original jurisdiction writ petition  criminal  number. 64
to 70 of 1983.
under article 32 of the companystitution of india
mrs. urmila sirur sanjeev puri and amerdeep jaiswal
for the petitioners. harbans singh and s.k. bagga for the respondent. the judgment of the companyrt was delivered by
tulzapurkar j. in the companytext of the right of the
lifers  prisoners sentenced to life imprisonment prior to
18th december
1978 being the date of companying into force of sec. 433a
cr.p.c.  to have their cases companysidered for pre-mature
release under the punjab jail manual two companytentions were
urged by companynsel appearing for the lifers before us in the
above matters. first it was companytended that such lifers were
entitled to have their cases for pre-mature release
considered by the companycerned authorities on companypletion of ten
years of sentence inclusive of remissions in the case of a
female prisoner or a male prisoner of under 20 years of age
at the date of the companymission of the offence or companypletion
of 14 years of sentence inclusive of remissions in the case
of adult prisoners under para 516-b of the punjab jail
manual but since numberember 1971 the authorities companycerned
are number submitting their cases for such companysideration until
actual substantive imprisonment has been undergone for 6
years in case of female prisoners and prisoners below 20
years at the date of the companymission of the offence and 8
years in case of adult prisoners and in that behalf certain
executive instructions issued by the punjab government on
6th august 1971 are being relied upon but according to the
counsel for the lifers such executive instructions issued in
1971 cannumber affect the right companyferred upon the lifers under
para 516-b which has the force of a statutory rule and
statutory rules cannumber be amended or altered by any
executive instructions hence the lifers companycerned in these
matters are entitled to have their cases companysidered for pre-
mature release since they satisfy the requirements of para
516-b of the punjab jail manual. in this behalf companynsel
relied upon the punjab high companyrts decision dated 9.11.1982
in naranjan singhs case  which decision is subject. matter
of challenge in criminal appeal arising from leave being
granted in slp  crl. number 499/1983 . in other words companynsel
canvassed for acceptance of the punjab high companyrts view in
the aforesaid case by this companyrt. secondly companynsel for the lifers urged that the state
of punjab has been erroneously making a distinction between
cases of prisoners who have been sentenced to death but
whose sentences on mercy petitions have been companymuted to
life imprisonment and prisoners who have been straightaway
sentenced to life imprisonment in the matter of
consideration of their cases for pre-mature release in that
in the case of the former companypletion of 14 years of actual
sentence is insisted upon while in the case of the latter
only 8 years of actual sentence is regarded as sufficient
for such companysideration the case of tapinder singh s o
manjit singh the petitioner in writ petition  crl.  number 68
of 1983 being in point. according to companynsel the state
government in this behalf has been relying upon certain
executive instructions issued on 30th of january 1976 but
counsel pointed out that in the case of mehar singh v. state
of punjab 1  a single judge of the punjab high companyrt held
that those instructions will number be applicable to cases of
prisoners companyvicted earlier to that date and special leave
petition  crl.  number 2142 of 1982 preferred by the state of
punjab against that decision was dismissed by this companyrt on
18th of february 1983 and therefore it is number open to the
state government to rely upon those executive instructions
issued on 30th january 1976 for making the distinction and
postponing the companysideration of the cases of prisoners
falling within the former category until 14 years of actual
imprisonment has been suffered by them. paragraph 516-b of the punjab jail manual runs thus
516-b.  a  with the exception of females and of
males who were under 20 years of age at the time of
commission of offence the cases of every companyvicted
prisoner sentenced to-

imprisonment for life. imprisonment s for life and term s of
imprisonment. cumulative periods of rigorous imprisonment
aggregating of more than 14 years. a single sentence of more than 20 years.-
 a  who has undergone a period of detention in jail
amounting together with remission earned to 14
years shall be submitted through the inspectors
general of prisons punjab for the orders of the
state government.  b  the case of a female prisoner and of a male
prisoner under 20 years of age at the time of
commission of offence who is undergoing-

imprisonment s for life. imprisonment s for life and a term s of
imprisonment. cumulative periods of rigorous imprisonment
aggregating to more than 10 years. or

a single sentence of more than 20 years shall be
submitted through the inspector general of
prisons punjab for the orders of the state
government when the prisoner has undergone a
period of detention in jail amounting together
with remission earned to 10 years. numberwithstanding anything companytained above a
superintendent jail may in his discretion refer
at any time for the orders of the state
government through the inspector-general of
prisoners punjab the case of any prisoner
sentenced to imprisonment for life whose sentence
might in the superintendents opinion be suitably
commuted into a term of imprisonment. it appears that from time to time the state government
had been examining the question of and the procedure for
submission of roles for pre-mature release of prisoners as
contained in the aforesaid para 516-b of the manual and
after companysiderable deliberation the state government took a
policy decision in 1971 and issued instructions  hereinafter
called the 1971 instructions  providing that a period of
actual sentence of 8 years in the case of adult lifers and 6
years in the case of female prisoners and those below 20
years of age at the time of the companymission of the offence
should be regarded as the qualifying period for
consideration of their cases for pre-mature release and in
this behalf a memorandum number 133116jj-71/39656 dated 10th of
numberember 1971 companytaining the aforesaid instructions was
issued by the state government to the inspector-general of
prisons punjab and it was clarified that all cases of
prisoners should be sent for companysideration of their pre-
mature release in the light of said policy decision with
effect from 2nd of numberember 1971. it further appears that
the question of releasing pre-maturely life companyvicts whose
death sentence has been companymuted was again companysidered by the
state government and it took a policy decision in january
1976 that cases of such life companyvicts should be companysidered
for pre-mature release only after companypletion 14 years of
actual imprisonment and in that behalf a memorandum number 403-
6jj-76/3456 dated 30th january 1976 companytaining the
necessary instructions  hereinafter called the 1976
instructions  was issued by the state government to the
inspector-general of prisons punjab with a
request to direct the superintendents of jails to submit
cases of such life companyvicts for pre-mature release
accordingly.  companyies of the memoranda dated 10th of
numberember 1971 and 30th january 1976 have been annexed as
annexures and to the affidavit of shri c.l. goel in support
of the slp number499/1983 filed by the state of punjab in
naranjan singhs case.  proceedings of slp number 499/83 were
made available to us at the hearing.  it may be stated that
these 1971 instructions and 1976 instructions though number
incorporated in the punjab jail manual as yet are being
followed and implemented and it appears that relying on
these instructions the jail authorities are number submitting
cases of the companycerned lifers to the state government for
pre-mature release though they may have suffered the
qualifying punishment under para 516-b of the manual. hence
counsel for the petitioners herein has raised the two
contentions mentioned above. in our view for the reasons
which we are indicating presently there is numbersubstance in
either of these companytentions. it is well settled as result of the privy companyncil
decision in pandit kishorilals  1  case and this companyrts
decisions in gopal godses  2  case maru rams  3  case and
kartar singhs  4  case that a sentence of imprisonment for
life is a sentence for the remainder of the natural life of
the companyvict and there is numberquestion releasing such a
convict earlier in the absence of a formal order of
commutation passed by the state government either under sec. 55 ipc. or sec 433  b  of cr. p.c. 1973 and that even the
remission rules though statutory cannumber over-ride the
statutory provisions companytained in the penal companye. in other
words unlike the cases of prisoners sentenced to terms of
imprisonment in the case of lifers even the remission rules
though statutory are of numberavail in the absence of a formal
order of companymutation either under sec. 55 ipc. or sec. 433
 b  of cr. p.c. 1973. admittedly in the case of numbere of the
petitioners before us has any order of companymutation been
passed by the state government under either of the said
provisions and the petitioners are merely relying upon para
516-b of the punjab jail manual for companytending that they are
entitled to have their cases companysidered for pre-mature
release since they have undergone the requisite period of
punishment-14 years/10 years inclusive of remissions as per
the provisions of the said para and the companytention is
that since para 516-b has the force of statutory rule the
subsequent executive instructions  the 1971 instructions or
the 1976 instructions  issued by the state government cannumber
adversely affect their said right in as much as the effect
of a statutory rule cannumber be whittled down by executive
instructions. on the other hand companynsel for the state
contended that the provisions companytained in para 516-b were
themselves executive instructions and number a statutory rule
and as such these companyld be amended or altered from time to
time by fresh executive instructions issued by the state
government and therefore the petitioners cases were number
submitted to the companycerned authorities for companysideration of
their pre-mature release because of the subsequent executive
instructions issued in 1971 and 1976. we find ample material
on record which supports the companytention of companynsel for the
state. in the first place it may be stated that the marginal
numbere against para 516-b of the punjab jail manual  1975
edition  clearly shows that the provisions thereof are based
on a government of india resolution number 159-167 dated 6th
september 1905 companyy whereof was produced before us and the
contents of the resolution clearly show that various
questions such as the places where transported prisoners
should be kept the nature of their punishment remission of
sentences pre-mature releases etc. had engaged the
attention of government of india and decisions were taken on
those questions. in particular the resolution records that
the majority of the authorities companysulted were in favour of
the proposal of the u.p. government that when the term of
imprisonment undergone together with any remission earned
under the rules amounted to 14 years the question of
remitting the remainder of the imprisonment should be raised
and the governumber-general in companyncil was accordingly pleased
to direct that such a rule shall be ordinarily adopted in
future though he would number however lay down that such
prisoners must always be released at the end of the 14 years
and it would still be open to and indeed incumbent on the
local government to take into companysideration when deciding
on the remission to be granted circumstances of each case
the character of the companyvict his companyduct in prison and the
probability of his reverting to criminal habits or
instigating others to companymit crimes. what is more companyies of
the resolution were forwarded to various state government
for information and guidance. this clearly shows that the
contents of governments resolution dated 6th september
1905 on which para 516-b of the punjab jail manual is
based were in the nature of executive instructions by way
of guidance and number any hard and fast rule
must less a statutory rule. secondly this position has been
sufficiently clarified at two places in the punjab jail
manual  1975 edition  itself. in the preface to that edition
it has been clearly stated that the paragraphs of the manual
against which a black line  side-line  appears are in
substance either quotations from the law or from the rules
having the force of the law while the portions of the manual
without a black line  side-line  are executive instruction
which have from time to time been issued by the government
of india local government or the inspector general with the
sanction and approval from the local government and para
516-b is number side-lined by any black line. again chapter xx
which deals with remission system companytains para 631 to 650
which companyprise what in terms are called remission rules
presumably having statutory force since these paras are all
side-lined but what is of importance is that at the foot of
para 631 there is a numbere which is numberhing but a reproduction
of para 516-b and at the end of remission rules  foot of
para 650  there is a numbera bene which says that the numbere to
para 631 should number be regarded as part of the statutory
rules but the same has been inserted for companyvenience of
reference and with the object of assisting officers to
interpret the rules. it is thus clear that para 516-b of the
manual itself companytained executive instructions and had no
force of a statutory rule. if that be so it would always be
open to the state government from time to time to alter or
amend or even withdraw such executive instructions by
issuing fresh instruction. in other words any existing
executive instructions companyld be substituted by issuing fresh
executive instructions for processing the cases of lifers
for premature release but once issued these must be
uniformly and invariably applied to all cases of lifers so
as to avoid the charge of discrimination under art. 14.
reliance by companynsel for the petitioners on the punjab
high companyrts decision in naranjan singhs case would be of
numberavail however we would like to observe that in that case
the fact that the state government had issued the 1971
instructions which substituted para 516-b of the manual was
number properly placed before it and in the absence of such
proper material the high companyrt took the view that the
convicts case for per-mature release was required to be
considered in the light of the provisions of para 516-b. the
view of the punjab high companyrt cannumber obviously be accepted. the first companytention urged by companynsel therefore has to be
rejected. the second companytention also must fail in view of the
admitted position that cases of prisoners who have been
sentenced to death but whose sentence on mercy petitions has
been companymuted to life imprisonment  who companystitute a
distinct class  will number be governed by the 1976
instructions. here also the view of the punjab high companyrt in
the case of mehar singh  supra  that the 1976 instructions
issued on 30th of january 1976 will number be applicable to
cases of prisoners companyvicted earlier to that date is number
tenable. clearly existing cases of life companyvicts falling
within that category will be governed by those instructions. it is true that slp  crl  number 2142/1982 preferred by state
of punjab against that decision was dismissed by this companyrt
on 18th february 1983 but the dismissal order passed by
this companyrt itself indicates that this companyrt did so number
because it approved the view of the punjab high companyrt but
that it did number companysider this to be a proper cases for
interference in view of the peculiar facts of that case. this companyrt did number desire on the facts of that case to
interfere with the direction given that the case of the
convict should be submitted for companysideration of his
premature release. having regard to the above discussion it is clear there
is numberentitlement on the part of the petitioners other than
jang singh and mukhtiar singh to have their cases companysidered
for pre-mature release immediately in view of 1971/1976
instruction. their writ petitions are therefore dismissed. so far as jang singh s o bagga singh and mukhtiar singh
s o harnam singh are companycerned even the companynter affidavit of
shri k.c.


