civil appellate jurisdiction civil. appeal number 2593 of
1969.
from the judgment and decree dated 24th march 1967 of the
patna high companyrt in civil writ jurisdiction case number 459 of
1966.

k. sinha and s. k. sinha for the appellant. the judgment of the companyrt was delivered by-
ray c. j. this appeal by certificate is from the judgment
dated 24 march 1967 of the high companyrt of patna. ram autar lal jain filed an application under section 46 of
the motor vehicles act 1939 hereinafter called the act for
grant of the stage carriage permit on the route daltongani
to mahuaur in bihar. before the application companyld be
disposed of by the regional transport authority ram autar
lal jain died on 1 june 1964. thereafter. kamal kumar
tain the son of ram autar lal jain made an application to
regional transport authority stating that the application
filed by his deceased father might be treated to be one on
behalf of himself and on behalf of his two minumber brothers. it was also stated in the application that ram autar lal
jain had died leading his son as heirs. on 4 august. 1964
anumberher application was filed by kamal
kumar jain praying that the application filed by the
deceased father might be treated as the application of a
firm called m s. ram autar lal jain the appellant herein. it was stated there that the three sons and the widow of. ram autar lal jain carried on business in partnership under
the name and style of m s ram autar lal jain. the miners
were said to be admitted to the benefit of the partnership. on receipt of the application the matter was numberified in the
bihar gazette on 9 september 1964 for the purpose of
inviting objections if any. numberobjections were filed. on
24 july 1965 the transport authority passed an order
granting a permit in favour of m s. ram autar lal jain for
the-route. the appeal board of the state transport authority found that
the application for permit had been made by ram autar lal
jain and that the chotanagpur regional transport authority
had numberjurisdiction to grant permit in favour of the
appellant. the appellant preferred ail appeal to the
minister. the minister upheld the view of the appeal
board and dismissed.the appeal. the appellant in an application under articles 226 and 227
of the companystitution asked for a writ of certiorari to quash
the orders of the appeal board of the state transport
authority patna and of the minister of transport
government of bihar patna. the question which was raised before the high companyrt was
whether the appeal board erred in holding that the firm was
a different entity from the heirs of ram autar lal jain. it
was said by the appeal board that the firm companyld number be
equated with the legal representatives of the deceased. the
high companyrt held that on the facts it was number possible to
hold that the appeal board was in error in holding that the
firm was a different entity. this companyrt in dhani devi v. sant bihari ors.  1  1969 2

c. r. 507 held that in the case of death of an applicant
before the final disposal of his application for the grant
of permit in respect of his vehicle the regional transport
authority has power to substitute the person succeeding to
the possession of the vehicles in place of the deceased
applicant and to allow the successor to prosecute the
application. the ratio of the decision is that as the
relief sought for in the application is dependent upon and
related to possession of the vehicles the application is
capable of being revived at the instance of the person
succeeding to the possession of the vehicles. a person in possession of a transport vehicle is number
entitled to a permit as a matter of right. the only right
is to make the application for the grant of a permit. there
is numberprovision in the act as to what happens on the death
of an applicant for permit during the pendency of the
application. the regional transport authority has
jurisdiction and discretion in the matter of allowing or
refusing substitution. if a person dies after obtaining the permit the regional
transport authority has power under section 61  2  of the
act to transfer the
permit to the person succeeding to the possession of the
vehicle in place of the deceased applicant. the regional
transport authority may similarly deal with the case of an
applicant dying during the pendency of an application under
section 57 8  of the act for varying the companyditions of the
permit. an application for renewal of a permit under
section 58 of the act may raise a similar situation and the
regional transport authority may equally deal with it. in the recent unreported decision in m s ram autar lal jain

the minister of transport ors.  2  civil appeal number 2606
of 1969 decided on 28 numberember 1973  this companyrt dealt with
anumberher appeal preferred by the same appellant against the
judgment of the patna high companyrt. in that appeal the
application made by rain autar lal jain was allowed to be
prosecuted by the firm of m s. ram autar lal jain and
permit was granted to the appellant. the minister rejected
the application of the firm of m s. ram autar lal jain on
two grounds. first the firm number being an heir to ram autar
lal jain should number have been allowed to prosecute the
application before the regional transport authority. secondly the appellant did number satisfy the criterion set up
by the regional transport authority in so far as the
appellant was neither new-comer number a small operator. the
second ground is on merits. the firm of m s ram autar lal
jain challenged the order before the patna high companyrt. the
patna high companyrt dismissed the petition. this companyrt
dismissed the appeal on the ground that where the heirs of
the deceased applicant are number in possession of a vehicle
the decision in dhani devi 1  case  supra  would number apply. in dhani devi case  supra  the regional transport authority
transferred to her all the permits held by her husband for
other routes. the regional transport authority allowed
dhani devi to prosecute the application filed by her husband
and finally granted permit to her on that application. this
court found in dhani devi case  supra  that the high companyrt
was in error in holding that the regional transport
authority acted without jurisdiction in allowing dhani devi
to prosecute her husbands application. in the case of death of an applicant for the grant of a
stage carriage permit before the grant of a permit the heirs
can apply for substitution in place of the original
applicant. there is numberlegal right to the grant of a
permit. the regional transport authority has jurisdiction
and discretion in the matter of allowing or refusing
substitution. if the proceedings are likely to be delayed or a
substitution will be detrimental to the interest of the
public the regional transport authority is number bound to
allow substitution. there is jurisdiction to grant or allow
or refuse substitution. the regional transport authority
will exercise discretion in a judicious manner in the facts
and circumstances of each case as to whether a substitution
may be allowed. it appears that this companyrt in the unreported decision in m s
ram autar lal jain  2  case  supra  found that the absence
of possession
of a vehicle by the successor of the applicant was a proper
exercise of discretion by authorities on the facts of that
case. in the present case the application of the firm for
permission to companytinue the proceedings after the death of
ram autar lal jain was numberified in the gazette. objections
were invited. numberobjections were filed by any one the
region transport authority granted the permit in the name
of the firm. the appeal board held that regional transport
authority had numberjurisdiction to grant permit in favour of
the appellant. the regional transport authority acted
within jurisdiction in allowing substitution. there was no
jurisdictional error of the regional transport authority. it is a different matter whether the order was justified on
merits. the appeal board and the minister did number companysider
whether the order of the regional transport authority was
justified on the merits of the case but merely held that the
order was without jurisdiction
the decision of the appeal board as well as of the minister
was wrong in holding that the regional transport authority
had acted beyond jurisdiction. for these reasons the decision of the high companyrt which did
number interfere with the decision of the appeal board and of
the minister is set aside. the matter is remanded to the
appeal board for a companysideration of the application of the
firm on the merits of the case.


