respondent. This could also be seen in the evidence given by the petitioner in the proceedings before the District Munsif’s Court at Gudiyatham, marked as Ex. R. 45 in this proceedings, (O.P. No. 627 of 1987) wherein the petitioner has categorically admitted that the ‘Running Deer’ trade mark belongs to the respondent herein (defendant) in O.P. No. 627 of 1987 and that it belongs only to the respondent herein. As the matches supplied by the petitioner were of a sub-standard quality, the respondent requested the petitioner to confirm to the given specification to maintain quality. The respondent to make sure that the quality is maintained took a sample to the department of Industries and Commerce. The same was tested and a report was sent under Ex. R. 29 (Chemical Testing and Analytical Laboratory Test Certificate continuation sheet). As per Ex. R. 29 the quality of the petitioners’ matches wa s far from satisfactory and hence the respondent was compelled to withdraw the consent given to the Central Excise Authority to permit affixture on the respondent’s label forthwith. But in spite of such withdrawal the petitioners without the knowledge of the respondent and that of the Central Excise authority were manufacturing their matches by affixing the trade mark label of the respondent, which was objected to by the respondent. Since the petitioners continued to manufacture and sell its matches with the Trade mark label of the respondent, the respondent filed a suit for infringement of its Trade Mark on the file of the District Court at Vellore and the same is said to be pending before the said Court. In the meanwhile this petition has been filed by the petitioner under Sections 32 (c), 46 and 107 of the Act. As the O.P. No. 182 of 1988 was taken on file by this court, the proceedings pending before the District Court, Vellore were stayed automatically under Section 111 of the Act. Thus the ultimate motive of the petitioner will be seen from his conduct of initiating various proceedings in different courts.

32 . To another point urged by Mr. U.N.R. Rao that the agreements sought to be relied upon by the respondent with various parties filed as Exs. R. 2 to R. 7 are viod for the reason that they contravene Sections 33 (a) and 48 of the MRTP Act, Mr. David, learned counsel for the respondent, would submit that the said argument is outside the ambit and scope of the relief sought for in the petition by the petitioner. A reading of the definition of ‘restrictive trade’ practice in Section 2 (o) of the MRTP Act wo uld mean trade practice which has or may have the effect of preventing, distorting or restricting competition in any manner in particular :

(i) which tends to obstruct the flow of capital of resources into the stream of production, or

(ii) which tends so bring about manipulation of prices of conditions of delivery or to effect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.’

33 . We may now refer to Section 2(a) which defines Trade Practice, which means ‘any practice relating to the carrying on of any trade’ and includes anything done by any person which controls or affects the price charged by, or the method of trading or any Trader, or any class of traders. On a careful scrutiny of Exs. R. 2 to R. 7 it could be seen that the respondent has no control as such over the other agreement holders in their activity of manufacturing and selling any brand of matches. The agreement only stipulates that oh the safety matches manufactured for the respondent by affixing the Trade Mark of the respondent the same should not be exploited and sold in the market without the knowledge of the respondent. The respondent at no point of time has in any way prevented, distorted or restricted competition in the manufacture and sale of matches by the other manufacturers who have agreed to manufacture and supply safety matches by affixing the respondent’s Trade mark label. A mere reading of the agreements will only go to establish that the other manufacturers have the unfettered liberty to manufacture their brand and compete with therespondent notwithstanding the agreement with the respondent to manufacture and affix the respondent’s label and sell such goods to the respondent themselves or to anybody whom the respondent may direct. There is no Restrictive Trade Practice whatsoever as alleged by the petitioner.

34 . To determine whether a Trade Practice is restrictive in nature or not, three matters are to be considered. First, what facts are peculiar to the business to which the restraint is applied; second, what was the condition before and after the restraint is imposed; and ‘third, what is the nature of the restraint and what is its actual probable effect. This has been enunciated by the Supreme Court in its judgement reported in Telco v. Rt Agreement, New Delhi 1 and it has been held as follows :

‘The definition of restrictive trade practice is an exhaustive and not an inclusive one. The decision whether trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on the doctrine that any restriction as to area or price will per se, be a restrictive trade practice. Every trade agreement restrains or binds persons or places or prices. The question is whether the restraint is such as regulates and thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine this question three matters are to be considered. First, what facts are peculiar to the business to which the restraint is applied. Second, what was the condition before and after the restraint is imposed. Third, what is the nature of the restraint and what is its actual and probable effect.’

If the aforesaid tests are applied to the present case it could be seen that the agreement entered into by the respondent with the various other third parties as per Exs. R. 2 to R. 7 does not constitute any restrictive Trade Practice as alleged by the petitioner. Merely because it falls within one or the other clause of Section 33 (1), a trade practice does not become a restrictive trade practice. It should also satisfy the definition of restrictive trade practice contained in Section 2(o) and it is only then that agreement relating to it would require to be registered under Section 33. This being so I will have to reject the argument of Mr. U.N.R. Rao on Section 48 of the Act. This being so, Section 48 of the Act has no relevance whatsoever. On a careful consideration of the facts and circumstances, the pleadings filed by both parties and the arguments advanced by the respective counsel, I hold that the petitioner has not made out any case for removal of the entry in the register in respect of registered Trade Mark No. 170403 in class-34 in Part-A in the name of the respondent K.B. Venkatachalam trading as Golden Match Works, Guid Iyatham, dated 13.8.1985. Thus, I dismiss the Original Petition. However, in the circumstances of the case, there will be no order as to costs.

35 . Before parting with this case, I have to place on record that I have had the benefit of very able arguments from U.N.R. Rao, learned counsel for the petitioners and Mr. David of M/s. Kurian & Associates, learned counsel for the respondent, which enabled me to grasp the questions at issue between the parties in the proper perspective. I place on record my deep apreciation of the manner in which both the counsel have argued the matter in this case.

The post K. R. Jadayappa Mudaliar Trading as M S Sarasu Match Works Vs. K. B. Venkatachalam Trading as M/s Golden Match Industries appeared first on B&B Associates LLP.

Emperor …Appellant
Vs
John Mciver …Respondent

JUDGMENT

Cornish, J.

1. Two points of law arising in the trial of John McIver for criminal breach of trust at the last criminal Sessions have been reserved to us for decision under Clause 25 of the Letters Patent by the learned Chief Justice. They are (1) whether the plea of autrefois acquit was good in law, and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. By “case put forward by the Crown,” the learned Chief Justice has stated that he means the case alleged in the complaint. The learned Crown Prosecutor has taken an objection to our jurisdiction to entertain the reference. His objection proceeds as follows: The High Court derives its jurisdiction to decide the question of law referred from the order of reference; the referring Judge is only competent to refer questions which he can decide; and the Judge is only competent to decide such questions as are available for his decision. Applying these propositions to the points reserved, the learned Crown Prosecutor has contended (1) that the question whether the plea of autrefois acquit was available to the accused could not be referred by the trial Judge because the point had already been decided by the High Court against the accused in the proceedings previous to the trial; (2) that the trial Judge has not referred the question of availability of the plea, but only the question whether it is good in law; (3) that the question of autrefois acquit could not be referred because it did not arise in the trial or in the course of the trial’ (according to Clause 25, or Section 434, Criminal P.C.) but was taken before the commencement of the trial; and (4) that the second point of law referred could not be referred because it had already been the subject of decision by a Bench of this High Court at an earlier stage of the proceedings against the accused. With regard to the second of these grounds of objection I may say at once that I have no doubt upon the terms of the order of reference that the learned Chief Justice intended to refer not only the question of the availability of the plea to the accused but the question of its merits. As the points taken by the learned Crown Prosecutor relate to various stages of the proceedings in the prosecution of the accused it will be convenient here to state the sequence of events in these proceedings.

2. The complaint alleged that the accused had committed the offences of cheating and criminal breach of trust. Summonses were issued by the Chief Presidency Magistrate in respect of both offences. But when the parties appeared it was stated that the complainant wished to compound the offence as the only offence was one of cheating under Section 420, I.P.C. This was sanctioned by the Magistrate, and an order made acquitting the accused 1. Cheating being a compoundable offence the effect of the Magistrate’s order sanctioning the composition was the acquittal of the accused of that offence; Section 345(6), Criminal P.C. The result was as if the Court had found the accused not guilty of the offence compounded. The Crown appealed against the acquittal alleging in the first place-that the acquittal of cheating was bad as the Magistrate was not shown to have exercised a discretion in allowing the composition: and secondly, that as the complaint disclosed the offence of criminal breach of trust and a summons had been issued in respect of that offence, which was a non-compoundable offence, the Magistrate must be deemed to have sanctioned the composition of this offence likewise in acquitting the accused. The appellate Court upheld the acquittal of cheating but directed the Magistrate to restore the summons in respect of the alleged breach of trust to his file and to dispose of it according to law. The judgment of the appellate Court is reported in Emperor v. J. Mclver 1936 69 MLJ 681. No question of the acquittal of cheating being a bar to trial for criminal breach of trust appears to have been raised in the arguments of counsel, and no opinion or decision upon that question was given in the judgment. In my view the Court did not, and never intended to fetter the right of the Magistrate to deal with that plea if it should be taken before him in his disposal of the case. However, when the plea was in due course raised before him the learned Magistrate regarded the High Court’s order as leaving him no option but to go on with the case. The terms of the Magistrate’s order are important in relation to the later order made by King, J., because King, J’s order has been interpreted by the learned trial Judge as deciding the plea of autrefois acquit against the accused. What the Magistrate said was this:

The accused raises the plea of autrefois acquit and states Section 403(1) Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C. and asks me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived, and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C. it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

3. He accordingly dismissed the petition. In my opinion the plain meaning of this order is that the Magistrate declined to decide the question of autrefois acquit raised by the accused, because he considered that he was precluded by the order of the High Court. The accused then applied for a revision of the Magistrate’s order, and the matter came before Mr. Justice King. The learned Judge disposed of it in these words: “I see no ground for revision. The petitions are dismissed.” It has been argued before us that as the point of autrefois acquit was raised and argued before the Judge he must be taken to have decided it in dismissing the accused’s petition. I find it impossible to read the order so. Obviously it was incumbent on the accused in support of his petition to show that his plea of autrefois acquit was prima facie a good one, and that the Magistrate was wrong in refusing to decide it. But it by no means follows that because the learned Judge thought fit not to revise the Magistrate’s order that he did so because he decided the plea of autrefois acquit was ill-founded. If that was the ground of his order he would have been revising the Magistrate’s order, for he would have been deciding the point which the Magistrate had refused to decide. But this would be quite inconsistent with his order that he saw no ground for revision. In my judgment the learned Judge decided nothing more than that the case should go on, and he left the question of autrefois acquit open.

4. This brings me to the third point in the objection to our jurisdiction to entertain the order of reference. The plea of autrefois acquit was in fact raised by the accused’s counsel in the Sessions Court after the charge had been read to the accused and before the accused pleaded to the charge. The learned Crown Prosecutor has seized on a phrase in the order of reference that the plea was taken “before the Sessions trial began” as showing that the plea was raised dehors the trial. And from this he has argued that the point of law not being one which had arisen “in the trial” (according to Clause 25 Letters Patent) or “in the course of the trial” (under Section 434, Criminal P.C.,) the point could not be referred by the learned trial Judge. For the purpose of Clause 25 it is not necessary that the point referred should have been taken at the trial and decided by the Judge. The case of Emperor v. Ramanujam 1935 58 Mad 642 is in point. The learned Crown Prosecutor has submitted that Clause 25 is founded on the provisions in the English Court of Crown Cases Act providing for the reservation of a point of law arising “on the trial.” I think that “in the trial” in the Letters Patent and “on the trial” in the English Act mean the same thing. But it has been held under the English Act that it was not necessary to give the Court of Crown Cases reserved jurisdiction to entertain a point of law reserved which was existing “on the trial” that the point should have been formally taken at the trial: R. v. Brown (1890) 24 Q B D 357. But if the point was in fact taken at the trial, which is the normal occasion for taking a point of law, there is no difficulty, to my mind, in regarding it as a point arising ‘in the trial.” The trial had commenced before the plea was raised. Under the sub-heading “Commencement of Proceedings” in Chap. 23 of the Code relating to trials before the High Courts and Courts of Session, comes Section 271 which says:

When the Court is ready to commence the trial, the accused shall appear or be brought before It, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.

5. This, in my opinion, indicates that the trial commences with the arraignment of the accused that is to say when the charge is read out to the Accused and he is called upon to plead to it. It has been held ‘to be the point of commencement in the trial of warrant cases Kali Mudali v. Emperor (1912) 35 Mad 701 at p. 703, and I see no reason why it should not equally be the point of commencement of a trial at the Criminal Sessions of the High Court. There is no rule of practice defining the proper time for raising a plea of autrefois acquit in this country. The artificial English rule against pleading double is certainly not to be applied. Section 403(1), simply lays down the rule on which a plea of autrefois acquit or convict is founded; and it would seem that the rule could be invoked by an accused person at any stage of the proceedings. However that may be, I think that in the present case the plea was taken at the appropriate time. The trial had commenced and the plea of autrefois acquit was raised before the accused pleaded to the charge. There remains the last ground of preliminary objection, namely, that the question of entrustment has already been determined in the case by an appellate bench of the High Court and is not open to reference and review. It is enacted by Section 430, Criminal P.C. that judgments and orders passed by an appellate Court upon appeal shall be final ‘ except in the cases provided for in Section 417 and Chap. 32.” The case provided for in Section 417 is simple enough. The difficulty is to discover whether the exception is intended to cover all or any of the cases provided for in Chap. 32, including the case provided for by Section 434 in that Chapter, or whether it is limited to the cases provided for by Section 435 which gives a superior Court power to call for the record of an inferior Court whether exercising original or appellate criminal jurisdiction.

6. One would have thought that if the legislature had intended to so limit the exception in Section 430 it would have said “except in the cases provided for in. Sections 417 and 435.” Ch. 32 consists of Sections 432 to 442. Of these, Sections 432, 433. and 441 relate to a reference to the High Court by a Presidency Magistrate and the disposal thereof. Sections 436, 437, 438, 439 and 440 implement Section 435 and lay down the powers to be exercised and the procedure when the record of an inferior appellate Court has been called for under that section. But it is obvious that Section 435 and its satellite sections would not furnish an exception to Section 430 when an appellate judgment of the High Court is concerned, because one Bench or Judge of the High Court is not an inferior Court to another Bench or Judge of High Court. Unless then, the power of revision conferred by Section 434 is an exception to the finality of an appellate judgment of the High Court (for Section 430 must include the judgment of the High Court as well as the judgment of an inferior appellate Court) there is no means of questioning that judgment except in the case provided by Section 417. It has been contended by Mr. Venkatarama Sastri that a reference of a point of law, whether under Clause 25 of the Letters Patent or under Section 435, Criminal P.C., does not involve a revision of a previous decision of that point of law by an appellate Court in the same case. His contention is that if a point of law is taken at the trial, the Judge is bound to decide it. He may feel himself bound to decide it in accordance with a previous decision of the High Court, as the learned Chief Justice did here. But nonetheless he has a discretionary power to refer it. The Bench to which the question is referred does not sit to review the previous decision of a High Court bench but to determine the point of law which has arisen in the trial.

7. There is a precedent for the course which we are invited by Mr. Venkatrama Sastri to take in Rathnavelu v K.S. Iyer 1933 56 Mad 996, where a Full Bench on a reference by a single Judge decided a question of law which had already been decided by an Appellate Bench in the same case. But the point which has been argued here as to the effect of Section 430 does not seem to have been brought to the notice of the Court there. It must be assumed that the Legislature in making exceptions to the rule in Section 430 “in the cases provided for in Ch. 32,” had in mind the power which is given to the High Court to which a question of law has been referred whether under the Letters Patent or under Section 434, to review the case or such part of the case as may be necessary, and to finally determine the question of law referred. There seems to me nothing improbable in the intention to exempt from the absolute rule of Section 430 a review of the case, which means a review of the whole of the cases presented at the trial, upon a reference under the Letters Patent or Section 434. The decision of the Appellate Bench that there was an entrustment of the property alleged to have been fraudulently converted could not conceivably conclude that question at the trial. It would not relieve the Crown from proving by evidence an offence under Section 405 nor would it deprive the defendant of his right upon the plea of ‘ Not Guilty” to contend that there was no entrustment in fact or in law disclosed by the evidence. The learned trial Judge was entitled to hold in accordance with the view taken by the Appellate Bench that the case for the Crown established an entrustment; but he was also entitled to reserve the question if he thought fit as a point of law which had arisen in the trial. In my opinion therefore we have jurisdiction to entertain the second point of law referred.

8. It will be convenient to deal first with the second question referred because its practical importance is in relation to the plea of autrefois acquit. I think that apart from the alleged cheating in the procuring of the bonds there was an ‘entrustment” of his bonds by the complainant to the accused when the bonds were delivered to him. It is clear that the complainant had no intention of parting with his property in the bonds which, in his evidence, he explained had, been purchased by him as an investment. Undoubtedly he indorsed the bonds to the accused’s firm; but unless he had done that the bonds would have been of no use to the accused for the purpose of satisfying the Bank” which was the purpose as represented to the complainant for which the accused required the temporary use of the bonds. But the complainant’s statement, which is confirmed by his evidence, shows that he expected to have his bonds returned to him when the temporary purpose of satisfying the Bank was concluded. It was only on this understanding that the bonds were handed over to the accused. I think the word “entrustment” aptly describes the delivery of these bonds by the complainant to the accused. It has been contended by Mr. Venkatarama Sastriar that an entrustment requires the elements of a trust-settler, trustee and beneficiary-and that those elements are wanting here. The language of Section 405, Penal Code is very wide-“whoever, being in any manner entrusted with property, or with any dominion over property” etc. This is sufficient to include the express trustee, the bailee of goods, and any person who is entrusted by its owner with the dominion over property, as, in my opinion, the accused was when the bonds were delivered to him by the complainant. But then it has been contended that an entrustment is inconsistent with the obtaining of the property from its owner by a trick or deception which amounts to theft or cheating. The decision of the House of Lords in Lake v. Simmons (1927) AC 487, has been relied on in support of this proposition. It was there laid down by Lords Sumner and Atkinson, and in the Court of appeal Lord Justice Atkin had laid down the law similarly, that the theft of property by means of a trick negatives the notion of an entrustment of property by the owner to the thief. If there was a trick” said Lord Sumner, “which prevented any true consent arising there could be no entrusting. The terms are mutually exclusive.” And Lord Atkinson said:

The so-called entrusting of the jewels to her, furnished to her, as she intended it should, the opportunity for and means of committing the theft.

9. Larceny by trick as defined by English law is not to be found in the Indian Penal Code. Dishonestly taking property out of the possession of its owner without his consent is theft as defined by Section 378. It is cheating under Section 415 to fraudulently induce, by means of a deception, a person (not necessarily the owner) to deliver property. It might equally be theft where the consent of the owner to the taking of his property had been obtained by a trick and was consequently no consent at all. The offence of criminal breach of trust is quite different from theft, and cheating. It is an essential ingredient of this offence that the person ?entrusted in property shall dishonestly ?convert it to his own use. But the state of facts may be so involved as to leave it uncertain which of these three offences has been committed. This difficulty is provided for by Section 236, Criminal P.C. which enables the accused to be charged with all these offences or with any one of them; and Section 237 further provides that in such case the accused if charged with one may be convicted of the other or one of the others if the evidence shows that it is the other offence which he has committed. But obviously if the evidence shows, that the offence is theft he cannot be convicted of cheating, or if cheating is proved he ?cannot be convicted of criminal breach of trust, because the same facts will not constitute both criminal breach of trust and cheating. It has however been contended for the Crown that property obtained by cheating, the contention as I understand does not cover a case of theft, is capable of being fraudulently converted under Section 405 as property entrusted to the cheat. That is to say, when the deception succeeds and the property is delivered the property becomes the subject of entrustment, and the conversion by the cheat of the property so delivered becomes a fraudulent breach of trust within Section 405. Support for this proposition was sought in some observations of Lord Sumner in Lake v. Simmons 1927 AC 487, where His Lordship pointed out the difference between a consent which was apparent tout not real and a real consent obtained by fraud.

10. But their Lordships were considering the construction of a clause in an insurance policy touching the entrusting of property to customers of the insured. Their observations seem to me to give no support at all to the theory that a confidence trickster or a cheat can be viewed in the light of a fraudulent trustee. The word “entrusted” Lord Haldane has said in Lake v. Simmons 1927 AC 487, may have different implications in different contexts. We have here to construe that word as it occurs in a section of the Penal Code headed “of Criminal Breach of Trust.” The notion of a trust in the ordinary sense of that word is that there is a person, the trustee or the entrusted in whom confidence is reposed by another who commits property to him; and this again supposes that the confidence is freely given. A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term; and Section 405 gives no sanction to regard him as a trustee. The illustrations to the section show that it is intended to cover the case of property honestly obtained by the person entrusted with it, and subsequently dishonestly misappropriated by him in breach of his trust. As I have already said the essence of criminal breach of trust is the dishonest coversion of the property entrusted. But the act of cheating itself involves a conversion. Conversion signifies the depriving the owner of the use and possession of his property.

11. When the cheat afterwards sells or consumes or otherwise uses the fruit of his cheating he is not committing an act of conversion, for the conversion is already done, but he is furnishing evidence of the fraud he practised to get hold of the property. It is not necessary to strain the language of Section 405 to catch the cheat, for he can be dealt with apart from that section. In fact, there would be little use for Section 415 if cheating is only a form of criminal breach of trust. For these reasons I think that cheating is a complete offence by itself and cannot be criminal breach of trust. My answer to the second question referred is therefore that there is not an entrustment within the meaning of Section 405 when property is obtained by cheating. The accused having been acquitted of the offence of cheating it has to be determined whether this acquittal was a bar to his being tried for criminal breach of trust. The case of the Crown was that the accused by means of a false representation that his firm requires the temporary use of the complainant’s bonds to satisfy the Imperial Bank until other bonds of the same description and value, alleged to have been purchased for the Bank by the accused’s firm, were returned from Bombay after rectification of endorsements, induced the complainant to hand over his bonds to the accused on the understanding that they were to be immediately returned to him when the purpose of satisfying the Bank was concluded; and that the accused as soon as complainant delivered the bonds to him sold those bonds without complainant’s knowledge or consent and appropriated the proceeds to his own use. It was upon those facts that the accused was acquitted of cheating, and it was upon those facts that the accused was charged, tried and convicted of criminal breach of trust. They are identically the same.

12. But the argument of the learned Crown Prosecutor is that this was a transaction in which there was a series of acts constituting more than one offence within Section 235(1), Criminal P.C. If this be right, then Section 403(2) will prevent an acquittal of the offence constituted by one act or set of acts being a bar to the trial of the accused for the distinct offence constituted by another act or set of acts. Illus. (b), Section 235(1) clearly shows its import. Breaking into a house and committing adultery with a married woman within it are two distinct acts and offences. But I do not see how on facts proving house breaking a person could be convicted of the offence of adultery, and I feel no doubt that an acquittal of adultery could not be pleaded as a bar to trial for house breaking. The argument here is that the cheating disclosed upon the facts is one act and offence and that the fraudulent conversion is another act and offence. I have already given my reasons for thinking that a cheat does not develop into a fraudulent trustee when he proceeds to enjoy the fruit of his cheating. But the weak point in the learned Crown Prosecutor’s proposition is that he was unable to establish his case of criminal breach of trust except by the same evidence necessary to prove cheating. A reference to the evidence called at the trial makes this plain. To establish the charge of criminal breach of trust the complainant was called to prove that he was induced to hand over his bonds by the representation made to him that the accused wanted them temporarily to satisfy the Bank. Another witness was called to prove that their representation was untrue; and another witness proved that the bonds were sold, by order of the accused on the same day and immediately after they were received from the complainant. It was by force of the sameness of the facts that the Crown was constrained to seek to establish criminal breach of trust by evidence which would prove the very offence of which the accused had been acquitted. It has been definitely laid down that Section 235(1) has no application where an offence is based upon the identical facts on which another offence has been charged: Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, Sharbekhan Gohain v. Emperor (1906) 10 CWN 518. Illus. (a), Section 236 and Section 237, Criminal P.C. show that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made: Begu v. Emperor 1925 52 IA 191. And Section 403(1), Criminal P.C., says that a person acquitted of one offence shall not be liable to be tried on the same facts for any other offence for which a different charge from the one-made against him might have been made under Section 236, or for which he might have been convicted under Section 237. As already stated the facts of the cheating offence of which the accused has been acquitted arc in my opinion identical with the facts on which he has been put upon his trial for criminal breach of trust. My answer therefore to the first question referred is that the acquittal of cheating furnished a valid plea of autrefois acquit in bar of the accused being tried for criminal breach of trust. It follows that the conviction which has resulted from that trial must be set aside.

Mockett, J.

13. This is a reference under Clause 25 of the Letters Patent by the learned Chief Justice before whom accused 1 was tried at the Criminal Sessions for the City of Madras. The circumstances are so unusual that it is necessary to set out the history of this case. They raise several matters of importance relating to the power of a Judge under Clause 25 of the Letters Patent and also to the right of the accused persons under Sections 345 and Section 403, Criminal P.C. On 14th May 1935 one Rao Bahadur Boora Lakshmiah Chetty filed a complaint in the Court of the Presidency Magistrate, Egmore, against accused 1 and 2, McIver, J., and K.S. Narasimhachari. The effect of that complaint was to allege that on 24th March 1935, accused 2 who was in the employment of accused l’s firm of Huson Tod & Co., Stock Brokers, called upon the complainant and represented to him that Huson Tod & Co., had entered into a contract with the Imperial Bank of India under which they were under an obligation to sell and deliver to them 6 1/2 per cent 1935 Bombay Development Loan bonds of the face value of Rs. 3,50,000 and that of the last date to supply the same to the Bank was 27th March 1935. He also represented that his firm had purchased from Bombay the requisite amount of bonds but that the Imperial Bank had returned them owing to irregular endorsement and the bonds had been sent to Bombay for rectification and that pending their return, the complainant might oblige them temporarily by giving them his bonds of the said denomination and value to satisfy the Imperial Bank, as the date of completion of the contract was 27th March 1935 and the Bank’s accounts for the official year had to he closed, and that as soon as the bonds purchased by them were received back from Bombay with the endorsement rectified, the complainant’s bonds would be returned to him.

14. On 27 th March accused 2 repeated his request to the complainant saying that the bonds had not come from Bombay and that as that date was the last date for the completion of the contract with the Bank, the complainant should oblige the firm by giving his bonds temporarily for a few days and assured him that he hoped to receive the bonds sent for rectification by 30th March and that complainant’s bonds would be returned to him on 1st April 1935 positively.

15. The complainant believing these representations and on the faith of the assurance that the complainant’s bonds would be returned on 1st April handed over bonds to the value of Rs. 3,50,000 to be endorsed and delivered over to the accused’s firm by his brother and authorised agent on the said date, viz., 27th March 1935 and on the understanding referred to above.” The bonds were not returned and after communication with accused 1 (who was the senior partner of the firm) and what I may term “negotiations” that went on some days during which the complainant was asked to stay his hand for the ostensible reason that the firm’s own bonds were still held up in Bombay it came to the knowledge of the complainant that the story of the accused was false, that no bonds had been sent to Bombay for rectification and that the complainant’s bonds had been sold and the proceeds misappropriated by the accused. Para. 11 of the complaint goes on:

The complainant submits that in the circumstances the conduct of the accused in the first obtaining the bonds in question on false representations and on promise to return them within a specified time and thereafter disposing of them without the complainant’s knowledge and consent and misappropriating the proceeds thereof and putting off the complainant by specious pleas that the bonds sent for rectification had not arrived from Bombay, is dishonest and fraudulent…

16. Paragraph 12 concludes : “In the circumstances, the complainant charges the accused with having committed the offences punishable under Sections 406 and 420,I. P.C., and prays that they be dealt with according to law.” Section 420, I.P.C., deals with the offence which in India is known as “cheating” which is defined in Section 415 and under Section 420, when the subject of the cheating is a valuable security the penalty may extend to seven years’ imprisonment. Section 406, I.P.C. deals with the offence of “criminal breach of trust” which is defined in Section 405. The penalty for criminal breach of trust as charged is three years. The offence of criminal breach of trust, although the penalty for it is less than for an offence under Section 420, is non-compoundable, while the offence of cheating is compoundable. On 2nd July 1935 a petition was put in before the Chief Presidency Magistrate by the complainant stating that “as the facts alleged (that means in the complaint) would, if proved, amount to an offence under Section 420, I.P.C. which is compoundable with the permission of the Court,” it was prayed that the Court will be pleased to grant permission for the case to be compounded. The Chief Presidency Magistrate granted leave and passed the following order : “Permission granted. Case reported compounded Accused are acquitted.” He also made the following note : “The complainant himself and his counsel both admit that the facts disclosed only an offence under Section 420,I. P.C. which is compoundable with the permission of the Court. I am also of the opinion that the offence disclosed is only under Section 420, I.P.C.” Against that order the Crown filed an appeal which came before Madhavan Nair and Burn, JJ.,in Criminal Appeal No. 344 of 1935, reported in Emperor v. J. Mclver 1936 69 MLJ 681.

17. The Crown contended that the complaint disclosed not only the offence of cheating but also criminal breach of trust. They also asked the Court to say that the Magistrate in so far as the offence under Section 420 was concerned had not judicially exercised his discretion and asked that the acquittal be set aside. The learned Judges refused to interfere with the order of the Magistrate acquitting the accused of cheating. They took the view that the complaint did disclose an offence under Section 420 as well as an offence under Section 406. It is not necessary to consider all the arguments advanced. It is however necessary to state that in resisting the appeal the learned Counsel for accused 1 argued, according to the report, that only one offence, namely of cheating, was disclosed, and in particular argued that there was no “entrustment” of the bonds, and he relied inter alia on the decision of the House of Lords in Lake v. Simmons (1927) AC 487. The Court rejected his contentions and discussed the meaning of the word “entrusted.” They allowed the appeal, set aside the acquittal for criminal breach of trust, and said, “the learned Chief Presidency Magistrate should be asked to restore the complaint on file and deal with it according to law.” Consequently the case proceeded before the Chief Presidency Magistrate. Before him both the accused raised the plea of autrefois acquit; that is to say, they relied on Section 403, Criminal P.C. But although it was attempted to be argued at the time the Magistrate indicated that it was useless to argue the matter and his point of view is clear from the order passed by him on 12th November 1935. He took the view that the matter was concluded by the judgment of Madhavan Nair and Burn, JJ. Dealing with the accused’s contention he says:

This contention was negatived and their .Lordships hold that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

18. He refused to make a reference under Section 432, Criminal P.C. and said it was open to the accused to move the High Court. Criminal revision petitions were filed by both the accused against that order. In the petition of accused 2 it is specifically alleged that the Magistrate refused to decide the point, i.e., autrefois acquit. The matter came before King, J., who passed the following order. “I see no ground for revision. The petitions are dismissed.” That is, he declined to stay the trial. Thereafter the proceedings went on. Both the accused were committed for trial. When the matter came before the learned Chief Justice it is agreed that the following was the course of events, and it is borne out by the shorthand note. No point was taken before the accused was charged as was done in Queen-Empress v. Gobind Dass (1901) 28 Cal 211. This is important and I respectfully agree with the view expressed by Maclean, C.J. that it is only after that stage that a point can be said to “arise.” I prefer this view to that expressed by a Bench of the Calcutta High Court in Mahomed Yusuf v. Emperor 1931 58 Cal 1214, namely, that a trial only commences after the empanelling of the jury. I£ it were otherwise, an accused pleading autrefois acquit would be driven to making “a double plea” which in England at least would be fatal to his plea of autrefois acquit although there is no such rule in India. But it would be anomalous. The accused was called upon to plead and his counsel took the point that the trial was barred under Section 403, Criminal P.C., and that there was no entrustment within Section 406, I.P.C. Then, according to the learned trial Judge’s order:

The Crown Prosecutor took a preliminary objection to the plea. He submitted that the plea of autrefois acquit was not open to the accused then, it having been raised once before the Chief Presidency Magistrate and disallowed, and the matter having been taken up in revision to the High Court and King, J., having made a final order upholding the order of the learned Chief Presidency Magistrate On this point I ruled that the Crown Prosecutor’s preliminary objection must be upheld for that reason. I here also add a further reason, namely that Madhavan Nair and Burn, JJ., in Criminal Appeal No. 344 of 1935 (1) may have dealt with this plea by implication. I was further of the opinion that the plea was bad in law having regard to the principles laid down by Lord Reading L. C.J. In Rex v Barran (1914) 2 KB 570 in the Court of Criminal Appeal. I accordingly overruled that plea. A further legal point was also raised by the defence that there could not on the facts of the case be an entrustment in law of the property and hence the charge of criminal breach of trust would not lie. In view of the Bench decision in Criminal Appeal No. 344 of 1935 (1), which being a decision of a Bench of two Judges is binding upon me, I felt that I was unable to allow that point to be argued. I have been requested to reserve this point also and I do so particularly having regard to the important case of Lake v. Simmons 1927 AC 487. I accordingly reserve ‘for the consideration of the Full Bench the following questions: (1) whether the plea of autrefois acquit was good in law and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown.