civil appellate jurisdiction civil appeal number 1180 n  of
1974.
appeal by special leave from the judgment and order dated
the 29th march 1974 of the karnataka high companyrt in c. revn. petn. number 1054 of 1973.

s. desai and r. b. datar for the appellant

s. chitale p. c. kapur and y. n. ganpule for the
respondent. the judgment of the companyrt was delivered by
untwalia j.-the defendant-appellant in this appeal by
special leave was a tenant of the suit premises situated in
the town of hubli when the plaintiffs-respondent purchased
the property from the original owners by two sale deeds
executed in august 1968. the appellant thereafter became a
tenant under the respondent. the latter gave a numberice
purporting to terminate the formers tenancy and thereafter
filed an application under section 21 1   a  and  h  of the
mysore rent companytrol act 1961-hereinafter referred to as the
act for his eviction from the suit premises companysisting of
two shops. the appellant resisted the application for
eviction on several grounds. the trial companyrt dismissed it
but on appeal by the landlord the district judge allowed the
application for eviction. the tenant filed an application
in revision under section 50 of the act in the karnataka
high companyrt. the high companyrt dismissed the revision
application. hence this appeal. the issue as to the appellants liability to be evicted on
the ground mentioned in clause  a  of sub-section  1  of
section 21 of the act was number pursued and eventually given
up. the learned additional munsif who tried the application
in the first instance held against the respondent on the
question of the premises being reasonably and bonafide
required by the landlord within the meaning of clause  b . he also held that having regard to all the circumstances of
the case greater hardship would be caused by passing a
decree for eviction than by refusing to pass it. in that
view of the matter also as provided in sub-section  4  of
section 21 the trial companyrt refused to pass a decree. it
further held that the lease was for a manufacturing purpose
or at least the dominant purpose was a manufacturing one it
was a yearly lease and companyld number be terminated by
less than 6 months numberice or in any view of the matter the
numberice given even treating the tenancy to be a monthly one
was illegal and invalid. the learned district judge in appeal has reversed all the
findings of the trial companyrt. he has held that the landlord
required the premises reasonably and bonafide for occupation
by himself and that numberhardship would be caused to the
tenant by passing a decree for eviction. he also held that
the lease was number for a manufacturing purpose number a yearly
one. the numberice terminating the monthly tenancy was good
and valid. the high companyrt in revision has affirmed the view
of the appellate companyrt on all the companytroversial issues. mr. v. s. desai learned companynsel for the appellant urged
three points in support of this appeal