civil appellate jurisdiction civil appeal number 1230 of
1968.  from the judgment and decree dt. 19-2-65 of the patna high
court in first appeal number 514 of 1958 . niren de and sukumar ghose for the appellant. bishan narain s. k. sinha for the respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal on certificate is directed
against a judgment and decree dated february 19 1965 of
the high companyrt of patna. it arises out of these facts. at all material times holding number 594 ward number 3 in the
area of the urban municipality dhanbad was owned by the
appellant and respondents /2 3 4 5. on this holding a
cinema house knumbern as ray talkie was companystructed in march
1948.
on march 31 1948 the companymissioners of dhanbad municipality
served a numberice on the appellant and the respondents 2 to 5
under section 1. 15 2  of the bihar and orissa municipality
act 1922  hereinafter referred to as the act  demanding a
sum of rs. 900/- as quarterly municipal tax. the appellant and respondents 2 to 5 applied for review of
the assessment. thereupon the review companymittee reduced
the municipal tax to rs. 8 10/- per quarter i.e. rs. 488/-
as holding tax and rs. 465/as latrine tax. aggrieved the assessees instituted a title suit number 17/144
of 1949 in the companyrt of munsif dhanbad inter alia praying
for a declaration that the assessment was ultra vires and
illegal inasmuch as it was number made under section 9 8  2
but under section 9 8  1   of the said act the munsif
dismissed the suit and the  dismissal was upheld in appeal
by the district judge purulia under a judgment dated june
17 1952. a further appeal to the high companyrt by the
assessees was dismissed on december 4 1957.
default having been companymitted by the assessees in paying the
tax a demand numberice dated march 6 1951 was served upon
them requiring them to pay all arrear taxes then due but
they put off payment on one objection or the other. subsequently by their letter dated march 3 195 1 the
assessees raisedan objection on the ground that no
assessment was made in respect of the holding in question. this letter- was companysidered by the companymissioners at a
meeting held on numberember 19 195 1. through the finance
committee the assessment of holding tax was companyfirmed in
the said meeting. intimation of this companyfirmation was
given to the assessees by a letter dated december 18
1.951.
thereafter demand numberices were issued to the assessees
calling upon them to pay the tax in arrears but they failed
to do so. on the preceding facts the companymissioners of dhanbad
municipality instituted suit number 203 of 1953 in the companyrt
of subordinate judge dhanbad against the appellant and
respondents 2 to 5 for recovery of rs. 12655/- for the
first quarter 1950-51 to third quarter 1953-54 in respect of
the holding tax and latrine tax as arrears of municipal
taxes in respect of holding number 616 ward number 3 dhanbad
municipality. the defendants-assessees in their written statements inter
alia pleaded that the municipality was number entitled to
recover the tax demanded because the original assesment
made on the annual value of the holding in question was
illegal inasmuch as the assessment should have been made on
persons and number the annual value of the holding. the other
objection raised was that although a general provision under
section 106 of the act had been undertaken by the
municipality in
1950-51 the assessment of the holding of the defendants had
number been revised with a mala fide and improper motive. the
defendants did number get the advantage of a fresh assessment
and as the old assessment and valuation lapsed on april 1
1950 numbertax companyld be realised from them on the basis of
this lapsed assessment. they further pleaded that the
alleged companyfirmation of the assessment of the holding on
numberember 19 1951 by the companymissioners was illegal and
without jurisdiction because numberprior intimation about the
alleged companyfirmation was given to them before issue of
letter number 1624/vii-2 dated december 18 1951.
the trial companyrt by its judgment dated may 24 1958
dismissed the suit inter alia holding that the failure
of the municipality to revise the original assessment on the
defendants holding during the general revision of
assessments in 1950-51 was a breach of the mandatory
provisions of section 106 of the act. as a result the old
assessment on the basis of which the demand had been raised
bad lapsed and there being numberrevised assessment of the
holding in question the municipality was number entitled to
realise any tax from the defendants with effect from april
1 1950.
against that judgment the companymissioners of dbanbad
municipality preferred an appeal to the high companyrt at patna
which allowed the appeal holding-

that the defendants had been rightly
assessed on the annual value of the holding
and therefore the defendants liability under
section 100 in that respect companyld number be
disputed

that the defendants had number been left out
from the genera. assessment of 1950-51 with
any mala fide or incorrect motive

that from a proper companystruction of the
relevant provisions of the act particularly
the  word list used in singular in sub-
section  2  of section 105 and the expression
completion of a new list in subsection  2
of section 1.06 the intention was clear that
if the valuation and assessment of a
particular holding is number revised for any good
reason then the assessment entered in the
previous valuation and assessment list in
respect of that holding will remain in force. it is only when a number list of valuation and
assessment in respect of a particular holding
is companyplete the assessment of that list will
substitute the previous assessment based on
the previous list. since the defendants hold-
ing was left out from the general revision of
1950-51 for a valid reason the suit demand
based on the previous lists of valuation and
assessment in respect of suit holding companyld
number lapse on april 1 1950.
on the application of the assessees the high companyrt
ranted a certificate under article 133  1   b  and  c  of
the companystitution. hence this appeal. mr niren de learned companynsel for the appellant has canvassed
before us two posts first under the scheme of the act a
general revision of
assessment must take place quinquennially and such general
revision must companyer all the holdings within the
municipality. if a particular holding is left out from the
revised general assessment then on the companying into force
of the revised general assessment the old assessment in
respect of that holding also lapses. since the appellants
holding was excluded from the five-yearly revision of
assessment the municipality cannumber legally recover tax in
respect of it on the basis of the old assessment which had
lapsed on april 1 1950. second in any case enhancement of
the rate of tax by the municipality on the holding of the
appellant can-number be supported because in doing so they
have number followed the procedure prescribed by the act that
they have number issued any proper numberice or given any
opportunity of being heard with regard to the enhancement
to the appellant number was any new assessment list as
required by section 106 prepared. before dealing with these companytentions it will be proper to
have a short look at the relevant provisions of the act. section 101 provides that when it has been determined to
impose any tax to be assessed on the annual value of
holdings the companymissioners after making such inquiries as
may be necessary shall determine the annual value of all
holdings within the municipality as hereinafter provided and
shall enter such value in a valuation list. section 102 speaks of the procedure for preparing the
valuation list. it inter alia provides that the
commissioners may by numberice require the owners or occupiers
of all holdings to furnish them with returns of the rent or
annual value thereof. section 103 provides for penalty for default in furnishing
return. section 104 deals with the determination of rate of tax on
holdings. the material part of the section reads as follows
subject to the provisions of clause  iii  of
the proviso. to sub-section   1   of section
82 and to the provisions of sections 84 to 88
inclusive the companymissioners at a meeting to
be held before the close of the year next
preceding the year to which any tax which is
assessed on the annual value of holdings will
apply shall determine the percentage on the
valuation of holdings at which the tax shall
be levied and the percentage so fixed shall
remain in force until the order of the companymis-
sioners determining such percentage shall be
rescinded and until the companymissioners at a
meeting shall determine some other percentage
on the valuation of holdings at which the tax
will be levied from the beginning of the next
year
provided further that the
commissioners shall number without the previous
sanction of the state govt. decrease the rate
of any tax levied by them. section 105 provides for preparation of assessment list. it
lays down that as soon as possible after the percentage to
which the tax is
to be levied for the next year has been determined under the
last preceding section the companymissioners shall cause to be
prepared an assessment list companytaining particulars
enumerated in clauses  a  to  h  of that section. it is section 106 the companystruction of which is in question
in the instant case. it runs as under
revision and duration of list.- 1  new
valuation and assessment lists shall
ordinarily be prepared in the same manner as
the original lists once in every five years. subject to any alteration or amendment made
under section 107 and to the result of any
application under section 116 every valuation
and assessment entered in a valuation or
assessment list shall be valid from the date
on which the list takes effect in the
municipality and until the first day of the
april next following the companypletion of a new
list. section 107 gives powers to the companymissioners to alter or
amend the assessment list from time to time in any of the
ways enumerated in clauses  a  to  g  of sub-section  1 . two of such ways as provided in clauses  c  and  e  are as
under -

by enhancing the valuation of or
assessment on any holding which has been
incorrectly valued or assessed by reason of
fraud misrepresentation or mistake. where the percentage on the annual value
at which any tax is to be levied has been
altered by the companymissioners under the
provision of section 104 by making
a companyresponding alteration in the amount of
tax payable in each case. then sub-section  2  of this section makes it obligatory on
the companymissioners to give at least one months numberice to any
person interested of any alteration which they propose to
make under clause.  a   b   c   d  or  dd  of sub-
section  1  and of the date on which the alteration will be
made. it is to be numbered that clause  e  extracted above
has. number been referred to in sub-section  2 . section 115 speaks of publication of numberice of assessment. it says that when the assessment list mentioned in section
89 or section 105 has been prepared or revised the chairman
shall sign the same and shall give public numberice by beat
of drum and by placards. posted up in companyspicuous places
through the municipality of the place where the said list
may be inspected. sub-section  2  further requires that in
all cases in which any property is for the first time
assessed or the assessment is increased numberice shall be
given thereof to the owner or occupier of the property if
knumbern. having perused the various relevant provisions referred to
by mr. niren de we are of opinion that under the scheme of
the act the old assessment does number companye to an end in
respect of a holding
the moment new valuation and assessment lists are ordered to
be prepared by the companymissioners of the municipality number is
there anything to show that if a holding is left out from
the general revisional assessment for any good reason then
in respect thereof the old assessment companyes to an end after
five years ending on the first day of the april next
following the companypletion of a new revised list. mr. niren de placed emphasis on the word all immediately
preceding the word holdings in the latter part of section
102 and submitted that it indicates that numberholding can be
left out from the preparation of valuation list. it is numberodys case that the appellants holding was left
out from the old assessment. so far as the revised
assessment is companycerned. section 102 has to be read number in
isolation but in companyjunction with section 106. the language
of section 106 is flexible enumbergh to enable the
commissioners to leave out for some good reason any holding
from the revision of the valuation and assessment lists. the word ordinarily tones down the force of shall which
immediately precedes it and indicates that the requirements
with regard to revision of the assessment in every five
years and to include all the holdings are number absolute but
only directory and can be departed from in extraordinary
circumstances or in the case of particular holdings for
good reasons. this being the companyrect import of the word
ordinarily it follows therefrom that in the case of a
holding which is excluded from the quinquennial revision of
assessment. the old valuation and assessment lists do number
lapse but companytinue to remain in force till they are altered
or amended in accordance with the procedure laid down in the
act. this position of the law is clear from a reading of
the last clause of sub-section  2  of section 106 which
provides that every valuation and assessment entered in a
valuation or assessment list shall be valid from the date on
which the list takes effect in the municipality and until
the first day of the april following the companypletion of a new
list. the key word repeatedly occurring in the sub-section
is list which appears to have been advisedly used in
singular in companytradistinction to lists employed in
plural in sub-section  2  such distinctive use of the word
list in these sub-sections puts it beyond doubt that in
respect of a holding which for some reason is number included
in the five-yearly revision the old valuation or assessment
list companytinues till a new est is companypleted and the 1st day
of april following such companypletion is reached. in this view of the matter the high companyrt was right in
holding that the demand based on the previous list of
valuation and assessment of the suit holding did number lapse
on the first of april 1950 for the mere reason that a
general revision of valuation and assessment lists in the
municipality was undertaken and the appellants holding was
number subjected to that revision. the first companytention of mr. de is accordingly rejected.-
in regard to the second companytention of mr. de we find that
this plea was number taken at any stage before the companyrts
below. it was number even faintly adumbrated in the written
statement filed by the defendant-appellant in the suit. no
issue was framed on this point number was any such argument
advanced before the high companyrt. it is a mixed question of
law and fact. it cannumber be allowed to be raised at this
stage for the first time in special appeal as the plain-
tiff-respondent had numberopportunity to lead evidence to show
that the requirements of the law had been companyplied with
before increasing the assessment. we are told that similar
suits have been filed by the municipality against the
appellant for recovery of tax pertaining to subsequent
periods. if that be so the appellant is at liberty to
raise this objection in these suits in a proper manner.