19. Accordingly this matter has come before us on this reference. The Crown Prosecutor took a preliminary objection that we were not competent to hear this reference because it was not within the learned Judge’s power to reserve the points concerned, that the points never arose for the learned trial Judge’s consideration and that a point which he could not decide could not be for his consideration. Before us the Crown Prosecutor has argued that the Magistrate decided the point of autrefois acquit relying on the decision of Madhavan Nair and Burn, JJ., who by implication decided the same point, and that King J’s order is final. Secondly he argued that the learned trial Judge only referred the question of the merits of the plea of autrefois acquit and did not refer the point taken in the preliminary objection of the Crown Prosecutor, namely that it was not available to the accused to plead it. I will deal with the second point at once. Speaking for myself I am perfectly satisfied on a reading of the order of the learned trial Judge that he intended to refer, and did refer, to us the whole of the matters relating to autrefois acquit. If it were otherwise, the result would be that we are asked to say that the learned trial Judge while holding that the plea was not available, which order would be final if not referred, has asked us to deal with the merits of the plea, with the result that our decision would be purely academic and have no effect on this case at all. If we had the least doubt on this I think we should have referred the matter back to the learned trial Judge who could have, if he thought fit, made a further reference. But as the matter is clear beyond doubt this was not considered necessary. All the matters relating to autrefois acquit referred to in the learned Chief Justice’s order are therefore before us.

20. It is not possible to get much assistance from the English procedure because Section 403, Criminal P.C. is so generally worded, and there is nothing in the Criminal. Procedure Code, to amplify it, but it appears that the plea can be taken at any stage in a trial. Obviously the proper time for a plea in bar to be taken at Sessions is at the time when it was taken before the learned trial Judge. But it was also taken, as has been pointed out, before the Chief Presidency Magistrate. An order of the Chief Presidency Magistrate deciding a plea of autrefois acquit cannot possibly be binding on a High Court Judge sitting at Sessions. But I think it is clear that the Chief Presidency Magistrate did not decide the point at all; and neither did King, J. The accused were not even permitted to conclude their arguments on the subject. The Magistrate’s order shows that he took the view that he was directed to proceed with the ease and that being so it was useless to hear any arguments directed to preventing him doing so. His order was that the case should proceed. King J’s judgment amounts in my view to nothing more than an order declining to interfere with that course. A plea under Section 403, Criminal P.C. is a most important right given to an accused person and in England it is dealt with by a formal trial for which a jury is specially empanelled, although in Rex v Barran (1914) 2 KB 570, Ridly, J., sitting as a Judge of Assizes appears to have ruled out a plea of autrefois acquit without empanelling a jury. There is no procedure laid down, as I have said, in India and I respectfully agree with the course the learned trial Judge took in dealing with the plea himself, as I venture to think pleas of this nature are much more matters for a Judge than for a jury. It is necessary to point out that the learned trial Judge decided both the questions raised, viz. (1) that the plea was not available to the accused, but (2) if it was, that it was bad on the merits. It was at one time faintly argued before us that the point has been dealt with by Madhavan Nair and Burn, JJ. How a plea of autrefois acquit could be decided on an appeal against an acquittal has not been pointed out. My view is that until the learned Chief Justice decided it, the plea of autrefois acquit had never been decided on the merits. The appellate Court did not decide it; the Magistrate refused to decide it; and King, J’s. order amounts to nothing more than this, namely, that the case should proceed. It was an order passed in revision, a discretionary order, indicating that he saw no reason to exercise his discretionary powers of interference. I find it impossible to suppose that the learned Judge intended to decide summarily so important a plea as is raised under Section 403, Criminal P.C. Nor do I accept the learned Crown Prosecutor’s suggestion that a plea of autrefois acquit can be “constructively decided.”

21. The next objection by the Crown Prosecutor was that the Chief Justice did not decide the question of entrustment holding himself bound by the decision of Madhavan Nair and Burn, JJ. There is nothing in Clause 25, Letters Patent, to show that he must decide the point; but when a learned Judge indicates that a decision is binding upon him I think it is clear that he is following the decision of the Bench and so deciding the point. Then it is argued that neither of the points arose in the course of the trial. According to Wallis, J., sitting as a member of the Full Bench who decided the case of Narayanaswami Naidu v. Emperor (1909) 32 Mad 220, at p. 234, a trial begins when the accused is charged. See also R. v. Brown (1890) 35 Mad 701 at p. 703. Both the objections here were taken after the accused was charged. But it is in any case quite clear from the shorthand note that the ‘entrustment’ point was also taken at the close of the case for the Crown. It is argued that the learned trial Judge could not reserve a point which he could not decide. I do not know what point a Judge cannot decide. If it is at large, he can decide it; if there is an authority binding on him, he can decide it according to that authority.

22. The words of Clause 25, Letters Patent, seem to me to give a most important and unfettered right of reservation of points of law at Sessions and in view of the fact that until 1923 at least there was no right of appeal to anybody from a conviction at Sessions: Section 449, Criminal P.C. I should expect that this most important right, if it was to be in any way restricted, would be done in the clearest possible terms. The alteration affecting the words “there shall be no appeal” in Clause 25, Letters Patent, is made quite plain by the words in Section 449, Criminal P.C. specifically referring to the Letters Patent. Under the rules of this High Court a reference under Clause 25, Letters Patent, is to a Full Bench. Had the learned trial Judge refused the reference and left accused 1 to any rights of appeal which he possessed, this point of entrustment must necessarily have-come, under the wording of the Code, to a Bench of two Judges. The learned trial Judge has informed us, although it is clear from the shorthand note, that his reference is made under Clause 25, Letters Patent, and not under Section 434, Criminal P.C.

23. The learned Crown Prosecutor argued that this was a reference under Section 434, Criminal P.C. and relied on Section 430, Criminal P.C., which reads as follows: “Judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chap. 32.” Section 417 refers to the Local Government’s right to appeal against any order of acquittal passed by any Court other than a High Court. Chap. 32 deals with reference and revision and includes Section 434. But, as I have already stated, it is clear that this is a reference under Clause 25, Letters Patent. Mr. Venkatarama Sastri has rightly pointed out that there is no rule of res judicata in criminal matters except when proceedings end in an acquittal or conviction.

24. In so far as the history of litigation such as this exists it is impossible to obtain any assistance from English procedure where such a state of affairs would be impossible. There is no record as far; as can be seen of any precedent even here of a matter coming for trial before a Judge of this High Court in which a Bench had heard arguments on the very points arising before him in the same matter. It must be remembered that the arguments of the accused before Madhavan Nair and Burn, JJ., were raised in resistance to an appeal against an acquittal. If he had not raised certain points before those learned Judges, can it be doubted that he would have had the right to ask the learned trial Judge to refer them to the Full Bench ? The learned Judge who admitted the Government’s appeal against the acquittal was entitled had he thought fit to post the matter before a single Judge and I presume that the Crown Prosecutor’s argument, if right, could have been logically applied to the decision of a single Judge. It seems therefore that by the happening of an appeal against an acquittal an accused person may put himself accidentally in the position of losing his important rights under the Letters Patent. Personally I should require the clearest possible authority for such a proposition. As observed by Ramesam, J., when delivering the judgment of the Full Bench in Dhanaraju v. Motilal Daga 1929 52 Mad 563, at p. 577:

One would have thought that an attempt by the Indian Legislature to altar or amend the provisions of the Letters Patent would have been made in express and unambiguous terms and not left to be inferred by implication.

25. The judgment of Madhavan Nair and Burn, JJ., was, as I have pointed out, that the acquittal under Section 406 by the Magistrate should be set aside and that the trial should proceed. But these things have been done. Nothing that is decided by us can in any way affect their order which has worked itself out, for that order was confined purely to the proceedings before the Magistrate. It is in this view unnecessary to consider the decision of the Full Bench reported in Rathnavelu v K.S. Iyer 1933 56 Mad 996 on which Mr. Venkatarama Sastriar relies. For the above reasons I am against the preliminary objections raised by the Crown Prosecutor. It is convenient first to consider the second point referred to us, namely, whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. We have referred to the learned trial Judge who has told us that that means, on the allegations contained in the complaint. I have already summarised the salient features of the complaint. Both the learned Crown Prosecutor and Mr. Venkatarama Sastriar have made considerable reference for the purposes of argument to the English Criminal Law and I think a comparison between certain offences under the English Law and under the Indian Penal Code is helpful. Section 378 of the Code deals with “theft” and makes inter alia a striking departure from the common law offence of larceny in that under the Code it is not necessary to prove that the accused intended to deprive the owner of the property in his goods; dishonest taking out of the owner’s possession is enough. The taking must however be against the will of the owner as in lareeny. But in India it is not necessary when the taking is facilitated by a trick, for example as in the case of the well-known confidence trick, to invoke the doctrine of no real consent accompanying the handing over of the property so as to make it “theft.”

26. It is not eo nomine an offence in England to obtain possession of property by false pretences; but the doctrine of larceny by a trick covers such an obtaining. The language of Section 420, I.P.C., is all comprehensive. Dishonestly obtaining possession of property or property in property is covered by that section; that is to say, the English felony of larceny by a trick and the misdemeanour of obtaining goods or money by fake pretences. The section of course includes many other forms of cheating, but it is only relevant here to mention those two. On a general examination of the Code I think it is clear that in many cases it faithfully reproduces the criminal law of England, although, as in the case of larceny, it anticipated English legislation. For instance, a person who took a motor vehicle for a “joy ride” and abandoned it by the roadside could always be convicted under the Code of theft. It was not until the English Road Traffic Act of 1930, that (by Section 28) such a person was liable to more than a civil action, but dishonestly taking property out of the possession of any person without an intention to deprive him permanently of it was always theft in India since 1860. In my view all the essentials of the English offence of larceny by a trick are contained in Section 415 of the Code. Archbold, Edn. 28, at p. 533, describes “larceny by a trick” as:

Where a man having the animus furandi obtains in pursuance thereof possession of goods by some trick, the owner not intending to part with his entire property but only the temporary possession of it, this is such a taking as to constitute felony.

27. So the moment the confidence trickster has obtained the wallet containing bank notes from his victim, he can be arrested. Similarly, when by deceit a person is induced to hand the property over to the cheater, the offence of cheating has been accomplished. I mention these matters because, although a Court cannot import English Criminal law into the Indian Criminal law, it will naturally treat with greatest respect the views of English Courts who have dealt with the very matter with which it is concerned. In India offences are divided into compound-able and non-compoundable offences. It is especially important therefore to consider whether the legislature in India intended to confine one offence to any given set of facts. Section 405, I.P.C. defines the offence of criminal breach of trust. It reads:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property… commits ‘criminal breach of trust.

28. The word “entrusted” is there used. It is used, in Section 20(4-A), Larceny Act of 1916, which is reproduced from the Larceny Act of 1901. There has been in India until this case no considered discussion of the meaning of the word “entrust” although there are two decisions of this High Court which support the view put forward by the Crown. So far as the text-books are concerned I observe that the learned editors of Ratanlal’s Law of Crimes, Edn. 12, at p. 987, draw a clear distinction between cheating” and ‘ criminal breach of trust.” “Cheating,” say the editors, differs from “criminal breach of trust” in that the cheat takes possession of the property by deception. I think this sentence indicates the difference; and that there is a very real difference between the two offences appears also in other contests. The distinction between the various offences of theft, cheating, criminal misappropriation and criminal breach of trust are stated in a case reported in Narsinghdas Marwari v. Emperor 1928 106 IC 678, where the learned Judge apparently finds the distinctions free from difficulty. The proviso to Section 178, Contract Act, before it was amended, when dealing with the pledging of goods, etc., makes express provision against their being obtained from their lawful owner by an offence by fraud. In Mercantile Bank of India v. Central Bank of India 1935 69 MLJ 509, the question whether the railway receipts concerned had been “obtained” by fraud or, as argued by the appellants, had only been the subject of fraudulent conversion or criminal breach of trust, was closely examined.

29. The Crown Prosecutor argues that the word entrusted” may be given the most general meaning in the Indian Penal Code; it can mean mearly “handed over.” This argument is derived from an observation of Lord Haldane in Lake v. Simmons (1927) AC 487. In that case the House of Lords considered the meaning of the word “entrusted” as contained in an exception in a policy of insurance, and the question, arose as to whether a woman who had induced the plaintiff to let her have possession of jewellery by fraudulently representing that she was the wife of a certain person and that she wanted them for the purpose of showing them to her husband and to a purely fictitious person for their approval, had been “entrusted” with the jewellery within the meaning of exception. To-quote the headnote, the trial Judge-found that the woman’s conduct was fraudulent throughout, and held that she was guilty of larceny by a trick, and the Court of Appeal and the House of Lords accepted these conclusions. The House of Lords decided that the plaintiff had not “entrusted” the necklets to the woman and secondly that the woman was not a customer within the meaning of the clause. The important question so far as this ease is concerned was the discussion by the learned Law Lords of the terms “entrusted” and it was in that connexion Lord Haldane remarked as follows (p. 499):

“Entrusted” is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all.

30. In discussing the case Lord Haldane takes the view that in the same policy in the general clause the word “entrust” might be used in a general sense, and in that general sense the woman might have been entrusted with the necklets. The question arises, in what sense is the word used in S 405, I.P.C. Lord Sumner at p. 505 says:

The whole argument as to the meaning and effect of the word “entrusted” in the exceptions clause in the policy is at once vitally affected, if the expression “larceny by a trick” is used in anything but its strict, that is its legal, sense.

31. And speaking of the exception, at p. 508 he points out that “the language is the insurer’s own, and in an exception it must be read contra profarentes.” “If” he says ‘they intended no more than handed over,’ they should have said so, and the more plainly the better.” I should have thought that that observation was even more applicable to a criminal statute which has divided offences in categories as has the Penal Code and where the turning of a phrase or the meaning of a word may decide that an offence can or cannot be compounded. The rules of construction of a penal statute are shortly stated in Halsbury’s Laws of England, Vol. 27, p. 177, and Harries and Rachhpal Singh, JJ., in Girja Prasad Singh v. Emperor 1935 57 All 717 at p. 724 have only recently reiterated that:

It is a well established rule of construction that words in a statute creating a criminal offence must be :strictly construed.

32. Lord Sumner apparently differs from Lord Haldane in that (p. 508) he takes the view that “entrusting” has the same sense in the exception as in the general words. At p. 506 he points out that the manner of the trick is immaterial if the result is an absence of consent on the part of the person tricked. There occurs at p. 508 in Lord Sumner’s judgment this most important passage:

If there was a trick, which prevented any true consent arising, there could be no entrusting. The terms are mutually exclusive. In my opinion, the natural meaning of “entrusted” involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty.

33. Now it seems to me that when accused 2 was handed over the bonds for a minutely stipulated purpose and to return them after a given time, there was only, if there was a real and conscious volition, such a fiduciary relationship between Soora Lakshmiah Chetty and him. The Crown prosecutor agrees that we have to look at the state of mind of Soora Lakshmiah Chetty in this matter; and that his view is correct is borne out by Lord Sumner who says that the word clearly connotes a definite state of mind, and that is the mind of the assured. Now “handing over” does not connote a state of mind. In the leading case of Reg. v. Tolson (1889) 23 QBD 168 at p. 187, Stephen, J., states as follows:

The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.

34. It would seem then that if, as Lord Sumner says, a trick, and deceit is a trick prevents any true consent arising, and there can thus be no entrustment, it follows that here the chief element in the offence under Section 406, I.P.C. must be missing. Lord Atkinson’s judgment contains so much that seems to me of the greatest assistance in this matter that I venture to quote that part of it in extenso. He said (pp. 511 and 512):

I think Miss Esme Ellison obtained the possession of the jewellery handed to her by the appellant by an operation which is appropriately described as larceny by a trick. That, when she got possession of it, she feloniously appropriated it, is not disputed. But the operation of entrusting the possession of the jewellery but not the property in it to her, which, prima facie, would mean handing it over to her to be devoted by her to some legitimate purpose, was treated rather as if it were something separable from, and unconnected with, the theft committed. It really was nothing of the kind. The theft was a composite thing. It consisted first of the false representation the woman made to the appellant, which he apparently believed, secondly the action he took, acting on that belief, and third, the felonious appropriation of the goods when obtained by her to her own use. The so-called entrusting of the jewels to her, furnished to her as she intended it should-the opportunity for and means of committing the theft. It does not appear to me possible to separate the handing over of the possession of the jewels from the falsehood which preceded it, and the felonious action which followed it. The entrusting of goods to a customer mentioned in the exception cannot mean the delivery in all good faith by a dealer of goods to a customer which that customer has planned to steal, and by that very delivery enabling the customer to effect her felonious purpose. The true character of the operation was larceny of the appellant’s goods by means of a trick, the trick being the false and fraudulent representation which this woman made to the appellant, by which the delivery to her of the possession of the jewels was obtained. The appellant had no suspicion, apparently, that he was about to be robbed through the medium of this trick. He acted perfectly honestly in giving over the possession of the jewellery. So does every one presumably, who suffers from larceny by a trick. It is the honest belief of the person, robbed in the false statements made which enables the intending thief to defraud him. That however does not alter the real character of the entire transaction.

35. It is right to say that in the Court of Appeal Atkin, L.J., (as he then was) took the same view in a minority judgment reported in Lake v. Simmons (1926) 2 KB 51, and McCardie, J., the trial Judge similarly, reported in Lake v. Simmons (1926) 1 KB 366. We therefore have before us the considered opinion of five law Lords, a learned Lord Justice, and a learned Judge of the King’s Bench Division, on the meaning of the word “entrusted” as applied to this exception in an insurance policy. But it seems to me that their view goes very much farther in so far as “entrusting” is concerned, because it amounts to this, that a person from whom goods are obtained by larceny by a trick does not entrust them to the person to whom they were handed. When the Code introduced the word into Section 405, it was, I presume, intended to have a meaning and I am more than content to accept the meaning put upon it by Lord Sumner. There was no true consent if there was a trick, says Lord Sumner. I venture to say that there can be no true consent if there was deceit. All the cases of larceny by a trick where possession only was handed over, might equally have been described as “larceny by deceit.” It seems to me to follow that there can be no consent by a person who is cheated, and so, to adopt Lord Sumner’s language, if there was deceit which presented any true consent arising, there could be no entrusting; the terms are mutually exclusive.

36. Is there any authority which prevents me adopting the above view ? Madhavan Nair and Burn, JJ., shortly noticed the case of Lake v. Simmons 1927 AC 487, but said that, read in the light of the facts of the case, the decision was not helpful in interpreting the word “entrusted” and agreed with Lord Haldane that the word might have different implications in different contexts. They seem to take the view that in its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all. In this case it seems to me that the accused had a limited proprietary right over the bonds, a very much greater proprietary right than a confidence trickster has who is handed a wallet containing Bank notes to be returned the following day as a token of his victim’s (supposed) confidence in him. Lord Haldane arrives at the same conclusion, that there was no entrustment, as did the other learned Law Lords, But an examination of his judgment shows, I think, that he largely relied on the fact that the woman was not a customer, as did Lord Blanesburgh who expressed his entire agreement with the judgment of Lord Sumner; and both Lord Sumner and Lord Atkinson divide the argument as to whether the woman was a customer and whether there was any real consent, very definitely. There are two decisions of the Madras High Court-in In re Venkatagurunatha Sastri 1923 45 MLJ 133 and In re Ramappa (1912) 22 MLJ 112-in which persons were convicted of criminal breach of trust under circumstances which show that the property was obtained by means of a trick; but in neither of those cases has the question before us ever really been discussed. They were both long before the decision in Lake v. Simmons 1927 AC 487, and it will be observed that the learned trial Judge expressly referred this matter to us having regard to the important case of Lake v. Simmons (1927) AC 487.

37. Beyond the fact of the conviction there does not appear to be very much to assist us in either of the above two cases. My learned brother Lakshmana Rao, J., has pointed out that under Section 410, I.P.C., property, the possession whereof has been transferred by theft, or by extortion, or by robbery, or by ?criminal breach of trust, is “stolen property,” which means that property obtained by cheating is not stolen property, as it unquestionably is in the case of larceny by a trick. This Section 410 is a difinitive section for the purpose of the offence of “receiving stolen property.” I do not see how that can affect the meaning of the word “entrust” which is a matter affecting the state of the mind of the truster. Because the property of a person cheated is for the purposes of another section treated in a certain way with regard to its future, it does not seem to me that the question of whether the victim of the cheating intended to pass the property or the possession or any right at all is as between him and the cheat in any way affected. It is surely the relations between those two that is material in this case. The English cases were also decided before the case of Lake v. Simmons 1927 AC 487. It seemed that on a first reading of Rex v. Morter 20 Or App Rep 53, some assistance might be forthcoming. It appears to have been argued in that case that there was no entrustment, though the facts might amount to larceny by a trick. The judgment of the Court does not deal with this aspect of it and the facts do not appear to fit in with larceny by a trick. The question there was whether the appellant had control of the property charged or not in circumstances whereby he became entrusted. The appellant who was the managing director of a company was given two signed blank cheques to buy respectively a typewriter and a motor car. He bought these articles but filled up each cheque with a figure greater than the purchase price and appropriated the surpluses. The Lord Chief Justice referred to the case of Rex v. Grubb (1915) 2 KB 683, which I have naturally read with great care. The following sentence occurs in that judgment:

If the accused has obtained or assumed the control of the property of another person under circumstances whereby he becomes entrusted… then he has committed an offence within the section. For the purpose of determining whether offences have been committed, the words “being entrusted” should not be read as being limited to the moment of the sending or delivering of the property by the owner, but may cover any subsequent period during which a person becomes entrusted with the property.

38. With regard to the last sentence, the basis on which this case proceeded, and I asked the question, was that the two accused were acting in collusion and it is not suggested that the entrusting, if there was one, was at any time other than when the bonds were handed over by Soora Lakshmiah Chetty. The Court does not deal with the circumstances under which a man can become entrusted i.e., what facts constitute an entrustment. In Rex v. Grubb (1915) 2 KB 683 the money was handed over to a company by the prosecutor, but in fact came into the pockets of the accused, and it was held that the entrusting could be said to be to the accused himself. There was no question there of a fraudulent obtaining, and the decision seems to be that where the money is entrusted to one person and goes into the possession of another, it is possible on an examination of the circumstances to hold that it was also an entrustment to him. Apart from the above two Madras cases there does not seem to be any example of a clear-out case of, in India, cheating, and in England larceny by a trick, in which there has been any conviction on the basis of a fraudulent breach of trust or an offence under Section 20(4-A) Larceny Act. On the wording of the Code it has been argued that the words “in any manner” are important. I think that Mr. Venkatarama Sastri’s answer that because goods may be “entrusted” “in any manner” that does not mean that they need not be “entrusted” at all, is a sufficient answer. Again stress is laid on the words “dominion over property.” But there is to be an “entrustment” of the dominion over property equally as of property.

39. The point referred is very difficult and obviously of very great importance. I am saying that advisedly because the legislature has thought fit to allow persons to compound serious offences having the effect of acquittal, and it is therefore most necessary to examine with precision the exact set of facts which constitute a compoundable and a non-compoundable offence. I think that alone is a sufficient reason for saying that the word “entrust” must be strictly construed. In an immense number of cases a cheat disposes of, that is to say misappropriates, the property he obtained, I do not think it occurred to anybody before that a second prosecution, i.e., after a composition or acquittal or conviction can be launched against him for that reason. Lord Atkinson in Lake v. Simmons (1927) AC 487 has dealt so comprehensively with that in the passage above quoted that I need not say more. In view of the above I need only notice another argument of Mr. Venkatarama Sastri, which was that as the bonds were endorsed over to the accused for the purpose of being endorsed to the Bank, (because the answers in evidence show that that was what was in the complainant’s mind), there could be no entrustment. He relied on three oases which he cited; R. v. Holchester (1864) 10 Cox CC 224, Rex v. Coscer (1875)13 Cox CC 187 and Queen v. Oxenham, (1875) 13 Cox CC 349; and he argued that the question of divesting the title of the owner does not turn on the intention of the transferor. I do not think it is in the least clear that it was in the mind of the complainant that these bonds were ever to be endorsed over to the Bank. Section 405, I.P.C. shows that the “entrustment” (assuming an “entrustment”) can be in the widest possible terms, and I think that there was a clear arrangement that these bonds should be kept for a limited period and returned.

40. All the decisions in the above cases were before the legislation now represented by Section 20(4-A), Larceny Act of 1916. I am against Mr. Venkatarama Sastri on this point. I think the answer to the learned trial Judge’s second question is in the negative. In view of the above answer the first question does not seem to me to arise now; but having been referred, I will endeavour to answer it. I do so of course on the assumption that my answer to the second question should have been in the affirmative, namely, that there was a legal entrustment. In approaching the first question referred it is necessary to bear in mind the peculiar position, that I must regard a man who had never been tried at all in exactly the same position as one who after full hearing had been tried and acquitted by a jury. The Crown Prosecutor did, it is true, argue that as there had been no first trial there could be no second trial under Section 403, Criminal P.C., the words of which are:

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall…not be liable to be tried again….

41. But Section 345 of the Code which deals with the compounding of offences states that a composition of an offence shall have the effect of an acquittal of the accused with whom the offence has been compounded. If authority for the pro-position that a composition has the same-effect of an acquittal is required, it is to be found in the case reported in In re Dudekula Lal Sahib 1918 40 Mad 976, where Wallis, J. considers the question and expressly holds that this statutory acquittal under Section 345, Criminal P.C. is intended to bar further proceedings. As the learned Judge points out, it is difficult to know what effect a composition can have if it does not bar a subsequent prosecution. It must be further taken that the evidence which has been before the Court, is the evidence contained in the complaint, I think it is clear that evidence to be called before the learned trial Judge under Section 406 was precisely the same as that which would have been called on a trial under Section 420, I.P.C. The importance of this seems to be that the acquittal must be taken to have been on the same facts; and a part of those facts, and a very important part, that proves the guilt of the accused, was the sale of the bonds. Section 403, Criminal P.C., says that:

A person who has once been tried…and convicted or acquitted…shall…not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made” against him might have been made under, Section 236, or for which he might have been convicted. under Section 237.

42. Section 236 states that if a single act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences. The illustration is that where an accused does an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating, he may be charged with all the four jointly or in the alternative. It is only when there is a doubt under Section 236 that Section 237 arises. It has been held in Nga Po Kyone v. Emperor 1933 Rang 236 11 Rang 354, that the doubt in Section 236 may be both either with regard to the law or with regard to the facts. Had there been no composition in this case, it seems to me it would have been competent for the learned trial Judge, having regard to what I suggest is a definite doubt about the law in view of the decision in Lake v. Simmons 1927 AC 487 to have directed the jury that if they have accepted the facts they could convict the accused of cheating. The Crown relies on Section 403(2) read with Section 235(1), Criminal P.C. The latter Section reads:

If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

43. The illustrations to Sub-section (1) seem to suggest that the various offences, although intermingled, are complete in themselves. Illustration (a) is: A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. Illustration (b) is: Where a man commits house-breaking by day with intent to commit adultery and in the house entered commits adultery. The evidence in each case seems to be separable. I confess to finding this point difficult of solution. If the second offence alleged was criminal misappropriation under Section 403, I personally should be much more inclined to accept the argument advanced by the Crown. One naturally turns to the authorities for the assistance. The Judicial Committee in Begu v. Emperor. 1925 52 I A 191, decided that on a charge of murder when the evidence established against three of the accused that they had assisted to remove the body knowing that a murder had been committed, they could without a further charge be convicted under Section 201, I.P.C. read with Section 237, Criminal P.C. The evidence in that case seems to have been all comprehensive on both the offences. In Manhari Chowdhuri v. Emperor 1918 45 Cal 727, the question arose as to whether an acquittal under Sections 380 and 411, I.P.C. charged in the alternative, bars a subsequent trial for an offence under Section 54-A, Calcutta Police Act. The judgment of the Bench (at p. 731), points out:

The present proceedings relate to the same act or series of acts to which the previous trial related, and it appears to us that before that trial it might have been said, in the terms of Section 236 that it was doubtful whether the facts which could be proved would constitute theft, or receiving stolen property or an offence under Section 54-A, Calcutta Police Act….It seems to us that the petitioner in the present case is about to be tried a second time on the same facts for an offence cognate to, or involved in, the offences with which he was previously charged. It is not suggested that if the previous conviction and sentence had been upheld by this Court, the petitioner could now be punished a second time under Section 54-A.

44. That seems to me a valuable test. Let it be assumed that the accused had been formally tried and convicted or acquitted of cheating. On the general principle that a man should not be tried twice for the same offence, it would surely have been to say the least, surprising that at the next Sessions he could have been charged with criminal breach of trust. Mr. T.R. Venkatarama Sastri relies also on Emperor v. Jhabbar Mull 1923 49 Cal 924, in which Sanderson, C.J. takes a broad view of the principle of autrefois acquit. In that case the accused was tried and acquitted under Section 408, I.P.C. for criminal breach of trust of three sums of money alleged to have been dishonestly misappropriated on three dates. It was part of the prosecution case at the trial that he had made three false entries to conceal the acts of misappropriation. The learned Judge (p. 927) says:

If he were so tried, in my judgment, it would in effect amount to trying him again for the same offences as those; upon which he has already been tried and acquitted by the jury, although the charges now before the Court are now framed in a different manner.

45. It should be noted that in that case it was apparently a prominent part of the prosecution case at the trial that three false entries had been made. The; principle of autrefois acquit seems to have been liberally applied in this cases and Sanderson, C.J. expressly confined his decision to the facts before him. An examination of the cases shows that for the application of the principle it is necessary to examine the particular facts closely and the Reports do not always set them out. I think Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, wherein Sundaram Ayyar and Ayling, JJ. deal with an interesting case shows how the principle is applied in Madras. The accused was tried and convicted under Section 211, I.P.C. that is, making a false charge with intent to injure. The conviction was quashed on the ground that the accused had not committed an offence under that section but under Section 182 of the Code (giving false information to a public servant) for which no sanction had been granted. The complainant had thereupon obtained sanction to prosecution and was met by a plea in bar. The Bench held that the prosecution was barred by Section 403, Criminal P.C. At p. 312 the learned Judges say:

Section 235(1) seems to us to be inapplicable when the accused is sought to be charged with another offence on the identical facts on which he was charged before with one offence.