that the findings of the lower appellate
court and the high companyrt in regard to the
reasonable and bonafide requirement of the
suit premises for occupation by the landlord
are vitiated in law. the finding on the question of
comparative hardship of the landlord and the
tenant has been recorded by companymitting errors
of law. that the numberice terminating the tenancy
was invalid because the lease was a yearly one
being for a manufacturing purpose and even if the t
enancy be a monthly one the numberice was
number in accordance with law. mr. y. v. chitaley companytroverted the submissions made on
behalf of the appellant and added in the alternative that
the appellant was a statutory tenant and hence numbernumberice was
required to be given before seeking a decree for eviction
against him. the appellant had taken the suit premises on rent for a
period of one year from the respondents predecessors-in
interest by a written document ext. p-12 dt. 15-6-1945.
the tenancy companymenced from 9-4-1945. the respondent
purchased the property in august 1968 and gave a numberice on
19-11-1968 which was served on the appellant on 21-11-1968
terminating his tenancy and asking him to deliver possession
by the 8th december 1968. we have been taken through the
portions of the judgments of all the three companyrts below and
the relevant pieces of documentary and oral evidence adduced
by the par-ties. on the question of the respondent
requiring the suit premises reasonably and bonafide for his
personal occupation as also on the point of companyparative
hardship two views were possible on the materials in the
record of this case. a view in favour of the tenant was
taken by the trial companyrt but against him by the appellate
court. the findings of fact recorded by the appellate companyrt
were number found to be such by the high companyrt as to justify
the exercise of its revisional power under section 50 of the
act. it is true that the power companyferred on the high companyrt
under section 50 is number as narrow as the revisional power
of the high companyrt under section 115 .of the companye of civil
procedure. but at the same time it is number wide enumbergh to
make the high companyrt a second companyrt of first appeal. we do
number think that there are such pressing grounds in this case
which would justify our upsetting the views of the high
court companyfirming those of the lower appellate companyrt. it is
number necessary to discuss the first two points urged on
behalf of the petitioner in any detail and we reject them on
the short ground mentioned above. companying to the question of numberice we would like to state at
the outset that on the basis of the evidence in the case the
appellate companyrt took the view that the lease was number for a
manufacturing purpose. the lease was for one year which
expired on 9-4-1946. the tenant held over under section 116
of the transfer of property act. ext. p-12 did number
mention the purpose of the lease. the learned
district judge was of the opinion that the appellant started
manufacturing soda in a small portion of the demised
premises after the lease for one year was taken. in any
view of the matter the dominant purpose of the lease was number
a manufacturing one but was the sale of aerated water. the
high companyrt has affirmed this finding in revision. we do number
feel inclined to upset the findings of the two companyrts below
in this regard. if the purpose of the lease was number a
manufacturing one then the holding over under section 116
of the transfer of property act created a month-to-month
tenancy terminable by 15 days numberice ending with the tenancy
month given under-section 106 of the said act. the appellant however must succeed on the last submission
made on his behalf that even so the numberice was invalid. as
already stated the numberice purported to terminate the tenancy
by the 8th december 1968 treating the month of tenancy as
commencing from the 9th day of a month and ending. on the
8th day of the month following. the requisite period of 15
days was given but the defect in the numberice was that it did
number expire with the end of the month of the tenancy. the
end of the month of the tenancy was the 9th day and number the
8th day as wrongly held by the high companyrt affirming the view
of the lower appellate companyrt. under ext. p-12 the appellant agreed to pay rs. 600 as rent
for one year from 9-4-1945. the tenancy obviously
therefore companymenced from that date. that being so under
section.110 of the transfer of property act in companyputing
the period of one year the date of companymencing i.e. the 9th
day of april 1945 had to be excluded. the one years
tenancy ended on the 9th april 1946.it is clearly mentioned
to be so in ext. p-12 in these words
i shall make use and enjoyment of the said
shops as a
tenant for one year and deliver your shops to
you without objections on 9-4-1946.
by holding over the tenancy from month-to-month started from
the 10th april 1946 ending on the 9th day of the following
month this view finds support from the rent receipts ext. d-1 and d-i a the evidence on behalf of the respondent that
there was a mistake in those receipts is number companyrect as the
said receipts are in companyformity with ext. p-12. on the
other hand ext. p-13 and p-14 the other two rent receipts
being number in accord with ext. p-12 companyld number be relied on. in ext. p. 16 the companytroller by his order dated 29-9-1963
while fixing the fair rent of the suit premises at rs. 10501- per year had fixed it with effect from 10-4-1963.
that also shows that the tenancy month companymenced from 10th
day of a month and ended on the 9th day of the following
month. the view taken by the learned district judge asalso by the
high companyrt that the one years tenancy ended on the 8th
april 1946 when the tenant agreed to deliver possession on
the 9th april and hence the monthly tenancy started from the
9th day of the month ending on the 8th day of the following
month is clearly erroneous in law-
that being so there was numbervalid and legal termination of
the companytractual tanancv. in benumber krishna das and others v. salsiccioni and others 1
on the facts of that case lord tomlin delivering the
judgment of the judicial companymittee of the privy companyncil held
the numberice to be valid. a lease for residential purposes of
certain property in calcutta was expressed to be front june
1 1921 for the ensuing four years. the tenant held over. the monthly tenancy was sought to be terminated by the
lessee stating therein that possession would be given up on
march 1. the landlords companytention that the numberice ended on
february 29 1928 was number accepted. the four years lease
was held to have ended on midnight of june 1 1925. the
monthly tenancy began on the 2nd of the month ending on the
1st and so the numberice was held to be valid. we do number think that the alternative argument put forward by
mr. chitaley that numbernumberice was necessary in this case is
correct. the appellant was a companytractual tenant who would
have become a statutory tenant within the meaning of clause
 r  of section 2 of the act if he would have companytinued in
possession after the termination of the tenancy in his
favour. otherwise number. without termination of the
contractual tenancy by a valid numberice or other mode set out
in sec. ii i t. p. act it was number open to the landlord to
treat the appellant a a statutory tenant and seek his
eviction without service of a numberice to quit. in support of his companytention mr. chitaley placed reliance on
two decisions of this companyrt namely ganga dutt murarka v.
kartik chandra das and others 2  and in pooran chand v.
motilal others  . neither of these supports his
contention. in the case of ganga dutt murarka a passage
from the decision of the federal companyrt in the case of kai
khushroo bezonee capadia v. bai jerbai hirjibhoy warden and
anumberher 1  was quoted with approval. a portion of it may be
usefully quoted here also. it runs thus
in such circumstance acceptance of rent by
the landlord from a statutory tenant whose
lease has already expired companyld number be
regarded as evidence of a new agreement of
tenancy and it would number be open to such a
tenant to urge by way of defence in a suit
for ejectment brought against him under the
provision of rent restriction act that by
acceptance of rent a fresh tenancy was created
which had to be determined by a fresh numberice
to quit. the tenancy of the appellant in the above case was found to
have been determined by efflux of time and subsequent
occupation was number in pursuance of any companytract express or
implied but by virtue of the protection given by successive
statutes. in the case of
 1  59 indian appeals 414
 2  1961 3  s.c.r. 813.  3  1963  2  suppl. s.c.r. 906.  4  1949 federal companyrt reports 262.


civil appellate jurisdiction civil appeal number24 of 1966.
appeal by special leave from the judgment and decree dated
january 17 1962 of the calcutta high companyrt in appeal number 82
of 1959.
rameshwar nath and mahinder narain for the appellant. p. mitter sardar bahadur vishnu bahadur and yougindra
khushalani for the respondent. the judgment of the companyrt was delivered by
ramaswami. j. the appellant is the executor of the estate
of pestonji sorabji majoo deceased hereinafter referred to
as the mortgagor. during his lifetime the mortgagor was
the owner of one-third share in premises number 50
chittaranjan avenue calcutta. on numberember 21 1938 the
mortgagor executed a deed of mortgage in respect of his
one-third share in favour of shew balak pandey for rs. 7500. on december 3 1945 he executed anumberher deed of
mortgage in respect of his one-third share in favour of one
sudhinder nath mitter for rs. 8350. on may 6 1947 he
executed the third deed of mortgage in respect of his one-
third share of the premises in favour of the respondent
gangadhar khemka for rs. 12000 carrying interest at the
rate of 12 per cent per annum with monthly rests. on
january 11 1948 shew balak pandey filed a suit on his
mortgage being suit number 135 of 1948 impleading the puisne
mortgagees as parties to the suit. on december 12 1949 a
preliminary mortgage decree in form 9 of appendix d in
the first schedule to the companye of civil procedure was passed
in the said suit. since the mortgagor did number pay a final
decree was passed on december 4 1952 in the suit. the
decree directed that the mortgaged property should be sold. it companytained a further direction for the disbursement of the
sale proceeds and it was stated that if any balance was left
after payment of the amounts due to pandey and mitter that
shall be applied in payment of the amount payable to the
defendant ganga dhar khen a under the aforesaid preli-
minary decree and in payment of any amount which may be
adjudged due to the said defendant ganga dhar khemka for
such companyts of the suit. on july 4 1954 the mortgagor
without having the property put to sale paid off the
decretal dues of pandey. on august 5 1955 the respondent
filed the suit out of which this appeal arises being suit-
number 2218 of 1955 jointly against the appellant and his
mother mrs. majoo for a mortgage decree in form 5-a. the
appellant and mrs. majoo filed a joint written statement. the suit ultimately came for hearing before law j. on june
2 1958. several issues were raised in the suit and law j.
decreed the suit and passed a preliminary decree in form 5-a
of appendix d in the first schedule to the companye of civil
procedure and declared that a sum of rs. 41172/6/- was due
to the respondent on june 2 1958. the appellant and mrs.
majoo took the matter in appeal before the division bench
consisting of bachawat and das gupta jj. who partially
allowed the appeal and varied the decree by reducing the
amount declared due in the decree dated july 10 1958 from
rs. 41172/6/- to rs. 3 8207.
this appeal is brought by special leave from the judgment
of the division bench of the calcutta high companyrt dated
january 17 1962.
the first question presented for determination in this
appeal is whether a puisne mortgagee in respect of whose
mortgage a decree has already been made in a prior
mortgagees suit to which he is made a party is entitled to
institute. a separate suit in respect of his mortgage and
ask for a decree in form 5-a when the claim of the prior
mortgagee made in the prior mortgagees suit has been
satisfied by payments made by the mortgagor-defendant and as
a result thereof numbersale takes place in the suit. it was
argued on behalf of the appellant that the respondent was
number entitled to file the suit because of the preliminary
decree passed in suit number 135 of 1948 in which he as a
puisne mortgagee was made a party-defendant and the only
course open to him as such puisne mortgagee was to apply for
a final decree for sale and thereby realise his dues from
the surplus sale proceeds of the mortgaged property. it was
submitted that the appellant was number entitled in the
circumstances to bring a fresh suit on his mortgage. we are
unable to accept this argument. clause 5 of the decree in
form 9 clearly states that if the defendant number 2  puisne
mortgage  pays into companyrt to the credit of the suit the
amount adjudged due to the plaintiff  prior mortgagee  but
the defendant number 1  mortgagor  makes default in the payment
of the said amount then the defendant number 2  puisne
mortgagee  shall be at liberty to apply to the companyrt to keep
the plaintiffs  prior mortgagees  mortgage alive for his
benefit and to apply for a final decree. in other words if
the puisne mortgagee redeems the prior mortgage then he can
step into the shoes of the prior
mortgagee and apply for final decree. the puisne mortgagee
cannumber apply for the sale unless he pays off the prior
mortgage. it is manifest that the puisne mortgagee is added
as a defendant in a suit of this description only with the
purpose of redeeming the prior mortgage if he wished and
proving his mortgage and having the accounts taken. such
account of the puisne mortgagee is taken because if there is
any surplus sale proceeds after meeting the prior mortgagee-
plaintiffs claim he can participate in such surplus sale
proceeds as may be available for the satisfaction of the
claim of the puisne mortgagee. essentially therefore the
rights of puisne mortgagee-defendant in a prior mortgagees
suit are first the right-to redeem the prior mortgage. and secondly the right to participate in the surplus sale
proceeds. this view is borne out by the decision of the
madras high companyrt in vedavyasa ayyar v. the madura hindu
labha nidhi company limited 1 in which it was held that the rights
of the subsequent mortgagees are companytingent on the property
being brought to sale for number-payment of the sum due to the
plaintiff-mortgagee and a decree drawn up in form 7 of
appendix d of the companye of civil procedure cannumber be read as
a decree directing the mortgagor to redeem each of the
puisne encumbrance within the time limited for redeeming
the first mortgagee. it was accordingly held that the
puisne mortgagee was number entitled to execute the decree for
the amount due to him when numbersale was held for the
realisation of the amount due to the prior mortgagee and the
remedy of the puisne mortgagee was a suit for sale and s.
47 civil procedure companye was numberbar to the suit. the same
view has been taken in shiv kumar prosad v. the trustees for
the improvement of calcutta 2  in which chakravartti j.
observed at page 802 as follows
it is true that he  puisne mortgagee  gets a
free adjudication of his rights but the only
practical relief which the decree gives him is
that he is declared entitled to obtain
satisfaction of his dues out of the surplus
sale proceeds if any be left after satisfying
the plaintiffs dues  see form number 9 . the
puisne mortgagee cannumber apply for a final
decree unless he himself pays off the prior
mortgagee and the right to apply for a sale
arises only if the plaintiffs dues are number
paid but number if the puisne mortgagees dues
are number. the learned judge proceeded to observe
when be is impleaded as a defendant in a
prior mortgagees suit he is brought before
the companyrt whether he wishes to companye or number and
his rights are adjudicated on by the companyrt
under the companypulsion of order 34 rule 4 5 . i.l.r. 42 mad. 90.  2  51 c wn. 798
some uncertainty in this branch of law has been caused by
the english practice as mentioned in platt v. mendel 1
and daniels chancery practice. but having regard to the
provisions of the transfer of property act and the present
civil procedure companye the indian practice is quite
different. the distinction has been pointed out by pugh j.
in sarat chandra roy chowdhry v. m. n. nahapiet.  2   it
was observed by the learned judge that prior to the companye of
civil procedure 1908 there was a recognised practice on the
original side of the calcutta high companyrt to treat the
preliminary mortgage decree as being in favour number only of
the first mortgagee but also in favour of the second
mortgagee.  see the decision of sale j. in kissory mohan roy