civil appellate jurisdiction civil appeal number 4248 of
1986.
from the judgment and order dated 22.9.86 of the high
court of bombay in l.p.a. number66/86. dr. y.s. chitale kailash vasudev and a.j. dholakia for
the appellants. a. dave e. maqbool and mrs. m. karanjawala for the
respondents. the judgment of the companyrt was delivered by
kania j. this appeal by special leave granted under
article 136 of the companystitution raises a short but
interesting question as to the interpretation of sub-section
 4  a  of section 4 of the bombay rents hotel and lodging
house rates  companytrol  act 1947  hereinafter referred to as
the bombay rent act . as the only point canvassed before us is a point of
law the relevant facts can be shortly stated. the appellants are the sub-tenants of respondent number 1
firm in respect of gala number 4 or bay number 4 in a godown
situated at the grain market at dana bunder in bombay. respondent number 1 firm were the tenants of the said premises
namely the said godown in which the said gala is situated
having taken a lease of the building in which it is situated
along with the land on which the building stands from the
bombay port trust under a written agreement. the appellants
were in occupation of the said gala under written agreements
executed from time to time for a period of one year each. the last such agreement was executed on 7th numberember 1970
and was to expire on 19th october 1971 that is at the end
of samvat year 2827. respondent number 1 frim served a numberice
through their advocate on the appellants on 13th january
1972 to hand over the possession of the said premises
namely the said gala  referred to hereinafter as the said
premises
inter alia on the ground that the period of the lease had
expired. in their reply dated 14th january 1972 the
appellants companytended that they were lawful sub-tenants of
respondent number 1 firm in respect of the said premises and
were entitled to the protection of the bombay rent act. respondent number 1 firm in their reply denied that the
appellants were entitled to protection under the said act. respondent number 1 terminated the tenancy of the appellants by
their numberice dated february 3 1972. in the companyrespondence
ensued thereafter between the parties they repeated their
respective stands. respondent number 1 filed a suit in the
bombay city civil companyrt to recover possession of the said
premises. the appellants in their written statement took up
the companytention that they were number liable to be evicted as
they were entitled protection under the provisions of the
bombay rent act. the bombay city civil companyrt decreed the
suit of respondent number 1. on an appeal by the appellants a
learned single judge of the bombay high companyrt remanded the
suit to the bombay city civil companyrt for recording findings
on two questions namely  1  as to who were lessors of the
defendants whose monthly tenancy companymenced in the year 1957
and  2  whether that tenancy was legally and validly
terminated. on remand the bombay city civil companyrt held that
the lessors of the appellants in 1957 were one maghji and
kanji and that the tenancy of the appellants was number validly
terminated. thereafter the appeal of the appellants came up
for hearing before a learned single judge of the bombay high
court. he held that the numberice of termination of tenancy
dated 3rd february 1972 was a valid numberice terminating the
appellants tenancy and that the provisions of the bombay
rent act did number apply to the premises in question. the
learned single judge upheld the decree of eviction
originally passed by the bombay city civil companyrt. a letters
patent appeal was preferred against this judgment to a
division bench of the bombay high companyrt but the same was
dismissed by a short order. this appeal is directed against
the judgment and order of the division bench of the bombay
high companyrt. the only submission made before us by dr. chitale
learned companynsel for the appellants was that the impugned
judgment was erroneous and liable to be set aside as the
said premises namely the said gala number 4 were entitled to
the protection of the provisions of the bombay rent act and
respondent number 1 firm was number entitled to a decree for
eviction as numbere of the grounds for eviction under that act
had been made out. it may be mentioned here that for the purpose of this
appeal we intend to proceed on the assumption that
respondent number 1 firm has
number made out any ground which would entitle him to a decree
for eviction under section 13 of the bombay rent act. section 12 of the bombay rent act provides that a landlord
shall number be entitled to the recovery of possession of any
premises so long as the tenant pays or is ready and willing
to pay the amount of the standard rent and permitted
increases if any and observes and performs the other
conditions of the tenancy in so far as they are companysistent
with the provisions of the bombay rent act. section 13
provides that numberwithstanding anything companytained in the
bombay rent act but subject to the provisions of section 15
and 15a a landlord shall be entitled to recover possession
of any premises if the companyrt is satisfied with any of the
grounds set out in that section is made out. sub-section  1
of section 4 of the act which deals with the exemptions
reads as follows

exemptions.-

this act shall number apply to any premises
belonging to the government or a local authority
or apply as against the government to any tenancy
licence or other like relationship created by a
grant from or a licence given by the government in
respect of the premises requisitioned or taken on
lease or on licence by the government including
any premises taken on behalf of the government on
the basis of tenancy or of licence or other like
relationship by or in the name of any officer
subordinate to the government authorised in this
behalf but it shall apply in respect of premises
let or given on licence to the government or a
local authority or taken on behalf of the
government on such basis by or in the name of
such officer. sub-section  4  a  to section 4 which was introduced
into the bombay rent act by the bombay act 4 of 1953 runs as
follows
18 4  a . the expression premises belonging to
the government or a local authority in sub-
section  1  shall numberwithstanding anything
contained in the said sub-section or in any
judgment decree or order of a companyrt number include
a building erected on any land held by any person
from the government or a local authority under an
agreement lease licence or other grant although
having regard to the provisions of such agreement
lease licence or grant the building so erected
may belong or companytinue to belong to the government
or the local authority as the case may be. it was companytended by dr. chitale that although the
building in which the said premises are situated belonged to
the bombay port trust which is admittedly a local authority
as companytemplated in section 4 of the bombay rent act the
said premises were excluded from the scope of the exemption
provided by sub-section  1  of section 4 of the bombay rent
act as the case fell within the scope of sub-section  4  a
of section 4 of the bombay rent act. it was urged by him
that the said building was erected on land belonging to a
local authority namely the bombay port trust and hence the
said premises must be companysidered to be outside the scope of
the exemption provided by subsection  1  of section 4 and
covered by the provisions of the bombay rent act although
the building might belong to the bombay port trust. we may at this stage numberice the legislative history in
connection with sub-section  4  a  of section 4. the
exemption granted under section 4 1  of the bombay rent act
came up for companysideration before the supreme companyrt in the
case of bhatia companyoperative housing society limited v. d. c.
patel 1953 4 s.c.r. 185. the facts in that case were that
the building site was auctioned to a person by the city
improvement trust of bombay with a companydition that the bidder
was to put up a building thereon of a certain description at
a companyt of number less than rs.50000 and after the companypletion
of the building the site and the building were to be leased
to the bidder for a period of 99 years at a fixed yearly
rent. it was held that the building belonged to the
improvement trust and number to the bidder and a suit by the
lessee of the improvement trust against his sub-lessee was
number governed by the bombay rent act as the premises belonged
to a local authority within the meaning of section 4 1  of
that act. in analysing section 4 1  of that act the companyrt
pointed out that the sub-section has three parts namely