46. In Queen Empress v. Erram Reddi (1885) 8 Mad 296, Brandt, J., held that when an accused was first charged with committing mischief by cutting certain branches and acquitted, he could not be charged with theft on the same facts. However he thought that the imputed offences of mischief and theft were not distinct offences, nor was there a series of acts but one act or transaction only, the cutting of the tree and the removal of the branches cut. It seems to me that the cutting of the tree constituted mischief without introducing evidence of the removal of the branches. What seems to have been in the learned Judge’s mind was very much what has been stated, as above set out, by the Bench in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, namely, that when the acts are identical to prove one offence a man cannot afterwards be charged on precisely the same facts with another. The most recent decision of the Madras High Court is that reported in In re Janakiramraju 1914 Mad 311 57 Mad 554, wherein it was held that an acquittal under Section 397, I.P.C. was a bar to a prosecution under Section 307. The ratio decidendi in that case however was that Section 397 combined several offences including that under Section 307. The Crown have relied on the case of Rex v Barran (1914) 2 KB 570. In that case Lord Beading, C.J., in giving judgment refers to a statement of the law by Hawkins, J., as follows:

It is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts. The offences are practically the same, though not their legal operation.

47. Lord Beading says:

It is quite plain that the learned Judge did not intend to lay down, and did not lay down, as a general principle of law, that a man cannot be placed twice in jeopardy upon the same facts if the offences are different.

48. But Section 403 of the Code shows that it may be that Hawkin J’s judgment would have been correct in India. It might well be that the evidence might be doubtful to establish the felony referred to in that case, in which case in India the accused could have been convicted of the misdemeanour under Section 236 read with Section 237. Generally, Section 403 is very much wider then the rule of autrefois acquit in England. In the case in Reg v. Dwarkanath Dutt (1867) 7 WR 15 at p. 18 it would be seen that under S 55, of the old Criminal P.C., there was a reference only to a ‘trial for the same offence.’ The Act now is far more explicit and detailed. As Lord Beading observes, the application of the principle laid down in Section 403 is difficult. As an example of this it will be seen (at p. 575) that the principles approved by Hawkins and Cave, JJ., in the case of Regina v. King (1897) 1 QB 214, while not being actually disproved, required to be explained and distinguished. The true test seems to be whether, as laid down in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, an accused person is sought to be tried on the identical facts a second time. I think that is the case here, for it is difficult to see how the facts in this case could be separated as they appear to be inextricably intermingled. The whole basis of the prosecution case is the “cheating.” In any case it was in my view doubtful which offence had been committed and therefore this case comes within Section 236. I must repeat that by reason of the artificial acquittal under Section 345, Criminal P.C., the result is anomalous, but it must be remembered that that composition was considered by a Bench of this High Court who did not think fit to interfere with it. I of course am concerned not with the merits but with abstract questions of law, and as to the first question proposed I think that the proper answer is in the affirmative. I agree with Cornish, J., that the result of these conclusions is that the conviction must be set aside.

Lakshmana Rao, J.

49. The accused was tried for and convicted at the fifth Criminal Sessions of the offence of criminal breach of trust under Section 406, I.P.C. in respect of certain Bombay Development Loan Bonds of the face value of Rupees 3,50,000 and the following questions have been reserved by the learned trial Judge for consideration of this Bench : (1) Whether the plea of autre fois acquit was good in law. (2) Whether there could be a legal entrustment of the property having regard to the case put forward by the Crown.

50. A preliminary objection was taken to the competency of the reservation, and the material facts are that on 14th May 1935, one Rao Bahadur Soora Lakshmiah Chetty, through his brother and authorised agent Gopalaswami Chetty, filed a complaint against the accused, the Senior partner of Messrs. Huson Tod & Co., a firm of stockbrokers, as the first accused and K. S. Narasimhachariar, one of the assistants of the firm as the second accused charging them with offences punishable under Sections 406 and 420, I.P.C. i.e., criminal breach of trust and cheating and dishonestly inducing delivery of the property. The case as set out in the complaint is that in or about November 1934 Messrs. Huson Tod & Co. purchased for and delivered to the complainant 6 1/2 % 1935 Bombay Development Loan Bonds of the value of Rs. 3,50,000 receiving full payment therefor, and that in or about the last week of March 1935, (i. e., 24th March 1935 as admitted during the trial) accused 2 represented to him that the firm had entered into a contract with the Imperial Bank of India to sell and deliver to them 6$ % 1935 Bombay Development Loan Bonds of the face value of Rs. 3,50,000, that the last day for supply for the same to the Bank was 27th March 1935, that their firm had purchased from Bombay the requisite quantity of paper but that the Imperial Bank had returned the same owing to irregular endorsement, that the bonds had been sent to Bombay for rectification, that pending receipt of the same from Bombay the complainant might oblige them temporarily by giving them his bonds to satisfy the Imperial Bank, as the accounts of the Bank for the official year had to be closed, and that as soon as the bonds purchased were received back from Bombay with the endorsement rectified the complainant’s bonds would be returned to him.

51. The complainant stated that he would consider the matter if the bonds were not received from Bombay before the due date, and accused 2 renewed his request on 27th March 1935 saying that as the bonds had not arrived the complainant should oblige the firm by giving his bonds temporarily for a few days and assured him that they hoped to receive the bonds sent for rectification by 30th March 1935 and that the complainant’s bonds would be returned to him on 1st April 1935 positively. Believing these representations, and on the faith of the assurance that his bonds would be returned in any case on 1st April 1935, the complainant caused his bonds to be endorsed and delivered over to the firm through his brother and authorised agent, Gopalasami Chetty, and accused 2 passed a receipt on behalf of the firm. The bonds were not returned by 1st April 1935 and then the complainant telephoned to the firm on 2nd April 1935 accused 1 replied saying that he was writing to him about the matter that very day. This was followed by a letter from the firm signed by accused 1, that the relative bonds had not been received from Bombay duly rectified and that on receipt of the same, the complainant’s bonds would be forwarded to him. The bonds were not received and the complainant wrote to the firm on 17th April 1935 demanding immediate return of the bonds. Accused 1 replied on 18th April 1935 that the bonds had not arrived from Bombay and to avoid delay they should repurchase and deliver similar bonds by the end of the month if the originals were not got back before 23rd April 1935. The promise was not kept and accused 1 represented to the complainant on 29th April 1935 that his application for a loan to the Imperial Bank was not sanctioned, that he was not then able to purchase similar bonds as promised or pay their value in full, that the Bombay bonds had not been received, and promised that he would pay Rs. 1,00,000 on 30th April 1935, another sum of Rupees 10,000 within a fortnight or a month and the entire balance before 31st July 1935.

52. Accused 1 further assured the complainant that the financial position of his firm was quite sound and offered to give a letter of guarantee from accused 2. Believing these statements the complainant yielded to accused l’s request for time without any knowledge or suspicion that the accused would have mishandled or otherwise dishonestly dealt with the bonds or that any fraud had been played, and accused 1 sent Rs. 50,000 and a guarantee letter from accused 2. A further sum of Rs. 30,000 was received later and when pressed for the payment of its. 20,000 to make up the promised initial payment of Rs. 1,00,000, accused 1 denied responsibility for the transaction throwing the blame on accused 2 though he himself had been repeatedly taking time for payment of the same. This aroused the suspicion of the complainant and on enquiry it transpired that the story of any bonds being sent to Bombay for rectification was a myth and that after obtaining from the complainant his bonds on false representations and promise to return them in specie the firm sold them away to third parties and misappropriated the sale proceeds. Summons was issued to the accused under Sections 406 and 420, I.P.C. and an application signed by the Counsel for the complainant and the accused was filed on 2nd July 1935 that the facts alleged would if proved amount to an offence under Section 420, I.P.C. which is compoundable with the permission of the Court, that the Court, may be pleased to permit the case to be compounded as against accused 1 and that on such permission being granted the complain -ant would report the case compounded against accused 1 and will not press the ease against accused 2 without prejudice to the complainant’s civil rights against both the accused. The agent of the complainant was examined and he stated that under instructions from the complainant he wished to compound the case and offer no evidence The offence under Section 406, I.P.C. being not compoundable it was elicited from him that the permission to compound was requested as the offence was one under Section 420 as stated in the petition signed by the Counsels for all parties and the Magistrate passed an order in these terms : “Permission granted, case reported compounded. Accused are acquitted.”

53. The order is silent about the offence under Section 406, I.P.C., though on the application for permission to compound there is a note by the Magistrate that he too was of opinion that the offence disclosed is only under Section 420, I.P.C., and the Crown preferred an appeal against acquittal on the ground that the complaint disclosed offences under Sections 406, and 420, I.P.C. of which the former is not compoundable and the further ground that in the circumstances of the case permission should not have been granted to compound the offence under Section 420, I.P.C. The appeal was heard by Madhavan Nair and Burn, JJ., and by their judgment reported in Emperor v. J. Mclver 1936 69 MLJ 681, they confirmed the acquittal under Section 420, I.P.C. but held that the complaint disclosed also an offence under Section 406, I.P.C. and ordered a retrial of the accused for that offence.

54. The Magistrate issued process for 11th October 1935 and applications were tiled on behalf of the accused that their acquittal under Section 420, I.P.C., is a bar to their trial under Section 406, I.P.C., and under Section 403, Criminal P.C. Arguments were heard and without deciding the question the Magistrate intimated that the evidence will be taken. An application was filed on behalf of the accused, protesting against the reception of evidence, but the Magistrate observed that in view of the order of the High Court he felt bound to proceed with the trial and an application was filed on 12th November 1935 requesting the Magistrate to refer the case to the High Court under Section 432, Criminal P.C. The Magistrate declined to make a reference and passed the following order: In this case the High Court set aside my alleged order of acquittal for an offence under Section 406, I.P.C. and directed me to restore the complaint and dispose of the case according to law in Cri. App. No. 344/35 (1). The accused raise the plea of autre fois acquit and state Section 403(1), Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C., and ask me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to ?restore the complaint for an offence tinder Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out. In the light of my view I do not think any useful purpose will be served by making a reference under Section 432, Criminal P.C., to the High Court. It is open to the accused to move the High Court, raise the plea there and obtain a stay if they are so advised. Meanwhile the case against the accused for an offence under Section 406, I.P.C., will proceed day to day from tomorrow onwards. Petitions are dismissed.”

55. The accused moved the High Court to revise the order and stay further proceedings on among other grounds that the Magistrate had no jurisdiction to proceed with the case before deciding the objection and after hearing the Crown Prosecutor King, J., passed an order in these terms: “I see no ground for revision. The petitions are dismissed.” The accused were ultimately committed for trial by the High Court and from the order of reservation it appears that be-fore the Sessions trial began a point was ‘taken on behalf of the accused that by (reason of the compounding of the offence of cheating under Section 420, I.P.C., in respect of the same transaction and the consequent acquittal of the accused, the trial of the accused for an offence of criminal breach of trust was barred under Section 403, Criminal P.C. The Crown Prosecutor took a preliminary objection that in view of its disallowance by the Magistrate and the final order of King, J., upholding that order, the plea of the autre-fois acquit was not open and the objection was upheld. The learned trial Judge also added a further reason that Madhavan Nair and Burn, JJ., may have dealt with the plea by implication and recorded his opinion that the plea was bad in law having regard to the principles laid down by Lord Reading, L. C.J., in Rex v Barran (1914) 2 KB 570, in the Court of Criminal Appeal. The plea was accordingly overruled and a further legal point was raised that on the facts of the case there could not be an entrustment in law and the charge of criminal breach of trust would not lie. The trial Judge felt unable to allow the point to be argued in view of the decision of Madhavan Nair and Burn, JJ., which he considered to be binding on him, and the plea of the accused was recorded. This question was raised again during the trial and while disallowing it on the ground that the decision of Madhavan Nair and Burn, JJ., had concluded the matter, the learned Judge intimated that should it become necessary, the point would be reserved under the Letters Patent. The jury was told that the facts, if true would bring the case within Section 406, I.P.C., and by a majority of 8 to 1 the jury found the accused guilty of criminal breach of trust. The trial Judge was subsequently requested to reserve the question for the consideration of the Bench and the request was granted.

56. The plea of the autre fois acquit was not considered by the Magistrate on the ground that the order of the High Court precluded him from going into the question and the order of King, J., dismissing the petition of the accused to revise the order of the Magistrate cannot be treated as a decision on the plea of autre fois acquit. There was therefore no prior decision of the High Court on the point and the plea was available. It was raised before the trial Judge after the accused was asked to plead to the charge, and as observed in Venkatachennaya v. Emperor 1920 38 MLJ 370 at p. 384, “trial” may reasonably be taken to be every proceeding which is not an enquiry. The proceedings before the! trial Judge was not an enquiry nor can an accused be discharged after being asked to plead to the charge. He can only be convicted or acquitted thereafter and as pointed out in Narayanaswami Naidu v. Emperor (1909) 32 Mad 220 at P. 234, not to mention R. v. Brown (1890) 35 Mad 701, ‘trial’ begins when the accused is charged and called on to answer.

57. The contention of the Crown that the trial had not commenced cannot therefore be accepted, and even otherwise the plea, if available and good, would under the Indian Law, vitiate the entire proceedings, The question need only arise On the trial, to be reserved: and it is not even incumbent that the trial Judge should decide the question. It was therefore open to the trial Court to reserve the point and there is no substance in the contention that the availability of the plea has not been reserved. The objection to the reservation of the first question is therefore untenable and in view of a doubt raised during the arguments it was ascertained from the learned trial Judge that the reservation was under Clause 25 of the Letters Patent and not Section 434, Criminal P.C. It is therefore unnecessary to consider the contention of the accused that Section 434, Criminal P.C., which is contained in Ch. 32 of the Code, introduces an exception to Section 430 of the Code which confers finality on judgments and orders passed by appellate Courts, except in the eases provided for in Section 417 and Ch. 32, nor would it in my opinion make any difference. The finality of the decision of the High Court in the exercise of its appellate and revisional criminal jurisdiction rests on the absence of any provision for any appeal or revision against such decision and not Section 430, Criminal P.C., nor is Section 417 applicable to orders of acquittal by the High Court. Ch. 32 deals with references and revisions generally and the power of reservation under Section 434 is also restricted to questions which arise in the course of the trial and the determination of which would affect the event of the trial.

58. The section does not confer any power to review or alter prior decision of the High Court in the same case in the exercise of its appellate or revisional criminal jurisdiction and it is well settled that apart from the express provisions of the Letters Patent or the Code of Criminal Procedure, the High Court has no power of review in criminal matters. This aspect was not raised or considered in Rathnavelu v K. S. Iyer 1933 56 Mad. 996, wherein the order of the High Court at an earlier stage of the case was upset at a later stage; but as urged on behalf of the accused, it cannot strictly be said that this Bench has been constituted to review or alter the decision of the High Court in the appeal against acquittal. Clause 25 of the Letters Patent confers an unfettered discretion on the trial Court to reserve for the opinion of the High Court any point of law arising at the trial. No doubt this leads to an anomaly, but no appeal or revision lies against the order of the trial Judge, and the question of entrustment was raised during the trial. It was for the trial Judge to consider whether, there being a prior decision of the High Court at an earlier stage of the case, the question should be reserved, and on this ground, though not without considerable hesitation, I would overrule the objection to the reservation of the second question.

59. The second question was argued first and the Crown case, as alleged in the complaint and explained in the evidence, is that, believing the false representation of the accused that the bonds were required for being kept or lodged with the Imperial Bank of India temporarily till the receipt of their bonds after rectification of indorsements from Bombay, and on the faith of the assurance that they will be returned in specie on or before 1st April 1935, the complainant caused his bonds to be endorsed and delivered to the firm through his agent for the express purpose of being so kept or lodged with the Imperial Bank, and that having obtained the bonds by cheating, the accused sold them the same day and misappropriated the proceeds. The bonds could under Section 46, Negotiable Instruments Act, be indorsed and delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein, and the prosecution case is that they were so obtained by cheating as defined in the Indian Penal Code. That independently of any further act the offence would be obtaining property or dominion over property by cheating was not seriously disputed, and the real question is whether or not when property or dominion over property is obtained by cheating there can be criminal breach of trust in respect of that property. Theft as defined in the Indian Penal Code is a dishonest taking or moving of property out of the possession of any person without his consent, and it differs materially from the offence known as larceny in the English Law. Property obtained by cheating is not stolen property under the Indian Law, vide Section 410, I.P.C. and the offence of criminal breach of trust is defined in Section 405,1. P.C., as follows:

Whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he had made, touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.

60. The terms of the section are very wide and entrustment may be brought about in any manner. It may be of mere dominion over property and the word ‘entrustment’ has not been defined anywhere. It is not a term of law and in the ordinary sense it includes a case of misplaced confidence as well as a case of well justified confidence. That there can be an entrustment obtained by false pretences, as distinguished from an obtaining by larceny, by trick or theft, is recognized under the English law, and the distinction between the two is emphasised by the Law Lords in Lake v. Simmons 1927 AC 487, not to mention the admission of Jowitt, K. C., at p. 489. In larceny by trick or theft, the owner is tricked into making a delivery and intends to deliver only the physical possession, whereas in entrustment obtained by false pretences there is an intention to transfer some proprietary right. The former is a case of unreal consent extorted by trick, while the latter is one of real consent obtained by deceit. The dividing line substantial though narrow, and in the latter it is the state of mind of the person who entrusts or reposes confidence that is material. The case on hand falls under the latter category and the offence would not be larceny by trick or theft even under the English law. It would be ‘false pretences’ as defined in S 32, of the Larceny Act of 1916, and it is clear from Section 20, of that Act, that there can be entrustment in law to a person who is not a trustee in the strict sense of the term. That there can be entrustment in law when real consent is obtained by deceit is recognised in the speeches of Lords Sumner and Atkinson, in Lake v. Simmons 1927 AC 487; and the decision of the House of Lords does not lay down anything more than that obtaining articles by a trick by a person with whom the owner did not intend to deal cannot amount to an entrustment as in that case there could be no real consent by the owner. Esme Ellison, was treated by Lake, as a mere intermediary and there was no contract between her and the company. She never proposed to be the buyer herself, nor was she authorised to negotiate or to conclude a bargain or to pass property to the proposed purchasers. She never acquired, nor was meant to acquire, any property from the owner, and I fail to see how that case would support the contention that there can be no entrustment in law when the property or dominion over-property is obtained by deceit.

61. There was in this case no mistake as to the identity of the person, and there was real consent though it was obtained by deceit. The delivery was not of mere physical possession and there was an intention to vest dominion over the bonds to enable the accused to keep or lodge them with the Imperial Bank, till receipt of their bonds after rectification of indorsements from Bombay. There was thus an entrustment of the bonds for a special purpose, and, as pointed out in In re Ramappa (1912) 22 MLJ 122 and In re Venkatagurunatha Sastri 1923 45 MLJ 133, it is immaterial how the accused became entrusted with property or dominion over property. He would be guilty under Section 420 I.P.C., of obtaining property by cheating as soon as delivery is obtained and subsequent misappropriation will bring him under Section 406, I.P.C., as well. There is therefore no force in the contention that on the case put forward by the Crown there can be no legal entrustment of the property and I would reject it. The plea of autrefois acquit remains to be considered, and the question is whether the acquittal of the accused under Section 345, Criminal P.C., bars a trial for the offence of criminal breach of trust. That the acquittal relied upon was an acquittal under Section 345, Criminal P.C., cannot make any difference vide In re Peddaya (1911) 34 Mad 253 and In re Dudekula Lal Sahib 1918 40 Mad 976, and the answer depends on the correct interpretation of Sections 235, 236, 237 and 403, Criminal P.C.; Section 235, provides as follows:

1. If in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. 2, If the acts alleged constitute an offence falling within two or more-separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be-charged with and tried at one trial for each of such offences. 3. If several acts of which one or more than one would be by itself or themselves-constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one. trial for the offence constituted by such acts-when combined and for any offence constituted by one or more of: such acts. 4. Nothing contained in this section shall affect the Indian Penal Code, Section 71.

62. Section 236 enacts that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some of the said offences, while Section 237, provides that if in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that ho committed a different offence for which he might have been charged under the provisions of that flection, he may be convicted of the offence which he is shown to have committed although he was not charged with it. Section 403, so far as is material, provides:

I.A person who has once been tried for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. 2. A person convicted or acquitted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).

63. The plea would not be valid if the case is not covered by Section 236, and falls under Section 235, Sub-section (1) and it cannot be denied that the acts alleged against the accused, viz. obtaining delivery of the bonds by deceit and subsequent conversion, are so connected together as to form the same transaction. More offences than one were committed, viz. obtaining delivery of property by cheating under Section 420, L. P.C., and criminal breach of trust under Section 406. I.P.C., and, as stressed by the Crown Prosecutor, acts constituting the offence of obtaining property by cheating cannot by themselves constitute the offence of criminal breach of trust. The ingredients of the offences are different and so is the evidence requisite to establish them. There can be a breach of trust independently of cheating and the offences are distinct and separate. The offence under Section 420 is complete as soon as delivery is obtained by cheating, and without the further act of misappropriation there can be no breach of trust. Sub-sections 2 and 3 of Section 235, deal respectively with cases in which the same acts constitute an offence falling within two or more separate definitions of any law and cases of compound offences and its component minor offences, and Section 236 cannot be invoked unless the act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. The facts alleged: in the complaint in this case, if proved, constitute two distinct offences and Sections 236 and 237 would not apply. That the complaint sets out the series of acts forming the transaction is not material nor has the nature of the evidence adduced any bearing, vide Subbiah Kone v. Kandaswami Kone 1932 55 Mad 788. What is barred is a second trial on the same facts for any other offence for which a different charge from the one made against the accused might have been made under Section 236, and as urged by the Crown the accused is not sought to be tried on the very facts which constitute the offence under Section 420, I.P.C. The plea of autrefois acquit cannot therefore be upheld and the decisions relied upon are not applicable.

64. There was but one act in Queen Empress v. Erram Reddi (1885) 8 Mad 296, viz. the cutting and removal of the branch of a tree for which the accused could have been charged for theft or mischief or both, while in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, in which a false complaint was made by the accused to the police, it was doubtful whether the offence committed was under Section 211 or Section 182, I.P.C. So also in Begu v. Emperor 1925 6 Lab 226, where on the facts established against the particular accused it was doubtful whether they would be guilty of murder or causing disappearance of evidence of murder, and the offence for which the accused were sought to be tried in In re Janakiramraju 1914 Mad 311 57 Mad 554 was involved in the offence for which they were previously tried and acquitted. There is no doubt in this case either as to the facts or the offences committed, and, as pointed out in Sidh Nath v. Emperor 1929 57 Cal 17, the decision in Emperor v. Jhabbar Mull 1923 Emperor v. Jhabbar Mull 1923 49 Cal 924 would not fall under Section 403, Criminal P.C. I would therefore hold that the plea of autrefois acquit is not good in law. The conviction is therefore right and should in my opinion stand.

The post Emperor Vs. John Mciver appeared first on B&B Associates LLP.

ORDERS RESERVED ON: 16.08.2018
ORDERS PRONOUNCED ON : 21.08.2018
DATED: 21.08.2018

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.(MD)Nos.9083 of 2017 and 8686 of 2017
and
Crl.MP(MD)Nos.6166, 6167, 7341, 5878, 5879, 7340 and
7342 ofof 2017

Crl.O.P.(MD)Nos.9083 of 2017

S.Ramesh … Petitioner
Vs.

1.State Through the Inspector of Police,
K.Pudur Police Station, Madurai.
(In Crime No.573 of 2016)

Vinoth John Prakash (Died)

2.Dr.S.Gurushankar …Respondents

(Interpored the petitioner as second respondent in the place of Vinod of John Prakash (died) as per order of this Court made in CrlMP(MD)No.6807 of 2017 dated 02.08.2017) PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to quash the charge sheet in C.C.No.338 of 2016 on the file of the learned Judicial Magistrate No.VI, Madurai, which pertains to the Crime No.573 of2016, on the file of the 1st respondent and as against this petitioner.

For Petitioner: Mr.Mr.Ajmal Khan, Senior Counsel, for P.Suresh Kumar,

For respondent No.1 : Mr.K.Suyambulinga Bharathi For respondent No.2 :Mr.K.Subramaniam, Senior Counsel, for Mr.S.Ramesh Crl.O.P.(MD)Nos.8686 of 2017 Arun … Petitioner Vs.

1.State Through the Inspector of Police, K.Pudur Police Station, Madurai.

(In Crime No.573 of 2016)

Vinoth John Prakash (Died)

2.Dr.S.Gurushankar …Respondents

(Interpored the petitioner as second respondent in the place of Vinoth of John Prakash (died) as per order of this Court made in CrlMP(MD)No.6808 of 2017 dated 02.08.2017) PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to call for the records pertaining to the charge sheet in C.C.No.338 of 2016 pending before the learned Judicial Magistrate No.VI, Madurai, in Crime No.573 of2016, on the file of the 1st respondent and quash the same as illegal as against this petitioner.

For Petitioner : Mr.T.Lajapathy Roy
For respondentNo.1 : Mr.K.Suyambulinga Bharathi
For respondent No.2 :Mr.K.Subramaniam, Senior Counsel, Mr.S.Ramesh

:COMMON ORDER

These petitions have been filed by A1 and A2 in CC No.338 of 2016, on the file of the learned Judicial Magistrate No.VI, Madurai, seeking to quash the final report filed by the first respondent.

2.The complaint was originally given by one Vinoth John Prakash, who was the Manager of Dr.S.Guru Sankar. He died during the pendency of these petitions and in his place Dr.S.Guru Sankar substituted himself as a party. The said Dr.S.Guru Sankar and S. Ramesh, who is A1 in the above CC, are brothers and they are the sons of Dr.N.Sethuraman.

3.The complaint was lodged by the Manager of Dr.S.Guru Sankar on 16.04.2016 to the first respondent Police to the effect that on 16.04.2016, at about 9.00 am A1 along with 3 other persons came to the property belonging to Dr.S.Gurushankar along with a Tractor and JCB machine and committed trespass into the property and threatened those present in the property and also caused damages to the property. On the said complaint, the first respondent registered an FIR in Crime No.573 of 2016 for the offences under Sections 447 and 506(ii)IPC. Subsequently, the case was taken for investigation and 11 witnesses were examined by the 1st respondent and a final report came to be filed on 04.08.2016 against 4 persons for the offences under Section 447, 427 and 506 (ii) r/w Section 34 IPC. The said final report is the subject matter of challenge in these petitions.

4.The learned Senior Counsel Mr.Ajmal Khan, appearing for the petitioner in Crl.OP(MD)No.9083 of 2017 made the following submissions: The 2nd respondent, who is the brother of the petitioner had an ill will against him and there are 4 civil suits in OS Nos.224 of 2010, 14 of 2011, 320 of 2011 and 60 of 2015 that are pending between the parties with regard to the trusteeship in SR Trust and therefore the 2nd respondent had motive to foist a false case against the petitioner, who is his brother and the entire complaint is the result of mala fide, on the part of the 2nd respondent, who has maliciously instituted the proceedings with an ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge.

The complaint was initially given through an employee of Dr.S.Gurushankar and after his death Dr.S.Gurushankar himself has come into the picture in order to persecute the petitioner.

A reading of the final report would clearly show that no offence has been made out as against the petitioner.

?No offence has been made out under Section 447 IPC, since the land question is situated right in front of the petitioner?s house and he only cleaned the bushes including Seemai Karuvelam (Prosopis Juli Flora), garbage, medical waste and rubbish in the said land with an impression that the land belongs to Maha Seemam Trust, wherein his father is the President and with the knowledge of his father. Therefore, the learned Senior Counsel submits that to attract the provision of Section 441, an entry into the property must be with an intention to commit an offence or to intimidate, annoy any person in possession of the property. Since the petitioner did not enter into the property with any of these intentions, the ingredients of the criminal trespass is not attracted in this case and therefore no offence is made out under Section 447 of IPC. The learned Senior Counsel further contended that the offence under Section 427 is also not made out in this case, since the petitioner did not commit any mischief in the property and did not cause any loss or damage to the property and he had merely cleared the Seemai Karuvelam trees, garbage, medical waste and rubbish in the property, which according to the petitioner belongs to the Trust run by this father.

The learned Senior Counsel submitted that an offence under Section 506 (ii) IPC has also not been committed in this case, since to constitute an offence in the said provision, a mere threat is not enough and there must be an act in pursuance to the said threat, without which an offence of criminal intimidation is not attracted. In order to substantiate the said contention, the learned Senior Counsel relied upon the judgment of this Court in G.Paramasivam and Another V. Dy.

Commissioner of Police and Others, reported in 2016 (1) TNLR 489 (MAD). The learned Senior Counsel also brought to the notice of this Court Section 95 of the Indian Penal Code, which provides that nothing is an offence, if the offence is so trivial in nature, which no person of ordinary sense and temper would complain of any harm. The learned Senior Counsel would contend that the offence that has been attempted to be projected in this case is so trivial in nature and that it absolutely did not cause any harm to the second respondent and therefore, the accused persons need not undergo a fullfledged trial for such trivial act.

The learned Senior Counsel also brought to the notice of this Court the judgment of the Hon?ble Supreme Court in State of Haryana and others Vs.Bhajan Lal and others reported in 1992 Supp (1) SCC (335). In the said judgment, the learned Senior Counsel relied upon the clause 5 and 7 in paragraph 102, wherein, the Supreme Court had given certain guidelines that can be taken into consideration in order to quash the proceedings. Finally, the learned Senior Counsel would contend that the entire proceedings is a clear abuse of process of law and in order to render substantial justice, the final report has to be quashed.

5.Mr.T.Lajapathy Roy, learned Counsel appearing for the petitioner in CrlOP(MD)No.8686 of 2017, apart from adopting of arguments made in CrlOP(MD)No.9083 of 2017 by Mr.A.Ajmal Khan, learned Senior Counsel, also added the following submissions:

?The parties were not aware of the exchange deed dated 26.10.2015, which is relied upon by Dr.S.Guru Sankar to claim ownership over the property and the very deed of exchange is a void document, which goes against the very interest of the public Trust and therefore, when the very ownership of the property by Dr.S.Gurushankar is under question, there is no question of offence of criminal trespass being committed by the petitioners. ??The learned Counsel also made it very clear that none of the parties are claiming any ownership over the said property.

The learned Counsel also brought to the notice of this Court that Seemai Karuvelam trees were sought to be removed from the properties including the private properties, pursuant to the judgment of a Division Bench of this Court, since it was considered dangerous and therefore, the removal of these trees cannot constitute an offence of mischief.

In order to develop his arguments on the said point, the learned Counsel also brought to the notice of this Court Section 81 IPC, which provides that an act, which would otherwise be a crime may in some cases be excused, if the person accused can show that it was done not only in order to avoid consequences, which cannot be otherwise be avoided and on good faith, necessary in order to prevent or avoid more harm to the person or the property.

The learned Counsel relied upon illustration (b) of Section 81 IPC in order to substantiate his arguments. Therefore, the learned Counsel would submit that removal of Semmai Karuvelam trees, was done with an intention to prevent more harm to the property in which, it was standing and also adjacent properties.

6. The Government Advocate K.Suyambulinga Bharathi representing the first respondent police would submit that 11 witnesses were examined in this case and the witnesses have spoken about the incident. That apart, LW7, who is the Village Administrative Officer, has specifically stated that the property belongs to Dr.S.Gurushankar. Likewise, LW11, who is the Sub Registrar has also stated that the property belongs to Dr.S.Gurushankar. Therefore, there is no dispute with regard to the ownership of the property. The learned Government Advocate would further state that the police have investigated the case thoroughly and have laid charge sheet before the Court for the offences under Sections 447, 427 and 506(ii) r/w 34 IPC and a prima facie case has been made out, in order to frame charges against the petitioners and there is absolutely no ground to quash the proceedings.

7. The learned Senior Counsel Mr.K.Subraminam, representing the learned Counsel for the 2nd respondent Dr.S.Gurushankar made the following submissions.

No one is allowed to take law into his own hands and admittedly Mr.S.Ramesh is not the owner of the property and he has no right to enter into other person?s property with Tractor and JCB machine and cause damage to the property.

The petitioners are not entitled to challenge the title of Dr.S.Gurushankar, in this proceeding and they have not chosen to challenge the title before the appropriate Court of Law till date.

The statements taken by the Police from the witnesses clearly reveals prima facie case against the petitioners and other 2 accused persons and the factual disputes with regard to whether any mischief was done or criminal intimidation took place are matters for trial and the same cannot be adjudicated in 482 Proceedings.