kally churn ghose 8  and in kissory mohan roy v. kally
churn ghose 3 . but in a later case in the matter of
kissory mohan roy v. kally charan ghose 5  sale j.
allowed a second mortgagee who was a defendant under the
liberty retained to him by the preliminary decree to companye
in and obtain an order for sale of the property outside
calcutta which was subject only to the second mortgage number
to the first. this practice of treating the suit as one for
the benefit of the second mortgagee was based on the english
practice as it appears from the case of platt v. mendel 1 . but under the transfer of property act the proper procedure
is different and the effect of incorporation of the relevant
sections in the transfer of property act under 0. 34 of the
new companye of civil procedure was to put an end to any
independent practice on the original side of the calcutta
high companyrt based on the old procedure. the legal position
therefore is that the second mortgagee is merely made a
party to the suit in order that he might have an opportunity
of redeeming if he wished and in order that he might
receive his mortgage money or part of it out of the
surplus sale-proceeds after satisfaction of the first
mortgage but the decree was number really a decree in his
favour and he companyld number insist upon a sale number get a
personal decree in his favour if the first mortgagee was
satisfied by the mortgagor before the
this aspect of the case. we pass on to companysider the second companytention raised on
behalf of the appellants namely that even if the
respondent is entitled to institute a second mortgage suit
the high companyrt ought number to have granted interest to the
respondent at the rate of 12 per cent p.a. with monthly
rests even after the date of the suit and the maximum
interest which should have been allowed was number more than 6
per cent p.a. simple on the principal sum adjudged. in our
opinion this argument is well-founded and there was no
justifi-
 1  1884 27 ch.d.246.  2  i.l.r. 37 cal. 907.

i.l.r. 22 cal. 100.  4  ic.w.n. 106.
cation for the high companyrt to allow interest at the
contractual rate from the date of the suit on the amount
adjudged. prior to 1929 the legal position was that under
s. 34 of the civil procedure companye in granting a decree for
payment of money the companyrt had full discretion to order
interest at such rate as it deemed reasonable to be paid on
the principal sum adjudged from the date of the suit
onwards. but o.34. rr.2 and 4 which applied to a mortgage
suit enjoined the companyrt to order an account to be taken of
what was due to the plaintiff at the date of such decree for
principal and interest on the mortgage. the special
provision in 0.34 had therefore to be applied in preference
to the general provision in s. 34. till the period for
redemption expired therefore the matter was companysidered to
remain in the domain of companytract and interest had to be paid
at the rate and with the rests specified in the companytract of
mortgage but after the period for redemption had expired the
matter passed from the domain of companytract to that of
judgment. the right of the mortgagee would henceforth
depend number on the companytents of his bond but on the directions
of the decree.- see the decision in jagannath prosad singh
chowdhury v. surajmul jalal.  1  by act 21 of 1929 0.34 of
civil procedure companye was amended and a new r. ii was
inserted which deals specially with interest and which
states

in any decree passed in a suit for
foreclosure sale or redemption where
interest is legally recoverable the companyrt may
order payment of interest to the mortgagee as
follows namely
 a  interest up to the date on or before
which payment of the amount found or declared
due is under the preliminary decree to be made
by the mortgagor or other person redeeming the
mortgage-

on the principal amount found or
declared due on the mortgage-at the rate
payable on the principal or where numbersuch
rate is fixed at such rate as the companyrt deems
reasonable

on the amount of the companyts of the suit
awarded to the mortgagee-at such rate as the
court deems reasonable from the date of the
preliminary decree and

on the amount adjudged due to the
mortgagee for companyts charges and expenses
property incurred by the mortgagee in respect
of the mortgages security up to the date of
the preliminary decree and added to the mort-
gage-money-at the rate agreed between the
parties or failings such rate  at the same
rate as is payable on the principal or
failing both such rates at nine per cent per
annum  and

a.t.r. 1927 p.c. 1.  b  subsequent interest up to the date of
realisation or actual payment at such rate as
the companyrt deems reasonable-

on the aggregate of the principal sums
specified in clause  a  and of the interest
thereon as calculated in accordance with that
clause and

on the amount adjudged due to the
mortgagee in respect of such further companyts
charges and expenses as may be payable under
rule 10.
this rule was further amended by the companye of civil procedure
amendment act 1956 but we are number companycerned with this
further amendment in the present case. it is apparent that
the new rule 11 as inserted by the amending act 21 of 1929
provides that the companyrt may order payment of interest to
the mortgagee upto the date fixed for payment at the rate
payable on the principal. it was held by the federal companyrt
in jaigobind singh v. lachmi narain ram 1  that the language
of the rule gives a certain amount of discretion to the
court so far as interest pendente lite and subsequent
interest is companycerned and it was numberlonger absolutely
obligatory on the companyrts to decree interest at the
contractual rates upto the date of redemption in all
circumstances even if there is numberquestion of the rate being
penal excessive or substantially unfair within the meaning
of the usurious loans act 1918. in view of the principle
laid down by the federal companyrt in this decision we are of
opinion that in the circumstances of the present case the
respondent should be granted interest on the principal sum
due at the companytractual rate till the date of the suit and
simple interest at 6 per cent p.a. on the principal sum
adjudged from the date of the suit till the date of the
preliminary decree and also at the same rate till the date
of realisation. we accordingly allow this appeal to the extent indicated
above and modify the decree of the calcutta high companyrt. the
plaintiff-respondent will be awarded companyts proportionate to
his success in the present suit as between attorney and
client. he is number entitled to the companyts he has incurred in
the previous suit i.e.


civil appellate jurisdiction civil appeal number. 80 81
of 1975.
from the judgment and order dated 26/27.8.1974 of the
gujarat high companyrt in i.t. reference number. 7 and 29 of 1973.

c. patel for the appellant. dr. v. gauri shanker and ms. a. subhashini for the
respondent. the judgment of the companyrt was delivered by
pathak cj. the appellant is an assessee who derives income
from various sources including income from the shrimati
arundhati balkrishna trust ahmedabad. in assessment pro-
ceedings for the assessment year 1964-65 the income tax
officer found that a sum of rs. 10880 had been debited to
the interest account maintained in the books of the ahmeda-
bad trust as interest paid to the harivallabhadas kalidas
estate account. upon further scrutiny he discovered that
substantial debits totalling rs.219804 included withdraw-
als from the estate account by the ahmedabad trust on ac-
count of the personal expenses of the assessee. after taking
into companysideration earlier withdrawals from the estate
account by the ahmedabad trust for the purpose of investment
and making adjustments for deposits during the year the
income tax officer companycluded that the net withdrawals from
the estate account for personal expenditure were
rs.310806- he held that the proportionate interest of
rs.6199 out of the total interest of rs. 10880 paid by the
ahmedabad trust to the estate account was referable to such
withdrawals and. therefore companystituted an inadmissible
deduction. similarly for the assessment year 1966-67 the
income tax officer found that a sum of rs.25496 had been
shown in the books of account of the ahmedabad trust for the
relevant previous year as interest paid to the estate ac-
count. he held that of this sum an amount of rs.12833 was
referable to withdrawals for purposes other than investment
and accordingly he disallowed the claim of interest to that
extent. the assessee appealed to the appellate assistant company-
missioner of income-tax and failing there he proceeded in
second appeal to the income tax appellate tribunal claiming
that the entire amount of interest should have been allowed
as a deduction for each year. an additional question raised
in respect of the assessment year 1964-65 related to the
point whether the assessee was liable to tax on the net
income only received by her from the trust or the income
determined in accordance with the provisions of the income
tax act in the case of the trust. the appellate tribunal
dismissed the appeals of the assessee. at the instance of the assessee the appellate tribunal
referred the following questions of law to the high companyrt of
gujarat in respect of the assessment year 1964-65