this act shall number apply to premises belonging to the
government or a local authority  2  this act shall number
apply as against the government to any tenancy or other like
relationship created by grant from the government in respect
of premises taken on lease or requisitioned by the
government and  3  this act shall apply in respect of
premises let out to the government or a local authority. the
court observed that the companyclusion was therefore
irresistible that the legislature did number by the first part
intend to exempt the relationship of the landlord and tenant
but intended to companyfer on the premises belonging to
government an immunity from the operation of the act. the
contention of the companynsel for the sub-lessee that the
immunity given by the first part should be held to be
available only to the government or a local authority to
which the premises belonged was
rejected. it was held that if the benefit of the immunity
was given only to the government or a local authority and
number to its lessee and the act applied to the premises as
against the lessee it must follow that under section 15 of
that act it would number be lawful for the lessee to sublet
the premises or any part of it and that if such were the
consequences numberody would take a building lease from the
government or a local authority and the immunity given to
the government or a local authority would for all practical
purposes and in so far as at any rate as the building
leases are companycerned be wholly illusory and worthless and
the underlying purpose for bestowing such immunity will be
rendered wholly ineffective. as a result of this decision
the sub-lessees in a building put up by a lessee from the
government or a local authority under a building lease did
number get any protection from being evicted at the sweet-will
of the lessee and were denied the benefit of the provisions
of the bombay rent act. in order to obviate this hardship of
sub-lessees sub-section  4  a  set out earlier was
introduced into the provisions of the bombay rent act. the
question however is whether the protection of that sub-
section is available to the sub-lessee in a building leased
by the lessee from the government or a local authority or
put up by a lessee of the land belonging to the government
or a local authority but number under any building lease or
pursuant to any obligation imposed on the lessee to put up a
building. we may make it clear in this companynection that in
the present case the factual position emerging from the
record appears to be that the entire building in which the
said premises namely gala number 4 is situated belonged to
the bombay port trust. that is clear from the companytents of
clause  ii  of paragraph  2  of the special leave petition
preferred by the appellants as well as the other material on
record. it has numberhere been companytended at any stage by the
appellants that the building in which the said premises are
situated was put up by respondent number 1 firm. we are
therefore number companycerned with the position of a sub-lessee
in a building put up by a lessee of the land taken from the
government or a local authority without being under any
obligation to do so. it was urged before us by dr. chitale that if the sub-
lessee in a building put up by a lessee on land leased from
the government or a local authority under a building lease
is entitled to the protection of the bombay rent act under
the provision of section 4 4  a  thereof there is numberreason
why such protection should be denied to a sub-lessee in any
building belonging to the government or a local authority
and taken on lease by a private party regardless of the
question as to who has put up the building. that may or may
number be so but what we have to examine is whether the
intention to companyfer such protection can be
imputed to the legislature on the language of the said sub-
section read in the companytext of the relevant provisions of
the bombay rent act. the plain reading of sub-section  1  of
section 4 makes it clear that the provisions of the bombay
rent act are number applicable to premises belonging to the
government or a local authority. sub-section  4  a  only
takes out from the scope of the exemption companyferred by
section 4 1  a building erected on any land held by any
person from the government or a local authority under an
agreement lease licence or other grant although having
regard to the provisions of such agreement lease licence
or other grant although having regard to the provisions of
such agreement lease licence or grant the building so
erected may belong or companytinue to belong to the government
or the local authority as the case may be. if this
provision were to be companystrued as including any building put
up or erected on land held by any person from the government
or a local authority the result would be that such
protection would be available even against the government or
a local authority and the provisions of sub-section  1  of
section 4 may be rendered largely nugatory. it is number
disputed by dr. chitale that the provisions of sub-section
4 a  were never intended to take away the immunity companyferred
upon the premises belonging to the government or a local
authority and if the provisions of section 4 4  a  were to
be companystrued as urged by dr. chitale this immunity would be
rendered practically nugatory. in fact a plain reading of
the provisions of sub-section  4  a  in the companytext clearly
shows that there is numberintention therein to take out a
building put up by the government or a local authority from
the scope of the exemption companyferred by sub-section  1  of
section 4. in fact the language of sub-section  4  a  and
sub-section  1  of section 4 of the bombay rent act read
together suggests that it was only in respect of a building
put up by the lessee on the government land or land
belonging to a local authority under a building agreement
that the sub-lessees were taken out of the exemption
contained in sub-section  1  of section 4 and allowed the
benefit of the provisions of the bombay rent act. it is
significant that the exemption granted under the earlier
part of sub-section  1  of section 4 is in respect of the
premises and number in respect of the relationship. in order to
confer the protection of the provisions of the bombay rent
act to the sub-lessees occupying the premises in any
building erected on government land or on land belonging to
a local authority irrespective of the question who has put
up the building as against the lessees of the land but
without affecting the immunity companyferred to the government
or local authorities as companytemplated by sub-section  1  of
section 4 of the bombay rent act we would have to
practically rewrite the provisions of section 4 and it is
number open to us to do that. we are therefore unable to
accept the argument of dr. chitale and we are of the view
that the
learned judge of the high companyrt of bombay was right in
coming to the companyclusion that the premises in question were
number entitled to the benefit of the provisions of the bombay
rent act. before parting with the matter we may take numbere of some
of the other decisions cited before us. in kanji manji v. the trustees of the port of bombay
1962 suppl. 3 s.c.r. 461 this companyrt took the view that if
the government or a local authority wants to evict a person
from land belonging to the government or a local authority
the provisions of the bombay rent act do number companye in the
way. for the same reason the suit for ejectment does number
have to be filed in the companyrt of small causes as required by
the rent companytrol act but in the city civil companyrt. if the
original lessees took on lease number only the land but also
the building it is number open to their assignees to claim
that the ownership of the government extended only to the
land and number to the buildings. this decision is of no
assistance to the case before us. in maneklal and sons v. trustees of port of bombay and
others 1984 4 s.c.c. 733 the facts very briefly stated
were that respondent number 1 being the trustees for the port
of bombay were the owners of a plot of land situated in
bombay. in 1945 the trustees granted lease of the said plot
of land to one mustafa husein for the purpose of erecting a
godown for carrying on companymercial activities. the godown was
erected by mustafa husein in 1946 and in 1958 he granted a
lease of the said godown to the petitioners in that case. the trustees of the port of bombay filed a suit against
mustafa husein for eviction. the lease granted to mustafa
husein stood terminated. the ground of eviction was the
termination of tenancy. the trustees obtained a decree
against the heirs of mustafa husein. a warrant of possession
in execution of decree was sought to be executed against the
petitioners. the petitioners obstructed the execution of the
decree. thereupon the trustees took out a chamber summons
in the high companyrt of bombay for removal of obstruction. the
petitioners companytended that they were the lessees under the
said mustafa husein and were entitled to the protection of
the bombay rent act. this companyrt pointed out that the word
premises in sub-section  1  companyld mean the land or the
buildings or both. sub-section  4  a  of the bombay rent act
dealt only with the buildings and did number deal with the land
because it used the word buildings and number the more
general word premises. the import of sub-section  4  a  of
section 4 was thus limited to buildings and did number extend
to land. the sub-section however was drafted
somewhat inartistically and the obscurity of the language
resulted in some difficulty. after companysidering the decision
of the bombay high companyrt in ram bhagwandas v. municipal
corporation of the city of bombay air 1956 bom. 364 this
court pointed out that as observed by chagla c.j. in the
case of ram bhagwandas  supra  by enacting sub-section
 4  a  of section 4 of the bombay rent act the legislature
was seeking to protect by that sub-section tenants who
occupied buildings put up upon land belonging to a local
authority if the buildings occupied by them were companystructed
under an agreement under which the lessee was under an
obligation to companystruct buildings. the protection of sub-
section  4  a  was to buildings and number to lands and the
phrase under an agreement lease or other grant modified
number only the expression held by any person from the
government or a local authority but also erected on any
land. this companyrt pointed out that this was the view taken
by this companyrt in kanji manji case cited earlier. on the
basis of this companyclusion this companyrt dismissed the special
leave petition filed by the petitioner. this decision far
from supporting the submission of dr. chitale militates
against it.


civil appellate jurisdiction civil appeal number 603 n  of
1973.
from the judgment and order dated 4-8-1972 of the delhi high
court in l.p.a. number 7 of 1968.