Admittedly, there is previous enmity between A-1 and respondent No.2 and keeping this previous enmity in mind, A-1 along with 3 other persons had trespassed into the property and caused damage to the property. The learned Senior Counsel relied upon the following judgments in order to substantiate his arguments that disputed questions of facts cannot be gone into in a petition under Section 482 CrPC.

HMT Watches Limited Vs. M.A.Abida and Another, reported in (2015) 11 SCC 776; Taramani Parakh Vs. State of Madya Pradesh and others, reported in (2015) 11 SCC 260; and Homi Rajvansh Vs. State of Maharashtra and others, reported in (2014) 12 SCC 556.

8. This Court has carefully considered the arguments made on either side and had also taken into consideration the materials that have been placed on record.

9.Admittedly, there are pending civil proceedings between the petitioner in CrlOP(MD)No.9083 of 2017 and the 2nd respondent Dr.S.Gurushankar, in which other family members are also parties, concerning the trusteeship over SR Trust. Therefore, there is already a strained relationship between the petitioner in CrlOP(MD)No.9083 of 2017 and the second respondent. The petitioner in CrlOP(MD)No.9083 of 2017 is none other than the elder brother of the 2nd respondent and both of them are sons of Dr.N.Sethuraman, who is the founder of the public charitable trust namely SR Trust, which runs the Multi Speciality Hospital named Meenakshi Mission Hospital and Research Centre at Madurai. Originally both the petitioner and the 2nd respondent were trustees in the said SR Trust. It is also an admitted case that the property, which is now claimed by the 2nd respondent, originally belonged to a Trust called as Maha Semam Trust, in which, Dr.N.Sethuraman is the founder and by virtue the deed of exchange dated 26.10.2015, the said Maha Semam Trust exchanged the property in question with Dr.S.Gurushankar and thereby Dr.S.Gurushankar is claiming ownership over the property in question.

10.This Court at the outset wants to make it very clear that title over the property cannot be gone into in these proceedings and this Court will not deal with any of the arguments relating to the title over the property and the same is relegated to be adjudicated before the appropriate forum by the parties concerned.

11. It is also an admitted case that the house of the petitioner in Crl OP(MD)No.9083 of 2017 is situated right in front of the property in dispute. This property does not belong to any 3rd party, but it used to belong to the trust run by the father and therefore, the proximity to the property and entry into it under normal circumstances would not be considered to be a trespass. However, since there is a deep rooted animosity between the petitioner and the 2nd respondent, the single act done by the petitioner is now attempted to be blown out of proportion and is stretched to such an extent to make it look like a serious criminal offence.

12.In this case, the petitioner in Crl.OP(MD)No.9083 of 2017 is not claiming any ownership over the private property in dispute. His case is that the property belongs to Maha Semam Trust run by his father and he was not aware of the fact that by virtue of the deed of exchange, his brother Dr. S.Gurushankar became owner of the property. Therefore, it is clear that the petitioner Mr.S.Ramesh had no intention of grabbing the property, whether it belongs to the Trust or to Dr. S.Gurushankar.

13. In the disputed property, which is situated in the front portion of the residence of Mr.S.Ramesh, there was growth of Seemai Karuvelam trees, bushes, garbage and medical waste. This was sought to be cleared by Mr.S.Ramesh with the help of A2 to A4, since it involved clearing of trees and bushes. After clearing the trees and bushes, the said Mr.S.Ramesh, has not claimed any right over the property and has only ensured that front portion of his residence is kept clean and more particularly Seemai Karuvelam trees was considered to be be dangerous, since, it had a character of draining the ground water level.

14.If this case is looked from this background, under normal circumstances, this could not have resulted in a criminal prosecution. But, however, a strong animosity that prevails between the petitioner and the 2nd respondent, who is his younger brother, has given this incident a criminal colour and the 1st respondent Police have proceeded to investigate and even file a final report in this case.

15.It is beyond cavil that this Court in exercise of its jurisdiction under Section 482 CrPC will not go into and give its opinion on disputed questions of facts. The same has been made very clear by the Hon’ble Supreme Court in the judgments cited by Learned Senior Counsel Mr.K.Subramaniam.

16.This Court is not going to get into the process of deciding the disputed facts. This Court is only going to take materials as it is and see if really any offence has been made out in the final report filed by the first respondent.

17.In order to constitute an offence of criminal trespass, the ingredients of Section 441 IPC will have to be satisfied. A reading of Section 441 IPC, it can be found that the intent to commit an offence or to intimidate, insult or annoy any person in possession of the property is a necessary ingredient of the offence of criminal trespass. The Trespasser is a person, entering the premises of another with knowledge that his entrance is excess of the permission that has been given to him. A mere entry into a property is not enough, except where such a entry is done to commit an offence injurious to some persons interested in the property, on which, trespass is committed, or for the purpose of causing annoyance to such a person. Therefore, such aggravated circumstances only make a trespass into a criminal trespass.

18.In this case, two factors will have to be taken into consideration to see, if the petitioners have really committed an offence of the trespass. The 1st factor is that the property, in which the offence is said to have taken place is a vacant property, which originally belonged to the Trust named Maha Semam Trust, which was run by the father of the petitioner and the 1st respondent and this property is right in front of the residence of the petitioner. Admittedly, the petitioner has entered into the property and cleared the Seemai Karuvelam trees, bushes, garbage and medical waste and the petitioner is not claiming any right over the property or has made any attempt to grab the property. Considering the relationship between the parties, it will be too difficult to portray the act of the petitioner as a trespass. The witnesses have only spoken about the incident and there is no material to show that the petitioner intended to commit a criminal trespass as provided under Section 441 of IPC.

19.Going to the next offence of mischief, mischief has been defined in Section 425 IPC to mean an act done with an intention to cause or knowing that is likely to cause wrongful loss or damages to the public or any person, causes destruction to any property, etc., and must involve the mental act with the destructive animus. The destruction with an object to a wrongful loss or damage is obligatory to be established. In this case, what was removed from the property was the Seemai Karuvelam trees, bushes, garbage and medical waste, which was lying in front of residence of the petitioner. Therefore by no stretch, the act of the petitioner will constitute an offence of mischief.

20.Going to the third offence of criminal intimidation under Section 506(ii) IPC. The only allegation that has been made against the petitioner is an oral threat and nothing more. Section 503 IPC defines the criminal intimidation. The intention must be to cause alarm to the victim and materials have to be brought on record to show that the intention was to cause alarm to the person. A mere threat is not sufficient to attract the charge of criminal intimidation. In other words, the threat should be a real one and not just a mere word.

21. In the judgment in G.Paramasivam and Another V. Dy. Commissioner of Police and Others, reported in 2016 (1) TNLR 489 (MAD),It is has been held as follows:

?9. Coming to the alleged offence under Section 506(ii) I.P.C., is concerned, as rightly submitted by the learned Senior Counsel, a mere threat per se would not attract the said provision. The allegation is that the petitioners went to the house of the fourth respondent and threatened orally by showing their hands. A mere outburst would not attract Section 506(ii)IPC.?

22.A careful reading of the facts of the case as projected in the final report and applying the requisites under Section 503 IPC and also the dictum in the above said judgment, it is clear that no offence of criminal intimidation has been made out in this case to attract the punishment under Section 506(ii) IPC

23.The learned Senior Counsel Mr. Ajmal Khan appearing for the petitioner in CrlOP(MD)No.9083 of 2017 and the learned Counsel Mr.T.Lajapathy Roy, appearing for the petitioner in CrlOP(MD)No.8686 of 2017 have rightly brought to the notice of this Court Sections 95 IPC and 81 illustration (b) of IPC.

24.Sections 81 and 95 IPC fall within chapter IV of IPC, which deals with the general exceptions. The general exceptions contained in Section 76 to 106 make an offence a non-offence. The general exception are a part of definition of every offence contained in IPC. These general exceptions will apply even at the stage of investigation and filing of the final report, where, if on the basis of the allegation made in the complaint or the final report, the case is falling in general exceptions, it can be said that the action cannot be termed as an offence. It should be made clear that if in order to make out a case under general exceptions, evidence will have to be let in, then Chapter IV cannot be brought into operation at the stage of final report.

25.With this background, let me see, if this Court can apply general exceptions in the facts of the present case as projected in the final report.

26.Section 95 IPC has its itself foundation on the maxim de minimis non curat lex (The Law takes no account of trifiles). This Section is intended to prevent the penalization of negligible wrongs or of an offence of trivial character. Whether the act, which amounts to an offence, is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention, with which an offending act is done and other related circumstances. Under this provision, those cases even though fall within the letter of the penal law are yet not within its spirit, and or all over the world considered by the public, as innocent. In other words, a harm that results out of an offence, if is so slight and trivial that no person of ordinary sense and temper would complain of such a harm.

27.The present case is one, which falls under this category. The ordinary act of removing the bushes and unwanted trees in a property situated right opposite to the residence, which according to the second respondent belongs to him, and over which the petitioner is not claiming any right or intention to grab, even if it is assumed to be an offence, the harm that has been caused to the 2nd respondent is slight and so trivial that no person of ordinary sense will complain of such harm, more particularly, due to the close relationship of the parties in this case. In the considered view of this court, the facts taken as it is from the final report, will fall within the general exceptions provided under Section 95 of IPC.

28.Similarly Section 81 IPC is another general exceptions, having its foundation on the maxim Quod necessitas non hebet leegem, which means, necessity knows no law, where the act, which would otherwise be a crime, may in some cases be excused, if the person accused can show that it was done only in order to avoid the consequences, which could otherwise be avoided, and which, if they had followed, would have inflicted upon him inevitable and irreparable evil, that no more was done, than was reasonably necessary for that purpose, and that the evil inflicted by it, was not disproportionate to the evil avoided. Here the choice is between the two evils and the accused chose the lesser one. Illustration (b) of this provision demonstrates such proposition of law enunciated herein above.

29.In the present case, what was removed was predominantly Seemai Karuvelam trees, which is considered to be dangerous and which is capable of depleting the ground water level. By virtue of an order of Division Bench of this Court, virtually a big movement was undertaken on war footing to remove the Seemai Karuvelam Trees.

30.It is at this point of time that the petitioner with the help of 3 other persons had removed the Seemai Karuvelam trees, in order to protect the ground water level near his property and particularly from the property, which belongs to the Trust, which according to the petitioner is run by his father.

31.The removal of the Seemai Karuvelam Trees from the property belonging to the 2nd respondent will cause lesser evil than the greater evil that the Seemai Karuvelam Trees is capable of with regard to depletion of ground water level. Therefore, the 2nd respondent by no stretch can complain of greater evil by the removal of Seemai Karuvelam trees, since it has only protected his property and also the property belonging to the petitioner. Therefore, in the considered view of this Court, this general exception under Section 81 will also apply to the facts of the present case.

32. Therefore, apart from holding that no offence under Section 447, 427 and 506 (ii) IPC has been made out on the facts of the case, even if it is assumed an offence is made out, the facts of the case as projected in the final report brings this case within the general exceptions under Section 95 and 81 of IPC.

32.Looking at the case from this angle also, the final report cannot be sustained. On the facts and circumstances of the cases, this Court is able to clearly see that the criminal proceedings is manifestly attended with mala fide and with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to the private and personal grudge. The facts of this case will clearly fall under clause 5 and 7 of paragraph 102 in State of Haryana and others Vs.Bhajan Lal and others reported in 1992 Supp (1) SCC (335).

33. Permitting the continuation of the criminal proceedings will clearly amount abuse of process of criminal proceedings, more particularly where it is being used as instrument of harassment by a vindictive litigant .To secure the ends of justice, this criminal proceedings will have to be quashed.

34.This Court is of the considered view in the given facts and circumstances of the case and for the reasons stated herein above, that its jurisdiction under Section 482 CrPC will have to be exercised to stare down the frivolous criminal proceedings. Accordingly, the proceedings in CC No.338 of 2016, pending on the file of the Judicial Magistrate No. VI, Madurai is hereby quashed. The CrlOP(MD)Nos. 9083 of 2017 and 8686 of 2017 are allowed. Consequently, connected miscellaneous petitions are closed.

To

1.Judicial Magistrate No.VI, Madurai,

2.The Inspector of Police, K.Pudur Police Station, Madurai.

The post S.Ramesh Vs. State Through the Inspector of Police & Ors. appeared first on B&B Associates LLP.

VEERASWAMI, J.

(1) THE petitioner entered service in 1941 as a cashier in the former Imperial Bank of India. The undertaking of the Bank was in 1955 transferred to the State Bank of India, as it was constituted by the provisions of the State Bank of India Act, 1955. Section 43 of this Act empowers the State Bank to appoint its officers, advisers and employees and determine the terms and conditions of their appointment and service. The petitioner was taken over into the service of the State Bank and was in 1958 appointed as head cashier under an agreement for service entered into on 12-8-1958 with it. Clause 1 of the agreement provided that the petitioner

“shall be and continue to be the head cashier of Virudhunagar branch of the bank from 27-7-1958 at a monthly salary of Rs. 182 only rising, subject to approved service, by such increments as may be granted by the bank at its absolute discretion, such service being determinable on either side by two calendar months’ notice to that effect subject as hereinafter provided”.

With effect from 1-1-1959, the State Bank of India brought into force the State bank of India (Sub-accountants and head cashiers) Service Rules which admittedly govern the petitioner. Whether these rules are statutory is one of the questions to be considered at the appropriate place. Rule 14 makes provision for termination of the service of a head cashier by giving him such notice or such amount in lieu of notice as may be prescribed in his agreement for service with the bank. Chapter 6 of these Rules deals with conduct and discipline of the bank’s employees and the rules contained in this chapter are somewhat peculiar to the nature of the work and conduct in relation to the banking business. Rule 33 particularly lays down a code of conduct for the bank employees and Rule 36 forbids an employee from overdrawing his account with the Bank against security or otherwise without the previous sanction in writing of the specified officers. An employee who falls into debt is required by Rule 37 to disclose his position at once to the bank and indicate how he proposes to rectify his position. Any employee who does not comply with Rule 37 or makes a false statement of his position or is unable to liquidate his debts within a reasonable time shall by Rule 38 render himself liable to dismissal from service. The next rule prescribes six modes of penalties ranging from censure to dismissal, which can be inflicted on an employee who commits a breach of discipline or is guilty of any act of misconduct. Rule 40 indicates the procedure to be followed for imposing any of the penalties. In case of a dismissal, this rule requires a second opportunity to be given to an employee to show cause against the proposed penalty which is more or less analogous to the familiar procedure under Article 311 (2) of the Constitution. In July 1961, when the petitioner was working as head cashier at the Periakulam branch of the bank, the Deputy Secretary and Treasurer at the local head office of the bank at Madras framed four charges against him” alleging that while ha was serving at the Madurantakam branch he was having dealings with money-lenders, had taken loans from the bank’s constituents at Madurantakam, and had issued cheques in full awareness of the fact that the balance at credit of his account at the Madurantakam branch was insufficient to meet the cheques on the date of drawal; and the two cheques he had issued in June 1961 upon the Madurantakam branch of the bank had been dishonoured for want of sufficient credit to his account. The memorandum of charges stated that the conduct of the petitioner was in breach of Rules 33 (1) and 36 of the said Service rules and was unbecoming of a bank employee and called upon him to submit his written statement in defence within a specified time. On 10-8-3:961 he submitted his explanation and on 25-8-1961 he was given an oral hearing. Eventually was served on the petitioner an order of the State Bank of Madras dated 22-2-1962, and signed by the officiating Secretary and Treasurer which was in these terms:”i have to advise that the Local Board, after having given full consideration to your case at its meeting held today have come to the conclusion that although your misconduct deserves the extreme penalty of dismissal from the Bank’s service, on grounds of compassion, your services should be terminated under Rule No. 14 of the State Bank of India (Sub-Accountant and Head Cashiers) Service Rules and have resolved to terminate your services by giving you two months’ salary in lieu of notice, as provided for in clause 1 of your agreement for service with the Bank. Accordingly your services stand terminated with effect from today and we enclose two payment orders in your favour (i) for Rs. 319-06 representing the salary and allowances due to you upto date, and (ii) for Rs. 1055-50 representing salary and allowances in lieu of the two months’ notice. ”

This petition under Article 226 of the Constitution is to call for the records and the order, and issue a writ of certiorari or any other appropriate writ: or direction and quash the same.

(2) THE grounds on which the petition has been argued are that the order of termination is in effect an order of dismissal which is (1) in violation of the said service Rules, (2) in violation of the principles of natural justice and (3) was not competent for the Executive Committee at Madras to make. It may at once be stated that the ground based on incompetency of the Executive Committee was not pursued in view of certain amendments of the Service rules. Regarding the order as one of termination of service under the terms of the agreement, a further point for the petitioner is made that termination by payment of salary and allowances in lieu of two months’ notice is not authorised by the terms of the service agreement as well as Rule 14 of the Service rules.

(3) BEFORE dealing with the petitioner’s grounds the objection of the learned advocate General to the maintainability of the petition should first be considered. He submits that the State Bank of India, established, as it is, by the special provisions of the State Bank of India Act, 1955, is, despite its statutory origin, but a commercial corporation or concern doing business in a commercial way and is not a public corporation or public authority with public duties. If he is right in his submission, he says the act of termination of the petitioner’s services is a unilateral act indistinguishable from a similar act of a private individual acting on his own terms and conditions of service and that the statutory origin of the Bank makes no difference to the position. This Court will not, therefore, interfere under article 226 of the Constitution with such an order. Even regarding the Bank as a statutory authority, in the sense of its statutory origin and functioning within the statutory provisions, there are here no statutory rules of service and so long, as it acts in good faith or bona fide it is not subject to judicial review. From the point of certiorari, the act of termination is not a decision with its usual attributes. Where there is competency’ and power, no question of bona fides can arise in relation to its exercise. But where power is exercised” through a statutory authority and an act done, in purported exercise of such power, is shown to be mala fide, the Court at the instance of the aggrieved1 party will interpose and find that the act cannot be attributed to the authority and is, therefore, void. If the petition is regarded as one for mandamus, the learned advocate General adds that there is here no public duty on the part of the Bank to do or to refrain from doing anything in relation to the impugned order.

(4) A great deal of argument had been addressed to me by the learned Advocate general for the respondent and Sri M. K. Nambiar for the petitioner on the preliminary objection including copious citation of decisions rendered by the English Courts under different enactments with particular reference to the English principles of Crown proceedings as to the writs of certiorari or mandamus. While these decisions are undoubtedly of assistance in appreciating the area, conditions and manner of judicial control in England under writ proceedings or other process, the ambit of power conferred on the High Courts under Article 226 of the constitution, the conditions and manner of its exercise should eventually be judged entirely by its comprehensive terms and wide purposes. Apart from the well-known form of writs, there is in the English Courts vested nothing like the power conferred by Article 226 upon the Indian High Courts. While the particular forms of writs specifically mentioned in the Article go out, the English principles and decisions relating to such forms of writ obtaining in the United Kingdom of great Britain are certainly of value. So too I think on the question whether a body is a public authority in this country cannot altogether be judged in the light of the considerations and circumstances that one finds have weighed with -the English decisions. So, much will depend on the progressive concept of Government, governmental functions and ideas of welfare State and other relevant factors in our country under the Constitution as well as the Parliament and State legislations.

(5) NO general definition of what is and what is not a public authority has been attempted by the Courts, as stated in 30 Halsbury’s Laws of England, 3rd Edn. page 682, and the Courts have only decided the question in particular cases. but the broad characteristics are, however, stated by the author:

“a public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform, and which performs those duties and carries out its transactions for the benefit of the public and not for private profits. Such an authority is not precluded from making a profit for the public benefit, but commercial undertakings acting for profit and trading corporations making profits for their corporators are not public authorities, even if conducting undertakings of public utility. A natural or individual person might, when acting in execution of a public duty, be a public authority for the purpose of the provisions, now repealed which formerly enacted a special period for actions against public authorities. ”

(6) MOST of the cases decided by the English Courts appear to be based on the provisions of the Public Authorities Protection Act, 1893, which has since been repealed. Attorney General v. Company of Proprietors of Margate Pier and harbour, 1900-1 Ch 749, referred to by the learned Advocate General is one of such cases in which it was held that a company incorporated by Act of Parliament, not only for the performance of duties of public utility, but also for the purpose of earning profit, was not entitled to the benefits of the Public Authorities Protection act. Section 1 of the Public Authorities Protection Act, 1893 provided

“a period of limitation for actions, prosecutions or other proceedings commenced in the United Kingdom against any person for any act done in pursuance or execution, or intended execution of any Act of parliament, or of any public duty 01 authority or in respect of any alleged neglect or default in the execution of any such act, duty 01 authority. . . . . . . . . . . . ”

By an Act: passed in 1812, the management of Pier and Harbour of Margate was vested in the company of Proprietors of Margate Pier and Harbour, constituted for the purpose and the company was authorised to complete and maintain the harbour, pier and works then unfinished and to raise moneys for the purpose by the issue of shares, and was empowered to levy and take certain rates and duties, and to borrow money on the security of the rates. The Act further provided how the rates and duties should be applied and stated that the surplus available might be used in paying a dividend to the share-holders, but at a rate not exceeding a certain percentage in any one year. The remaining surplus was to be accumulated as a sinking fund to meet the expenses of future repairs and improvements in the pier and harbour and in the event of dissolution of company, the sinking fund as well as the pier, harbour and works should stand retransferred to the commissioners of Pier and Pavement. The Attorney General brought the action to determine whether the company had been applying the income in the manner prescribed by the Act of Parliament by which it was incorporated and regulated. It was assumed in the action that it was brought beyond the period of limitation provided by Section 1 of the Public Authorities Protection Act, 1893, and the defence was that the action was barred. It was decided that the company was not a public authority, and that, therefore, no question of limitation could arise. It was observed at page 753:”piers and Harbours, are, no doubt, works of great importance to the public, and the maintenance of them is for the public utility. So is a railway, so is a tramway, so is a canal, and one might mention other things in the same category. The company are to spend their money in paying interest on charges, they are to keep up their pier and harbour, and beyond that, except that they are limited to ten per cent dividend, and there is to be a sinking fund provided they are a commercial company, intended to earn, and in fact earning dividends year by year for the benefit of the share-holders. I do not see myself, the distinction between that and a railway company incorporated by special Act, with reference to the Lands Clauses Act, and the Railway Clauses consolidation Act, 1845, and subsequent Acts. They are companies intended to benefit the public. No special Act of Parliament of that kind is ever passed without a recital that the construction and maintenance of the line, or the tramway, or the canal, as the case may be, is for the public benefit; and the powers which are given to companies of that kind, such as the power of compulsory purchase of land, are all given on the footing that’ the companies are doing a public benefit and yet they are commercial companies. ”

(7) IT may be seen, therefore, that in that case notwithstanding the fact that the company was a public utility concern, and was doing a public benefit, inasmuch as there was provision for payment of dividend, though subject to a limit, it was a profit earning company and, therefore, a commercial concern and not a public authority. As to this decision. I need only say that it was given long ago, and that since then the concept and province of Government and strictly Governmental functions have far and long outstripped their original limits in nature and content and expanded into spheres unknown then. The law as a social instrument cannot be unmindful of the progressive changes in outlook all round and through the times in many matters of State and Municipal activities. It may, of course, be right even today that, statutory origin notwithstanding, a corporation or authority whose object is solely or primarily gain, will not be regarded as a public authority. Statutory powers of and incidental public benefit by such a corporation or authority will make no difference to its character as a commercial concern. Incidental profit is not, however, decisive and will not by itself deprive a public corporation or authority of its character as such. Neither the approach nor the test of 1900-1 Ch 749 can be applied to modern conditions without reference to these considerations. Firestone Tyre and Rubber Co (S. S.) Ltd. v. Singapore Harbour board, 1952 AC 452, at pp. 468, 464, illustrates, as I think, the departure from the old view and holds that the Harbour Board, a statutory creation authorised to carry on business of warehousemen, was, in taking the appellant’s goods under a contract into its custody for delivery to them, doing an act in pursuance of a public duty or authority. Public Authorities Protection Ordinance of Singapore was analogous to the English Public Authorities Protection Act, 1893. It was admitted throughout on behalf of the appellants that the Board was a public authority and the only question decided was what I mentioned. Observed the Privy Council:

“. . . . . . the existence or non-existence of a contract is not a decisive test, and on the facts of the present case their Lordships are clearly of opinion that the question of contract is immaterial to their decision since, on any view, the board were exercising their permissive powers to perform a normal function of a harbour board and in so doing were providing a service essential to the shipping and commercial community of Singapore and accordingly entitled to the protection of the Public authorities Protection Ordinance”.

Lord Tucker who spoke for the Judicial committee referred to Bradford Corporation v. . Myers 1916-1 AC 242 and Griffiths v. Smith, 1941 AC 170, and quoted from the former:”what causes of action fall within these categories (i. e. , in S. I of the public Authorities Protection Act) it may be very difficult to say abstractly or exhaustively. . . . . . But just as it is not difficult to tell a heap when it is seen, so it may be easy at least to say of certain acts that they are not the immediate and necessary outcome of duty or authority in a particular case. . . . . . . . . ” and from the latter: “i doubt whether it ever will be possible to lay down some general principles by which all cases can be tested. ”

Nevertheless, Lord Tucker extracted from them the following matters and considerations that are relevant to, though not necessarily always decisive of, the issue:”i. It is essential to the protection afforded by the statute that the act or default in question should be in the discharge of a public duty or the exercise of a public authority. This assumes that there are, duties and authorities which are not public (see per Lord Buckmaster in the bradford Corporation case, 1916-1. AC 242). A. I. E. 2. In deciding whether the duty or authority has this public quality it is sometimes relevant to consider whether it arises out of or is imposed by a contract voluntarily entered into by the public authority with an individual with whom it is under no obligation to contract. 3. The mere fact, however, that in the discharge of its duty or the exercise of its authority the Public authority may have made a contract does not of itself deprive the duty or authority of its public quality. The existence or absence of a contract is not a decisive test (see per Lord shaw in the Bradford Corporation case, 1916-1 AC 242). 4. Effect must be given to the word “authority”. This excludes the test of obligatory, as opposed to permissive powers (See per Viscount maugham in Griffiths case, 1941 AC 170). ”

Each case will have, therefore, to be decided on its own facts and the relevant provisions. The list of instances of public authorities held to be such and given in 30 Halsbury’s Laws of England, 3rd Edn. paragraph 1318, brings out the range of difference which includes the Bank of England, and the Milk Marketing Board. The british Transport Commission has been statutorily recognised as a public authority. In Welsh v. Bank of England, I955-I AH ER 811, Harman, J. referred to 1900-1 Ch 749 but held that having regard to the terms of the Bank of England Act, 1946, the Bank of England was not a profit-making company but was a public authority as explained in 1916-1 AC 242, namely, a body having public or statutory duties to perform. On facts, the action was by a constituent of the Bank for an order directing it to rectify the register of holders of stock by restoring thereto her name on the ground that the plaintiff’s name was wrongfully removed from the register of certain documents forged by a joint holder. The Bank’s defence, inter alia, was. based on Section 21 of the Limitation Act, 1939, which re-enacted Section 1 of the Public Authorities Protection Act of 1893. It was held that the section applied but the time had not run out. Harman, J. being of the view that the keeping of the register of consols was clearly a public duty enjoined on the Bank of England.

(8) SRI Nambiar contends that whether a company or corporation is a public authority will depend on the answers to the questions (1) whether it is controlled by the Government by or under a statute, (2) whether it is incorporated by a special statute and (3) whether its functions are in part or whole functions of the government. While these tests need not necessarily be cumulative, the last test is an obvious one and may by itself show the public character of the body. Governmental functions in this connection will of course comprehend as contemplated by Article 19 (6) (ii) and 298 of the Constitution. “carrying” on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise”. By the second test, learned counsel apparently wanted to distinguish companies registered under the general statutory provisions. Except for that, there appears to be no further significance in the special statute in the context of the public character of a company. Incorporation by a special statute does not ipso facto invest the company with the quality of a public authority. I agree with the learned Advocate-General that the statutory origin, whether by special statute or not, is not decisive in any sense. The test of Government control suggested by Sri Nambiar appears to be somewhat vague, for its forms, manner and purpose may indefinitely vary from nothing to everything. The degree and content of such control may, however, be a relevant matter to be taken into consideration. Broadly speaking, these tests will, I think, be of assistance in determining the public character of an authority or body, though they are not exhaustive of all the attributes and do not constitute a definition.