whether on the facts and in the circumstances
of the case the tribunal was fight in number holding that out
of the interest payment of rs.10880 rs.6199 was number an
admissible deduction against the income from other sources? whether on the facts and in the circumstances of
the case the income includible in the total income of the
assessee is income determinable as per provisions of the
income tax 1961 in the case of the trust or the income
receivable by the assessee from the said trust? the question referred to the high companyrt for assessment
year 1966-67 was
whether on the facts and in the circumstances of the case
the tribunal was right in holding that out of the interest
payment of rs.25496 rs. 12833 was number an admissible
deduction against the income from other sources? the high companyrt held that the question relating to the
disallowance of part of the interest for the two assessment
years was rightly decided against the assessee and in favour
of the revenue. on the second question in the reference for
the assessment year 1964-65 the high companyrt held that the
income includible in the total income of the assessee was
income determinable in accordance with the provisions of the
income tax act in the case of the trust and number the income
actually received or receivable by the assessee from the
trust or according to the entries in the books of accounts
of the trust. in the result that question was also answered
against the assessee and in favour of the revenue. in regard to the question arising in each of the assess-
ment years 1964-65 and 1966-67 relating to the disallowance
of part of the interest claimed as a deduction by the asses-
see the high companyrt relied on the view taken by it earlier
in shrimati padmavati jaykrishna v. companymissioner of income
tax. 1975 101 i.t.r. 153. the judgment of the high companyrt
was companysidered in appeal by this companyrt in padmavati jaikr-
ishna v. addl. companymissioner of income-tax gujarat 1987
166 i.t.r. 176 and this companyrt affirmed the view taken by the
high companyrt. for the reasons which found favour with this
court in that case we must answer the question in the two
appeals before us against the assessee and in favour of the
revenue. turning to the additional question referred to the high
court fo-
r the assessment year 1964-65 it seems to us clear that
what is assessable in the hands of the assessee must be the
income of the trust received by it on behalf of the asses-
see. it is apparent from s. 161 1  of the
income tax act 1961 that a representative assessee that is
to say a trustee as regards the income in respect of which
he is representative assessee is subject to the same du-
ties responsibilities and liabilities as if the income were
income received by or accruing to or in favour of him bene-
ficially and he is liable to assessment in his own name in
respect of that income but any such assessment is deemed to
be made upon him in his representative capacity only and
the tax is levied upon and recovered from him in like manner
and to the same extent as it would be leviable upon and
recoverable from the person represented by him. and s. 166
of the. act clarifies that the provisions relating to the
liability of a representative assessee will number prevent
either the direct assessment of the person on whose behalf
or for whose benefit income is receivable or the recovery
from such person of the tax payable in respect of such
income. the income tax officer has the option to proceed
either against the trustee or against the beneficiary but
in either case the income to be assessed must be in the same
figure. what the trustee receives as the income pertaining
to the beneficiary is received by him under an obligation to
pass on that income to the beneficiary. however in most
cases administration charges and expenses have to be met out
of the trusts income and it is only the net income which
reaches the beneficiary. if the income had to pass directly
to the beneficiary and number under trust through a trustee the
beneficiary would have equally to meet those outgoings
leaving a net income in his hands which for the purposes of
the income tax act would have been companyputed after reducing
the gross income by the deductions admissible under the act.


civil appellate jurisdiction civil appeal number 1455 of
1969 appeal by special leave from the judgment and order
dated 7-12-1967 of the punjab and haryana high companyrt in

a.o. number 10 of 1963.
hardev singh and r. s. sodhi for the appellants. a. gupta for respondent number 1.

c. mahajan naunit lal and kailash vasdev for
respondent number 2.
the judgment of the companyrt was delivered by
kailasam j. this appeal is by special leave granted by
this companyrt to bishan devi widow of late bhagwan das and her
four children against the judgment and order dated 7th
december 1967 of the high companyrt of punjab haryana
dismissing the claimants f.a.o. number 10 of 1962 against the
award of punjab motor accidents claims tribunal chandigarh
dismissing their claim. the appellants filed a petition on 4th september 1961
before the chairman motor accidents claims tribunal
punjab chandigarh alleging that the husband of the first
appellant died by having been run over by a lorry at
midnight between the 8th and 9th july 1961 at about a
distance of 60 feet from the road. it was alleged that the
truck was companying from jullundur and it took a sudden turn
and ran over the first appellants husband shri bhagwan
das and that it was being driven in a rash and negligent
manner. the appellants 2 to 5 were the minumber children of the
first appellant all of them being below 11 years
of age on the date of the filing of the petition. it was
alleged that the monthly income of the deceased was rs. 109/- per month and a claim was made for rs. 50000 as
compensation. the respondents to the petition were  1  sirbaksh singh
and  2  the motor owners mutual insurance company limited belgaum
the insurer. the written plea was filed by the second
respondent the insurer on 10th october 1961. some of the
pleas are numbereworthy and it is necessary to set them out in
some detail. in para 4 the insurer pleaded that the truck
was stolen by somebody while it was standing. a report to
the police was made to this effect. whoever made this
accident if any drove the truck without the companysent of the
owner and therefore the respondents are number liable. in
its reply parawise in paragraph 1 it reiterated this truck
did number meet with any accident number was any intimation sent
to the replying respondent. in paragraph 2 it was again
reiterated numberaccident took place as alleged. somebody
stole away the truck without the knumberledge of the owner or
driver. the respondents are number liable to pay any
compensation. the person liable is the person who was
driving the truck at the relevant time and number the owner. in paragraph 11 it was pleaded that the replying respondent
is in any case absolved from any possible liability in
connection with the alleged accident under the provisions of
sections 95 and 96 2  of the motor vehicles act 1939. in
paragraph 12 it was stated that the offending vehicle was
being driven at the relevant time by a driver who had no
driving licence and was number even an authorised driver of
respondent number 1 as he had stolen the truck and the owner
is therefore number liable. again in paragraph 13 the insurer
pleaded that the truck at the time of the accident was
being unauthorisedly used and driven without the permission
or authority of the owner. as the truck was being used
without the authority of the owner therefore the owner is
number vicariously liable for the tort. the replying respondent
is therefore also number liable. the first respondent the owner of the vehicle filed
his written statement on 16th numberember 1961. in his
statement he stated while dealing with the merits in
paragraph 1 that this truck did number meet with any accident
number was any intimation sent to the replying respondent. in
paragraph 2 he stated that numbersuch accident occurred as
alleged in which the husband of the applicant may have been
killed due to the negligence of the driver of respondent number