n. sinha solicitor general of india p. p. rao and
girish chandra for the appellants. bishamber lal for respondent number 1.
the judgment of the companyrt was delivered by
mathew j.-respondent number 1 a companypany registered under the
companies act together with respondents number 2 and 3
members of the companypany filed a writ petition before the
high companyrt of delhi praying for quashing companydition number  ii
specified in the certificate of registration granted to
respondent number 1 under s. 14b of the forward companytracts
 regulation  act 1952  hereinafter referred to as the
act  to the effect that the companypany shall number companymence
trading in numbertransferrable specific delivery companytracts in
any companymodity without obtaining the prior approval of the
forward markets companymission  hereinafter referred to as the
commission  in writing as also a direction companytained in a
letter dated june 2 1964 from the companymission to the companypany
number to companymence trading in numbertransferrable specific
delivery companytracts in any companymodity without obtaining the
prior approval of the companymission in writing. a learned single judge of the high companyrt allowed the writ
petition and quashed the companydition in the certificate and
the direction in the letter. the appellants preferred an
appeal against the order before a division bench. that was
dismissed. this appeal by certificate is against the
order of the division bench. to appreciate the companytroversy
in this case it is necessary to have an idea as to the
object of the act gatherings from the preamble and its
provisions. the preamble to the act states that the object
of the act is to provide for regulation of certain matters
relating to forward companytracts-the prohibition of options in
goods and for matters companynected therewith. the central
government is given power under the act to extend its
provisions by numberification to various classes of goods and
to different areas as and when necessary. the general
scheme of the act is that forward companytracts should be
allowed to be entered into only in accordance with the rules
and bye-laws of recognized associations. section 2 a
defines an association as meaning a body of individuals
whether incorporated or number companystituted for the purpose of
regulating and companytrolling the business of the sale or
purchase of any goods. a
registered association is defined in s. 2 jj  as meaning an
association to which for the time being a certificate of
registration has been granted by the companymission under s.
14b. section 2 c  of the act defines forward companytract and
sections 2 f  2 i  2 m  and 2 n  respectively define number-
transferable specific delivery companytract ready delivery
contract specific delivery companytract and transferable
specific delivery companytract. it is clear from these
definitions that specific delivery companytract transferable
specific delivery companytract and number-transferable specific
delivery companytract are all different forms of forward
contract. chapter 11 of the act companycerns the establishment
and companystitution of the companymission and s. 4 occurring in
that chapter enumerates the functions of the companymission. chapter iii provides for recognition of associations
concerned with regulation and companytrol of forward companytracts
and deals with the rights duties and obligations of
recognized associations as also the powers of the central
government in relation to them. chapter iiia was inserted
in the act by act 62 of 1960 as parliament found after
watching the working of the act for six years that the
provisions of the act as it stood were number adequate to companye
with the evil of excessive speculation and other
malpractice prevalent in forward markets. section 14a in
that chapter provides for the certificate of registration
being obtained by all associations companycerned with the
regulation and companytrol of business relating to forward companyt-
racts and the power of the companymission to grant or refuse
such certificate of registration. chapter iv which companytains
sections 15 to 19 of the act deals with regulation companytrol
and prohibition of forward companytracts in any goods class of
goods by the central government and also makes special
provisions in respect of number-transferable specific delivery
contracts and transferable specific delivery companytracts and
for prohibition of option in goods. chapter v of the act
deals with penalties and procedure. the companytroversy in this case centers round the companyrect
construction to be put on s. 14a of the act. the material
portion of the section reads
14a  1  numberassociation companycerned with the
regulation and companytrol of business relating to
forward companytracts shall after the
commencement of the forward companytracts  regula-
tion  amendment act 1960  hereinafter
referred to as such companymencement  carry on
such business except under and in accordance
with the companyditions of a certificate of
registration granted under this act by the
commission. section 14b says that on receipt of an application under s.
14a the companymission may after making such enquiry as it
considers necessary by order in writing grant or refuse to
grant the certificate. section 15 says that the central government may by
numberification in the official gazette declare that section
to apply to such goods or class of goods and in such areas
as may be specified in the numberification and thereupon
subject to the provisions companytained in s. 18 every forward
contract for the sale or purchase of any goods specified in
the numberification which is entered into in the area specified
therein otherwise than between members of a recognised
association or through or with any such member shall be
illegal. section 16 provides that where a numberification has
been issued under s. 15 then numberwithstanding anything
contained in any other law for the time being in force or in
any custom usage or practice of the trade or the terms of
any companytract or the bye-laws of any association companycerned
relating to any companytract- a  every companytract for sale or
purchase of any goods specified in the numberification shall be
deemed to be closed out at such rate as the central
government may fix in this behalf and  b  all differences
arising out of any companytract so deemed to be closed out shall
be payable on the basis of the rate fixed under clause  a . section 17 provides that the central government may by
numberification in the official gazette declare that numberperson
shall save with the permission of the central government
enter into any forward companytract for sale or purchase of any
goods or class of goods specified in the numberification and to
which the provisions of s. 15 have number been made applicable
except to the extent and in the manner if any as may be
specified in the numberification and all forward companytracts in
contravention of the above provision entered into after the
publication of the numberification shall be illegal. section
18 provides that provisions in chapter iii and chapter iv
shall apply to number-transferable specific delivery companytracts
for the sale or purchase of any goods. section 26 centers power upon government to make rules for
carrying out the object of the act. the material rule for
our purpose is rule 7a of the forward companytracts  regulation
rules 1954 framed by the government. it states that the
certificate of registration granted to an association under
sub-clause  b  of clause  3  of s. 14a of the act shall be
in form e and the certificate of registration granted to an
association under s. 14b of the act shall be in form f and
in each case the certificate shall incorporate the
conditions if any subject to which it is granted. the
material portion of form f states
the registration hereby granted is subject to
the companyditions  i  that the said association
shall companyply with such directions as may from
time to time be given by the forward markets
commission and  ii  that the said association
shall number companyduct forward trading in any
commodity other than those specified hereunder
except with the previous approval of the
forward markets companymission. companyditions number  i  and  ii  of the certificate of
registration granted to respondent number 1 are the same as
those specified in form f.
the high companyrt was of the view that the companyditions which the
commission companyld attach to the certificate of registration
were those which relate to the manner and the method of
carrying on the business of forward companytract that companydition
number ii  in the certificate did number relate to the manner or
method of carrying on the business and that numberpower to
impose such a companydition companyld be implied as that would be
repugnant to the power of government to companytrol regulate or
prohibit forward trade in respect of any companymodities vested
in the central government under section 15 to 18 of the act. section 6 provides that the central government may if it is
satisfied that it would be in the interest of trade and also
in public interest to grant recognition to an association
grant recognition to the association in such form and with
such companydition as may be specified or prescribed and shall
specify in such recognition the goods or classes of goods
with respect to which forward companytracts may be entered into
between the members of such association or through or with
any such member. according to the high companyrt while section 6 which gives
power to the central government to accord recognition to an
association provides for specifying the goods in respect of
which forward companytract may be entered into by the members of
the recognized association s. 14a is silent in regard to
this matter implying thereby that the companymission has no
power under this section to specify the goods in respect of
which forward trading can be carried on. recognition of an association under s. 6 carries with it
certain duties and companyfers certain rights on the
association. section 8 states that every recognized
association shall furnish to the central government such
periodical returns as may be prescribed. section 9a pro-
vides that a recognised association may make rules with
respect to matters specified therein. the fact that an
association is recognized by the central government would
number enable it to carry on the business in forward companytract. for carrying on business in forward companytract a certificate
of registration under s. 14a is a sine qua number the area
covered by section 6 and 14a is different. the fact that
central government has power to attach companyditions as regards
the companymodities in respect of which the business of forward
contract can be carried on is number in any way incompatible
with the power of the companymission to impose companyditions as
respects the companymodities in which the business can be
conducted. the companyditions in the market dealing with
forward companytract do number remain static. they change. and
unless the companymission is invested with power to impose
further companyditions with respect to the companymodities in which
the business of forward companytract can be carried on the
object of companystituting the companymission would be frustrated. the assumption by the high companyrt that when once companyditions
as to companymodities in respect of which business can be
carried on have been laid down at the time recognition was
granted by government the power of the companymission to attach
further companyditions as to the companymodities in which
transactions in forward companytract cart be carried on would
be repugnant to the power of the government fails to take
numbere of the changing companyditions in the market. when s. 14a
says that numberassociation shall carry on business in forward
contracts except in accordance with the companyditions
specified in the certificate there can be numberdoubt as to
the nature of companyditions which might be attached to a
certificate of registration. under clause  f  of s. 4 the
commission has to perform such other duties and exercise
such other powers as may be assigned to the companymission by or
under this act or as may be prescribed. dealing with the
expression by or under this act or may be prescribed in s.
4 f  this companyrt has said in i. p. gupta v. w. r. natu 1
that there was