(9) CASES have been decided in this country relating to the Universities, the Life insurance Corporation of India, the State Bank of India itself and certain other bodies. The University of Madras v. Shantha Bai, was an appeal arising out of a petition under Article 226 for Mandamus, the point for determination being whether the directions issued by the University to the affiliated colleges not to admit girl students without obtaining the permission of the Syndicate were valid. Subba Rao, J. , as he then was answered it in favour of the University but issued a rule on the view that the directors were opposed to article 15 (1) as discriminatory against the petitioner on ground of her sex. “state” for purposes of that Article is defined by Article 12 as “the Government and parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. ” On the question whether the University could be held to be “local or other authority”, Rajamannar, C. J. and Venkatarama Aiyar, J. , (as he then was) observed:

“these words must be construed ‘ejusdem generis’ with Government or legislature and so construed can only mean authorities exercising governmental functions. They would not include persons natural or juristic who Cannot be regarded as instrumentalities of the Government. The University of Madras is a body corporate created by Madras Act VII of 1923, It is not charged with the execution of any Governmental functions; its purpose is purely to promote education. ”

This decision turned therefore, upon the language and collocation of Article 12 in part III of the Constitution and can have, in my opinion, no application to a determination of the scope of ‘authority’ in Article 226. In the matter of G. A. Natesan, In re, ILR 40 Mad 125 : (AIR 1918 Mad 763) a case under Section 45 of the Specific Relief Act, a Division Bench of this Court issued a rule against the Syndicate of the Madras University on the view that “the syndicate is a statutory body of persons holding a public office” within the meaning of the Section. Dipa Pal v. University of Calcutta, was a case of certiorari granted against the Calcutta University. G. P. Singh v. Faculty of Law (University of Allahabad), refused mandamus only on merits. In Dr. Akshaibar Lal v. Vice-Chancellor Benaras Hindu University, the Supreme Court quashed an order of termination of service passed by the Benaras Hindu University. University of Ceylon v. Fernando, 1960-1 all ER 631, arose out of an action for a declaration which was granted by the Privy council on appeal. Dr. S. Dutt v. University of Delhi, was a peculiar case involving an arbitration award which the Supreme Court quashed on the ground that a contract of personal service was not capable of an order for specific performance. Narayanaswami Naidu v. Krishnamurthi, 1958-1 Mad LJ 367 : (AIR 1958 Mad 343)was concerned with the question whether a public corporation like the Life insurance Corporation of India was a department of the Government in the context of Article 191 (1) (a) of the Constitution which says that a, person shall be disqualified for being chosen as and for being a member of the Legislative assembly or the Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First schedule other than an office declared by the Legislature of the State by law not to disqualify its holder. The propriety of the rejection by the Returning Officer of the nomination of the election petitioner was questioned and the Election Tribunal held that he was under no disqualification to stand for election, it being of the view that an employee of the Life Insurance Corporation of India could not be said to hold an office of profit under the Government of India. It was this decision that was under challenge on appeal before this Court. The learned Advocate General appearing for the appellant submitted that the reasoning of the Election Tribunal failed to notice the recent trend of Government administration particularly in the postwar modern welfare States and that it attached too much importance to the form ignoring the substance. He further urged that the Union and the States had under the constitution a right to carry on business as part of their Governmental functions and that this was implied or inherent in the social objectives envisaged as the ideal which the Constitution holds up. The Court, however, held that the phrase “office of profit” in Article 191 (a) could not be construed in the wide sensa urged by the learned Advocate General. The learned Judges referred to certain criteria for deciding whether a public corporation like the Life Insurance Corporation of India was a department of the Government, namely, the incorporation of the body, the degree of control exercised by the Government, the degree of dependence of the corporation on the Government for its financial needs and the functional aspects of the Corporation. In doing so, reference was made to the principles of administrative law by Griffith and Street and particularly this passage: -“it may be said that there are several criteria which from time to time the Judges have thought relevant. These include: Is the body performing tasks formerly carried on by private enterprise? (Mersey Docks and harbour Board Trustees v. Gibbs, (1866) LR 1 HL 93 at p. 107). To what extent it is subject to ministerial control, for example, has it’ independent discretionary powers (Metropolitan Meat Industry Board v. Sheedy, 1927 AC 899 at p. 905). Must it consult a Minister before it acts? Can a Minister give his direction? Is its function one which has historically been regarded as governmental? Lane v. Cotton, 1701 1 Ld. Raym 646. Is it incorporated? Is it subject to Government audit? Is its authority general or local?. . . . . . . . . Is it a mere domestic body? (Powell y. Pratt L. R. , 1936-2 KB 226). Is execution against its property allowed? although Tamlin v. Hannaford, 1950-1 KB 18 does not lend particular support to the view it is submitted that the degree of control exercised by the Government over the body ought to be the determining fact. ”

and also to an article captioned “nationalisation in Legal Perspective” in “the current Legal Problems” 1952, by Professor Scammel regarding the exact constitutional position of the Public Corporations created for carrying on nationalised undertaking in which the following passage is of interest:”the exact constitution position of the national corporation in charge of the nationalised undertakings has not yet been fully settled. That question is likely to be of some practical importance in connection with the extent to which judicial control can be exercised. It has been suggested that they fall somewhere between Government department and local authorities. On the one hand 1950-1 KB 18 decided that they do not rank as Government department; whilst, on the other hand, they are more closely linked with the Government through their parent minister than are local authorities whose members are elected and who are not subject to receive general directions from a Minister. It is, at any rate, now clear, that being neither servants nor agent of the Crown and their functions not being such as fall within the province of Government, they do not share in the privilege and immunities of the Crown. They are, however, public authorities, and in addition, many of them are given special statutory privileges. . . . . . . . . ”

1958-1 Mad LJ 367 : (AIR 1958 Mad 343) did not decide whether the Life insurance Corporation of India was a public authority but it only held that it was not a department of the Government. If I may say so with due respect, the learned Judges said a good deal, as already indicated, on the characteristics of a public Corporation and its position in constitutional law. In K. P. C. Menon v. Divisional Manager, L. I. C. of India, Rajagopala Aiyangar, J. , as he then was, while holding that the termination of the service of the petitioner in that case under Regulation 20 was competent and valid and in accordance with the terms of the appointment rejected an alternative argument presented by the learned Advocate General, namely, that the termination of the employment was not justiciable and would not be subject to the jurisdiction of this Court under article 226, because the employment under the Life Insurance Corporation was not different from that under a private employer and that failure to observe the regulation might enable the employee to seek relief by way of damages in an ordinary civil action, but that he could not move this Court to set aside the order of termination of employment by the issue of a writ of certiorari. The learned judge observed: -“i should not be taken to assent to the proposition in such wide terms. In the decision in 1958-1 Mad LJ 367 : (AIR 1958 Mad 343), this Court has held that a disqualification provided for by the Regulation of the corporation was a disqualification under a law made by Parliament under article 191 (1) (e) of the Constitution. If a Regulation were such a law, and there is no doubt either that the Life Insurance Corporation is a public authority and if there was a violation on the part of such public authority to observe a law, I would be inclined to hold that a violation of the law contained in such a regulation could be the subject-matter of proceedings in this Court under Article 226 of the Constitution and that a suitable remedy could be afforded to the person who had been injuriously affected by a violation of such a statutory provision. ”

The question of justiciability in the instant case will be considered separately but I have quoted the above passage only to show that the learned Judge with reference to the criteria mentioned in 1958-1 Mad LJ 367 : (AIR 1958 Mad 343), was prepared to hold the Life Insurance Corporation to be a public authority. The life Insurance Corporation of India again figured in S. Vaidyanatha Iyer v. Life insurance Corporation of India, W. P. No. 1016 of 1958 D/- 6-4-1960 (Mad), in which the petitioner’s appointment by the Corporation as a Field Officer was unsuccessfully challenged. The learned Advocate General appearing for the corporation objected to the maintainability of the petition under Article 226 of the constitution on the ground, among others, the Life Insurance Corporation was neither a State nor a public authority to which a writ would issue. Rajagopalan, J. , who was a party to 1958-1 Mad LJ 367 : (AIR 1958 Mad 343) considered that it was sufficient authority to repel the objection and added that although the question whether the Corporation was a public authority to which a writ of mandamus could issue did not arise for express determination in that case nonetheless, he and Rajagopala Aiyangar, J. , as he then was, had no doubt that the Corporation was a public Corporation and a public authority. Rajagopalan, J. , nevertheless went into the question over again and felt that there was no reason to come to a different conclusion. Observed the learned Judge; ?it is a Corporation wholly owned, financed and controlled by the State. Though in its day to day administration it enjoys a large measure of autonomy, the Corporation has public and statutory duties to perform, and it performs those duties and carries out its transactions for the benefit of the public and not for the profit of any private individual. ”

K. T. Desai, J. , in Christopher Pimenta v. Life Insurance Corporation of India, was of the same opinion. He said -“the Corporation is a Public Corporation. The acts purported to be done by the Corporation and by the Central Government are those done in the purported exercise of the statutory powers purported to have been conferred upon the Corporation and the Central Government. I do not see why the petition for the issue of a writ does not lie. Section 45 of the specific Relief Act in terms lays down that an order can be made under that section against a Corporation when the doing or forbearing of any act is under any law for the time being in force, clearly incumbent on such corporation in its corporate character. ”

The learned Judge on that view dismissed the preliminary objection to the maintainability of the petition under Article 226 of the Constitution which was a petition challenging the power of the Life Insurance Corporation and the Central government to alter the conditions of services of the insurer units taken over by the Corporation. In Nagpur Corporation v. N. E. L. and P. Co. , it was held that the Nagpur Electric Light and Power Co. , Ltd. , as a statutory body charged with statutory duties was a public authority subject to the jurisdiction of article 226. The Calcutta High Court in B. C. Das Gupta v. Bijoyranjan, issued mandamus to the Medical Faculty of West Bengal. Baleshwar Prasad v. Agent, State Bank of India, held that an employee of the State Bank of India was not a civil servant of the Union government and, therefore, Article 311 had no application to his case. That was a case of termination of service for misconduct and no preliminary objection as to the maintainability of the petition on the ground that the State Bank of India was not a public authority appears to have been urged in that case. Suprasad v. State bank of India, to which Sri Nambiyar calls my attention, goes no further than the Patina case. I have adverted to these decisions as furnishing instances, in a few of which statutory corporations have been held to be public authorities in the context of particular incorporating statutory provisions.

(10) TO sum up my conclusions from the foregoing discussion, it is neither possible nor expedient to formulate an abstract and exhaustive definition of a public authority. Each case will have to be decided in the light of the particular statutory provisions, their scope and nature, but in coming to a conclusion on the question, certain matters, among others, may be relevant and important for consideration. Governments, Departments of Governments, Municipal authorities and Local bodies present no difficulty. They are undoubtedly public authorities. Other statutory bodies like Corporations incorporated by special enactments cannot be regarded as not public authorities merely on the ground that they cannot be likened with those obviously public authorities. The functional aspect as to statutory or public duties discharged by a body pursuant to statutory or other provisions having the force of law, the nature of such functions including not merely Governmental or quasi-Governmental functions strictly so viewed but in a wider sense, the carrying on by the State or by a Corporation-owned and controlled by the State of any trade, business, industry, or service, the extent and content of the control exercised by the Government, are among the more important criteria. Statutory origin of the authority may not be conclusive. Nor the public benefit or the public purpose for which a body has been statutorily brought into existence will be totally an irrelevant consideration. A body which is established solely for the purpose of gain may not be the necessary test of a public authority but incidental profit or gain may not negative that character.

(11) HAVING regard to the said considerations, is the State Bank of India a public authority? The preamble to the State Bank of India Act, 1955 sets out its objects, namely, the extension of banking facilities on a large scale more particularly in the rural and semi-urban areas and for diverse other public purposes and to transfer to the State Bank the undertaking of the Imperial Bank of India. Section 3 establishes the State Bank of India to carry on the business of banking and other business in accordance with the provisions of the Act and for taking over the undertaking of the Imperial Bank. The Bank is to be a body corporate with perpetual succession and, a common seal. Sections 4 and 5 provide for authorised and issued capital. It is to be noted that increase or reduction of the authorised capital of 20 crores of rupees can only be done by the Central Government. Further a specified issued capital of the State bank stands allotted to the Reserve Bank in lieu of the shares of the Imperial Bank transferred to and vested in the State Bank. Any increase of the issued capital is controlled by the Reserve Bank subject to the further provision that no increase in the issued capital beyond 12 crores and fifty lakhs of rupees shall be made without the previous sanction of the Central Government. The Reserve Bank shall at all times have not less than 50 per cent of the shares and by Section it individual holdings are restricted. By Section 13, the Bank shall keep at its central office a register of shareholders containing the prescribed particulars. Unless otherwise provided by the Central government by notification, the central office of the State Bank is to be at Bombay. The State Bank is enjoined by Section 16 to open local head offices as well as open and maintain its branches. Section 18, which is important, says that

“in the discharge of its functioning including those relating to a subsidiary bank, the State Bank shall be guided by such directions in matters of policy involving public interest as the Central Government may, in consultation with the Governor of the Reserve Bank and the chairman of the State Bank give ‘to it. ” the section further provides that “all directions given by the Central Government shall be given through the Reserve Bank and, if any question arises whether a direction relates to a matter of policy involving public interest, the decision of the Central government thereon shall be final. ”

The Central Government will constitute the first Central Board of Directors. The composition of the Board should be such that eight of the directors should be nominated by the Central Government in consultation with the Reserve Bank to represent and not more than two managing directors will be appointed by the central Board but with the approval of the Central Government. Apart from these nominations, the Central Government can make one more nomination of a director. A managing director shall hold office for such term not exceeding a certain period as the Central Government may fix. In the constitution of Local Board and Local Committees too the Central government is entrusted with powers of nomination of directors to be elected. The powers of removal of the Chairman, Vice-Chairman of the Central Board are vested in the Central Government. The Chairman is to receive such salary as the central Board may determine with the approval of the Central Government. The central Government has also got an effective voice in the fixation of remuneration to the Vice-Chairman. The Bank, among its other duties, should act as the agent of the Reserve Bank of India, for paying, receiving, collecting and remitting money, bullion and securities on behalf of any Government in India. The State Bank under Section 40 should furnish to the Central Government and the reserve Bank within a stated time its balance sheet together with the profit and loss account and the auditors’ report on the working of the State Bank during the period covered by the accounts. The auditors also are required to make a report to the Central Government upon the annual balance sheet and accounts and the report should give specific information in respect of particular matters indicated in the section. The Bank shall not be liquidated save by the order of the Central government. The Central Government is also vested with power to remove any difficulties in respect of certain matters by issuing specific orders and also in consultation with the Reserve Bank and by notification in the official Gazette, make rules to carry out the purposes of this Act. The Central Board can make regulations only after consultation with the Reserve bank and with the previous sanction of the Central Government, not inconsistent with the Act and the rules made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act. Disposal of profits is dealt with by Section 38, which says that”after making provision for bad and doubtful debts, depreciation in assets, equalization of dividends, contribution to staff and superannuation funds and for all other matters for which provision is necessary by or under this Act or which are usually provided for by banking companies, the State Bank may, out of its net profits, declare a dividend”

, the rate being determined by the Central Board, subject to the provisions of paragraph 6 of the First Schedule. Having regard to these provisions of the Act, particularly the public purpose which it is meant to serve, the extensive Government control over the bank including several matters of policy, appointment and removal, fixation of remuneration of particular officers of the Central Board and the power of nomination and appointment of directors, the statutory audit subject to Government control, the obligation of the Bank to send returns to the Central Government, the obligation of the auditor also to forward audit reports to the Central Government, and the power of the Central Government to wind up the Bank, there can be no doubt, in my opinion, that the State Bank of India is a public authority. It is also clearly charged with public duties by various provisions of the Act in respect of several matters. It is impossible to say that on ground of the provision for disposal of profits, the State Bank is a commercial concern constituted for gain. The disposal of profits as provided by Section 38 is not the primary object as of the establishment of the State Bank but it is incidental, to the nature of the business transacted by the Bank. I hold, therefore, that the State Bank is a public authority, a corporation within the meaning of Section 45 of the Specific Relief Act and an authority within the meaning of Article 226 of the Constitution. But whether and to what extent it is subject to judicial control or interference with under or outside that Article, is a different matter which I shall immediately proceed to consider.

(12) AS I said earlier, the learned Advocate General would next contend that even as a public authority, the relationship between the State Bank and the petitioner was but that of ordinary master and servant and the termination of service in this case as a unilateral act of the Bank, as an employer, is not like any other private employer subject to scrutiny under Article 226. At the worst the remedy for wrongful termination according to the Advocate-General, is only to sue for damages for breach of contract of service. It is true that in this context the composition of a person or body. vested with statutory power, like a Government, a Minister, a Government or public officer or official virtue office or a Board, or Corporation by an Act of the legislature, is not of significance so much as its or his functional aspect for purposes of the Court’s jurisdiction to adjudicate rights or control by certiorari or mandamus. It is the kind or nature and extent of power and the manner, occasion and propriety of its exercise in particular contexts and circumstances and the capacity that is more relevant for the purpose. Further, as rightly pointed out by the learned Advocate general, the tests of validity are applied with reference to the particular exercise of power, not to the repository of power generally with reference to all its affairs, because the same authority, officer or body may function differently as the occasion may call for it, as for example, (1) entering into contracts, committing torts like a private individual can do, (2) acting in exercise of statutory power as for his or its own benefit, (3) exercising such powers involving public duties’ and (4) functioning as a tribunal. In the first two cases, the discretionary and administrative exercise of power in good faith, apart from questions of capacity or ultra virus will rarely be the subject of interference by Courts, and mandamus or certiorari in respect of such exercise can never arise. Instances of interference in the first two classes of cases at the instance of aggrieved parties who complain injury to their rights (not arising: out of contractual obligations)1 are confined to certain limited grounds, such as, in Short v. Poole Corporation, 1926-1 Ch 66, “powers corruptly exercised”; “influence of bribery”; “mala fide”; ‘improper purposes’ ‘sinister or collateral purpose’, ‘bad faith’, ‘corrupt motive’, ‘irrelevant grounds’, ‘foolish reason as a man having red hair’ or “frivolous, arbitrary, vexatious as giving room for an inference of mala fides” or in Potato Marketing Board v. Merricks, 1958-2 QB 316 at p. 331, “abuse of power” or in Earl Fitzwilliam’s Wentworth Estate Co. , Ltd. v. Minister of Town and Country Planning, 1951-2 KB 284, and on appeal Fitzwilliam (Earl) Wentworth estates Co. v. Minister of Housing and Local Govt. , 1952 AC 362, “unlawful purpose” though ordinarily purpose, motive and reason are not regarded but the intrinsic validity. Most English decisions in this series show that it is for the authority to whom power is granted and upon whom a duty is imposed to decide, and the exercise of its discretion in making the decision will not be reviewed by the Courts and the decision itself will be impugned only if any abuse of power can be shown. If the act is done bona fide and fairly and honestly, the act cannot be challenged. Smith v. East Elloe Rural District Council, 1956 AC 736 at p. 761, is a telling instance how strongly the House of Lords adhered to the proposition that so long as the Minister acts within his discretion in confirming a compulsory purchase order under the acquisition of Law (Authorization Procedure) Act, 1946, the Courts will not interfere. The House of Lords went so far as to hold that the words in Section 16 of that Act “a compulsory purchase order. . . . . . . . . shall not. . . . . . be questioned in any legal proceeding whatsoever” were wide enough to cover any kind of challenge including bad faith or fraud and considered that to hold otherwise would mean adding “made in good faith” to those words. Lord Reid while agreeing with this view, observed as to the limited jurisdiction of the Court :-

“i think that in the past there has been some confusion about this, and I fear that I must try as best as I can to unravel the matter. It seems to me that there were four grounds on which the Courts could give relief. First, informality of procedure; where, for example, some essential step in procedure had been omitted. Secondly, ultra virus in the sense that what was authorised by the order went beyond what was authorised by the Act under which it was made. Thirdly, misuse of power in bona fide. And, fourthly, misuse of power in mala fide”

and went on to explain what each meant. Vine v. National Dock Labour Board, 1956-3 All ER 939 : 1957 AC 488 and Barber y. Manchester Regional Hospital board, 1958-1 All ER 322 at p. 329, deal with breach of contracts of service with statutory bodies. In the first of them Lord Keith of Avonholm said:”this is not a. straightforward relationship of master and servant. Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages. ” the other case was one of termination of service under terms of a service contract with the statutory. 1 Board. It was found that one of the terms was not complied with and that a breach of contract: was established. In that connection the Court” referred to 1926-1. Ch 66 at pp. 90, 91 and observed : -“the law, I think is clear; in ordinary circumstance, by giving the appropriate notice, a master can terminate his servant’s employment and no” one can question the motives of the master ins reaching a decision to do so. The position differs somewhat in relation to statutory bodies who can, of course, only act for the purposes for which they are created. A statutory body has, equally an untrammelled right to terminate the services of one of its own employees by giving appropriate notice, provided that decision is arrived at bona fide. As I understand the meaning of the word, it is that: the decision must be reached, and honestly reached, in the belief that it is a decision made in the best interests of the objects of the statutory body namely, in this case, the administration of the health services in the region under the control of o the regional hospital board, and not made for some wholly extraneous reason; an obvious extraneous reason would be shown if it could be proved’ that a decision to terminate the employment of a servant was made, not because it was genuinely or perhaps mistakenly thought by the statutory authority that the termination of his services was in the, best interests of the service which they were administering, but because, while knowing that they were not furthering the interests of that service by dismissing him, the statutory authority dismissed!’ the servant owing to personal spite against him. Then I think their decision could be impugned in the Courts. ”

The Court further observed”the case could not be dealt with as though, it were an ordinary master and servant claim in; which the rights of the parties were regulated’ solely by contract. Here despite the strong statutory flavour attaching to the plaintiff’s contract I have reached the conclusion that in essence it was an ordinary contract between master and servant: and nothing more. . . . . . . . . and that the plaintiffs’ only remedy is the recovery of damages”

and proceeded to assess the damages. The learned Advocate general has pressed his. preliminary objection particularly with reference, to these principles and contended that the position in the instant case is no more than that of master and servant governed by contractual terms, notwithstanding the statutory origin of the State bank, that the termination by notice was bona fide made in the interests of the Bank and in accordance with those terms and that if the petitioner felt aggrieved and alleged wrongful termination, his remedy only lay in damages. Though this contention seems to have force, I am unable to accept it and dismiss the petition as not maintainable because of the petitioner’s case which has to be examined that the rules relating to his service are statutory and the order of termination being in effect an order of dismissal, it was in violation of those rules. An alternative remedy may influence the discretion of Court but does not limit the wide power under Article 226, which is not confined to particular forms of the English writs and procedure.

(13) FROM the standpoint of mandamus, the exercise of power by the public authority should normally of course involve public duties. It is in the form of a command issued to any public officer, corporation or authority or inferior tribunal compelling him or it to do or refrain from doing a thing which pertains to his office and is in the nature of a public duty. It will be available both against administrative and inferior tribunals. But where, as in the last instance, a statutory authority or body is vested with judicial or quasi-judicial power it acts as a tribunal and the appropriate process is certiorari. It serves to call for or remove the record or order from an inferior Court with a view to correct errors of jurisdiction, the absence, excess or irregular exercise of it or errors of law apparent on the face of the record or order including some of the limited grounds or errors I have listed above while considering the first two classes of statutory powers of a statutory authority and this remedy in view of the later tendency of the legislatures to entrust more and more judicial or quasi-judicial power to authorities or bodies constituted as Tribunals, now extends to keep them within the bounds of the law. Rex v. Electricity Commissioners, 1924-1 KB 171 observed:

“it has, however, always been the boast of our common law that it will, whenever possible, and where necessary apply existing principles to newest of circumstances. . . . . . . . . . As statutory bodies were brought into existence exercising legal jurisdiction, so the issue of the writ came to be’ extended to such bodies. . . . . . . . . . The Court would examine the proceedings of all jurisdictions erected by Act of Parliament, and if under pretence of such an Act they proceed to encroach jurisdiction to themselves greater than the Act warrants the Court could send a certiorari to them to have their proceedings returned to the Court, to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it to restrain them. . . . . . . But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of justice. Wherever any boy of person having legal authority to determine questions affecting the rights of subjects and have a duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs. ”

These principles equally govern issues of writs of certiorari or prohibition under article 226 of the Constitution as well. It is clear that certiorari is directed against a judicial or quasi-judicial acts which tend to or are a determination or decision in a judicial way of rights of parties or questions relating to them such determination or decision “having the effect of binding both the parties. Service cases to which section 240 of the Government of India Act, 1935 or Article 311 of the Constitution applied seem to be somewhat of an exception, for in a sense the act of dismissal, removal or reduction in rank is eventually an administrative act. The Court looks into the proceedings leading upto the act to see they conformed to the principles of natural justice or essential forms of justice and the law. But even this is done, I think because of the requisites of the protective provisions of Article 311 or other statutory provision, which to that extent, controls the pleasure of the executive on which the tenures of particular civil posts depend. Rangachari v. Secretary of State, 64 Ind App 40 : (AIR 1937 PC 27) was a case under Section 96-B (1) of the Government of India Act 1919, in which the dismissal was held to contravene that provision and was, therefore, bad and inoperative. Venkatarao v. Secretary of State, 64 Ind App 55 :: (AIR 1937 PC 31) had to do with failure to comply with the rules made under Section 96-B (2) of that Act. The privy Council held that such failure did not give any right of action on the view that the rules amounted only to”a statutory and solemn assurance that the tenure of office, though at pleasure, would not be subject to capricious or arbitrary action, but would be regulated by rule. ”

But in the High Commissioners for India v. I. M. Lall, 1948 FCR 44 : (AIR 1948 PC 121) the Board pointed out that the requirement of giving a reasonable opportunity of showing cause against the action proposed, which formerly rested on the rules made under Section 96-B (2), remained no longer so but was made by section 240 (3) of the Government of India Act, 1935, mandatory and that this requirement necessarily qualified the pleasure of the Crown. If this requirement was not followed, held the Judicial committee, the purported dismissal was ‘void and inoperative’ and there would be a declaration that the Government servant remained a member of the service at the date of the institution of the action. Though these cases arose out of suits, these principles apply to Article 311 of the constitution in cases coming up under Article 226. The effect of treating the dismissal void is that the order was a nullity and never existed in the eye of law. It is in that sense the Court quashes the order. See Craig v. Kansen, 1943-1 KB 256 where an order considered to be void, was, nevertheless, set aside. Kofi Forfie v. Barima Kwabeng Seifah, 1958 AC 59, is another illustration on the point.

(14) IN this background the learned Advocate General asks what is the statutory duty of the State Bank quod its order of termination of the petitioner’s service which he can properly compel the Bank to discharge, and what is the decision; here of the bank rendered in a quasi-judicial capacity such as to attract certiorari? sri Nambiyar’s answer is that these questions do not necessarily affect the maintainability of a petition under Article 226 of the Constitution. I think his contention is right. The petitioner comes to this Court charging that the termination order is really a dismissal, that the State Bank of India (Sub-Accountants and Head Cashier) Service Rules were statutory rules and that the order of dismissal because of its failure to conform to the statutory rules which provide for a quasi-judicial jurisdiction and procedure and the principles of natural justice, is a nullity. If the petitioner is unable to establish these grounds, the petition has to be dismissed as a result but not on the ground of maintainability of the petition. Article 226 of the Constitution is not confined to the particular forms of writs obtained in England and mentioned in the Article but covers a much wider ground and jurisdiction. It will not, therefore, as already observed at the outset of the judgment, be proper to understand and interpret the scope and ambit of Article 226 and the nature, width and content of the powers conferred by that Article, in the light or by application of the English principles of the Court’s jurisdiction either in actions or writs or other proceedings. In my opinion, having regard to the language of the Article, and the variety of matters which it may comprehend and the purposes, which are not defined, for which directions could be given under the article no question of maintainability of the petition as such under the Article could normally arise and the grant or refusal of a petition under the Article will largely be a matter of discretion undoubtedly vested in the Court. I am, therefore, unable to uphold the preliminary objection raised on behalf of the respondent.

(15) IN the circumstances, I permitted the petition to be argued on merits. Before dealing with the three points formulated by Sri Nambiar since they proceed on the assumption that the order of termination was virtually an order of dismissal for misconduct, it is necessary to immediately consider this aspect. If the order is not one of dismissal for misconduct but one of termination under the terms of the contract of service, there will then be no need to deal with these points, because ex facie the order of the Bank purports to be one terminating the petitioner’s service in terms of clause 1 of the petitioner’s agreement in service with the Bank dated 12-8-1958. The order no doubt referred to the conclusion of the Local Board that the petitioner was guilty of misconduct which deserved extreme penalty of dismissal from service. But the order shows expressly that the Local Board did not propose to put that conclusion to effect and dismiss the petitioner from service. The reason for this is said to be grounds of compassion. Apparently by that the board had in mind the petitioner’s long and unblemished service. In view of such ground of compassion, the Board resolved to terminate the petitioner’s. services by giving him two months’ salary in lieu of notice as in effect provided for in the agreement for service and terminated his services with effect from the date of the order. It is plain, therefore, that the termination was not by way of punishment but in exercise of the right of the employer under the terms of the service agreement to terminate the service by notice. It may be that the proceedings in the enquiry of the charges against the petitioner and the report of the enquiry that followed as well as the Board’s conclusion that the petitioner’s misconduct deserved the extreme penalty of dismissal -all these were relevant to and possibly presented the occasion but not provided the basis for termination. If they formed any basis at all, for any action to be taken, the order itself made it manifest that the action should have taken the form of dismissal of the petitioner from service. Further the order itself did not categorically mention that The Local Board agreed with the findings of the enquiry and report and that each of the charges framed against the petitioner was proved, though the board had come to the conclusion that although the petitioners misconduct deserved the extreme penalty of dismissal, it would not be proper to impose that penalty upon him. It cannot, I think, be said, that, whenever termination of service purporting to be under the terms of contract for service was preceded by framing of charges and an enquiry against the alleged delinquent officer, the termination should necessarily be held to be in effect a dismissal. It is quite possible that while the employer being of the opinion that misconduct had been established, he would not pursue it to a punishment like dismissal or any other but nevertheless and without regard to it, would like to terminate the service legitimately taking advantage of one of the enabling terms of the contract of service relating to termination of service by notice. Reference has been made by Sri Nambiyar to cases arising out of labour awards holding termination in certain circumstances to be, in fact, a dismissal from service either on account of motives of victimisation or other corrupt labour practice, but I do not think that they are of assistance in deciding the instant case. In my opinion, there are not circumstances in the instant case to warrant such a conclusion that the order of termination is one missal I hold that the petitioner services was terminated by he Local Board in Local Board in exercise of its right as an employer under clause I of the service agreement providing for termination of service by two months notice.

(16) BUT it is contended for the petitioner that even so, the termination of service was in violation of Rule 14 of the State Bank (Sub-Accountants and Head cashiers) Service Rules, and the terms of the agreement. For the purpose of this argument, I shall assume that these rules are statutory. Rule 14 so far as a Head cashier is concerned, is to the effect that his service

“may be terminated by the bank giving him such notice or such amount in lieu of notice as may be prescribed in his agreement for service with the Bank. ”

Clause 1 of the agreement dated 128-1958, which the petitioner had entered into with the bank provided”such service determinable on either side by two calendar months’ notice to that effect as hereinafter provided. ”

There is no further provision in the agreement to pay two months’ salary in lieu of two months’ notice on terminating petitioner’s service. Upon this ground Sri Nambiar urges that the petitioner’s services can be validly terminated only by a strict adherence to clause 1 of the agreement, namely, by giving him two months’ notice and not by paying him two months’ salary in lieu of such notice. In terms of Rule 14, if there is anything like a violation, this will, I think be only in breach of the actual terms of the service agreement but not necessarily a violation of the rule, though, the rule provides that the service of a Head cashier may be terminated by giving him such notice or such amount in lieu of notice as may be prescribed in his agreement for service. On that view, neither mandamus nor certiorari will be an appropriate remedy, as a breach of an agreement can only found in damages. But I go further to find that the particular mode of termination by payment of two months’ salary in lieu of two months’ notice is not, as I consider, in violation of clause i of the service agreement. Just as a private employer cannot compel the personal service of his employee, conversely an employee can not normally insist upon the employer to continue him in service during the notice period not withstanding his desire to terminate his service. There may be circumstances in which the employee may be prejudiced in terms of not only salary but emoluments attached to his office’ by termination of service without allowing him to serve during the notice period. But this is not such a case, and the same principle should apply to a statutory authority in its capacity as an employer, unless there is something inconsistent in the statute or statutory rules. The petitioner was paid not merely two months’ salary but also allowances pertaining to that period. I think, therefore, that termination of the petitioner’s service in that manner was in substantial compliance with clause i of the service agreement. This view of mine seems also to be supported by Konski v. Peer. , 1915-1 Ch 530. The service agreement in that case provided”your employment is to commence on the 25th April 1914, and to be subject to termination by a week’s notice on either side and also to the terms and conditions of service. . . . . . . . . ”

The employer discharged the employee from service by paying her a week’s wages in lieu of the week’s notice and a certain sum as gratuity ignoring the desire of the employee to continue in employment until the expiration of the week’s notice. The court held the termination not wrong and observed:”in my opinion he (the employer) had discharged the obligation which he had undertaken under his agreement by paying her the salary which he agreed to pay, and if he chose to pay her salary and dispense with her services at the same time he was entitled to do so. ”

It was also pointed out as noteworthy that the employment under the service agreement was not to last for any fixed period in which case alone an earlier termination could be aid to be in breach of the agreement. The result of my finding is that the order of termination of the petitioner’s service is not shown to be an order of dismissal or in violation of any statutory rule or even the terms of the service agreement.

(17) ON that view, no question, of dismissal in violation of the service rules or the principles of natural justice will be relevant or will arise. The alleged violation of the service rules is based on the supposition that the service rules are statutory rules and that the charges framed against the petitioner could not be properly said to infringe Rules 33 and 36 and that in any case, the procedure prescribed by Rule 40 (2) of the rules applicable to enquiries into misconduct, including the procedure of second notice under clause (4) of the rule has not been followed. I doubt very much whether the State Bank of India (Sub-Accountants and Head Cashiers)Service Rules have statutory effect. I am inclined to hold that they are not statutory rules and do not have the force of law. The rules themselves do not indicate the source of their authority. Sri Nambiar’s contention is that if rules should be made and are made, they should be related to the enabling power in the statute. As a proposition, no one can demur to its validity. But the question is whether these Rules have been made in exercise of any statutory power enabling framing of Rules. Section 50 (1) confers power upon the Central Board of the State Bank of India to make regulations, after consultation with the Reserve Bank and the previous sanction of the Central government, not inconsistent with the Act or the rules made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the Act. By Sub-section (2) of the same section particular matters are mentioned with reference to which or in regard to which the central Board can make regulations. None of those matters pertains to appointment or conditions of service. The requirement of consultation with the reserve Bank: and the previous sanction of the Central Government and the need to conform to the provisions of the Act and the rules made thereunder would1 seem to indicate that the regulations are not meant to cover terms and conditions of service. The specific power to make rules is in Section 49 conferred’ upon the central Government and this power too does not touch upon the service conditions and terms. The only other section to which my attention was drawn is Section 43 which states:

“the State Bank may appoint such number of officers, advisers and employees as it considers necessary or desirable for the efficient performance of its functions and determine the terms and conditions of their appointment and service”.