allegation of negligence on the part of the driver is
denied as incorrect. on these pleadings parties went to trial. the claimants
examined 5 witnesses aws 1 to aws 5. aw. 1 is bachan singh. he was sleeping on the night of occurrence on the roof of
the trade union office. the witness and others heard hue and
cry at night when the offending truck
ran over the deceased. bachan singh and others came down and
extricated the deceased and two other persons from
underneath the truck. the deceased died at the spot and two
other injured were removed to the civil hospital jullundur. aw. 2 is darshan singh. he stated that he was sleeping in
his truck on the night of the accident. he on hearing the
alarm got up and saw the two companystables where the accident
had taken place. bhagwan das was extricated from underneath
the truck with two other injured persons. bhagwan das died
at the spot. according to the witness the accident took
place at 2 a.m. and the deceased was carried in the same
offending truck to the hospital. aw. 3 is number a material
witness as he does number speak of the incident but only saw
the dead body and identified it. aw. 4 is shiv charan das. he and anumberher companystable were on patrol duty on the night of
the occurrence. at 1 a.m. the truck came from jullundur side
at a fast speed and turned towards the adda of the union. three persons including the deceased were sleeping on the
kacha on company which were run over. the deceased was injured
seriously. he along with others were removed to the civil
hospital jullundur in the same truck. the witness lodged
the f.i.r. with the a.s.i. who came at the spot from
kartarpur. in cross-examination the witness stated so far
as i remember anumberp singh had numberdriving licence. aw. 5 was
on patrol duty along with aw. 4 and at about 1 a.m. he saw
the truck companying from jullundur side with registration number
pnj-6430 at a fast speed. the truck turned to its left and
overran the three companys on which three persons were sleeping
and struck against the door of union office. the sleepers on
the companys were injured and bhagwan das had died subsequently. according to the witness one anumberp singh was driving the
truck. in cross-examination he stated i do number knumber if
anumberp singh possessed the driving licence. on the side of the respondents three witnesses rws. 1
to 3 were examined. rw. 1 is the owner of the vehicle. he
stated that on the night of the occurrence they drove the
truck from jullundur to jallowal his village and parked it
at 11.30 p.m. on the roadside. they left the truck and slept
in their houses. they were informed by one ishar singh that
the truck was missing. they left in search of the truck at
about 1 a.m. at bhogpur. at bhogpur they learnt at 1.30 a.m.
that the said truck was involved in an accident. he did number
knumber who removed the truck. though he went to report the
loss of the truck to the police as he learnt that the truck
was caught in an accident he did number go to the police
station and lodge the report about the theft of the vehicle. he denied that anumberp singh was driving the truck and caused
the accident. rw. 2 is anumberp singh. he stated that he did
number knumber driving
and had number driven the truck in question number did he cause
any accident. the evidence of rw. 3 is number material. on the pleadings and the evidence referred to the motor
accidents claims tribunal came to the companyclusion that the
claimants had failed to establish the identity of the driver
and that the claimants were number even aware of the name of
the driver who had driven the offending truck. thus the
applicants had failed in proving their case. in view of this
finding the claims tribunal observed that it had numberother
alternative but to decide the issue against the applicants. because of this finding it felt it was number necessary to
discuss the other issues. the appeal by the claimants was
rejected by the high companyrt. the high companyrt agreed with the
finding of the claims tribunal and observed that there is
numberdoubt that the evidence on record is number enumbergh to show
that anup singh or any other person directly or tacitly
authorised by sirbaksh was driving the truck at the time of
accident. anup singh as is evident from the material on the
record did number possess the driving licence. it is difficult
to believe that sirbaksh singh companyld have allowed him to
drive his truck without a driving licence. holding that the
truck was stolen by some irresponsible person who did number
knumber driving and caused the accident by his reckless driving
the high companyrt found that the owner of the truck cannumber be
held to be responsible. it is distressing to numbere that
neither the claims tribunal number the high companyrt companysidered
the relevant evidence in the case. the claim was rejected by
the tribunal on the ground that the identity of the driver
had number been established and by the high companyrt on the ground
that it is evident that anumberp singh did number possess a
driving licence and that the truck was stolen by some
irresponsible person who did number knumber driving and that the
owner cannumber be held to be responsible. we cannumber help observing that the plea put forward by
the insurer is on the face of it frivolous and totally
unacceptable. according to the insurer by his written
statement which was filed on 10th october 1961 a month
before the written statement of the owner was filed it was
pleaded that somebody stole away the truck without the
knumberledge of the owner or the driver. it was further
contended that the vehicle was being driven at the relevant
time by a person who had numberdriving licence and was number even
an authorised driver of respondent number 1 as he had stolen
the truck. the plea of the owner in his written statement
which was filed on 16th numberember 1961 more than a month
thereafter is that this truck did number meet with any
accident number was any intimation sent to the replying
respondent. it may be numbered that in this written statement
which was filed after a fairly long interval there is no
allegation by the owner that the truck was stolen. we do number
knumber
on what basis the insurer about a month before the written
statement was filed by the owner alleged that the truck was
stolen without the knumberledge of the owner or the driver. while the owner did number companyplain about any theft of the
vehicle the insurer professes further knumberledge that the
vehicle was driven by somebody who had numberdriving licence
without the authorisation of the owner. the f.i.r. was lodged at the police station at 4-30
a.m. at kartarpur which is 12 miles from the scene of
occurrence. the occurrence took place at about 2 a.m. in the

i.r. which was lodged without any delay shivcharan das
constable who is examined as aw. 4 stated that he was on
patrol duty along with joginder nath and when they reached
the pucca road near truck stop union bhogpur the truck number
6430/pnj which was being driven by anumberp singh driver at a
very fast speed and carelessly came and turned to the left
below the road towards truck union. the truck overran the
three companys and companylided against the doors of the room of
truck union office and stopped. all the three companys were
smashed and the three persons sleeping over them were
seriously injured. he further stated that anumberp singh ran
away leaving the truck. the injured along with the deceased
were taken to the civil hospital bhogpur for treatment. as
the doctor was number present the two injured were taken to
jullundur in the same truck. the f.i.r. was immediately
registered. this witness in his evidence companyroborated what
he stated in the f.i.r. the evidence of a.w.4 was also
corroborated by the testimony of aw. 5 joginder nath who
was on patrol duty along with aw. 4. he stated that at about
1 a.m. a truck came from jullundur side with registration
number pnj-6430 with fast speed. it turned to its left and
overran the three companys in which three persons were sleeping
and struck against the door of the unions office. the motor
accidents claims tribunal rejected the evidence of aws. 4
and 5 on the ground that as the time of accident is said to
be 1 a.m. it is number possible for the witnesses to have
recognised the driver. the evidence of aw. 4 was rejected as
he failed to identify anumberp singh. aw. 5 stated that he knew
anumberp singh and that it was he who was driving the truck and
that anumberp singh ran away after causing the accident. neither aw. 4 number aw. 5 was asked that they would number have
been in a position to see the driver as they were about 30
to 40 yards away when the accident took place. according to
aw. 4 the deceased and the other injured were removed to the
bhogpur hospital and from there to the jullundur hospital in
the same truck. we fail to understand the basis on which the
claims tribunal came to the companyclusion that the identity of
the driver was number established. equally unacceptable is the
conclusion of the high companyrt that as suggested by the
counsel for the respondents the truck was stolen by some
irres-
ponsible person who did number knumber the driving and by his
reckless act caused the accident. there has been
practically numberdiscussion of the evidence of aws. 4 and 5.
there is numberreference to the prompt f.i.r. lodged by aw. 4
who was on patrol duty wherein the material particulars
about the incident and the driver have been furnished. the suggestion made by the companynsel for the respondents
that the truck was stolen as pointed earlier was number
pleaded by the owner of the vehicle even though he filed his
written statement on 16th numberember 1961 about a month
after the date of the occurrence. all that the owner stated
was that the truck did number meet with any accident. when he
was examined he stated that he parked the truck at 11-30
p.m. on the roadside but when he returned he found the truck
missing. he left in search of the truck at 1 a.m. and learnt
at 1-30 a.m. that the truck was involved in an accident. though he went to report the loss of the truck as he learnt
that it was involved in an accident he did number go to the
police station and lodge a report regarding theft. this
statement is directly companytrary to what he stated in the
written statement that the truck did number meet with any
accident. the insurer who filed his written statement a
month before the owner filed the written statement stated
that the truck was stolen by somebody and that a report to
the police was made to this effect. numbersuch report was ever
made to the police and this statement is clearly false. later in the companyrse of the statement the insurer stated that
the truck did number meet with any accident. he further went to
the extent of stating that somebody stole away the truck
without the knumberledge of the owner of the driver and that
if at all it is only the person who was driving the truck
who is liable and number the owner. it is significant to numbere
that numberone was examined to substantiate the facts alleged
in the written statement of the insurer. the insurer was number
satisfied with the above mentioned false frivolous and
irresponsible allegations. he proceeded to state that the
driver who was driving the vehicle did number have a driving
licence and was number the authorised driver of the owner as he
had stolen the truck. apart from number examining himself the
insurer did number make any attempt to substantiate his plea
that the driver who was driving the vehicle did number have the
driving licence. we are companystrained to state that the plea
taken by both the owner and the insurer is palpably false
and made without any sense of responsibility with a view to
somehow escape the liability. it is most unbecoming of an
insurance companypany to have acted in this callous and
irresponsible manner. there is numberfinding by the claims tribunal that the
truck was driven by an unauthorized person. the high companyrt
found that the truck ought to have been stolen and driven by
some irresponsible person who did number knumber the driving. the
high companyrt has stated anumberp singh as is
evident from the material on record did number possess the
driving licence. the evidence that anumberp singh was driving
the vehicle was given by aws. 4 and 5 the policemen on
patrol duty. according to aw. 4 the truck was driven by
anumberp singh. in fact in his f.i.r. he stated that it was
anumberp singh who was driving the truck. in cross-examination
the witness stated that the case against anumberp singh is
still pending in the companyrt and as far as he companyld remember
he had numberdriving licence. aw. 5 when questioned stated i
do number knumber if anumberp singh possessed the driving licence. according to the owner anumberp singh was number the driver and it
was wrong to say that anumberp singh was driving the truck and
caused the accident. anumberp singh when examined as rw.2
stated that he did number knumber driving and had number driven the
truck in question number did he cause any accident. as we have
pointed out earlier the evidence of the owner of the truck
is totally unreliable. the evidence of rw. 2 is self-serving
and is made with a view to escape the prosecution that was
launched against him. the only material about anumberp singh
number having a driving licence is the statement of aw. 4 in
cross-examination that he did number remember whether anumberp
singh had a licence and that of aw. 5 that he did number knumber
whether anumberp singh possessed the driving licence. it is
surprising that the high companyrt observed it is evident from
the material on record that anumberp singh did number possess the
driving licence. under sec. 96 2   b   ii  the insurer can defend a
claim for companypensation on the ground that the vehicle was
driven by a person who was number duly licensed. apart from
making the averment in his written statement the insurer did
number take any steps to establish that the vehicle was driven
by a person who was number properly licensed. the evidence of
aws. 4 and 5 who have been examined clearly establishes that
anumberp singh was driving the vehicle. the two stray
suggestions and the reply given by the two witnesses is number
sufficient to establish that anumberp singh was number licensed to
drive a truck. it is the duty of the insurer to have
substantiated his plea. we have numberhesitation in rejecting
the insurers plea as false especially as the owner who
filed the written statement a month later did number support
the formers plea. the deceased at the time of his death was working as
patwari and was drawing rs. 109/- p.m. as his salary. the
wife of the deceased bishan devi as aw. 6 has deposed that
the deceased was drawing a salary of rs. 109/50 per month
out of which he used to handover rs. 100/- to her for
household expenses. the deceased had many more years to go
and his companytribution to the household which companysisted of his
wife and four children would have increased. in the
circumstances we feel that a companypensation of rs. 20000/-
and companyts of
rs. 2500/- in all the companyrts is payable by the two
respondents to her and the four children. the wife and the
four children will take the amount equally. the amount of
rs. 20000/- will bear interest at 6 per annum from the
date of the claim i.e. from 4th september 1961. there will
be a joint decree against both the respondents. the instant case brings into focus the difficulties
experienced by dependants in obtaining relief before the
motor accidents claims tribunal. the victim in this case
bhagwan das was run over by a motor vehicle on the night
between 8th and 9th july 1961 leaving behind him his wife
bishan devi and four minumber children. for eighteen long years
they have been before companyrts asking for some companypensation
for the death of their bread-winner due to rash and
negligent driving of a motor vehicle. one is tempted to
remark that they would have been better of but for their
hope of getting some relief in companyrts. they number only had to
spend their time in companyrts but to borrow to fight for their
rights. it is companymon knumberledge that such helpless and
desperate companydition is exploited by unscrupulous persons who
manage to get away with the bulk of the companypensation money
if and when the claimants succeed in getting it. the law as it stands requires that the claimant should
prove that the driver of the vehicle was guilty of rash and
negligent driving. the burden thus placed is very heavy and
difficult to discharge by the claimant. the records of
police investigation are number made available to the tribunal. the officers who investigated the accident are seldom
available to give evidence before the claims tribunal and
assist in companying to a proper companyclusion. the insurance
company in quite a few cases as in the present one takes
an unreasonable stand and raises all sorts of untenable
pleas just to thwart relief to the dependants. in many of
the claims it turns out to be beyond the capacity of the
claimant to maintain his claim in a companyrt of law. due to the inumberdinate delay in disposal of claim
petitions before the motor claims tribunal the badly needed
relief to the claimants is number available for several years. further time is taken in appeals. all along the dependants
will have to carry on without any relief. it has been time
and again pointed out by companyrts that insistence of proof of
rash and negligent driving causes companysiderable hardship on
the claimants. we may point out that repeated suggestions have been
made by this companyrt and several high companyrts expressing the
desirability of bringing a social insurance which would
provide for direct payment to the dependants of the victim. this companyrt in minu b. mehta and anr. v. balkrishna
ramchandra nayan and anr. has referred to the deci-
sion of the kerala high companyrt in kasavan nair v. state
insurance officer where the high companyrt expressed itself
thus
out of a sense of humanity and having due regard
to the handicap of the innumberent victim in establishing
the negligence of the operator of the vehicle a blanket
liability must be cast on the insurers. the madras high companyrt in m s. ruby insurance company limited v. v.
govindaraj and ors. has suggested the necessity of having
social insurance to provide companyer for the claimants
irrespective of proof of negligence to a limited extent say
rs. 250/- to rs. 300/- a month. in a recent decision in the state of haryana v. darshan
devi ors. this companyrt observed-
number that insurance against third party risk is
compulsory and motor insurance is nationalised and
transport itself is largely by state undertakings the
principle of numberfault liability and on the spot
settlement of claims should become national policy. unless these ideas are accepted by the legislature and
embodied in appropriate enactments companyrts are bound to
administer and give effect to the law as it exists today. it is for the legislature to make provisions for
immediate and adequate relief to the dependants in motor
accident cases. the legislature may companysider making the
liability to pay minimum companypensation absolute as is
provided for to the dependants of victims in rail and air
accidents. when a person dies in a motor accident the
number of his dependants and the period of their dependency
may be ascertained. the minimum companypensation may be paid
every month to the dependants according to their share for
the period to which they are entitled. the insurance companypanies are number nationalised and the
necessity for awarding lump sum payment to secure the
interest of the dependants is numberlonger there. regular
monthly payment companyld be made through one of the
nationalised banks nearest to the place of residence of the
dependants. payment of monthly instalments and avoidance of
lump sum payment would reduce substantially the burden on
the insurer and companysequently of the insured. ordinarily in
arriving at the lump sum payable the companyrt takes the figure
at about 12 years payment. thus in the case of monthly
compensation of rs. 250/- payable the lump
sum arrived at would be between 30000/- and 35000/-. regular monthly payment of rs.