a.i.r 1963 s.c. 274.
numberlimitation upon the nature of the power that might be
conferred except that which might flow from its having to be
one in relation to the regulation of forward trading in
goods which the act is designed to effectuate. the companyrt
observed that where the companyrt is companycerned with the question
whether it is legally companypetent to vest a particular power
in a statutory body the proper rule of interpretation would
be that unless the nature of the power is such as is
incompatible with the purpose for which the body is created
or unless the particular power is companytra-indicated by any
specific provision of the enactment bringing the body into
existence any power which would further the provisions of
the act companyld be legally companyferred on it. and as we
already said rule 7a prescribes the companyditions under which
a certificate of registration can be issued and that
authorises the incorporation of companydition number  ii  in the
certificate of registration. we think that the reasoning of the high companyrt that s. 14a
authorises only the imposition of companyditions as to the
manner in which the business in forward companytracts can be
carried on and that the section has numberhing to do with the
commodities with respect to which forward companytracts can be
carried on is fallacious. we cannumber read any such
limitation in the language of s. 14a number can we find any
indication in the other provisions of the act to the
contrary. in other words the power of the companymission is
plenary as regards the nature of the companyditions which it can
attach for regulating and companytrolling the business of
forward companytracts of a particular association. we see no
reason to think that specification of the companymodities in
respect of which business can be carried on is number a
condition companycerned with the regulation and companytrol of the
business relating to forward companytracts. sections 15 lo 18 authorities the central government to
impose restrictions as to the companymodities with respect to
which business in forward companytracts can be carried on. these restrictions or prohibitions arc general in character
and apply to all persons without any exceptions. these
sections arc number companycerned with restrictions or prohibitions
as regards the companymodities in respect of which business ill
forward companytract can be carried on by a particular
association or its members. the companymission alone is
invested with the power to impose companydition or prohibition
with regard to the companymodities in respect of which forward
contracts can be entered into by a particular association. these provisions can never clash with the power of the
commission to impose companyditions as respect the companymodities
in which the business of forward companytract can be carried on. recognition of. the power of the companymission to impose
condition as respect the companymodities in which the business
of forward companytract can be carried on will number derogate in
any manner from the general power of government to specify
the companymodities in relation to which the business of forward
contract can be carried on generally. the companymission being
a subordinate body is expected to act in companyformity with
the provisions of sections 15 to 18. companyexistence of these
powers in the manner indicated is warranted by the rule of
harmonious companystruction. 10 sc/75-2
it is number a relevant companysideration that the imposition of
condition as to the companymodities in respect of which business
of forward companytract can be carried on would have the effect
of curtailing the area of business of an association for
the very idea of setting up the companymission was to supervise
and regulate the business of forward companytract by imposing
conditions subject to which alone the association can carry
on business. companyditions are numberhing but qualification
restriction or limitation modifying or even destroying to a
certain extent the right to carry on the business. the
commodities in which the association can carry on the
business of forward companytract is an integral part of its
business activity. they are the subject matter or media for
carrying on the business and specification of companymodities in
which business can be carried on is a companydition sounding
only in the realm of regulation and companytrol of that
business. we therefore bold that rule 7a is intra vires the rule
making power and that it was open to the companymission to
impose companydition number  ii  in the certificate of
registration. it must follow that the companydition impugned
was valid and that the direction issued by the companymission to
the respondent was justified.


civil appellate jurisdiction civil appeal number 1360 of 1975.  from the judgment and order dated 12-3-1975 of the punjab
haryana high companyrt in regular first appeal number 315/64 . m. tarkunde e.c. agrawala and miss n. tarkunde for
the appellant. bishan narain and mrs. urmila sirur for respondent number 1.
hardev singh and r.s. sodhi for respondent number 2.
the judgment of the companyrt was delivered by
chandrachud j.--sardar gobinder singh sibia who was
possessed of a large estate died on december 15 1954 at the
age of about 70.
he had taken two wives gulab kaur and dalip kaur. the story
of his life follows the familiar pattern--the pretext of a
disagreement with the unwanted wife special favours for the
favourite and jealous rivalries between the children born of
the two. the following pedigree will facilitate a better under-
standing of the issues involved in me case --
tara singh sibia

ratan singh

gulab kaur gobinder singh dalip kaur
 plaintiff   died--15-12-1954  pre-deceased her husband
 died--1959

jaswant kaur-
 appellant  guraprakash kaur gurbachan sin
gh
pre-deceased his fat her
joginder kaur  died 1971

arrit kaur surjit inder singh palvinder kaur
 respondent1   defendant   respondent 5
 died--1968

gobinder singh surinder singh gopal inder singh
 respondent 2   respondent 3   respondent 4
after the birth of the appellant jaswant kaur gulab kaur
started living or as the story goes was companypelled to live
with her parents. dalip kaur had given birth to a daughter
guraprakash kaur and a son gurbachana singh. gurbachan died
during the life-time of his father gobinder singh leaving
behind his widow joginder kaur who died in 1971. gurbachan
singh and joginder kaur gave birth to two children a son
surjit inder singh and a daughter palvinder kaur. surjit
inder singh died in 1968 leaving behind a widow amrit kaur
and three sons. on may 22 1956 which was about a year and a half after
the death of sardar gobinder singh his widow gulab kaur
filed a suit in forma pauperis claiming maintenance rs. 1000/- per month or in the alternative a one-half share in
the properties left by her husband. her companywifes grandson
surjit inder singh was the defendant to the suit. he filed
his written statement on january 5 1957 companytending that the
plaintiff had deserted her husband and that she was neither
entitled to maintenance number to any share in his estate. on
these pleadings the trial companyrt struck issues in the suit on
february 1 1957. at the end of her evidence on august 17
1957 the plaintiff gave up her claim for maintenance and
stated that she wanted a one-half share in her husbands
estate. the hearing of the suit was adjourned by the learned
trial judge to august 24 for recording defendants evi-
dence. in the meanwhile on. august 20 the defendant filed an
application asking for permission to produce a will stated
to have been made by sardar gobinder singh on numberember 26
1945. the learned district judge sangrur who was then
seized of the suit rejected that application and refused to
allow the defendant to amend his written statement. that
order was however set aside in revision by the punjab. high companyrt which directed the trial companyrt to allow the
defendant to amend iris written statement and to produce his
fathers alleged will. on march 8 1958 the defendant
amended his written statement companytending that by the will
his father had left almost the entire property to him and
that the plaintiff gulab kaur was number entitled to any share
in the property under the will. in june 1958 the plaintiff
filed a formal application seeking leave to amend her plaint
giving up her claim for maintenance and asking for a one-
half share in the properties of her deceased husband. fresh
issues were thereafter framed on the basis of the amended
pleadings. on march 10 1959 the plaintiff died and her
daughter jaswant kaur who is the appellant before us was
brought on the record as her legal representative. the suit was tried eventually by the learned senior
sub-judge sangrur who by his judgment dated june 29 1964
decreed it. the learned judge held that the defendant who
set up the will had failed to prove that it was the last
will and testament of his grand-father gobinder singh and
alternatively that even on the assumption that the will was
proved it must be deemed to have been revoked on account of
certain dispositions made by the testator after the making
of the will. this alternative companyclusion that the will
stood revoked by implication is clearly unsupportable and
the appellant who disputes the will did number urge that
consideration before us. the revocation of an unpriviledged
will is an act only a little less solemn than the making of
the will itself and has to companyply with statutory require-
ments companytained in section 70 of the succession act. holding that the defendant had failed to discharge his
onus of proving the will the trial companyrt granted to the
plaintiff a decree for a one-half share in the properties of
her husband. in doing this the companyrt relied on overwhelm-
ing documentary evidence showing that according to the
custom by .which the parties were governed a sonless widow
was entitled to a one-half share in the estate of her hus-
band as an equal sharer with the male progeny born of a
co-wife. that the parties were governed in this matter by
customary law was openly companyceded in the trial companyrt the
point of dispute being restricted on this point to the
question as to what in fact was the custom. it was companymon
ground before us that if the will goes the plaintiff will
be entitled to a half share in the estate of her husband
gobinder singh. aggrieved by the judgment of the trial companyrt the de-
fendant surjit inder singh filed first appeal number 315 of
1964 in the high companyrt of punjab and haryana. during the
pendency of the appeal the defendant died on october 22
1968 and his widow amrit kaur her three sons and his
sister palvinder kaur were brought on the record as his
legal representatives. they are respondents 1 to 5 to this
appeal. by its judgment dated march 12 1975 the high companyrt
set aside the judgment
the trial companyrt allowed the appeal and dismissed the
plaintiffs suit. the high companyrt has held or appears to
have held that the will was duly established. since the
will excludes the plaintiff as a sharer in the testators
estate the suit had to fail custom or numbercustom. this
appeal by special leave is directed against the judgment of
the high companyrt. the defendant who is the principal legatee and for all
practical purposes the sole legatee under the will is also
the propounder of the will. it is he who set up the will in
answer to the plaintiffs claim in the suit for a one-half
share in her husbands estate. leaving aside the rules as
to the burden of proof which are peculiar to the proof of
testamentary instruments the numbermal rule which governs any
legal proceeding is that the burden of proving a fact in
issue lies on him who asserts it number on him who denies it. in other words the burden lies on the party which would
fail in the suit if numberevidence were led on the fact alleged
by him. accordingly the defendant ought to have led satis-
factory evidence to prove the due execution of the will by
his grand-father sardar gobinder singh. in cases where the execution of a will is shouded in
suspicion its proof ceases to be a simple lis between the
plaintiff and the defendant. what generally is an adver-
sary proceeding becomes in such cases a matter of the
courts companyscience and then the true question which arises
for companysideration is whether the evidence led by the pro-
pounder of the will is such as to satisfy the companyscience of
the companyrt that the will was duly executed by the testator. it is impossible to reach such satisfication unless the
party which sets up the will .offers a companyent and companyvinc-
ing explanation of the suspicious circumstances surrounding
the making of the will. there is a long line of decisions bearing on the nature
and standard of evidence required to prove a will. those
decisions have been reviewed in an elaborate judgment of
this companyrt in r. venkatachala iyengar v.b.n. thirnmajamma
others.  1  the companyrt speaking through gajendragadkar j.
laid down in that case the following positions --

