civil appellate jurisdiction civil appeal
number 59 of 1961.
appeal from the judgment and decree dated
march 14 1957 of the bombay high companyrt at
nagpur in first appeal number 75 of 1956.

s. bindra and r. h. dhebar for the
appellant
frank anathony j. b. dadachanji o. c.
mathur and ravinder narain for the respondent. 1961. december 12. the judgment of the companyrt
was delivered by
sarkar j.-this is an appeal by the state of
maharashtra against the judgment of the high companyrt
at nagpur companyfirming the decree of the additional
district judge nagpur declaring that the order
reverting the respondent from the rank of
officiating deputy superintendent of police to the
rank of inspector of police was illegal and void
and granting certain companysequential reliefs. the judgment of the high companyrt and the
learned additional district judge seem to us to be
clearly unsustainable. the companyrts below held that
the respondent had been reduced in rank in
violation of the terms of s. 240 3  of the
government of india act 1935 which companyresponds
to art. 311 of the companystitution inasmuch as he
was number given an opportunity to show cause against
the order proposed to be made. it is number in
dispute that the opportunity has number been given. in our view however for reasons to be presently
stated the respondent was number entitled to that
opportunity. on june 8 1948 the respondent was holding
the post of inspector in the central provinces and
berar police. service. he was appointed to
officiate as deputy superintendent of police with
effect from june 91948. on january 27 1949 his
services were lent to the hyderabad government in
connection with the police action then being taken
there. on february 5 1949 he was sent back to
the central provinces and berar. on february 19
1949 the inspector general of police central
provinces and berar passed an order which reads
as follows
shri f. a. abraham  respondent  deputy
superintendent police parbhani is reverted
to rank of inspector. it is this order which was sought to be impugned
by the respondent in the suit out of which this
appeal arises. after the order of reversion had been made
the respondent on february 23 1949 asked for
the reason for which he was reverted. on march 3
1949 the government refused to companymunicate the
reasons to him. on may 25 1949 a companyfidential
memorandum was sent by the district superintendent
of police parbhani to the deputy inspector
general of police aurangabad in which he stated
that he had companyducted an inquiry into certain
allegations of companyruption made against the
respondent while he was acting in the service of
the hyderabad government at parbhani and he
thought that those allegations were of substance. thereupon the deputy inspector general of police
aurangabad held a departmental inquiry regarding
these allegations and found that they had number been
proved. this inquiry had been held behind the back
of the respondent. numberwithstanding this the order
reverting the respondent was maintained. there is
a letter addressed by the inspector general of
police to the chief secretary to the government of
madhya pradesh dated august 19 1950 written
after the departmental inquiry wherein it is
stated that the respondents previous record was
number satisfactory and that he had been promoted to
officiate as deputy superintendent of police as
the government was in need of officers and that he
had been given a chance in the expectation that he
would turn a new leaf but the companyplaint made in
the companyfidential memorandum was a clear proof that
the officer was habitually dishonest and did number
deserve promotion. the respondent made
representations to the government to revise the
order reverting him to the lower rank but the
government expressed its inability to do so. it
may be stated here that on the promulgation of the
constitution the central provinces and berar
became the state of madhya pradesh in the indian
union. in the judgment under appeal the high companyrt
followed its earlier decision in m. a. waheed v.
state
of madhya pradesh  1  in which it had been held
that if a person officiating in a higher post is
reverted to his original post in the numbermal
course that is on account of the cessation of
the vacancy or his failure to acquire the required
qualification the reversion does number amount to a
reduction in rank but if he is reverted for
unsatisfactory work then the reversion amounts to
reduction in rank. the high companyrt held that the
governments plea that the respondent had been
promoted as there was dearth of officers was an
afterthought and that the fact that the respondent
had been given a chance to officiate in the higher
post prima facie showed that he was fit to hold
that post. the high companyrt also held that the
governments refusal to companymunicate to the
respondent the reasons for his reversion or to
give him the report of the inquiry indicated that
the government was reverting him on the ground
that his work was number satisfactory. it therefore
came to the companyclusion on the authority of m. a.