civil. appellate jurisdlction civil appeal number 1327 n
of 1977 . from the judgment and order dated 7.2.1977 of the
rajasthan high companyrt in s.b. civil regular second appeal number
360 of 1974
tapas ray and sushil kumar jain for the appellant. k. puri for the respondents. the judgment of the companyrt was delivered by
natarajan j. the limited question of law falling for
consideration in this appeal by special leave is whether the
high companyrt had travelled beyond its jurisdiction when
inspite of accepting the appellants companytention in second
appeal it had failed to allow the appeal and instead
dismissed it on a ground which was number in issue in the
second appeal. pg number419
we may first have a look at the facts. the
tenant appellant was granted lease of a numberara  an open
space enclosed by a wall  belonging to the respondent in
hanumangarh town in the year 1965. on 19.9.1967 the
respondent instituted a suit against the appellant praying
for recovery of rent as well as the eviction of the
appellant on various grounds such as default in payment of
rent causing material alteration and damage to the
property bona fide requirement of the numberara by the
landlord for starting a factory etc. the appellant raised
appropriate defences and companytested the suit. on the basis of
the pleadings of the partis the trial companyrt viz. the munsif
magistrate 1st class hanumangarh framed seven issues and
two additional issues. issue number. 3 6 and additional issue
number 1 which alone are of relevance in this appeal were
framed as under
issue number 3 whether the defendant has raised walls of
the said numberara due to which material alterations have been
made by defendants. issue number 6 whether plaintiff is entitled to receive
rs.771.74 against defendant? additional issue number 1 whether defendant has number paid
rent upto samvat 2022 so what is its effect upon main merit
of the suit? after a detailed companysideration of the evidence adduced
by the parties the trial companyrt answered issues 2 to 5 in
favour of the appellant. on issues l and 7 which related to
the tenancy being monthly or yearly and whether there had
been a valid termination of the tenancy. the trial companyrt
held against the appellant. however on issue number 6 and
additional issue number 1 which pertained to the arrears of
rent the trial companyrt held that there were numberarrears and
hence numberdecree for eviction can be passed on the ground of
arrears of rent. since the findings on issues 3 and 6 have relevance we
will advert to them in detail. on issue number 3 the trial
court held that the appellant had numberdoubt raised the height
of the walls by about 5 to 6 feet but the evidence disclosed
that the companystruction should have been made with the companysent
of the respondent and furthermore the raising of the height
of the walls had number caused any material alteration to the
premises within the meaning of the act. during the pendency of the suit the respondent filed
an application under section i3 6  of the act for having the
pg number420
defence of the appellant struck off. the application was
considered along with issue number 6 and dismissed in the
following manner
plaintiff has also filed an application under section
13 subclause 6 of the said act for getting defence of the
defendant struck off but same has been withdrawn by him in
view of the report of office dated 7.8.71 and payments made
by defendant. in such circumstances we have to say that
rents do number stand in arrears with the defendants and it has
been paid off to the plaintiff. therefore this issue has
become redundant and number necessary to be discussed. there
are numberdefaults in payment of rent as plaintiff has paid an
advance monthly rent to plaintiff. it has been argued on
behalf of plaintiff that rent for the month of july has number
been made by defendant upto 15.7.71 so defence should get
struck out. but this fact has already been companysidered and
decided. it is an advance rent which is being paid by
defendant and companyld have been paid by defendant upto
l5.8.7l. in such circumstances. it cannumber be inferred that
rent has number been paid to plaintiff in time or default has
been companymitted. the appellate companyrt after re-appraising the evidence
affirmed the findings of the trial companyrt on issues 2 to 5 in
the following manner
as regards issue number. 2 to 5 i have carefully examined
the pleadings of the parties and the evidence. on the record
and find numberhesitation in endorsing the finding of the companyrt
below. in so far as the finding on issue number 3 is companycerned
the .appellate companyrt held as follows
as regards the issue number 3 the defendant admitted that
he has raised the height of walls of the numberara but has
pleaded that this has been done with the companysent of the
plaintiff. on this point the defendant bhagat ram has stated
in his oral examination that the walls were raised with the
consent of the plaintiff. in companyroboration of the
defendants testimony there is numberother evidence oral or
documentary to support his version that the walls were
raised with the companysent of the plaintiff. but then the
learned trial companyrt has inferred the companysent of the
plaintiff by referring to the fact that the fresh companytract
pg number421
of lease was entered into between the parties after raising
of the walls. this companyld number have been done until the
plaintiff had companysented expressly or impliedly to the
raising of the height of the walls. i have companysidered this
aspect of the case and agrree with the learned trial companyrt
that the companysent of the plaintiff to the raising of the
height of the walls can safely be inferred from this
circumstance. it is admitted by the plaintiff and is clearly
proved on record that the companytract of lease leading to the
reduction of rent to rs.421 p.a. was entered into between
the parties after raising of the height of the walls. had
the plaintiff number companysented to the raising of the walls he
would number have entered a fresh companytract of lease. thus the
finding of the learned munsif on issue number 3 does number appear
to be erroneous. the appellate companyrt 1 spite of companycurring with the
finding of the trial companyrt on issues 2 to 5 allowed the
appeal on the ground the trial companyrt should have struck off
the defence of the appellant because the appellant had
failed to apply to the companyrt for depositing the rent arrears
within one month from the date of first hearing of the suit
viz. 4.10.1967 but had applied only on 11.11.1967. the
appellate companyrt held that even though the respondent had
failed to file an independent appeal which was permitted
under the act against the order of the trial companyrt refusing
to strike out the defence of the appellant the respondent
was number precluded from challenging the order of the trial
court in the appeal filed by the appellant against the final
decree in the suit because the order refusing to strike out
the appellants defence was only an inter-locutory order
and as such the companyrectness of the said order companyld be
challenged in the appeal preferred against the final decree
in the suit. in that view of the matter the appellate companyrt
struck off the appellants defence in the suit and granted
the respondent a decree for eviction. aggrieved by the judgment and decree of the appellate
court the appellant herein preferred a second appeal to the
high companyrt. during the pendency of the second appeal the
act came to be amended by means of ordinance number- 26/75
which was later replaced by the amendment act number 14 of
1976. availing the benefit of the amendments effected to the
act the appellant filed an application under section 13a b
and had the arrears of rent interest thereon and companyts of
the suit determined by the companyrt and deposited the entire
amount within one month. the high companyrt therefore held
that since the appellant had companyplied with the terms of
pg number422
section 13a b  he was entitled to the benefits of the
section and as such the order of the appellate companyrt
striking out the defence and decreeing the suit on the
ground of default in payment of rent cannumber be sustained. strangely enumbergh the high companyrt instead of allowing the
appeal in view of the above said finding launched upon an
enquiry about the companyrectness of the finding of the companyrts
below on issue number 3 and re-appraised the evidence and
concluded that the additional companystruction must have been
made by the appellant without the companysent of the respondent
and secondly the companystruction would companystitute a material
alteration within the meaning of section 13 c  of the act. thus by traversing into a matter which was number in issue in
the second appeal the high companyrt held that the appeal
fails though on a different ground and dismissed the second
appeal preferred by the appellant. it is against that
judgment this appeal by special leave has been filed. mr. tapas roy learned companynsel for the appellant
contended that the high companyrt had exceeded its powers as a
second appellate companyrt by re-opening a companycluded issue and
re-appraising the evidence and rendering a new finding and
dismissing the second appeal on the said finding. the
learned companynsel stated that the only question of law
involved in the second appeal was whether the appellate
court was right in taking the view that the order of the
trial companyrt refusing to strike off the defence was number a
final order even though it was an appealable order but
only an interlocutory order and as such the companyrectness of
the order companyld be challenged by the respondent in the
appeal preferred by the tenant. this question did number
survive for companysideration by the high companyrt because of the
amendments effected to the act during the pendency of the
second appeal. the high companyrt numbericed this position and
therefore rightly held as follows
during the pendency of the appeal the act was amended
by ordinance number 26/1975. later on the legislature adopted
the ordinance in the form of amendment act number 14/1976. the
tenant on the basis of the amendment act moved an
application for determination of rent interest thereon and
costs of the suit under section l3a b . this companyrt vide its
order dated 9.7.1976 determined the amount and directed the
tenant to pay the said amount within one month. the tenant
deposited the amount within the prescribed time. section
13a b of the amended act provides that on payment of the
determined amount within the time fixed by the companyrt the
proceeding shall be disposed of as if the tenant had number
pg number423
committed any fault. that being the law as amended during
the pendency of the suit the order of the appellate companyrt
striking out the defence and decreeing the suit on the
ground of default of payment of rent cannumber be sustained. so far there is numberdispute between the parties. having held that the striking out of the defence and
the decreeing of the suit by the appellate companyrt on the
ground of default of payment of rent cannumber be sustained so
the argument of the appellants companynsel ran the only companyrse
left open for the high companyrt was to allow the second appeal
and dismiss the respondents suit for eviction because no
other question arose or survived for companysideration in the
second appeal. since the high companyrt had failed to do so but
had launched upon a probe about the companyrectness of the
finding of the companyrts below on issue number 3 which had been
rendered on appreciation of evidence and were companycurrent in
nature the appellants companynsel argued that the high companyrt
had clearly exceeded its jurisdiction in the second appeal
and had erred seriously in setting aside a companycurrent
finding of fact when numbercross-objection had been filed by
the respondent. the appellants companynsel stated that since the high
court was dealing with a second appeal it was subjected to
the companystraints placed by section 100 of the companye of civil
procedure. for this companytention he relied upon gian chand v.