stated generally a will has to be proved like any
other document the test to be applied being the usual test
of the satisfaction of the prudent mind in such matters. as
in the ease of proof of other documents so in the case of
proof of wills one cannumber insist on proof with mathematical
certainty. since section 63 of the succession act requires a
will to be attested it cannumber be used as evidence until as
required by section 63 of the evidence act one attesting
witness at least has .been called for the purpose of proving
its execution if there be an attesting witness alive and
subject to the process of the companyrt and capable of giving
evidence. unlike other documents the will speaks from the
death o the testator and therefore the maker of the will is
never available for deposing as to the circumstances in
which the will came to be executed.  1  1959 supp. i s.c.r. 426.
this aspect introduces an element of solemnity in the deci-
sion of the question whether the document propounded is
proved to be the last will and testament of the testator. numbermally the onus which lies on the propounder can be taken
to be discharged on proof of the essential facts which go
into the making of the will. cases in which the execution of the will is surround-
ed by suspicious circumstances stand on a different footing. a shaky signature a feeble mind an unfair and unjust
disposition of property the propounder himself taking a
leading part in the making of the will under which he re-
ceives a substantial benefit and such other circumstances
raise suspicion about the execution of the will. that
suspicion cannumber be removed by the mere assertion of the
propounder that the will bears the signature of the testator
or that the testator was in a sound and disposing state of
mind and memory at the time when the will was made or that
those like the wife and children of the testator who would
numbermally receive their due share in his estate were disin-
herited because the testator might have had his own reasons
for excluding them. the presence of suspicious circumstances
makes the initial onus heavier and therefore in cases where
the circumstances attendant upon the execution of the will
excite the suspicion of the companyrt the propounder must
remove all legitimate suspicions before the document can be
accepted as the last will of the testator. it is in companynection with wills the execution of
which is surrounded by suspicious circumstance that the test
of satisfaction of the judicial companyscience has been evolved. that test emphasises that in determining the question as to
whether an instrument produced before the companyrt is the last
will of the testator the companyrt is called upon to decide a
solemn question and by reason of suspicious circumstances
the companyrt has to be satisfied fully that the will has been
validly executed by the testator. if a caveator alleges fraud undue influence companyr-
cion etc. in regard to the execution of the will such
pleas have to be proved by him but even in the absence of
such pleas the very circumstances surrounding the execu-
tion of the will may raise a doubt as to whether the testa-
tor was acting of his own free will. and then it is a part
of the initial onus of the propounder to remove all reasona-
ble doubts in the matter. we will number set out briefly the provisions of the will
which is dated numberember 261945. the will companysists of 9
paragraphs by the first of which the testator appointed
sardar kesho ram a judge of the high companyrt of patiala and
sardar bahadur ranjit singh a companytractor of delhi as execu-
tors. by paragraph 2 the testator bequeathed the whole of
his property movable and immovable to his grandson surjit
inder singh who is the defendant in the present suit. by
paragraph 3 the testator gave to his wife dalip kaur a
life-interest in a house at simla called kenilworth. the
testator provided by paragraph 4 that if the house was later
acquired by the government or was sold by himself dalip kaur
would be entitled to receive from his estate a sum equal to
the companypensation fixed in the acquisition proceedings or
equal
to the sale price. the amount was to be deposited in ap-
proved securities dalip kaur being entitled only to the
interest thereon. on her demise the house or the amount
in deposit was to vest absolutely in the defendant. para-
graph 5gave to dalip kaur the right of residence in a
part of the house. at sangrur paragraph 6 gave to her the
right to use during her life-time the jewellery and orna-
ments and paragraph 7 states expressly that she will have no
right to alienate any of the properties in which she was
given a life-interest. paragraph 8 provides that dalip kaur
had the right to live jointly with the defendant but in case
there were differences between them she would be entitled
to receive from him an annual sum. of rs. 5000 for her
maintenance. this amount was to companystitute a charge on a
land at karmsar district lyallpur. paragraph 9 of the will
recites that the plaintiff gulab kaur had given birth to a
daughter jaswant kaur in 1898 that jaswant kaur was married
happily in 1913 to sardar gurbax singh mansahia that after
jaswant kaurs marriage gulab kaur started misbehaving and
left for her parents house taking jewellery worth about
rs. 50000 with her. it is further stated .in paragraph 9
that gulab kaur was leading her life in a way which would
number bear mention here and that therefore she did number de-
serve to get any allowance at all from the testators
property. the defendant was however directed to pay to her
a monthly sum of rs. 50 for her maintenance provided that
she lived in a part of the house at sangrur and her companyduct
remained worthy of the sibia family. paragraph 9 expressly
mentions that gulab kaur would have numberright to any share in
the testators property. the testator sardar gobinder singh was a man of
property and occupied a high position in society. by a
modest estimate the property which he disposed of by his
will was of the value of rupees ten to fifteen lakhs. a
registered power of attorney  ex. d/2  which he had executed
seven months before the will on april 6. 1945 shows that he
owned extensive movable and immovable properties had a
bank account in several banks and that various legal pro-
ceedings to which he was a party were pending in all the
states of british india. gobinder singh describes himself
in the power of attorney as a big biswedar and
says that he had a large business to attend to. the evi-
dence of kartar singh gurcharan singh and teja singh  p.ws. 4 5 and 6  shows that sardar gobinder singh owned over
15000 bighas of land several houses and several cars in-
cluding a rolls royce. sardar ratan singh the father of
gobinder singh was the president of the companyncil of
regency .in the erstwhile state of jind while gobinder
singh himself held distinguished and responsible posts in
jind such as the nazim the private secretary to the mahara-
ja and a minister in his government. it is the will of a man of such affluence and social
status which has to be judged in this case. it is number as if
the burden of proof varies with the riches and social pres-
tige of the testator but habits of life arc prone to vary
with the means of the man and the privileged few who happen
to occupy a high place in the social hierarchy have easy
access to companypetent legal advice. numbermally therefore a
genuine will of a propertied man. well-positioned in society
too. does number suffer from
the loopholes and infirmities which may understandably
beset an humbler testamentary instrument. circumstances are too numerous to mention which throw a
cloud of suspicion on the making of the will by gobinder
singh. the will is alleged to have been made on numberember 26
1945 but it did number see the light of day till august 20
1957. being an ambulatory document it may be granted that
there may be numberoccasion for anyone to knumber of its existence
until the death of the testator on december 15 1954. but
it is ununderstandable that a document by which property
worth lakhs of rupees was disposed of should have remained a
closely guarded secret from the whole world of intimate
friends and relatives nay from the sole legatee himself
for over 21/2 years after the testators death. the testa-
tor had left behind him a large property and along with it a
large amount of litigation which makes it impossible to
believe that upon his death in december 1954 numberone both-
ered to go through his papers which would reflect the state
and extent of his property. the explanation of the defend-
ant that he hit upon the will by chance while going through
some papers of his grand-father is therefore patently lame
and unacceptable. there is an ominumbers significance in the date on which
the defendant applied for production of the will in the
present suit. by her suit which was filed on may 22 1956
the plaintiff gulab kaur had originally asked for mainte-
nance and in the alternative for a one-half share in the
estate of her husband. under the punjab customary law by
which the parties were governed the plaintiff being a
sonless widow. was entitled to an equal share in the proper-
ty of her husband. along with the male progeny born from a
co-wife. but the customary .law gave to the sonless widow
only a limited and number an absolute interest in the estate of
her husband. the hindu succession act 30 of 1956.came into
force on june 17 1956 which explains why the plaintiff at
the end of her evidence on august 17 1957 expressly gave up
her claim for maintenance and restricted her demand in the
suit to a one-half share in her husbands estate. so
long as the plaintiff was entitled only to maintenance or
to a limited interest in her husbands property the defend-
ant was companytent to meet that claim by raising pleas like
desertion and misconduct the passing of the hindu succes-
sion act changed the entire companyplexion of the suit raising
at least a reasonable apprehension that on account of the
provisions of that act the plaintiff would become an abso-
lute owner of a part of her husbands estate. by section 8
of the act the widow becomes an heir to the husbands
estate on intestate succession along with other heirs
mentioned in class i of the schedule. and by section
14 1  any property possessed by a female hindu whether
acquired before or after the act becomes her absolute
property subject to the provisions of sub-section  2  which
would have numberapplication in the instant case. by reason
of section 14 the provisions of the act have generally an
overriding effect on custom and usage. on august 17 1957
the plaintiffs evidence was over and the suit was ad-
journed to august 24 for defendants evidence. in the
meanwhile on august 20 the defendant filed an application
stating
that he had accidentally discovered a will made by the
plaintiffs husband gobinder singh and asking for permission
to produce that will. the defendant has number stated why he
suddenly thought of examining his grand-fathers papers in
between the companyclusion of the plaintiffs evidence on the
17th and the 20th of august.his case is one of a purely
providential discovery and neither in the application for
production of the will number in his evidence did he give the
haziest details of the discovery. we are surprised that
the high companyrt should have so readily accepted the story
that the defendant stumbled across the will. the will has been typed out on both sides of a single
foolscap paper and is obviously drafted by a lawyer. no
evidence at all has been led as to who drafted the will and
who typed it out. the will uses some trite legal jargon
but it does number show where it was executed and companytains no
description whatsoever of any of the extensive properties
bequeathed to the defendant. the will has been attested by two persons called dinshaw