This obviously, to my mind, is not a rule making power. The section only empowers the State Bank to appoint its officers, advisers and employees, their number depending upon the necessity or desirability for the efficient performance of Bank’s functions. The further power of the State Bank under the section which is related and incidental to the power to make appointments, is the power to determine the terms and conditions of the appointment and service. There is nothing to prevent the State Bank of India from fixing such terms and’ conditions and changing the same from time to time at its discretion. The power Under section 43 enables the Bank no more than to fix the term and conditions of service by entering into service agreements or otherwise in relation to the officers, advisers and employees appointed by it. There can, therefore, be nothing statutory about or in the determination of the terms and conditions of the service. Such determination of the terms and conditions does not have the effect of making the rules have the force of law. It is under this section the State Bank is enabled to enter into service agreements with its employees. It cannot be said that wherever a statutory authority acts under or in exercise of a power statutorily given to it, such act has the force of law. For instance, no one will say that the terms and conditions of a contract entered into by a statutory body in exercise of its statutory contractual power constitute anything more than a contract. Those terms and conditions cannot be treated as rules having the force of law. The State Bank of India (Sub-Accountants and Head Cashiers) Service rules may be the terms and conditions, among them others, which govern the employees of the State Bank that they do so not as statutory rules having the force of law. On this view again, the contention of the petitioner that he was dismissed in violation of the service rules cannot be enquired into in this petition under Article 226 of the Constitution. If I am wrong, in my view of the effect of the service rules and the finding that the termination is not one of dismissal, there may be, I think, some force in the contention that the charges as framed, even granting that they were made out, would not be a violation of Rules 33 and 36 and that there may also be something to be said in favour of the contention that the dismissal was in violation of the principles of natural justice. That was the impression I gathered while I was taken through the record of enquiry. At the same time, I should say that as seen from the entire record, the Bank in terminating the petitioner’s o services acted bona fide and in the interests of the Bank. But in the view I have taken, namely, that it is a case of termination of service in terms of the service agreement, it will be totally unnecessary for me to express my final opinion on the other matters.

(18) THE petition fails and is dismissed but in the circumstances without costs.

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(1) This second appeal by the plaintiff raises a short but not an easy question in the construction of a deed. The Courts below have differed in their views. Briefly stated the point for decision is whether a purported deed of settlement is a composite instrument being a deed of settlement in respect of specified properties and a testamentary document in relation to the remaining properties and a testamentary document in relation to the remaining properties of the settlor. The deed in question was executed by Arunachalam Pillai, a Hindu Vellala, residing at Palayamkottai, Tirunelveli Dt, on 21-4-1927, as a marriage settlement on the eve of his third marriage. The preamble to the document sets out the circumstances under which the document was executed. His first wife was dead and had left a daughter Isakki who had been married away. He had taken a second wife by name Meenakshi about 8 years previously; but she had no issue and it is in these circumstances he sought the hand of the present plaintiff as third wife in the hope of continuing the line. She was his uncle’s daughter, then just aged 16, and the deed recited that when the marriage proposal was made, her father insisted on settlement of some properties as a condition for the marriage, in as much as the second wife was living and there was besides the daughter by the first wife. Items 1 and 2 of the plaint schedule were settled on her in the circumstances under the deed, the deed to take effect on the date of the marriage, the marriage being fixed about a fortnight ahead.
(2) The operative portion of the deed provides for the settlor and the settlee to enjoy the properties jointly during their lifetime the settlee living with the settlor. During the settlor’s life-time the settlee cannot by herself in any way encumber or alienate the properties. Even so during the settlee’s lifetime, the settlor was not entitled by himself to encumber or alienate the properties. Then comes the clauses of the deed requiring construction. Having provided for the enjoyment of the settled properties during their lives, the deed proceeds to provide for the future devolution of the properties settled. Under the first clause after his and her lifetime, if she had male heirs they were to take the scheduled properties and his other properties with absolute rights. The construction contended for is that this clause is partly a transfer in praesenti under the settlement and partly a testamentary disposition.

(3) It is contended that all the remaining properties of the settlor not the subject of the settlement are testamentarily disposed of by this clause. The next clause provides that if the settlee had only female heirs, the said female heirs and the settlor’s first wife’s daughter Isakki alias Thangathammal should partition (the properties) equally and enjoy. It is contended that these female heirs take and devide not only the properties, the subject of settlement but also the properties, the subject of settlement but also the other properties of the settlor. The third clause provides that in the event of the settlee having no heirs she would take the properties scheduled under the deed with absolute rights. Then follows a clause providing against revocation of the settlement under any circumstances.

(4) The settlor died about the year 1937 leaving no male issue even by his third wife, the present plaintiff. He had by her only a daughter by name Meenakshi now alive. The second wife is also dead and the first wife’s daughter Isakki died in or about 1945 leaving her two children, defendants 1 and 2. The third defendant in the suit is the husband of the first defendant. The plaintiff has come forward with this suit basing her title to the properties set out in Schedules 3 to 8 in the plaint as heir to the deceased Arunachalam Pillai. She contends that the estate which she has inherited from her husband on his death in these properties has, under the Hindu Succession Act XXX of 1956, become enlarged into an absolute and heritable estate. Schedules 1 and 2 to the plaint are the properties which were settled on her by her husband and she claims a life interest in the same. It is alleged by her that defendants 1 and 2 are setting up title to the properties described in Schedules 3 to 8 as co-owners along with her Possession is sought from the defendants of the properties described in schedules 3 and 5 and declaration of her title and injunction is sought in respect of the other properties. A shop has been constructed on the fifth schedule item. The trial Court which found for the plaintiff on the construction of the deed, decided that the construction of the shop was by defendants 1 and 2 at their expense and before the plaintiff could have possession of the 5th schedule item, she should pay a sum of Rs. 2000 as compensation to defendants 1 and 2.

The appellate Court which has found against the plaintiff on the construction of the deed finds on the merits that the plaintiff need not compensate defendants 1 and 2 for the construction of the shop as she had herself spent for the construction. As desired by the parties, the property set out in schedule 8 has not been the subject of relief. The learned District Judge on his interpretation of the deed, has held that the plaintiff will be entitled to a life state only in all the properties that is even in the properties described in schedules 3 to 7 defendants 1 and 2 having a half right in the vested remainder along with the plaintiff’s daughter. In that view, possession had been directed to be delivered to the plaintiff of the third and fifth scheduled properties. Her possession of the properties for her lifetime is protected by injunction.

(5) The short though not simple question for decision is whether on its true construction the document Ex. A-1 while being a deed of settlement operating in praesenti on the properties set out in Schedules 1 and 2 of the plaint, is also a testamentary document in respect of the remaining plaint items. That a document can be partly testamentary and partly immediately effective as a settlement is not in dispute. A document can contain a legal declaration of the intention of the executant with respect to his property to take effect after his death notwithstanding that the document may contain other provisions to take effect during his lifetime. A part of the instrument may operate in praesenti as a deed and another in futuro as a will. See Chandmal v. Lachhmi Narain, (1900) ILR 22 All 162. If a deed is severable and part of it clearly testamentary, such part may take effect as a will, though the remaining parts are not testamentary. But the essential distinction and a necessary element to read a will in such a document is that the relative provisions must be revocable. “A will is in all cases revocable, even though the testator may declare it irrevocable”. Theobald on Wills, 12th Edn. Para 78 page 28. Also as pointed out by thing Court inIgnatia Brito v. Rego, 64 Mad LJ 650 (652) = (AIR 1933 Mad 492 at p. 493), where an instrument is deed in form, there must be something very special in the case to justify its being treated as testamentary in character. Now bearing in mind that a document could be ambulatory and testamentary in part and effective as a settlement in part, I shall proceed to construe the relevant clauses.

(6) The cardinal rule of interpretation of deeds as well as other instruments is to look for the intention of the executant in the words of the document and for that purpose the language of the entire deed has to be taken into consideration. As far as possible the interpretation should be such that effect is given to all the parts and no portion of the instrument is rejected. In the construction of a document the prime factor to be found is the intention of the executant as expressed in the deed. The intention has to be gathered from the document itself, and if the words are express and clear, effect has to be given to them and there can be no extraneous enquiry as to what was thought or intended. But it is well established that where there is ambiguity in the language employed it is permissible to look to the surrounding circumstances at the time of execution to determine what was intended to be conveyed by the language used. Very often the status and training of the parties using the words have to be taken into consideration. Very many words are used in more than one sense and the sense differs according to the circumstances and context. It was stated by Sir Gorrell Barness P in the testamentary suit, Simpson v. Foxon, 1907 P. 54 at p. 57.

“But what a man intends and the expression of his intention are two different things. He is bound and those who take after him are bound by his expressed intention. If that expressed intention is unfortunately different from what he really desires so much the worse for those who wish the actual intention to prevail”. In River Wear Commissioners v. Adamson, 1877-2 AC 743, Lord Blackburn sets out the rule thus–

“In all cases the object is to see what is the intention expressed by the words used. But from the imperfection of language, it is impossible to know what that intention is without inquiring further and seeing what the circumstances were in reference to which the words were used and what the object appearing from these circumstances which the person using them had in view; for the meaning of words varies according to the circumstances in respect of which they were used”.

To construe the settlement deed in the present case Ex. A-1, we have this that it is an instrument duly stamped and registered as a deed of settlement of specified properties. The settlor was out only to settle specified properties for his would be third wife and not generally provide for the devolution of all this properties. Ex. A-1 sets out in the schedule the properties which are the subject of the settlement. The occasion for bringing up the instrument is set out in the preamble portion. On behalf of the plaintiff who was taken as third wife, her father had insisted on settlement of properties. The instrument is executed on the eve of the marriage and the deed itself states that it is a marriage settlement. As regards the properties settled the deed first deals with the rights of the settlor and settlee therein during their lifetime. The controversial part of the document starts when providing for the subsequent devolution of properties settled. The relevant clauses run thus:

(Portion in Tamil omitted–Ed.)

The first three clauses have to be read together a single thought pervades the provisions, and when read through one sees gaps and ambiguity. In the event of the settlee having male heirs while providing that the male heirs shall take an absolute estate in the properties settled after the lifetime of the settlor and settlee on a first reading it reads as if it is further provided that they shall so take the other properties of the settlor also. A single verb serves for both sets of properties. I am asked to read in this clause a testamentary disposition in respect of the remaining properties of the settlor. I will then be reading a single clause in the instrument partly as testamentary and partly as a deed. Now this clause provides for devolution after the lifetime of both the settlor and the settlee. With reference to the properties specified and settled, there can be no difficulty or doubt in applying the clause. The survivor of the two spouses takes a life estate with remainder over to the male heirs. A marriage settlement quite commonly takes that form. The position gets complicated when I have to construe the clause with reference to the remaining properties of the settlor. The learned District Judge interprets this clause as giving a life estate in them in the settlee after the lifetime of the settlor if she outlives him. The sons do not inherit even these properties on the death of the father: they take the properties only after the lifetime of the widow, just as in the case of the settled properties. It is this interpretation that makes me hesitant to fall in with the lower Court. No doubt if the settlor outlives the settlee, on his death whether the clause is given effect to or ignored in relation to the other properties, the sons take the other properties absolutely as heirs.

In the event of the settlee outliving the settlor, there is no specific provision vesting the other properties on the settle or for that matter on any one else in the interregnum. The words by themselves if given effect to only postpone the sons for the lifetime of their mother and it is contended for the defendants that they will meanwhile vest in the settlee for her life like the settled properties. To this the argument on behalf of the plaintiff is that the settlor had not embarked on making any testamentary disposition then; to attribute to him an intention to postpone the vesting of his properties on his male heirs for the life-time of the plaintiff. It is argued that this is to find in him an unreasonable or capricious intention. He was anxious to get a son. He was taking a third wife to have male progeny. It was not any infatuation for the girl that brought about the settlement. Certainly he was not anticipating that the male progeny expected would be wayward. Why then should he postpone his sons inheriting his other properties on his death? If they are postponed to take after their mother they may be postponed for decades; they may become grand-fathers before they get their father’s estate.

Then there was the second wife alive and it is pointed out for the plaintiff that there is absolutely no evidence of any other provision having been made for her maintenance. May be she has no issue; but only 8 years had elapsed after her marriage and why should one presume that he was ignoring her altogether. Learned counsel for the plaintiff argues that the circumstances do not warrant imputing a testamentary intent to the settlor in this clause ignoring just and lawful claims and demands on his dispositive powers. It is submitted that the reference to the other properties of the settlor is only by way of illustrating the absolute character of the estate that would be taken by the sons only emphasising the estate they would be taking. Whether it has nay significance or not, the language used in relation to the female heirs is different and this may explain the need for illustration. Hence I may refer to the observations in Patch v. Shore, 1862-2 Dr. and Sm. 589 = 143 RR 283.

“The rule is, that if an instrument be a deed in its form in order to hold it is testamentary, or in the nature of a will there must be something very special in the case; it must even go to this extent, that it was the intention of the settlor that the instrument was to be ambulatory till his death, and then to operate at all events; or that he intended the instrument to be a will animo testandi”.

(7) The test of revocability may be satisfied in this case, as the document states that the executant has no power to revoke the settlement and the clause may be confined to the settled properties. But all the same when both the clauses of properties, the properties settled as well as the other properties are dealt with by a single clause to construe that the same words apply in praesenti in respect of one set of properties and are testamentary in respect of different set of properties the language and the occasion must be compelling. The question is, do the language and circumstances of its user call for such drastic departure by interpretation. I do not see why, if without violence to the language the reference to the other properties can be read as merely a statement of a fact that will happen a construction involving an unlikely intention should be adopted. The language of the provision does not compel that both the sets of properties must be taken at the same time, that it, after the death of the settlor and his wife. It seems to me that the settlor and his wife. It seems to me that the settlor may point out that the male heirs will be taking his other properties absolutely and provides that along with those properties they shall take the settled properties also absolutely after the lifetime of the mother the settlee. The settlor expresses his wish that the settled properties should follow the devolution of his other properties. He was not by the document providing for the devolution of his other properties. Clearly however read he has made no provision with reference to the remaining properties in the event of the settlee having neither male nor female heirs. This is a pointer that the settlor may not be on the subject of disposition of his other properties then. The reference to the other properties can be read as reference to an event that will happen on the death of the settlor; Matrum en Sottukkaliyum–just means Matrum en Sottukkatippol–that is the sons will take the settled properties absolutely even as they would take his other properties absolutely even as they would take his other properties. In Williams on Executors and Administrators, 14th Edn. Volume 2, it is pointed out at page 512:

“Where the words of the will are unambiguous they cannot be departed from merely because they lead to consequences capricious or even harsh and unreasonable; but where they are capable of two interpretations, that construction of them is to be adopted which is in accordance with an intelligible and reasonable, and not a capricious or anomalous result. A testator must not be presumed to intend an absurdity, but, if shown by the context or by the whole will to have so intended, the intention, if not illegal, must be carried out”.

The principles applicable in the construction of a deed are not different. to accede to the construction adopted by the appellate Court is to ascribe to the testator who has been so anxious to get a son a desire not in consonance with the normal wishes and attitudes of the class of people to which the testator belongs. A Court construing an ambiguous document cannot shut out such considerations. Where the language is not clear, I am not prepared to impute such an intention to the settlor in the case in the year 1927, and the construction should not be guided by the subsequent events and the need for what may be considered as equitable and rational interpretation in the state of things now obtaining. I am not taking into consideration the argument of learned counsel for the plaintiff that the properties were ancestral. I am on the construction of the deed and at the time he executed the deed even if the properties were ancestral, he was the sole coparcener absolutely entitled to the properties and would not have imagined that the birth of a son would fetter his disposal of the properties. But all the same I do not think that any Hindu could postpone his son taking his estate after him for the lifetime of his widow, when the son is yet to be born and nothing can be predicted about him. Where the intention of the executant is clear but the language is ambiguous and when it appears from the context that a word must have been incorrectly employed by the testator in the place of some other word, the Court could read the word as it ought to be. Illustrative of the limits to which the Court will go in construing a document I may quote Willams on Executors and Administrations, 14th Edn. Volume 2, at page 616, referring to Forth v. Chapman (1720) 1 P. Wms 663 (667):

“Thus, in (1720) 1 P. Wms 663 (667), where the testator devised real and personal estate to A, and if he should die and leave no issue of his body, then to B, Lord Maclesfied said that it might be reasonable enough to take the same wards as to the different estates of reality and personality in different senses, and as if repeated by the several classes and that the words ‘have no issue’ as applied to the personal estate, should be taken to mean, leave no issue at the time of his death, but as applied to the free-hold to mean an indefinite failure to of issue”. Chief Baren Kelly observed thus in Gwyn v. Neath Canal Co. (1868) 3 Ex. 209 at p. 215.

“The result of all the authorities is that when a Court of law can clearly collect from the language within the four corners of the deed or instrument in writing the real intention of the parties, they are bound to give effect to it by supplying anything necessarily to be inferred from the terms used and by rejecting as superfluous whatever is repugnant to the intention so concerned”.

Oldgers in his Treatise, Construction of Deeds and Statutes, 4th Edn. at page 48, gives another illustration:

“For instance in a marriage settlement the intention was to provide for all children sons and daughters and the Court effected that intention by transposing the clause creating the power to make provision for younger children and that containing the limitation to the daughters in the event of there being no son; whereby the words ‘such younger children’ would include both sons and daughters”.

But of course, to the guise of construction one cannot rewrite the deed for the executant and it is permissible to look for the intention of the executant only when the language is not clear and it becomes necessary to find out what the executant was at by the words used. Also extrinsic evidence of the intention is not admissible. Only when there is doubt, evidence is permissible as to what the words mean or how they are to be applied to the circumstances of the executant. In my reading of the document, the executant has not expressed any testamentary intent by the words in question.

(8) To go to the next clause, the clause applicable in the events that have happened, I agree with learned counsel for the defendants that the clause providing for the contingency of the settlee having only female heirs must be read along with the preceding clause and goes with it. This provision as the previous one comes into effect after the lifetime of the settlor and the settlee. In the event of the settlee having female heirs, her female heirs and the first wife’s daughter have to take the properties equally. The question is do these female heirs take both sets of properties equally. It is contended for the plaintiff that even if the first clause should be read as containing a testamentary disposition in respect of the other properties, this clause does not necessarily take in the testamentary disposition. Learned counsel contends that this can refer only to the scheduled properties. But counsel for the defendants draws my attention to the very next clause where the contingency of the settlee having neither male or female issue is dealt with. That clause provides that the settlee shall take the scheduled properties absolutely. If it should be held that the first clause is partly dispositive in character, it is difficult to hold that the second clause does not take the other properties and make a testamentary disposition of them in the contingency contemplated therein. The second clause makes no reference whatever to the properties. It is understood in the context and the properties which are to be shared equally under that clause must only be the two sets of properties, referred to in the preceding clause.

(9) The several clauses show a continuity of thought. To me it seems that a single subject matter is dealt with, devolution of properties after the lifetime of both.

(10) The specific reference in the third clause to the settled properties is only by way of emphasis and not in contrast with the subject matter of the clauses preceding. The clause immediately following the third clause refers to the document as a settlement and then follows the provision against revocation. No doubt as stated earlier, if the disposition is testamentary, the mere fact that the testator has stated that it was irrevocable, will not stand in the way of revocation. But when considering whether the settlor intended a particular provision to be testamentary or not, one can properly refer to the specific provision by the settlor that he had no right of revocation of the terms of the deed and here the terms are not clearly severed. To read the reference to the taking of the other properties absolutely as merely setting out a fact that will happen and indicating separately that the male heirs will have the same absolute estate in the settled properties will be giving effect to all the provisions of the deed and will be reading the document as a whole. No words will get omitted and no unintelligible and unreasonable effect will be given to the provisions of the deed. It is not contended that the document effects a settlement of the properties not specified in the schedule thereunder. It cannot be in view of Sections 21 and 22 of the Indian Registration Act.

(11) For the defendant reference is made to Ramautar Singh v. Ranisundari, . In the matter of construction of

documents authorities and decisions on particular documents are not of much help. They can be looked up as illustrations of the principles that should guide interpretation. In the ulimate, effect of the words of any particular document has to depend upon the context in which the words have been used and would be conditioned by the tenor of the document. In , the testamentary clause and the

dispositive clause in regard to the gift were distinct and separate, and there was no doubt that the donor’s dominant intention was to pass his other properties also after his death to the donee. It is pointed out in that case that the intention of the executant in respect of the other properties was not at all obscure.

(12) I am conscious that the construction which I find myself constrained to adopt may be having an effect which would not have been dreamt of by the settlor in view of the Hindu Succession Act XXX of 1956. If the settlor could be consulted today he may vehemently assert in the background of the subsequent events and legislation that his intention was as now interpreted by the appellate Court. But the document has to be construed not in the light of events that have subsequently happened and the laws that have been subsequently passed. But for Act XXX of 1956, the plaintiff will be having only a woman’s estate in the other properties of the settlor as his heir on the construction of the document which I am inclined to take agreeing with the trial Court. Now by virtue of the Act, the plaintiff will take the properties set out in schedules 3 to 7 as absolute owner.

(13) The second appeal has to succeed. The variation of the decree of the lower appellate Court necessitated by the view I take is to grant the plaintiff a declaration that she is entitled to the properties set out in schedules 3 to 7 of the plaint absolutely in substitution of the limited declaration granted by the appellate Court in Clause 1 of its decree. The finding of the learned District Judge as to the construction on Schedule 5 properly is a finding of fact. Therefore in other respects the decree and judgment of the lower appellate Court have to stand affirmed. The second appeal is allowed to the extent indicated above. In the circumstances of the case, the parties will bear their respective costs throughout. Leave granted.

(14) Appeal allowed.

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COMMON ORDER
(Order of the Court was made by The Hon’ble Chief Justice)

The petitioners in all the writ petitions are candidates of the Backward Class Category claiming relaxation in age at par with the candidates of Schedule Castes and Schedule Tribes, which stands at 48 years, on the ground that they also belong to the reserved category of candidates and, therefore, any denial of age relaxation to them would amount to invidious discrimination by not extending a benefit which otherwise ought to have been also given to the petitioners herein. Their contention is that this is not based on any rationale and there are no reasons available, more so in view of the fact that the respondents had extended this benefit in the previous notification dated 13.1.2019, but for the same vacancies and for the same selections, the fresh impugned notification dated 12.12.2019 omits the said benefit. The affidavit of the State Government as well as the High Court nowhere discloses any rational basis and there being no intelligible differentia decipherable, the said benefit should be extended to the petitioners herein as they also belong to the weaker section of the Backward Class Category. This they say is in order to allow a concession enabling the reserved category Backward Class candidates to attain the objective of getting suitable representation, inasmuch as relaxation in age is a tool to fulfill the aim of reservation and denying the said benefit, therefore, is against the constitutional mandates for the reserved category.

2. The second argument emphasizes on the fact that the vacancies for which such relaxation is being claimed relate to the year 2013, when the last selections were held. These selections were inordinately delayed for almost six years and commenced in the year 2019. This long lapse of time, therefore, deprived the petitioners of their opportunity to avail the benefits as candidates in the said selection process and, therefore, by placing heavy reliance on a Division Bench judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others, 2014 SCC Online Jhar 73: (2014) 2 AIR Jhar R 638, it is urged that in order to remedy this unjust deprivation, a relaxation over and above the maximum age should be otherwise prescribed to enable the petitioners to undertake the fresh examinations and selection process of District Judge (Entry Level).

3. It is submitted that the petitioners had a right to apply and appear in the recruitment process, which rights have been taken away in spite of the fact that they were eligible, but a delay and then the subsequent change in the stand of the respondents has brought about this unjust situation.

4. It is further submitted that age relaxation for recruitment to the other posts of the Subordinate Judiciary is available to the Backward Class candidates, but there is no rationale behind non providing of this relaxation to the candidates who are seeking to participate in the selection process for the post of the District Judge (Entry Level). In the absence of any distinctive rational for the said purpose, there cannot be any justification for not providing any such relaxation to the petitioners.

5. It is also submitted that relaxation in marks has been given, but there is no reason as to why relaxation in age cannot be afforded to the petitioners in order to fulfill the object of reservation.

6. One more fact deserves to be taken notice of, that is against the notification issued on 13.1.2019, no single candidate could be selected and, therefore, in this peculiar situation also a fresh opportunity by providing relaxation, more particularly in the case of reserved category candidates, should be extended.

7. One of the other arguments that has been advanced is that a number of vacancies for which the selections were to be held arose prior to the amendment which is under challenge and the eligibility of age should always be construed with reference to the year of vacancy. Learned counsel advancing this submission, apart from relying on other judgments to which reference shall be made herein after, has heavily relied on a Division Bench judgment of the Rajasthan High Court in the case of Prakash Chand and others v. The State of Rajasthan and another, reported in 1990 (2) WLN 317.

8. Replying to the said submissions, learned counsel for the State has relied on the counter affidavit filed in one of the writ petitions, namely W.P.No.35906 of 2019, to contend that the Apex Court in All India Judges’ Association and others v. Union of India, reported in (2002) 4 SCC 247, in paragraphs (37) and (38), had accepted the Shetty Commission report in relation to age relaxation, which does not contain any separate age relaxation for the Backward Classes. To the contrary, the issue was very much discussed by the Supreme Court vis-a-vis in particular to the State of Tamil Nadu, where such recommendations had been made, but the Apex Court while accepting the report of the Shetty Commission did not provide any such benefit of relaxation in age to the Backward Class category. Learned Government Pleader, therefore, contends that such relaxation cannot be read beyond the said judgment.

9. It is further submitted that the issue of any delay in holding of the selections does not per se extend any such right or confer any benefit on the petitioners, inasmuch as such benefits were never extended in the past under any rule that was for the time being in force to the Backward Class community. Secondly, the posts are being filled up keeping in view the constant monitoring and directions issued by the Apex Court in the case of Malik Mazhar Sultan v. U.P. Public Service Commission and others, in Civil Appeal No.1867 of 2006, where in relation to the State of Tamil Nadu as well as other States, the following orders were passed on 6.11.2019:
“… The note of learned Amicus Curiae would go to show that there are 30 posts in the District Judge which are to be filled up against the direct recruitment quota. It appears that the said vacancies are yet to be notified. The High Court is requested to notify the same within two weeks and thereafter, complete the process of selection and appointment as per the schedule laid down by this Court in Malik Mazhar Sultan case.”

10. It is, therefore, urged that this issue of any delay now cannot be entertained as the answering respondents are under a mandate of the Supreme Court to complete the selection process. No directions have been given by the Apex Court to grant any relaxation in age and even otherwise, any such clarification in respect of the said directives can only be obtained from the Apex Court keeping in view the directions contained in paragraph (40) of the judgment in the case of All India Judges’ Association and others v. Union of India (supra).

11. It is also the contention of the Government that in the absence of any such rules, no such benefit can be extended, nor is there any power of relaxation so as to extend such benefit

12. He has further supplemented the arguments advanced by the learned counsel for the High Court by relying on two judgments of this Court in the case of R.Srinivasan v. The State of Tamil Nadu and others, [W.P.No.14437 of 2013, decided on 4.7.2013], more particularly paragraph (8), as followed by another Division Bench in the case of S.Manikandasamy v. The Registrar General and another [W.P. (MD) No.10624 of 2013, decided on 16.7.2013], where a similar challenge raised was rejected by the High Court.

13. Mr.Vijay, learned counsel for the High Court had advanced his submissions contending that equality in opportunity in matters of employment does not mean equality or uniformity in all respects. It is urged that there is no manifest arbitrariness demonstrated by the petitioners and a mere difference in age relaxation between two different classes of the reserved category does not amount to any invidious or hostile discrimination.

14. He further submits that the judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), as relied on by the learned counsel for the petitioners, does not come to their aid, for which reliance has been placed on other judgments to be detailed herein after.

15. His further contention is that once a rule is in place, the same cannot by any administrative decision be upturned, nor can it be interfered with by way of a judicial intervention, inasmuch as there is neither any infirmity or constitutional invalidity so as to infer any deficiency in the Rule.

16. He has then contended that the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995, as it then stood, prescribed the maximum age of 48 years on the 1st July of the year in which the selection/appointment was to be made. There was no separate prescription of relaxation, nor was there a minimum age prescribed for a candidate. The said Rules came to be repealed and were substituted by the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, where the said prescription of age was redefined by providing that a candidate must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection/appointment is made. This change in the Rule indicated that the maximum age of 48 years was by way of a relaxation only to SC/ST candidates, whereas for all other categories it was 45 years only. It is contended by the learned counsel that this was in conformity with the report of the Shetty Commission, as accepted by the Apex Court in All India Judges’ Association and others v. Union of India (supra).

17. He then submits that the said Rules came to be amended vide notification dated 24.11.2017 and Clause (3) in the schedule to Rule 5 of the aforesaid Rules, for the first time introduced the minimum age to be possessed by a candidate, which is 35 years. The rest of the provision of the maximum age of 48 years in the case of SC/ST and 45 years in the case of others as on the 1st July of the year of recruitment was kept intact.

18. Learned counsel for the High Court contends that on 13.1.2019 an erroneous notification containing an inadvertent error was issued, where the age of 48 years prescribed as the maximum age for SC/ST category candidates also indicated the same age for the Backward Class category candidates. It is urged that this prescription was erroneous, being not in accordance with Rules, 2007 but after the preliminary examinations were held, since no candidates could qualify in the examinations, the said process was terminated, whereafter the notification dated 12.12.2019 was issued in compliance of the directions of the Apex Court in the case of Malik Mazhar Sultan v. U.P. Public Service Commission and others (supra), where the correct prescription was again indicated with regard to relaxation of age up to the age of 48 years only in the case of SC/ST candidates and for all other candidates, the maximum age prescribed was 45 years, that was continuing from before.

19. He, therefore, submits that no vested right had accrued either under the old Rules or even under the new Rules and any such prescription in an erroneous notification does not create any right or a legitimate expectation in favour of the petitioners so as to extend the benefits, that too even through a judicial intervention in the present proceedings.

20. He contends that the decisions relied on by the learned counsel for the petitioners do not come to their aid and he has cited the judgments in his favour to substantiate his submissions on the ground that a long pendency of selection by itself will not extend any such benefit and he has attempted to distinguish the judgment of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) relied on by the learned counsel for the petitioners by placing reliance on the judgment of the Division Bench of the Delhi High Court in Gaurav Mehta and others v. High Court of Delhi, reported in MANU/DE/0743/2014 : 2014 Supreme (Del) 841.

21. He also contends that the Division Bench judgment of the Rajasthan High Court in Prakash Chand and others v. The State of Rajasthan and another (supra) was delivered on the strength of the Rules of relaxation that were available extending automatic entitlement to a candidate to appear in the next examinations in the event of any non holding of examinations in any particular year. The ratio thereof does not apply in the instant case where no similar rules exist.

22. In rejoinder, learned Senior Counsel, Mr.Om Prakash, inviting the attention of the Court to the judgment in the case of Nawal Kishore Mishra and others v. High Court of Judicature of Allahabad and others, reported in (2015) 5 SCC 479, has urged that while considering the issue of reservation, the Apex Court had ruled that the High Court being empowered to act under Articles 233, 234 and 235 of the Constitution of India, and being a high constitutional functionary, it can provide for a scheme of reservation governing all State Services, including Judiciary. He submits that the Apex Court interpreted that the Rules framed under Article 309 of the Constitution of India and the provisions of Article 245 would have to be read subject to Articles 233 and 234 of the Constitution of India and, accordingly, the High Court can extend the benefit of such relaxation as is being claimed by the petitioners, for which there is neither any legal nor constitutional bar.

23. It is his submission that in the background aforesaid, on both counts, namely that of the rights available to the petitioners in lieu of the vacancies that had come into existence long before amendments and in view of the delayed selection process, the petitioners are entitled to the extension of benefit of relaxation.

24. Learned counsel for the High Court has supplemented his submissions by contending that the Apex Court has answered these questions against the petitioners in the case of Hirandra Kumar v. High Court of Judicature at Allahabad and others, reported in 2019 (2) SCALE 752. He has also cited the Division Bench judgment in the case of C.Ramesh Kumar v. The Registrar General and others [W.P.No.18020 of 2013, decided on 25.7.2013] to contend that the upper age limit as prescribed being within the realm of the rule making authority, no arbitrariness can be attributed if a particular age has been fixed and the reasonableness or unreasonableness thereof is beyond the pale of judicial scrutiny.