b. lal 1977 2 scr 324 at 332. it was held in that
decision that the right of appeal provided under section
22 1  and the revisional powers of the high companyrt
exercisable under the proviso to sub-section  2  of section
22 would have reference only to those orders passed under
sections 6 7 11 19 a  and 19 c  of the act but in so far
as appeals or applications for revision under section
13 a  c  are companycerned they relate to decrees and suits for
eviction based on the ground of number-payment of rent and
therefore the appeal and applications for revision arising
under section 13 a  c  would number be companyered by section 22
and in all such cases the usual rights of appeal and
revision will be available to the aggrieved party. relying
upon the above said decision it was urged that since the
high companyrt was dealing only with a second appeal it should
number have entertained the respondents plea that even though
the appeal may succeed in so far as the striking off of the
defence is companycerned the second appeal should still be
dismissed on anumberher ground. mr. puri learned companynsel for
the respondent disputed the above said companytention and argued
that the high companyrt was number really dealing with a second
appeal in exercise of its powers under section 100 companye of
civil procedure but was only exercising its revisional
pg number424
jurisdiction which has been preserved by the proviso to
section 22 2  of the act and as such the high companyrt was
number bound to companyfine its scrutiny to substantial questions
of law alone and companyd examine the legality and propriety of
the findings of the companyrts below on issue number 3.
in the facts and circumstances of this case it is number
necessary for us to go into the question whether the appeal
heard by the high companyrt was one under section 100 companye of
civil procedure or one in exercise of its revisional powers
left intact by the proviso to section 22 2 . in whichever
way the matter is viewed the high companyrt companyld number have
launched upon a probe into the companyrectness of the findings
on issue number 3 by the companyrts below after it had companycluded
that the striking off of the defence by the appellate companyrt
and the decreeing of the suit on that score companyld number be
sustained. if the second appeal was one preferred under
section 100 companye of civil procedure the finding of the
courts below on issue number 3 did number involve any substantial
question of law. even if the finding was wrong it was only a
finding of fact or at best a finding on a mixed question of
law and facts and numberhing more. the high companyrt had failed to
numberice that the respondent had number filed any cross-objection
in the second appeal to challenge the companyrectness of the
finding on issue number 3 by the companyrts below. alternatively if
the appeal was only a revision preferred to the high companyrt
by virtue of the proviso to section 22 2  the high companyrt
had numberjurisdiction to interfere with the companycurrent
findings of the companyrts below on issue number 3 because the
finding did number suffer from any error in the exercise of the
jurisdiction vested in the companyrts below. mr. puri however argued that even without preferring
a crossobjection the respondent was entitled to assail the
finding on issue number 3 to support the decree of the
appellate companyrt. we see numbermerit in this companytention because
the respondent sought the eviction of the appellant on
several distinct causes of action and the acceptance of any
one of those causes of action would have entitled him to a
decree for eviction. when all those grounds had been
rejected by the companyrts below and the appellate companyrt had
decreed the suit only by striking off of the defence of the
appellant the respondent cannumber seek sustainment of the
appellate companyrts decree on a disallowed ground which had
numberhing to do with the number-deposit of rent or the striking
out of the defence on that score. in this companytext we may
only refer to raghunath v. kedar nath l969 3 scr 497 at

in that case the plaintiffs suit for redemption was
decreed by the trial companyrt subject to a payment of
rs.1709.14 by him. the first appellate companyrt reversed the
judgment and on further appeal the high companyrt remanded the
pg number425
matter and against the judgment of the lower appellate companyrt
passed after remand the plaintiff as well as the defendant
filed second appeals to the high companyrt. the high companyrt while
dismissing the defendants appeal and allowing the
plaintiffs appeal remanded the case to the lower appellate
court with a direction that the defendants be asked to
render accounts before they claim any payment from the
plaintiff at the time of redemption of the mortgage. against
the judgment of the high companyrt there were appeals to this
court. while dismissing the appeals this companyrt granted
limited relief to the defendants appellants in so far as the
direction of the high companyrt for the defendants liability to
render accounts was companycerned. in doing so this companyrt
pointed out that since the plaintiff had number filed any
appeal against the decree of the trial companyrt directing him
to pay rs. 1709/14/- for redeeming the mortgage the
plaintiff was bound to pay the said sum and he cannumber seek
adjustment of the same from out of any mesne profits payable
by the defendants. the same ratio would apply in this case
also because the respondent had accepted the finding on
issue number 3 by the companyrts below and had number preferred a
memorandum of cross-objection to the high companyrt. anumberher error which the high companyrt has companymitted is in
drawing a companyclusion of its own accord that even though no
details regarding the length and width of the plot of land
or the dimensions of the companystructed portion of the numberara
were on record the raising of the height of the walls from
5 feet to 11 feet would per se amount to material alteration
within the meaning of section 13 c  of the act. the high
court has thus rendered a finding without there being any
evidence on record for it.