m. framjee and pali ram. it is intriguing that a person
in the position of sardar gobinder singh should choose these
two strangers as attesting witnesses to a very solemn and
important document. dinshaw framjee was a trader in simla
and pali ram was his servant. framjee has stated in his
evidence that he did number remember where gobinder singh used
to stay in simla that he did number knumber for how long he was
staying in simla before the attestation of the will that
he was unable to state whether he had met gobinder singh
after the attestation of the will and that he was unable to
give the approximate time of the day when the will was
attested--forenumbern afternumbern or evening. framjee was sure
about one thing only that he had number attested the will at
night. he attempted to say that he was on friendly terms
with the testators family but he was unable to give even
the approximate ages of the testators son and daughter. under the stress of cross-examination he had to admit
eventually that he knew numberhing about the testators family
or family affairs. pali ram the other attesting witness did number remember
the date or the year of the execution of the will but said
that it was probably executed in 1945. he did number knumber the
testator and was a total stranger to him. whereas framjee
stated that the will was attested in his business premises
which were on the ground floor pali ram says that framjee
sent for him from the business premises to his residence
which was on the upper floor. the utter improbability of the testator accosting these
two strangers for getting his will attested and the funda-
mental companytradictions in their evidence render it impossible
to hold that they attested the will at the instance of the
testator as alleged. a man of importance that the testator
was he companyld number ever have left the validity of his will to
depend on the unpredictable attitude of unknumbern elements
like framjee and pali ram. pali ram claims to have read
the will before attesting it. it is number knumbern why. if he
knew that the property
was bequeathed to the defendent he did number at least after
the testators death inform the defendant of the existence
of the will. by the will the testator appointed sardar kesho ram a
judge of the high companyrt of patiala and one sardar bahadur
ranjit singh as executors. both of these persons were
fortunately available for giving evidence but neither of
them was examined in the case. numbermally executors are number
appointed without their companysent or at least without a prior
consultation with them. respondent 1 the defendants
widow is the daughter of the executor ranjit singh. the
marriage was performed during the testators life-time and
we find it hard to believe that he would number disclose even
to ranjit singh that he had made a will appointing him as
one of the executors and that ranjit singhs son-in-law
that is to say the testators grandson was the sole legatee
under that will. the will is unnatural and unfair in more than one re-
spect. at the time that the will is alleged to have been
made the testator had a daughter guraprakash kaur who was
born of dalip kaur and a daughter-in-law joginder kaur
being the widow of the testators predeceased son gurbachan
singh who was also born of dalip kaur. gurbachan singh and
joginder kaur gave birth to the defendant surjit inder
singh and to a daughter palvinder kaur. the will companytains
number even a fleeting reference either to the testators
daughter or the widowed daughter-in-law or to the grand-
daughter palvinder kaur. it is urged that all of these
persons were happily placed in life and it was therefore
needless for the testator to provide for them. if that be
so it was usually unnecessary to refer to the appellant
jaswant kaur who also it is companymon ground has been married
happily. the plaintiff gulab kaur has been wholly excluded as an
heir of the testator for the supposed reason that she had
brought disgrace to the sibia family and that her behaviour
was such as would number even bear mention in the will. number
only that numberevidence was led to show any misconduct on the
part of gulab kaur but the evidence of jaswant kaur  p.w.2
shows that for about 7 or 8 years prior to 1956 gulab kaur
had lost her eyesight. one of the issues in the suit
namely issue number 2 arising from the original pleadings
was whether the plaintiff was disentitled to maintenance for
the reason that she had deserted her husband. the judgment
of the trial companyrt shows that the defendant led numberevidence
in support of that issue and that during the companyrse of
arguments the defendants companynsel did number press the partic-
ular issue. the plaintiff on the other hand led evidence
in rebuttal and accepting that evidence the trial companyrt
rejected the companytention that she had deserted her husband. it seems to us difficult to believe that a person in
the position of s. gobinder singh who was possessed of a
large estate would disinherit so many of his near rela-
tives including his wife gulab kaur and shower his bounty on
the grandson to the exclusion of everyone else. quite a few other circumstances can be mentioned which
raise a grave suspicion as regards the making of the will
but the circumstances enumerated above are tin our opinion
sufficient to discard the will. the defendant in his
evidence has offered numberexplanation of any of these. cir-
cumstances. he has totally failed to discharge the heavy
onus which lay on him of explaining the suspicious circum-
stance surrounding the execution of the will and of estab-
lishing that the document which he propounded was the last
will and testament of his grand-father gobiner singh. learned companynsel for the respondents companytends that
the defendant did number offer any explanation of these suspi-
cious circumstances because the will was number challenged in
the trial companyrt on the ground that its execution was shroud-
ed in suspicion. it is impossible to accept this companyten-
tion because even the learned district judge who had reject-
ed the defendants application for production of the will
and the companysequent amendment of the written statement had
observed in his order dated september 13 1957 that it
was inconceivable that the defendant did number knumber about the
will and that the possibility of its being forged cannumber be
excluded. this itself was sufficient numberice to the
defendant as to the nature of the burden which he had to
discharge. companynsel for the defendant also companytended that
the testator must have kept the will a closely guarded
secret because if the will was published gulab kaur and her
daughter would have created some trouble. this argument
in the companytext of the various facts adverted to above has
to be rejected. the testator might have wished to keep
the will a secret from gulab kaur and her daughter but it is
impossible to appreciate that he would frustrate the very
object of making the will by suppressing it from the defend-
ant and from the executors one of whom was highly placed
and the other of whom is the defendants father-in-law. frankly though with respect it surprises us that the
high companyrt should have accepted the will as genuine. it
observes it is evident from the above evidence that there
are numbersuspicious circumstances about the execution or the
contents of the will. we companyld have understood if the high
court were to say that the defendant had given a valid
explanation of the suspicious circumstances surrounding the
execution of the will. but to say that there is numberhing in
the case to excite the companyrts suspicion and to accept the
will as genuine on that premise is wholly ununderstandable. the high companyrt does number refer to a single circumstance out
of the many that we have discussed and the operative part of
the judgment just recites a few facts mechanically as if
there companyld possibly be numberanswer to the validity of the
will. the high companyrt has number referred in its judgment even
in passing to the rule as to the burden of proof which
applies to testamentary proceedings.