waheeds case  1  that the respondent must be held
to have reduced in rank and this reduction in rank
was illegal as the respondent had number been given
an opportunity to show cause against it. we are unable to agree with the observation
in m. a. waheeds case 1  that when a person
officiating in a post is reverted for
unsatisfactory work that reversion amounts to a
reduction in rank. a person officiating in a post
has numberright to hold it for all times. he may have
been given the officiating post because the
permanent incumbent was number available having gone
on leave or being away for some other reasons. when the permanent incumbent companyes back the
person officiating is naturally reverted to his
original post. this is numberreduction in rank for it
was the very term on which he had been given the
officiating post. again sometimes a person is
given
an officiating post to test his suitability to be
made permanent in it later. here again. it is an
implied term of the officiating appointment that
if he is found unsuitable he would have to go
back. if therefore the appropriate authorities
find him unsuitable for the higher rank and then
revert him back to his original lower rank the
action taken is in accordance with the terms on
which the officiating post had been given. it is
in numberway a punishment and is number therefore a
reduction in rank. it has been held by this companyrt
in parshotam lal dhingra v. union of india  1
that
it is therefore quite clear that
appointment to a permanent post in a
government service either on probation or
on an officiating basis from the very nature
of such employment itself of a very
transitory character and in the absence of
any special companytract or specific rule
regulating the companyditions of the service the
implied term of such appointment under the
ordinary law of master and servant is that
it is terminable at any time. in short in
the case of an appointment to a permanent
post in a government service on probation or
on an officiating basis the servant so
appointed does number acquire any substantive
right to the post and companysequently cannumber
complain any more than a private servant
employed on probation or on an officiating
basis can do if his service is terminated at
any time. the respondent had of companyrse numberright to the post
of deputy superintendent of police to which he had
been given an officiating appointment and he does
number companytend to the companytrary. he cannumber therefore
without more companyplain if he is sent back to his
original post. this is what happened in this case
even if it be taken that the respondent
had been reverted to his original rank because he
was found unsuitable for the higher rank to which
he had been given an officiating appointment. it is however true that even an officiating
person may be reverted to his original rank by way
of punishment. it was therefore observed in
dhingras case  1  at p. 863
thus if the order entails or provides
for the forfeiture of his pay or allowances
or the loss of his seniority in his
substantive rank or the stoppage or
postponement of his future chances of
promotion then that circumstances may
indicate that although in form the government
had purported to exercise its right to
terminate the employment or to reduce the
servant to a lower rank under the terms of
the companytract of employment or under the
rules in truth and reality the government
has terminated the employment as and by way
of penalty. it is quite clear that the circumstances
mentioned in this observation have number occurred in
the present case. the reversion has number in any way
affected the respondent so far as his companydition
and prospect of service are companycerned. he of
course lost the benefit of the appointment to the
higher rank but that by itself cannumber indicate
that the reversion was by way of punishment
because he had numberright to companytinue in the higher
post or to the benefits arising from it. he had
been reverted in exercise of a right which the
government had uncle the terms of the officiating
employment. the high companyrt seems to us to have
been in error in thinking that the governments
refusal to supply the respondent with the reasons
why action has taken against him proved that the
reversion was a reduction in rank by way of. punishment the refusal cannumber prove that. it may
give rise to a suspicion about the motive which
led the government
to take the action but it is number firmly
established that if the action is justifiable
under the terms of the employment then the motive
inducing the action is irrelevant in deciding the
question whether the action had been taken by way
of punishment see parshotam lal dhingras case
 1  at p. 862. it does number require to be repeated
number that unless the reversion is by way of
punishment s. 240  3  is number attracted. the high companyrt seems to have been in error
also in drawing an inference from the holding of
the departmental inquiry that the respondent must
have been reduced in rank by way of punishment. the departmental inquiry was held long after the
order reverting the respondent had been passed and
could number have been the occasion for the reversion
of the respondent. the government had the right to
consider the suitability of the respondent to hold
the position to which he had been appointed to
officiate. it was entitled for that purpose to
make inquiries about his suitability. this is all
that the government did in this case. this inquiry
cannumber show whatever the findings may have been
that the reversion earlier made was by way of
punishment. mr. anthony for the respondent referred us to
state of bihar v. gopi kishor prasad  2  in which
it was observed
but if instead of terminating such a
persons service without any enquiry the
employer chooses to hold an enquiry into his
alleged misconduct or inefficiency or for
or some similar reason the termination of
service is by way of punishment because it
puts a stigma on his companypetence and thus
affect his future career. that case dealt with the discharge of a
probationer officer on the ground that he was
unsuitable. the observation there made was
considered by this
court in the later case of the state of orissa v.
ram narayan das  1  where it was said
the third proposition in the latter
case refers to an enquiry into allegations of
misconduct or inefficiency with a view if
they were found established to imposing
punishment and number to an enquiry whether a
probationer should be companyfirmed. we would repeat that in the present case the
enquiry was companycerned with ascertaining the
suitability of the respondent for the higher rank
and was number a punishment.


k. das j.

this is an appeal on a certificate granted by the punjab high companyrt under art. 134 1  c  of the companystitution. the facts giving rise to the appeal are somewhat sordid and we shall set out such of them only as are relevant to it. on december 14 1954 a person whom we shall refer to as x submitted a written report to the superintendent of police delhi city to the effect that one of his daughters was being molested and threatened by the appellant and that he had received letters of an objectionable nature from him for the purpose of blackmailing and extorting money. some of these letters were shown to the superintendent of police. the latter sent the report to the station officer karol bagh police station with a direction to register a case under s. 506 indian penal companye and investigate it. the station officer investigated the case and submitted a charge-sheet against the appellant. he also took in charge some of the letters said to have been received by x. they companytained a reference to photographs of a daughter of x and at least one of the letters said that a sample photograph was being enclosed with it. these photographs it appeared subsequently in evidence were taken in the nude and were of a character which if made public would undoubtedly companypromise the reputation of the girl as well as of her father. x said in evidence that he first tried to persuade the father and other relatives of the appellant to exercise their influence on the appellant so as to put a stop to the blackmail. he however failed to get any sympathetic response from them. in numberember 1954 he met the appellant and requested him to behave properly the appellant however said that it was his profession to extort money by blackmail through girls and he further threatened that he would circulate the photographs to the relatives of the girl unless hush money was paid. the appellant was tried on a charge under s. 506 indian penal companye by the learned magistrate exercising first class powers at delhi. the learned magistrate found that the appellant took indecent photographs of the girl by showing false love to her and threatened x in letters written to him with publication of the photographs with intent to extort money from the latter. he accordingly companyvicted the appellant and sentenced him to rigorous imprisonment for one year. this was on may 18 1956.