25. The pleadings have been exchanged and after the filing of the counter affidavit a prayer for grant of an interim order was declined by us calling upon the parties to complete their pleadings and had fixed 4.2.2020 to proceed in the matter. Against this order declining interim relief on 13.1.2020, one of the petitioners approached the Apex Court by filing Special Leave to Appeal (c) No.2140 of 2020, which was disposed of by the following order:
“The petitioner is before this Court assailing Order dated 13.01.2020 in W.M.P. NO.113/2020 in W.P.NO.95/2020 whereby the Division Bench of the High Court of Judicature at Madras has declined to permit the petitioner to appear for examination by relaxing the age provided in Notification NO.2 dated 12.12.2019. made out and the High Court itself has indicated the next date instead of allowing the matter to linger on with interim orders, we request the High Court to take up the matter and dispose of the same on the date on which the High Court has itself fixed the writ petition(s) for consideration or within a period of three weeks thereafter. Further the apprehension of learned senior counsel appearing for the petitioner about the last date for application would stand addressed since if ultimately the petitioner succeeds, the High Court would also take note of granting the time to file/submit the application of the petitioner notwithstanding the fact that the last date for the same would have elapsed. With the above observation, the special leave petition is disposed of. Pending applications, if any, shall also stand disposed of.”

26. It is in this background that we have heard the arguments on behalf of the respective parties, where the learned counsel have consumed almost the entire day of the Court.

27. The contest is on the premise that since the petitioners belong to the reserved category of candidates, they are entitled to a similar treatment in the matter of age relaxation and to deny them such a benefit is discriminatory and violative of Article 14 of the Constitution of India. This argument has been advanced in the backdrop that neither the Shetty Commission Report, nor All India Judges’ Association and others v. Union of India (supra), nor any Rules deny such benefit. It is further submitted that in the cadre of lower judiciary, such benefits of relaxation in age at par with the SC/ST candidates has been given to the Backward Class Category candidates as well, and hence there is no rationality in denying the same benefits at the District Judge (Entry Level). Reliance, as indicated above, is placed on the decision in the case of Nawal Kishore Mishra and others v. High Court of Judicature of Allahabad and others (supra), contending that there is no dearth of power and the High Court itself can exercise this authority to give effect to an opportunity of employment to the reserved category candidates and secondly, such benefit had been extended through the notification dated 13.1.2019, which is being described by the High Court as an inadvertent error.

28. To supplement the arguments, as noted above, strong reliance was placed on the Division Bench judgments of the Jharkhand High Court in the cases of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and Sanjiv Kumar Sahay v. State of Jharkhand, reported in 2008 (2) JLJR 543.

29. At the outset, we may clarify that the issue of reservation cannot be mixed up with the question of relaxation of age, inasmuch as reservation is provided in terms of Article 16 of the Constitution of India to enable the fulfillment of the constitutional goal of equitable representation of the oppressed classes. Reservation in matters of employment is a constitutional mandate which is a policy or a concept for keeping a fixed number of jobs protected, and to the exclusion of others, for a certain class of people. It is to carve out a determined number or a percentage out of the whole by setting it aside and limiting its utilization for a particular class, caste or community, that is not to be given to or meant for others. Relaxation is an act or exercise of authority that renders a rule or some form of control or prescription, less strict or severe. It is an act that brings about some sort of partial remission by lessening the stiffness or intensity by bending it to a certain extent. The former, in terms of the Indian Constitution and in the present context partakes the nature of a fundamental constitutional right. The latter is a prescription of statutory procedure to meet a certain exigency at the option of the authority to exercise such power. The power to relax is not a fundamental right of reservation to be enforced under Part III of the Indian Constitution. It is in cases of hostile discrimination or manifest arbitrariness that can a challenge be raised upon exercise of such power. Reservation and relaxation have therefore to be understood as two separate concepts and hence, relaxation is not a synonym for reservation. It is nobody’s case that reservation has not been granted to the Backward Classes, to the contrary the notification and the impugned advertisement dated 12.12.2019 clearly specify the number of vacancies that are reserved for these category of candidates. The issue, therefore, is only of an additional relaxation in the upper age limit being granted to the reserved category candidates.

30. In this regard, we may refer to the judgment in the case of Ami Lal Bhat v. State of Rajasthan and others, reported in (1997) 6 SCC 614, which has also been referred to by the Division bench of the Jharkhand High Court decision in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra). In our understanding the said judgment in the case of Ami Lal Bhat v. State of Rajasthan and others (supra) has to be understood in the context in which it was decided. The issue had arisen on account of the prescription of a cut-off date coupled with a situation where selections take an uncertain time thereby resulting in a disadvantage to a candidate who becomes ineligible at a later point of time. The Apex Court held that in the first place while construing the validity of any given rule, the same cannot be a question of reasonableness or unreasonableness of the Rule by looking at border-line cases. However, the Apex Court further went on to hold in paragraph (11) as follows:

“11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.”

31. It is the same paragraph which has been relied upon by the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), but, in our opinion, applying the same principles on the facts of the present case, the first thing that we find is that there is no mala fide alleged; secondly, there was no complaint about delay in the holding of the examinations before the previous notification dated 13.1.2019. The contention of the petitioners that the benefit of relaxation in the upper age limit up to 48 years had been advertised for the Backward Classes in the notification dated 13.1.2019, was clearly contrary to the existing rules that does not provide any relaxation in the upper age limit to Backward Classes. An advertisement contrary to rules cannot create a vested right or even give rise to a legitimate expectation beyond the rules. Paragraph 16 of the counter affidavit of the High Court is extracted hereinunder:
“16. The contention of the petitioner is that in the previous Notification for recruitment to the post of District Judge published on 13.1.2019 vide Notification No.1 of 2019, the Appointing Authority has prescribed the maximum age as 48 years for all reserved category, whereas in the impugned Notification the maximum age had been reduced to 45 years, which is per se arbitrary and unreasonable. The maximum age prescribed under earlier Notification dated 13.1.2019 is not in consonance with the age limit prescribed under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007. The Appointing Authority has inadvertently prescribed the maximum age as 48 for reserved categories and the petitioner cannot take any advantage on the mistake crept in the previous recruitment Notification. The mistake committed in the previous recruitment in regard to fixation of maximum age cannot be taken as precedent and the same would not confer any civil or constitutional right to the petitioner to seek for age relaxation contrary to the Service Rules.”

32. There was no relaxation in the upper age limit extended to the other Backward Class category candidates, for which we find a strong reason, namely the recommendations of the Shetty Commission, which after considering the proposals of other States, including that of the Tamil Nadu Government, had made a final recommendation of extending the benefit of relaxation in age up to 48 years only to the SC/ST candidates. The relevant part of the said recommendations relating to age limit are extracted herein under.

“10.81. Here again, we find lot of variance amongst the High Courts. It ranges from 35 to 45 years and 35 to 48 years.

10.82. The grievance of the promotees is that younger elements if inducted into the cadre would impair their promotional chances. There cannot be any doubt in this regard. If candidates at a relatively younger age are taken into service, they would remain longer and march over the promotees for better avenues. The grievance of the service judges in this regard deserves to be removed.

10.83. Some States/High Courts have pleaded for the minimum age of 40. The Judicial Officers€ Associations have made similar submissions. It has to be borne in mind that the direct recruits must have sufficient span of service in order to enable them to make some mark and look for career progress.

10.84. Secondly, at the age of 40, people begin to “settle down” with stable commitments. They would make commitment to their family, career, friends or some special interest. When once they make firm commitment in their life, they are unlikely to switch over to service, which entails periodical transfer. They may wait for an opportunity for elevation to High Court if they are really busy practitioners.

10.85. Thirdly, at the age of 40, we may get persons who are mostly unsuccessful at the Bar and the very purpose of direct recruitment of young and brilliant advocates may be defeated. sometimes selected as Civil Judge (Junior Division). By seven years of practice, one will not get the required maturity to handle Sessions cases. The life and liberty of the persons are at stake in Sessions cases. cadre at the age of 22 has to render service for 16 years to become Secretary to the State Government, which is an equivalent post of the District Judge. That means, he would be eligible for the post of Secretary to Government at the age of 38 at the minimum, and 46 at the maximum, depending upon the age at which he has entered the service. With regard to the upper age limit, it seems to us that it should not be more than 45, with relaxation of a few years for SC and ST candidates. Persons beyond the age of 45 will have a short span of service with no scope for any further movement in the judicial career. Such persons would lack enthusiasm for the work and would be a liability than asset to the service.

10.91. Our recommendation about the age range between 35 and 45 is in consonance with the prevailing pattern followed by some States as we have seen earlier. Besides, the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Punjab & Haryana and Rajasthan have also expressed the view that 35 years should be the minimum and 45 years the maximum limits for direct recruitment of District Judges.

10.92. It may also be stated that a study of job satisfaction as reported by Robertson and Smith (1985) showed that satisfaction with work tended to increase with age, but that there is a dip in satisfaction in the 40-50 years age group, suggesting that this group is the most difficult to motivate. (See: A Handbook of Personnel Management Practice by Michael Armstrong, p.273).

10.93. For the aforesaid, we recommend that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates.

10.94. The same age limit must be applicable to service judges also as and when they are made eligible for such direct recruitment.”

33. The said recommendation has found acceptance by the Apex Court in the All India Judges’ Association and others v. Union of India (supra) in paragraph 37, which is extracted herein under:

“37. Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted.”

34. Even though the issue of any comparative relaxation in age between Backward Class category and SC/ST category was not a specific issue raised in the said case, namely giving of identical relaxation to the other Backward Class categories, yet this issue has been finalized and has attained finality with the acceptance of the Shetty Commission report that has referred to relaxations to Backward Classes and SC/ST’s in paragraph 10.90 quoted above. The judgment in All India Judges’ Association and others v. Union of India (supra) is, therefore, a conscious decision on the Shetty Commission Report, which even having taken notice of relaxations being available to the other Backward Classes in I.A.S. recruitments, did not make any recommendations for such relaxation in upper age limit to Backward Classes in the judicial services. We are, therefore, bound by the same and we may further quote paragraph (40) of the judgment, which rules that any such clarification can only be sought from the Apex Court. Paragraph (40) is extracted herein under:
“40. Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other court shall entertain them.”

35. The aforesaid aspects either of the Shetty Commission or its acceptance by the Apex Court have nowhere been even referred to, considered or decided by the Division bench of the Jharkhand High Court in Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and other such similar cases. We may point out that the Delhi High Court in the case of Gaurav Mehta and others v. High Court of Delhi (supra) had, therefore, declined to follow the line of reasoning given in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra).

36. The counter affidavit filed on behalf of the High Court categorically explains this entire position also placing reliance on the other judgments that have been cited at the bar. Learned counsel for the High Court has also relied on the judgment in the case of Jamaluddin v. State of Jammu and Kashmir and others, reported in AIR 2012 SC 291, where also it has been held that age relaxation cannot be brought about by way of a judicial interpretation, unless the rules make a provision in relation thereto.

37. Additionally, it is an admitted position that the SC/ST category candidates are placed on a different scale as compared to the other Backward Classes. This is supported by the constitutional scheme by making separate provisions for both these classes. Thus, the learned counsel for the High Court is right in his submission that the equality clause would not be attracted so as to infer uniformity in rules of relaxation. Conversely, a mere different parameter of age relaxation cannot be a ground for challenging its validity when they are persons of different classes. It is for this reason that the Shetty Commission Report as well as the All India Judges’ Association and others v. Union of India (supra) both have taken notice of the fact of age relaxation and have placed the SC/ST in one category, whereas they have placed all others in the same category for the purpose of age relaxation. It is, therefore, not open for this Court now to extend any such benefit or strike down the rule or read it down or interpret it contrary to what has been said above.

38. There is yet another argument which has been advanced, namely that other High Courts have extended such benefits. If such benefits have been extended by other High Courts, the same cannot be said to be discriminatory as against the petitioners, inasmuch as if they are entitled to any such benefit in other States, the same does not render the present Rules invalid. Even otherwise, under the federal structure of the Judiciary, there is no such All India Judicial Services in place and each State having its own independent judicial organization as envisaged under the Constitution, each of the States and its High Court having exercise of autonomy over such services are empowered to either extend such benefits or otherwise make some other provision of relaxation which cannot be pressed into service for an argument of invidious discrimination for providing relaxation in upper age limits.

39. We may further point out that the learned counsel for the High Court has rightly contended that the prescription of maximum age either category wise or otherwise is a matter of prescription by the employer and in judicial services this issue has been settled by the Apex Court in the case of Hirandra Kumar v. High Court of Judicature at Allahabad and others (supra).

40. The next argument that has been advanced on the strength of the judgment in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) is that on account of the delay in appointments, such relaxation should be made available to the petitioners. Having considered the same, we are of the opinion that a legitimate expectation can only be pressed into as an argument, provided there is an existing right. The right should be legally sustainable and should be an accrued one. A mere chance or an expectancy of appearing in a recruitment process cannot by itself be a right unless it is shown that it violates Article 14 of the Constitution of India or any other constitutional provision or legal provision. Reference be had to paragraphs (20) to (22) of the judgment in the case of J.S.Yadav v. State of U.P. and others, reported in (2011) 6 SCC 570 extracted herein under:
20. “The word ‘vested’ is defined in Black’s Law Dictionary (6th Edn.) at p. 1563, as: Vested; fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.’ Rights are ‘vested’ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster’s Comprehensive Dictionary (International Edn.) at p. 1397, ‘vested’ is defined as: (Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests.’” (See Mosammat Bibi Sayeeda and others. etc. v. State of Bihar, AIR 1996 SC 1936)

21. The word “vest” is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word “vest” has also acquired a meaning as “an absolute or indefeasible right”. It had a “legitimate” or “settled expectation” to obtain right to enjoy the property, etc. Such “settled expectation” can be rendered impossible of fulfilment due to change in law by the legislature. Besides this, such a “settled expectation” or the so-called “vested right” cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope Co. Ltd., (2004) 1 SCC 663)

22. Thus, “vested right” is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provides for such a course.”

41. The contention of the petitioners, that had the examinations been held, and even now are being held with regard to the vacancies then existing, therefore they should be treated to be eligible would amount to extending their eligibility age contrary to the Rules. On account of becoming overage or otherwise such a deprivation does not violate any fundamental right or otherwise a legal right. No such ratio has been laid down in the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra) and to the contrary, while considering the impact of the said judgment, a Division Bench of the Gujarat High Court in the case of Dushyantbhai Chandrakantbhai Shah v. High Court of Gujarat and others, reported in MANU/GJ/2118/2017 has come to the conclusion that the judgment of the Apex Court in the case of Ami Lal Bhat v. State of Rajasthan and others (supra) lays down the correct position of law. The said judgment of the Gujarat High Court has been upheld by the Apex Court, where a Special Leave to Appeal filed against the same, being Special Leave to Appeal (C) No.2878 of 2017 was dismissed on 11.8.2017.

42. In the case of Bhola Nath Rajak and others v. The State of Jharkhand and others (supra), there was a gap of more than five years between the advertisement earlier issued and when it was next issued in the year 2013. In the instant case, it is correct that after the 2013 selections, the advertisement was first issued in January, 2019. As noted above, no challenge was raised after 2013 to 2019 on the issue of absence of grant of relaxation in the upper age limit to the backward class candidates. The challenge raised in 2013 failed as is evident from the judgment in R.Srinivasan v. The State of Tamil Nadu and others (supra), followed subsequently by another Division Bench in S.Manikandasamy v. The Registrar General and another (supra). The error in the advertisement dated 13.1.2019 has already been dealt with herein above.

43. In the above circumstances, when no such relaxation was either contemplated by the Shetty Commission or even indicated in the All India Judges’ Association and others v. Union of India (supra) and for all the reasons stated herein above, we do not find any of the judgments relied on by the learned counsel for the petitioners coming to their aid for extending the benefit of relaxation in age to the Backward Class category candidates at par with the SC/ST candidates. Paragraph (40) of the aforesaid judgment quoted above also restricts our interference in the matter.

44. It is not that the power to relax cannot be inferred, as, the Constitution empowers the High Court under Articles 233 and 235 of the Constitution to exercise such authority by prescribing a rule. The judgment in the case of All India Judges’ Association and others v. Union of India (supra) also while accepting the Shetty Commission report does not debar the grant of further relaxation up to 48 years, but the recital of 48 years for SC/ST and 45 years for others is a valid indicator of prescription. It is not the case of the petitioners that no candidates of the Backward Classes are unable to apply or their numbers are so less on account of the prescription of 45 years upper age limit that some justification for relaxation in age can be culled out.

45. So far as the issue relating to the vacancies being of the earlier years is concerned, the petitioners had only a chance of applying and it is by now well settled that even selection does not give a right of appointment. Thus, a loss of opportunity on account of delay in the holding of examinations by itself, without there being any mala fides attributed, cannot be aground to reinterpret or introduce any further relaxation in age to the benefit of the petitioners. For all the reasons herein above, we do not find any merit in these writ petitions, which are accordingly dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

(A.P.S., CJ.) (S.P., J.)
06.02.2020

Index: Yes
sasi

To:

1. The Additional Chief Secretary to the Government of Tamil Nadu, Secretariat, Fort St. George, Chennai – 600 009.

2. The Principal Secretary to Government (FAC), Public (Special.A) Department, Fort St. George, Chennai – 600 009.

3. The Registrar General, High Court Madras, Chennai – 600 104.

4. The Registrar – Recruitment, High Court, Madras – 600 104.

THE HON’BLE CHIEF JUSTICE
AND
SUBRAMONIUM PRASAD, J.
(sasi)

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This Second Appeal is focussed as against the judgment and decree dated 21.9.2010 passed by the Principal District & Sessions Judge, Chengalput, confirming the judgement and decree dated 23.9.2008 passed by the Principal Sub-Judge, Chengalput, in O.S.No.143 of 2000

For appellants: Mr.D.Mahesh
For respondents: Mr.N.Manokaran

JUDGMENT

This Second appeal is focussed by the defendants 1 and 2 animadverting upon the judgment and decree dated 21.9.2010 passed by the Principal District & Sessions Judge, Chengalput, confirming the judgment and decree dated 23.9.2008 passed by the Principal Sub-Judge, Chengalput, in O.S.No.143 of 2000, which was one for partition.

2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

3.Niggard and bereft of unnecessary details, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(i)The first respondent herein, as plaintiff, filed the suit seeking the following reliefs:
“a)to grant preliminary decree for partition of 3/10th share of the plaintiff in the entire suit properties, dividing the same into 4 equal share in the first instance, allotting one such share (<) to the plaintiff and again dividing the 1/4th share which remains for her late father into 5 equal shares among the plaintiffs and the defendants and allot one such share (1/20) to the plaintiff; totalling (3/10th) share to the plaintiff.

b)to appoint an Advocate Commissioner to divide the suit properties according to their share of the plaintiff and defendants and allot 3/10th share in the suit properties to the plaintiff.

c)to grant permanent injunction restraining the defendants from making any sort of encumbrance over the suit properties.

d)to ascertain the income from the suit properties from the date of the plaint.

e)to direct the defendants to pay the plaintiff the cost of the suit.” (extracted as such)

on the main ground that the suit properties are the ancestral properties; since the plaintiff remained unmarried as on the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act, [Tamil Nadu Act 1 of 1990), which came into vogue with effect from 25.03.1989, she was deemed to be one of the coparceners. As such, after the death of her father, who happened to be the ‘kartha’ of the family, during the year 2000, she demanded partition, which was refused by her two brothers, namely, Baskaran and Mohandoss/the appellants herein/defendants 1 and 2, which necessitated the plaintiff to file the suit. D3-Varalakshmi and D4-Vijaya Nirmala were married daughters as on 25.3.1989, so to say, on the date of commencement of the Hindu Succession (Tamil Nadu Amendment Act) Act, [Tamil Nadu Act 1 of 1990).

Accordingly, the plaintiff prayed for partition.

(ii)Per contra, the defendants filed the written statement, the gist and kernel of which would run thus:
Varadharaja Mudaliar-the father of the plaintiff and the defendants, acquired the suit properties, namely, items 1 and 2, from out of his own income as a teacher. He, during his life time, volitionally and voluntarily executed the Will Ex.B5 dated 29.4.1994, bequeathing the suit properties in favour of his two sons, namely, D1 and D2 and also specifying that in respect of his three daughters, he performed what were all a dutiful father should do for them and solemnized their marriages and gave them Stridhana etc. As such, the Will came into effect, and the plaintiff is having no right to seek for partition.

Accordingly, the defendants 1 and 2 prayed for dismissal of the suit.

(iii)Whereupon issues were framed. Up went the trial, during which, the plaintiff examined herself as P.W.1 along with P.W.2 and marked Ex.A1 to A12. The first and third defendants examined themselves as D.W.1 and D.W.2 along with D.Ws.3 to 5 and marked Exs.B1 to B10.

(iv)Ultimately the trial Court disbelieving the Will, decreed the suit holding that the first item of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar and the second item of the properties happened to be the coparcenary property of Varadharaja Mudaliar and his children and accordingly, allotted share in favour of Manjula-the plaintiff, as per the following preliminary decree.
“The plaintiff is entitled 1/4th share in the suit 1st item of property and 3/10 share in the suit 2nd item of property. and allot the same by appointing an Advocate Commissioner in the final decree as per the preliminary decree.

(v)Challenging and impugning the judgment and decree of the trial Court, the defendants 1 and 2 preferred the appeal for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court.

4.Being aggrieved by and dis-satisfied with the judgments and decrees of both the Courts below, this second appeal has been focussed by D1 and D2 on various grounds and also suggesting the following substantial questions of law.
“(i)Have not the trial Court and first appellate Court have committed grave illegality in holding that the suit schedule item-II property is the joint family property in the absence of any evidence much less legal evidence let in by the plaintiff either to prove the existence of alleged joint family or to prove suit item-II of the schedule property at the hands of the deceased Varadharajan was held alleged joint family property.
(ii) Have not the trial Court and first appellate Court have committed grave illegality in holding that the property covered under Exhibit-A9 sale deed dated 1.2.1970 purchased by deceased Varadharajan acquired the character of joint family property because in Exhibit-A6 sale deed, dated 9.3.1973 by which deceased Varadharajan sold ancestral property inherited by him and in that recital it was stated that the same was sold to discharge the debts availed for purchase of Nanja Land at Perumattunallur Village.

(iii)Have not the trial Court and first appellate Court had drawn wild presumptions and inferences that the sale proceeds of the Exhibit-A6 sale deed dated 9.3.1973 was utilized to discharge the loans avdailed for purchase of the property covered under Exhibit-A9, dated 1.2.1970. In the absence of any recitals in Exhibit-A6 linking hit sale for the discharge of alleged loan, which is presumed to have availed for purchase of property covered under the Exhibit-A6, especially after Exhibit-A9 purchase the deceased Varadharajan purchased a house property on 28.9.1972 by Exhibit-B3 and another Nanja land on 11.1.1973 by Exhibit-B1, which is just two months prior to Exhibit-A6 Sale dated 9.3.1973. In any event the alleged linkage drawn by the courts below relating to the sale proceeds under Exhibit-A6 to purchase the property under Exhibit-A9 without any specific recitals about in Exhibit-A6 and in the absence of any evidence let in by the plaintiff to prove, such inferences drawn by the courts below is against all canons of jurisprudence and the judgement and decree of the courts below are liable to be set aside.

(iv)Have not the trial Court and first appellate Courts have committed grave material illegality perplexing on the face of record and total non-application of mind in declaring that the plaintiff is entitled to < share in suit item-I and 3/10th share in suit item-II of the property, while holding that the suit item-I is self acquired property of late Vaadharajan, father of the plaintiff and defendants 1 to 4 and suit item-II as joint family property of the plaintiff and defendants 1 and 2 and late Varadharajan. Even if the judgement and decree of the courts below are acceptable, the correct calculation of shares of the plaintiff would be 1/5th share each to the plaintiff and defendants 1 to 4 in the suit item No.-I and 1/4th share each in suit item No.-II to the plaintiff and defendants 1 & 2 and also to late Varadharajan. Further the < share of the deceased Varadarajan devolves upon the plaintiff and defendants 1 to 4. Therefore the net share available to the plaintiff is 6/20 share in suit item-II and defendants 1 & 2 are entitled to 6/20th share each and defendants 3 & 4 are entitled to 1/20th share each. Hence, in view of the above the judgment and decree of the courts below are liable to be set aside.

(v) Have not the courts below erred in holding that Exhibit-B10 is a registered Will duly registered under the provisions of the Indian Registration Act by the deceased Varadharajan was not proved particularly presumption of due execution and genuineness was available under the provisions of the Indian Registration Act and Indian Evidence At, 1872 that the officials acts have been done property in accordance with law.

(vi)Have not the trial Court and first appellate Court erred in holding that Exhibit-B10 Will was not proved by the defendants, especially except the plaintiff the other two daughters of late Varadharajan, namely, the defendants 3 & 4 had not disputed the execution of Exhibit-B10 Will in favour of his sons namely the defendants 1 & 2.

(vii)Have not the courts below committed grave illegality in holding that Exhibit-B10 was not proved especially when the plaintiff’s case was that the suit properties are joint family properties and the signatures in the Will, Exhibit-B10 was admittedly signatures of late Varadharajan.

(viii)Have not the Courts below committed jurisdictional error in decreeing the suit filed by the plaintiff for partition in the absence of any evidence much less legal evidence to prove the alleged joint family as projected by the plaintiff.”
(extracted as such)
5.Heard both.

6.The learned counsel for the appellants/defendants 1 and 2 would pyramid his arguments, which could succinctly and precisely be set out thus:
(i)The suit properties belonged to Varadharaja Mudaliar as his absolute properties, as he was working as teacher during the period between 1946 and 1985 and he earned sufficiently. Those two items of properties were purchased vide sale deeds Exs.A9 dated 01.02.1970 (II item) and Ex.B1 dated 14.1.1973 (I item), respectively.

(ii)The sale considerations for those properties were meager and the preponderance of probabilities are in favour of the contentions of D1 and D2 that their father Varadharaja Mudaliar in all probabilities might have had that much meager amount to purchase those two items of properties as his self-acquired properties.

(iii)Both the Courts below were carried away by the recitals in Ex.A6-the sale deed dated 9.3.1973, wherein formally it was stated as though in order to discharge the loan incurred by Varadharaja Mudaiar to purchase the second item of the suit properties, the ancestral property was sold by him and his the then minor son-Baskaran(D1).

(iv)One cannot try to make a mountain out of mole hill. A Kartha of a family can sell, for discharging his personal loan, the ancestral property, and the decision of the Honourable Apex Court reported in A.I.R. 1936 PRIVY COUNCIL 277-SAT NARAIN AND ANOTHER V. SRI KISHEN DAS AND OTHERS would reveal the same.

(v)Absolutely there is no shard or shred, molecular or mint, jot or iota evidence to exemplify and indicate that income bearing ancestral property was in the hands of Varadharaja Mudaliar and that from out of the income derived from the said property, he purchased the suit items 1 and 2. Wherefore, in the absence of evidence, there is no presumption that the properties purchased by Varadharaja Mudaliar have to be treated as ancestral properties.

(vi)Both the Courts below fell into error in misapplying the law and giving verdicts.

(vii)The fact remains that Ex.B1-the sale deed dated 14.1.1973 in favour of Varadharaja Mudaliar executed by Nataraja Mudaliar would also reveal that within a short span of time, Varadharaja Mudaliar was purchasing several properties and that would connote and denote, convey and portray that Varadharaja Mudaliar had sufficient financial wherewithal to purchase properties and he was not under any dire necessity to raise loan allegedly for the purpose of purchasing the second item of the suit properties.

(viii)The recitals in Ex.A6-the sale deed dated 9.3.1973 should be down played and it cannot be given undue importance. But both the Courts below gave undue importance and decided the lis, warranting interference in second appeal.

(ix)Relating to the Will-Ex.B5 is concerned, it is a registered one. Artificially D.W.3-Venugopal-the attester of the Will-Ex.B5 would wax eloquence as though he had not seen the testator signing the Will and he was not also the identifying witness. His version is quite antithetical to the preponderance of probabilities and the illustration (e) to Section 114 of the Indian Evidence Act.

(x)A public official is presumed to be the one who acted genuinely. D.W.3’s evidence would go contra to his written commitments in Ex.B5-the Will. Over and above that, D.W.5-the scribe after putting his signature under the seal ‘scribed and attested’ in the Will, would veer round and take a plea as though he was not an attesting witness to the Will and that he did not see the signing of the Will by the testator or the witnesses. As such, both the Courts should have taken note of this incongruity and simply ignored those depositions of D.W.3 and D.W.5, and given importance to Ex.B5-the Will.

(xi)Ex.B5 is a solemn document. A dead man’s wish and will should be implemented and that is the bedrock of our jurisprudence. Ignoring that, both the Courts below simply ignored the Will, warranting interference in second appeal.

(xii) Ex.A6-the sale deed emerged on 9.3.1973, whereas the second item of the suit properties was purchased vide sale deed dated 1.2.1970 (Ex.A9) and as such, there is no knowing of the fact as to how subsequent sale of the ancestral property would enable the plaintiff to treat the second item of the suit properties as the one purchased from out of the sale proceeds of the ancestral property. A ‘kartha’ of a joint family can very well sell the joint family property for discharging his personal loan and in such a case, the recitals in E.A6-the sale deed dated 9.3.1973 would not be fatal to the claim of D1 and D2 that the second item of the properties was purchased under Ex.A9 as the self-acquired property of Varadharaja Mudaliar.

Accordingly, the learned counsel for the appellants/D1 and D2 would pray for setting aside the judgments and decrees of both the Courts below.

7.Per contra, the learned counsel for the plaintiff would advance his arguments, buttressing and fortifying the findings given by both the Courts below.

8.The learned counsel for D3 would submit that no doubt as against the judgment of the trial Court or the first appellate Court, no appeal was filed by D3 and in fact, D3 also filed the written statement along with D1 and D2. He would stress upon the fact that in a suit for partition, the plaintiff is the defendant and vice versa. In such a case, the Court would not be hesitant to interfere whenever there is some error in dividing the property, after giving a finding.

9.The Courts below gave a finding categorically that item No.1 of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar. In such a case, axiomatically and obviously, the property of Varadharaja Mudaliar, i.e. item No.1 should have been divided into five equal shares, so to say, among the two sons and the three daughters of Varadharaja Mudaliar. Instead of doing that, both the Courts below fell into error in dividing the property improperly, warranting interference in second appeal and this Court being the High Court can very well rectify the error committed by both the fora below.

10.Whereas, the learned counsel for the plaintiff in all fairness on hearing the extempore argument submitted by the learned counsel for D3 would fully endorse his submission by pointing out that as on 25.3.1989, so to say, on the commencement of the Hindu Succession (Amendment Act) Act, (Tamil Nadu Act 1 of 1990), amending the Hindu Succession Act, the plaintiff alone was unmarried and the other two daughters were married and as such, the defendants 3 and 4 were not entitled to the second item of the suit properties, but only they are entitled to their shares in the first item of the suit properties along with their brothers.

11.As such in view of the extempore submissions submitted by the learned counsel for D3 as well as the submissions made by the learned counsel for the plaintiff, I would like to formulate the following substantial questions of law to the knowledge of both sides:

(i)Whether both the Courts below, after giving findings that item No.(1) of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar and item No.(2) as the ancestral property, were justified in simply dividing the item No.I of the suit properties into four shares and allotting one such share to the plaintiff and that too, in the wake of Varadharaja Mudaliar having died during the year 2000, leaving behind his two sons and three daughters?

(ii)Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?

IN Re ENTERTAINING SECOND APPEAL
12. At the outset itself, I would like to fumigate my mind with the following recent decision of the Hon’ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus:
“59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92, this Court explained the terms “substantial question of law” and observed as under: (SCC p.103, para 13)
“13……The word “substantial” prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ……any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law……There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.” (emphasis added)

13. In the same precedent, the following decisions are found referred to:
(1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.]
(2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT]
(3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy]
(4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT]
(5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT]
(6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh]
(7) (1996) 5 SCC 353 [Parativa Devi v. T.V.Krishnan]
(8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar]
(9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.]
(10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works(P) Ltd.]
(11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan]
(12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali]
(13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala]
(14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh]

14. A mere running of the eye over the above precedents would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the finding of the court below would not arise.

IN Re SELF ACQUIRED PROPERTY AND COPARCENARY PROPERTY
15.At the outset itself I would like to advert to the main argument focussed placing reliance on Ex.A6-the sale deed dated 9.3.1973 by both sides.

16.The learned counsel for the appellants/defendants 1 and 2 would stress upon the fact that the following recitals in Ex.A6 should be taken as a formal one. Certain excerpts from it would run thus:
“ehd; ehsJ njjpapy; fPH;tUk; g[“;ir epyj;ij j’;fSf;F U:gha; 4.500-f;F (vGj;jhy; ehyhapuj;J IehW kl;Lk;) Rj;jk; fpuak; bra;J bfhLg;gjha; rk;kjpj;J bjhif mile;j tptuk; ehd; br’;fy;gl;L jhYf;fh. bgUkhl;U:h; fpuhkj;jpy; e”;ir epyk; th’;fpajpy; vw;gl;Ls;s fld; ghf;fpia igry; bra;at[k;. / / / / / / / / @

17.Normally, according to the learned counsel for D1 and D2, while drafting a sale deed there would be formal clauses, so to say, the reason for selling etc. As such, the above recitals in Ex.A6 emerged and undue importance should not be given to them so as to enable the plaintiff to label and dub the second item of the properties as an ancestral property; furthermore, after purchasing of the second item of the suit properties, the question of ushering in support from the subsequently emerged sale deed(Ex.A9) is a well-neigh impossibility.

18.Whereas, the learned counsel for the plaintiff in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of D1 and D2 would submit that the precise question involved here is not concerning any challenge of the sale as contained in Ex.A6, but the right of the plaintiff to place reliance on the recitals therein. Item No.(II) of the suit properties, which was purchased under Ex.A9-the sale deed dated 1.2.1970, was indubitably and indisputably, admittedly and unarguably purchased by Varadharaja Mudaliar-the then kartha of the family by raising loan. The loan was discharged by selling the ancestral property as per Ex.A6-the sale deed dated 9.3.1973. In such a case, the second item of the suit properties should automatically be deemed and treated as the coparcenary ancestral property and both the Courts below appropriately and appositely, correctly and legally rendered their findings, warranting no interference in second appeal.

19. The learned counsel would also cite the decision of this Court in 2012(1) CTC 128-MALLA NAICKER @ SINGARI AND OTHERS.

20.I would also cite the following decisions of the Honourable Apex Court:
(i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus:
“8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.

Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it.

Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged.

Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same.”

21.The aforesaid decision would unambiguously highlight the point that in order to prove that the property is the joint family property, there should be evidence to show that there was joint family nucleus and income was arising out of it so as to enable the joint family to purchase additional properties and that the burden of proof is on the person, who pleads that even though the property might stand in the name of one of the co-sharers, nonetheless, it belongs to the joint family. Undoubtedly, this case should necessarily be analysed in the light of the dictum set out in the cited decision.

(ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan and others) and an excerpt from it would run thus:
“5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called division in status , or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds . A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.”

22.A mere running of the eye over the above precedent would exemplify and demonstrate, portray and parody that once there is admission by the ‘kartha’ himself that by selling the ancestral property, a new property, in this case, the item No.II, was purchased, then that should be deemed to be the joint family property. Here there is no question of putting the horse behind the cart or putting the cart before the horse. The recitals in Ex.A6-the registered document cannot be resiled from in view of Sections 91 and 92 of the Indian Evidence Act.

23.In this connection I would like to cite the following decision of the Honourable Apex Court.
(i) 1993-2-L.W.205 NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus:
“5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned counsel for the appellants that the defendant is barred from raising such a plea by S.92 of the Indian Evidence Act.
6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1.”

(ii) (1982) 1 SCC 4, at page 10 -Gangabai v. Chhabubai, certain excerpts from it would run thus:
“11. The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedathanni919). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.

24.A mere perusal of those decisions would highlight and spotlight that if there are certain recitals in a registered document then contra evidence cannot be adduced by either of the parties. Pleading that the said document was not intended to be acted upon, is different from pleading that certain averments found set out therein are untrue.

25.Those precedents would unambiguously and unequivocally indicate and exemplify the fact that the recitals in a registered deed cannot be given a go-by and the party who committed himself in black and white cannot veer round and take an antithetical stand.

26.Absolutely there no shard or shred, miniscule or molecular, jot or pint of evidence to convey and display as to why those recitals in Ex.A6 should be ignored or pooh-poohed, belittled or slighted for the purpose of benefiting D1 and D2. As such, the recitals in Ex.A6-the sale deed dated 9.3.1973 should be given due weightage.

27.Accordingly, if viewed it is crystal clear that the second item of the suit properties was not purchased from out of the self acquired income of Varadharaja Mudaliar, but only by raising loan, which was discharged from out of the sale proceeds, which he got subsequently under E.A6, by selling the ancestral property. Not to put too fine a point on it, there is no embargo as per law to treat such a property as ancestral property and the finding of both the Courts below is in concinnity and commensurate with the aforesaid precedents also.

28.Regarding the first item of the suit properties is concerned, the Courts below held that there is nothing to indicate that as per Ex.B1-the sale deed 14.1.1973 the first item of the suit property was purchased from out of the joint family income.

29. This is a peculiar and singularly singular case, in which, the plaintiff failed to adduce evidence to establish and demonstrate that Varadharaja Mudaliar had income bearing ancestral nucleus. In such a case, it cannot be assumed that the first item of the suit property was purchased from out of the income derived from the ancestral nucleus. Over and above that, the findings of both the Courts below is based on analysis of fact which this Court, while exercising its power under Section 100 of C.P.C. may not be willing to interfere with the same and that is also not legally permissible, unless there is any perversity or illegality and I could see no perversity or illegality in such a finding also.

IN re PROVING THE WILL-EX.B5
30.Relating to the Will is concerned, the learned counsel for the plaintiff would try to place heavy reliance on illustration (e) to Section 114 of the Indian Evidence Act. Before discussing on merits the evidence as well as the findings concerning the Will, I would like to keep myself informed of the following decisions, as my mind is reminiscent and redolent of the same.
1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others
2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others)
3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others)

31.A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]
(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]
(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]
(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]
(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]
(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]
(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]
(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]
(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]
(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]
(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]
(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
(xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others)
(xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)
(xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another)
(xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others)
(xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others)
(xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others)
(xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another)

32.Among the aforesaid decisions, the decision of this Court reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman] is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus:
“26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements.”
33.As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.

34. At this juncture, my mind is reminiscent and redolent of one other decision reported in 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:
“8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.

9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.

10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.”

35. A plain reading of the above decision would highlight that if there are suspicious circumstances, then the same should be dispelled to the satisfaction of the Court by the propounders of the Will.

36. With this in mind, this Court is enjoined to analyse the evidence as well as the facts placed before it for the purpose of deciding the substantial questions of law involved in this case.

37. So far interpretation of documents is concerned, the following maxims would govern the adjudication:
(a) Verba generalia genaraliter sunt intelligenda General words are to be understood generally.
(b) Verba ita sunt intelligenda, ut res magis valeat quam pereat – Words are to be so understood that the matter may have effect rather than fail.
(c) Qui haeret in litera, haeret in cortice: One who clings to the letter clings to the shell or surface.
(d) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided.

38. The above maxims would connote and denote that a document has to be interpreted in such a manner so as to validate it and not to invalidate it, but those maxims blindly cannot be applied in respect of Will.

39.I also I recollect and call up the following maxim:
‘In dubiis non praesumitur pro testamento’ In doubtful cases, there is no presumption in favour of the Will.

40.So far Will is concerned, which is a solemn document, it should be proved beyond reasonable suspicion. As such, while interpreting a document other than Will, the approach of the Court is different.

41.To put in single syllable words, while interpreting documents other than Wills, the Courts are enjoined to interpret the impugned documents in such a manner so as to validate rather than invalidate them over looking insignificant mistakes or errors in them. But exception is to the Will. A Will cannot be interpreted so as to validate it if there are suspicious circumstances and over and above that the Honourable Apex Court had occasion to reiterate, to the risk of repetition, but without being tautalogous, that strictly in accordance with Section 68 of the Indian Evidence Act, and if necessary as per Section 69 of the Indian Evidence Act, the Will has to be proved. Here to say the least, absolutely there is no shard or shred, iota or jot of evidence in support of the Will.

42.I would like to suo motu refer to the following decision of the Honourable Apex Court:
(2005) 8 SUPREME COURT CASES 67 PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARATNAM AND OTHERS, certain excerpts from it would run thus:
“24.In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that the propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he has executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ext.B-9 was his last Will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ext.B-9 which was admitted to registration, namely, the date, hour and place of presentation of the document for registration, the signature of the person admitting the execution of the Will and the signatures of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.”

43.However, the Honourable Apex Court, in the subsequent decision in B.VENKATAMUNI V. C.J.AYODHYA RAM SINGH [(2006)13 SCC 449)], in respect of PENTAKOTA SATHYANARAYANA’S CASE – (2005) 8 SUPREME COURT CASES 67), observed thus:
“However, having regard to the fact that the will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not (sic) know well the contents of the will and in sound disposing capacity executed the same.
23.Each case, however, must be determined in the fact situation obtaining therein.”

44.The precedent referred to supra, namely, B.VENKATAMUNI’s case is referred to in the decision of the Honourable Apex Court reported in (2009)4 SUPREME COURT CASES 780 YUMNAM OBGBI TAMPHA IBEMA DEVI V. YUMNAM JOYKUMAR SINGH AND OTHERS.

45.Wherefore, the current law on the subject is that even if a Will is an admitted one, the burden of proof is on the propounder of the Will to prove it by examining witness/witnesses and it should be established strictly in accordance with Section 68 of the Indian Evidence Act.

46.D.W.3 pulling no punches candidly and categorically stated thus:

47.D.W.3 was also presumably cross-examined by advocate for D.1 and D.2, but in the deposition, the commencement of cross-examination was not separately shown, even though the answers of D.W.3 would indicate and point up that he gave such answers only during cross examination. D.W.3 candidly and categorically stated that he simply put his signature in the Will, but he did not see the testator signing it and according to him one other attesting witness also died. He also disowned his signature as identifying witness-Ex.B5.

48.A mere perusal of Ex.B5 the Will would show up that one and the same witnesses, namely, Kuppusamy and Venugopal signed as the attesting witnesses as well as the identifying witnesses. But Venugopal-D.W.3 would depose that he did not sign as attesting witness.
49.The learned counsel for D.1 and D.2 would submit that witnesses might go to the extent of denying anything and everything under the sun, but it is for the Court to hold such denial as false and separate the truth from falsehood; Ex.B5 is a registered Will and in such a case, the Registrar might not have gone to the extent of simply colluding with some persons and registered the Will. Both the Courts below failed to consider the probabilities in that aspect.

50.The learned counsel for the plaintiff, by way of reply to such an argument put forth by the learned counsel for the appellants/D1 and D2, would put forth his arguments, a thumbnail sketch of the same would run thus:
It is not as though the Legislators were not aware of the juridical act of registration of Will and also significance attached to such registration; nevertheless the Legislators in their wisdom thought fit to clearly stipulate under Sections 68 and 69 of the Indian Evidence Act that despite admission of either a registered Will or an unregistered Will it should be proved by examining at least one of the attesting witnesses.

51.Here, as has been discussed supra, the deposition of D.W.3 in no way supports the case of the propounder of the Will, namely, D.1 and D.2, who are claiming to be the beneficiaries under the Will and in fact, it boomerangs as against them.

52.The learned counsel for the defendants would try to place reliance on the deposition of D.W.5-the scribe by pointing out that as an ‘A’ grade scribe, he signed Ex.B5 under the seal “drafted and attested”, and in such a case, his subsequent resiling from his commitment cannot be given undue importance, but that has to be ignored and the genuineness of the Will should be upheld.

53.Whereas, the learned counsel for the plaintiff would submit that the scribe no doubt signed under his seal “drafted and attested”, but he has not put his signature as one of the witnesses along with Kuppusamy and Venugopal and as such, animus attestandi is absent.

54.It is quite obvious from a mere look at Ex.B5-the Will, that the scribe did not sign beneath the signatures of Venugopal in that attesting witnesses column, but he would, beneath his seal, sign and in his deposition he would reiterate that he signed not in his capacity as an attesting witness, but only as a scribe.

55.Even for argument’s sake it is taken that since the scribe signed under the seal “drafted and attested”, he should be taken as an attesting witness, yet his evidence is to the contrary. He would repeatedly assert that he did not see the testator signing or the attesting witnesses signing the Will. Wherefore D.W.5’s deposition would not come to the help of D1 and D2.

56.In the facts and circumstances of this case, no steps have been taken to summon the Registrar to prove the signature of D.W.3 as one of the identifying witness, but for reasons best known to themselves, they have not chosen to do so.

57. As such, in the light of the dictum laid down by the Honourable Apex Court concerning the proof of the Will, scarcely could it be taken that the available evidence of D.W.3 and D.W.5 could be taken as sufficient to prove the Will-Ex.B5

58.It is the categorical assertion of the defendants that only a few days after the execution of the Will by their father, the defendants came to know about it.

59.When such is the position, D.W.1(D1) and D.W.4(D2) were not competent to talk about the genuineness of the Will, because they could not have seen, as per their own version, the testator signing and also the attesting witnesses attesting the Will. As such, both the Courts below au fait with law and au courant with facts held and that too, after due analysis of the evidence, that the Will-Ex.B5 was not proved, warranting no interference in second appeal.

IN RE ALLOTMENT OF SHARES
60.I could see no perversity or illegality in the findings of both the Courts below. However, in view of the fact that after giving the finding that the first item of the suit properties was the self acquired property of Varadharaja Mudaliar and that Varadharaja Mudaliar died intestate during the year 2000, leaving behind his five children, the first item of the suit properties should have been divided into five shares and the plaintiff and D.1 to D4 should have been allotted 1/5th share each; wherefore I hereby allot accordingly.

61.Regarding the second item of the suit properties is concerned, in view of the finding that it is an ancestral property, as on the date of death of Vardharaja Mudaliar during the year 2000, the property notionally should be divided into four shares. Varadharaja Mudaliar and the plaintiff and D.1 and D.2 were entitled to 1/4th share each. Out of that, the 1/4th share notionally allotted to Varadhara Mudaliar should be further divided into five shares, and 1/5th share each, out of such 1/4 share, should be allotted in favour of the plaintiff and D.1 to D4.

62.On balance, the substantial questions of law are answered as under:
Substantial Question of Law No.(i) is decided to the effect that both the Courts below were not justified in allotting shares after giving the correct finding that item No.(I) of the suit properties was the self-acquired property of Varadharaja Mudaliar and the second item was the ancestral property in the hands of Varadharaja Mudaliar.
Substantial Question of Law No.(ii) is decided to the effect that there is perversity and illegality in the judgements and decrees of both the Courts below.

62.Accordingly, the preliminary decree stood modified as indicated supra. The ambiguity, if any, shall stand disambiguated in the preliminary decree and afresh a preliminary decree shall follow in the aforesaid manner in respect of the first and second items of the suit properties. Wherefore the judgments and decrees of both the fora below shall stand modified as above.

63.In the result, the second appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. 19.3.2013

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This Second Appeal is focussed as against the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 on the file of the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree dated 11.11.2005 in O.S.No.24 of 1996 on the file of the Principal District Munsif Court, Ambur, Vellore District.

For appellants : Mr.T.R.Rajagopalan,Sr.Counsel
for Mr.T.R.Rajaraman
For Respondents : Mr.M.S.Krishnan, Sr.Counsel
for Mr.K.G.Vasudevan

JUDGMENT

This Second appeal is focussed by D5, D10 to D14, and LRs of deceased D4/V.Damodaran animadverting upon the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 by the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree of the Principal District Munsif Court, Ambur, Vellore District in O.S.No.24 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The first respondent herein and the deceased Dhanalakshmi Ammal filed the suit seeking the following reliefs as against several defendants, including the appellants herein in this Second Appeal:

“(i) To declare the absolute title of the plaintiffs to the suit property;

(ii) To restrain the defendants by means of permanent injunction in any manner, either by themselves or through their men, agents and representatives or assignees with the plaintiff’s peaceful possession and enjoyment of the suit property and from alienating the suit property or any portion thereof in favour of any one;

(b) alternatively in the event of this Hon’ble Court holding that the defendants are in possession directing the defendants to deliver possession of the property detailed in the schedule hereunder to the plaintiff (Amended as per order in IA No.372/2000 dt.2.3.2001); and
(iii) for costs.”
(extracted as such)

2. Ultimately the trial Court decreed the suit without giving opportunity of adducing evidence by the contesting defendants who are the purchasers pendente lite, as against which appeal was filed for nothing but to be dismissed by the appellate Court.

3. Being aggrieved by and dissatisfied with the same, the defendants/appellants herein filed this Second Appeal on various grounds inter alia to the effect that the Courts below failed to give due opportunity to the appellants/defendants to contest the matter by adducing evidence, even though the original plaintiffs impleaded the appellants herein as defendants in the suit consequent upon the fact of they having purchased the suit property pendente lite.

4. After hearing both sides, I framed the following substantial question of law:
Whether the Courts below were justified in preventing the appellants/defendants who are the pendente lite purchasers of the suit property from contesting the suit on merits, after they having been impleaded as parties at the instance of the plaintiffs themselves and that too after the trial Court having framed issues based on the written statement filed by the appellants/defendants herein?

5. The nitty-gritty and the gist and kernel of the arguments as put forth by the learned Senior Counsel for the respondents/plaintiffs would run thus:

(a) There are catena of decisions of the Hon’ble Apex Court that pendente lite purchasers are having no right to set up any independent case of their own and that they are bound by the ultimate decision.

(b) Simply because the plaintiffs thought fit to implead the purchasers pendente lite for the purpose of avoiding future litigation, that it does not mean that the plaintiffs are estopped from contending that such pendente lite purchasers are having no right to contest the matter and adduce evidence.

(c) Both the Courts below appropriately and appositely, convincingly and correctly rejected the endeavour of the purchasers pendente lite to cross examine the plaintiffs’ witness and to adduce evidence, warranting no interference in the Second Appeal.

6. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned Senior Counsel for the appellants/defendants herein would advance his arguments, which could tersely and briefly be set out thus:

(a) The plaintiffs voluntarily impleaded the appellants/ defendants on the ground that they pending litigation purchased the suit property and in such a case, it would be too late in the day on their part to veer round and take a plea having a volte face that the appellants/defendants are having no right to contest the matter.

(b) If at all their stand was that the appellants/defendants were having no locus standi to contest the matter, then they should not have even impleaded them as parties.

Accordingly the learned Senior Counsel for the appellants/defendants would pray for setting aside the judgments and decrees of both the Courts below and for remanding the matter back to the trial Court for giving opportunity to the appellants/defendants to cross examine the witnesses on the plaintiffs’ side and also to adduce rebuttal evidence.

7. A re’sume’ of facts which are admitted or atleast undeniable for proper discussion would run thus:
According to the case of the plaintiffs, the suit property which is an immovable property measuring an extent of 1.32 acre was originally purchased by one Jayarama Reddy, the propositus of the plaintiffs in the name of his brother-in-law Chinnamma Reddy purely for the purpose of preventing Jayarama Reddy’s brother from making any claim over the suit property; in stricto sensu the suit property was treated as the property of Jayarama Reddy only; accordingly after the death of Jayarama Reddy, it devolved upon the plaintiffs who on coming to know of the fact that the legal heirs of Chinnamma Reddy were trying to alienate the suit property, filed the suit.

8. Indubitably and indisputably, unarguably and unassailably, the fact remains that during the pendency of the suit the original defendants 1, 2 and 3 without filing written statement, however after litigating in the I.A. left the litigative contest as such and sold the suit property in favour of D4, D5 and D6, who were none but the persons in receipt of pre-suit notice issued by the plaintiffs that they should not purchase the property. The plaintiffs, according to the learned Senior Counsel for the plaintiffs, by way of abundanti cautela added the purchasers pendente lite of the suit properties also as parties so as to avoid future unnecessary prolongation of the litigation and in no way the former recognised in the latter any right to contest the matter on merits.

9. It so happened that after impleadment of the purchasers of the suit property pendente lite, they were allowed to file written statement. Whereupon issues and additional issues were framed. During trial, on the plaintiffs’ side, P.W.1 was examined and Exs.A1 to A58 were marked.

10. At that juncture, the plaintiffs filed I.A.No.503 of 2005 with the prayer to Court, to prevent the newly added defendants i.e., the purchasers pendente lite from cross examining P.W.1 as well as adducing rebuttal evidence and such an application was allowed and ultimately the judgment was passed in favour of the plaintiffs as against which alone appeal was filed for nothing but to be dismissed, paving the way for the filing of this Second Appeal.

11. By way of buttressing and fortifying the contentions on the side of the plaintiffs, the learned Senior Counsel for the plaintiffs cited the following decisions of the Hon’ble Apex Court:

(i) (1997) 5 SCC 476 [Dhanna Singh and others]; an excerpt from it would run thus:
“5. The undisputed fact is that in the plaint the plaintiff respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendens under Section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence.”

(ii) (2006) 13 SCC 608 [Sanjat Verma v. Manik Roy and others]; an excerpt from it would run thus:
“10. Bibi Zubaida Khatoon case on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit…..”

12. Whereas, the learned Senior Counsel for the appellants/defendants cited the following decisions in support of his contentions:

(i) AIR 1958 SC 394 [Saila Bala Dassi v. Sm.Nirmala Sundari Dassi and another]; an excerpt from it would run thus:

“9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P.B. Mukharji, J., has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs 6000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs 17,670 was made up. It will be seen therefrom that a sum of Rs 7200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs 5000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs 1750 is agreed to be paid for costs in the sale reference, in the proceedings before P.B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights.”

(ii) AIR 1983 SC 124 [Khemchand Shankar Choudhary and another v. Vishnu Hari Patil and others]; an excerpt from it would run thus:
“6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the Official Receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares .

(iii) 2004(1) CTC 549 [Raj Kumar v. Sardari Lal and others]; an excerpt from it would run thus:
“10.The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi1 is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression claiming under is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.

(iv) AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another]; an excerpt from it would run thus:
“16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.”

(v) 2007(2) CTC 562 [Sanjay Verma v. Manik Roy and others]; an excerpt from it would run thus:
10. Bibi Zubaida Khatoon case1 on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh2 it was observed in para 6 as follows: (SCC pp.541-42, para 6)

6. Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India … of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.

11. In Dhurandhar Prasad Singh v. Jai Prakash University it was noted as follows: (SCC pp.541-42, para 7)
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.

(vi) The decision of this Court was reported in 2011(1) LW 727 [V.L.Dhandapani v. Revathy Ramachandran and others]; an excerpt from it would run thus:
“13. In one line of decisions by the Supreme Court, it has been held that the transferee pendente lite has got substantial interest in the subject matter of the case and hence his presence is necessary and so he has to be impleaded as a party. In another set of decisions by the Apex Court cited on behalf of the 6th respondent it has been held that the transferee pendente lite need not be included as a party to the suit in the absence of leave of the Court for transfer of the property during its pendency and that such purchaser can neither be termed as a necessary party nor proper party. In view of the above said position, I deem it fit to refer the matter to a larger bench for deciding the legal issue to be followed by Courts.
14. The issue to be decided:
“Whether the transferee pendente lite is entitled to be impleaded in the suit?”

15. In view of the above, the registry is directed to place the matter before My Lord, the Honourable the Chief Justice for referring the same to a larger Bench for decision.”

13. A mere poring over and perusal of those judgments would unambiguously and unequivocally highlight and spotlight the fact that no doubt a learned single Judge of this Court at one point of time felt that there are two lines of judgments, one to the effect that a pendente lite purchaser is having a right to get impleaded in the suit and contest the matter on merits and another to the effect that a pendente lite purchaser is alien to the proceedings and he is bound by the decision. This case in view of its peculiar factual scenario has not got itself caught in the cross fire of such conflicting views.

14. Here it is quite obvious and axiomatic that the purchasers never filed any application to get themselves impleaded as parties to the proceedings; whereas, admittedly the plaintiffs took steps to implead them; Of course, according to them even though the appellants/defendants had no legs to stand in the legal proceedings in the suit, yet the plaintiffs wanted to avoid future unnecessary litigation and with that motive such impleadment resulted. However, there is nothing on record to indicate and exemplify that the Court while allowing the I.A. for impleadment passed any order to the effect that the appellants/defendants here, were added in the suit only for the limited purpose of naming them as formal parties so as to avoid future litigation. The plaintiffs wrongly assumed as though the course adopted by them, was the line of least resistance, forgetting for the moment that they cannot approbate and reprobate.

15. Adding fuel to the fire, the trial Court with the connivance of the plaintiffs’ so to say without any objection from the plaintiffs, allowed the written statement to be filed by the appellants/defendants and issues and additional issues were framed by it and the matter was posted for trial. My mind is redolent and reminiscent of the following maxim: Consensus Tollit Errorem The acquiescence of a party who might take advantage of an error obviates its effect and the relevant portion from Broom’s Legal Maxims, Tenth Edition is extracted hereunder for ready reference:

“When applied to the proceedings in an action, waiver may be defined to be the doing something after an irregularity committed, and with a knowledge of such irregularity, where the irregularity might have been corrected before the act was done; and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In that latter case the proceeding is a nullity, which cannot be waived by any laches or subsequent proceedings of the opposite property.

Where, however, an irregularity has been committed, and where the opposite party knows of the irregularity, it is a fixed rule observed by all the Courts in this country, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. “It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary” (e); and therefore, if a party, after any such irregularity has taken place, consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity (f). This is a doctrine long established and well known, and extends so far, that a person may be materially affected in a subsequent criminal prosecution by proceedings to the irregularity of which he has, by his silence, waived objection (g).

It may appear in some measure superfluous to add, that the consent which cures error in legal proceedings, may be implied as well as expressed: for instance– where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move enter a verdict for the amount found by the jury, it was held that both parties were bound by the proposal, and that the plaintiff’s counsel was not therefore at liberty to move for a new trial on the ground of misdirection (h), for qui tacet consentire videtur (i), the silence of counsel implied their assent to the course adopted by the judge, and “a man who does not speak when he ought shall not be heard when he desires to speak”(k)”

Only at the stage of cross examining P.W.1 the plaintiff got awakened and filed the I.A. so as to prevent the defendants from cross examining P.W.1 and for adducing rebuttal evidence by the newly added parties. No doubt there is no estoppel against law. Not to put too fine a point on it, here the method and manner in which the proceedings went on before the trial Court would pellucidly and palpably make the point clear that the appellants/defendants were added in the suit only for the purpose of giving opportunity to them to litigate on merits.

16. The learned Senior Counsel for the plaintiffs by narrating the relevant facts would submit that absolutely there is no merit in the contentions of the appellants/defendants and that they had no personal knowledge about the benami transaction which emerged between Jayarama Reddy and his brother-in-law Chinnamma Reddy. He would also hasten to add that as of now the appellants/defendants are also having no locus standi to proceed with the matter, because they in turn parted with the entire suit property in favour of various other persons; as such they are having no legal or moral stand to proceed with the matter; if the matter is remanded, then that would amount to prolongation of the litigation. He would also submit that in the long longevity of this litigation, the first respondent/plaintiff has actually become an octogenarian and he has been litigating for three generations without reaping any fruits and as such he would oppose the move for remanding the matter back to the trial Court for giving opportunity to the appellants.

17. I would also like to hark back to the decision of the Madurai Bench of this Court rendered by me on 14.12.2006 in S.A.No.518 of 1996; certain excerpts from it would run thus:
“27. At this juncture, I may proceed to lay down as a general rule that whenever a party after effecting transfer pendente lite simply agrees to the claim of the other side without taking the transferee pendente lite into confidence or making adequate provisions to safeguard the interest of such transferee pendente lite, such act should be termed as only a collusive act.
28. The question may arise as to how the other party to the litigation who was not a party to the transfer pendente lite could be imputed with knowledge and ultimately with collusive state of mind. Normal course of occurrences alone is the sole test. The transferor pendente lite invariably does make the transfer with some specific purposes and more specifically as against the opposite side in the litigation and if such a person all of a sudden turns turtle by having a volte fact and submits to the claim of his enemy in the litigative battle that is the opposite party, naturally the role of the opposite party could rightly be inferred in it and ultimately, bringing about a non-adjudicatory judgment.”

18. Even though the facts and circumstances of that case are different from the factual scenario of this case, yet I had the opportunity of referring to the doctrine of lis pendens and also the duty of the seller of the property pendente lite.

19. The factual circumstances in this case would display and demonstrate that the original defendants did not file any written statement and they did not contest the matter; so to say, after initially contesting the injunction application, they left the matter holus bolus. They did not choose to safeguard the interest of the purchasers pendente lite, namely the appellants herein. It is not a case where the vendor’s pendente lite, contested the matter and that the subsequent purchasers pendente lite are trying to improve upon the case of their vendors by filing additional written statement or by adducing more evidence etc. But this is a singularly singular case in which the plaintiffs themselves added the purchasers pendente lite and allowed them to file written statement and whereupon the issues were framed by the trial Court and only thereafter the plaintiffs did choose to file the said I.A. for preventing the appellants/defendants, so to say the purchasers pendente lite from cross-examining P.W.1 and adducing rebuttal evidence.

20. The decisions of the Hon’be Apex Court reported in 2004 (1) CTC 549 [Raj Kumar v. Sardari Lal and others] and AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another] supra would, in my considered view, come to the rescue of the appellants herein. The said decisions would unambiguously and unequivocally highlight and spotlight that such purchasers pendente lite are having a right to contest the matter on merits even after getting the ex parte decree and judgment set aside as against their vendor. In fact here the plaintiffs themselves paved the way for the purchasers pendente lite to contest the matter on merits and in such a case I am of the considered view that the decision cited on the side of the plaintiffs would not in any way prevent the appellants/defendants from contesting the matter on merits. The trial Court went off on a tangent and decided the lis, without referring to all the relevant precedents and the factual circumstances; and it simply prevented the defendants from contesting the matter on merits. There is no quick fix and also there are no two ways about it, in disposing the matter without adhering to the maxim “audi alteram partem No man shall be condemned unheard.” No doubt, I am fully aware of the fact that this is a long pending matter and in such a case if the matter is remitted back to the trial Court, it would take further time for the litigation to get concluded. The first appellate Court being the last Court of facts, on considering the facts and circumstances of the case could have given opportunity to cross examine the plaintiffs’ witness and also could have given opportunity to the defendants concerned to adduce evidence, but it failed to do so. Hence, remanding the matter to the first appellate Court which happened to be the last Court of facts would to some extent curtail further time of the litigation and with that intention I would like remand the matter back to the first appellate Court with the following direction:

The first appellate Court shall give due opportunity to the appellants/defendants to cross examine P.W.1 and also give further opportunity to the plaintiffs to adduce additional evidence both oral and documentary, if any. The defendants also shall be given opportunity to adduce oral and documentary evidence. Endeavour shall be taken by the appellate Court to see that the entire process is completed on day to day basis and judgment delivered on merits within a period of two months from the date of receipt of the records.

21. Both parties shall appear before the first appellate Court on 27.06.2011.

22. Wherefore, the substantial question of law is answered to the effect that both the Courts below were not justified in preventing the appellants/defendants from participating in the proceedings and contesting the matter on merits and accordingly the Second Appeal is allowed setting aside the judgments and decrees of both the Courts below and the matter is remitted back to the first appellate Court as set out supra. No costs. Consequently, connected miscellaneous petition is closed.

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