on june 9 1956 the appellant preferred an appeal from his companyviction and sentence to the sessions judge of delhi. it appears however that on june 14 1956 kapur j. of the punjab high companyrt  as he then was  suo motu called for the record of the case on reading a report thereof in a newspaper and directed the issue of a numberice to the appellant to show cause why the sentence should number be enhanced. presumably this action was taken under the provisions of ss. 435 and 439 of the companye of criminal procedure. on august 17 1956 the appeal pending before the sessions judge of delhi was transferred to the high companyrt itself for hearing. we again presume that this order was passed under the provisions of s. 526 1  e  iii  of the companye of criminal procedure because neither the order dated june 14 1956 number the order dated august 17 1956 have been printed in the paperbook and the exact terms of the two orders have number been made available to us. the high companyrt heard together the appeal and the rule for enhancement. by a judgment pronumbernced on december 21 1956 it affirmed the finding of the learned magistrate upheld the companyviction dismissed the appeal and enhanced the sentence to two years rigorous imprisonment. on or about january 10 1957 an application was moved on behalf of the appellant for a certificate that the case was a fit one for appeal to this companyrt in which it was alleged  1  that on the finding of the learned magistrate affirmed by the high companyrt the appellant companyld number only be found guilty of the offence under s. 384 read with s. 511 indian penal companye for which the maximum punishment was 18 months only  2  that the high companyrt companyld number issue a numberice for enhancement of the sentence when an appeal form the companyviction and sentence was pending before the sessions judge  3  that the order transferring the appeal to the high companyrt was number validly made and in any case it was improperly made without issuing a numberice to the appellant and  4  that the procedure adopted had deprived the appellant of his right of getting first a decision from the companyrt of appeal and then anumberher from the high companyrt in the exercise of its revisional jurisdiction. by an order dated january 14 1957 falshaw j. of the punjab high companyrt gave the necessary certificate. he said in his order that though the grounds mentioned above were number urged before him at the time when the appeal and the rule for enhancement of sentence were heard by him it appeared to him that the grounds companyld be legitimately raised and the case was therefore a fit one for appeal to the supreme companyrt. the present appeal has companye before us on that certificate. learned companynsel for the appellant has urged before us the same four grounds which were taken on his behalf while asking for a certificate under art. 134 1  c  of the companystitution. we proceed number to companysider those grounds in the order in which we have stated them. learned companynsel for the appellant has drawn out attention to the charge framed against the appellant by the learned magistrate. that charge said in effect that in the years 1953 to 1954 the appellant companymitted criminal intimidation by threatening x and his daughter with injury to their reputation by publication of the nude photographs with intent to cause alarm to them. it is pointed out that there was numberreference to blackmail or extortion in the charge. the argument before us is that the charge mentioned that the intent was to cause alarm only to x and his daughter but the finding was that there was an attempt to extort money from x on the threat of publishing the objectionable photographs. it is companytended that on this finding the companyviction of the appellant under s. 506 indian penal companye was bad he might have been found guilty under s. 384 read with s. 511 indian penal companye if a charge were properly made under those sections. we are unable to accept this companytention as companyrect. we agree with the high companyrt that the charge framed against the appellant was number as clear as it might have been. it stated however that the offence of criminal intimidation was companymitted by threatening x and his daughter with injury to their reputation by having the indecent photographs published the intent mentioned was to cause alarm to x and his daughter. the real intention as disclosed by the evidence accepted by the trial magistrate and the high companyrt was to force x to pay hush money. section 506 is the penal section which states the punishment for the offence of criminal intimidation the offence itself is defined in s. 503. leaving out what is number necessary for our purpose the section last mentioned is in two parts the first part refers to the act of threatening anumberher with injury to his person reputation or property or to the person or reputation of anyone in whom that person is interested the second part refers to the intent with which the threatening is done and it is of two categories one is intent to cause alarm to the person threatened and the second is to cause that person to do any act which he is number legally bound to do or to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. on the findings arrived at against the appellant the first part of the section is clearly fulfilled and as to the intent it companyes more properly under the second category that is to cause x to do any act  in other wards to pay hush money  which he was number legally bound to do as a means of avoiding the execution of the threat. it is perhaps companyrect to say that the threat of publication of the photographs must have also caused alarm to x but the real intention of the appellant appears to have been number so much to cause alarm only as to make x pay hush money to him. it is number unumberten that a particular act in some of its aspects companyes within the definition of a particular offence in the indian penal companye while in other aspects or taken as a whole it companyes within anumberher definition. there are obvious differences between the offence of extortion as defined in s. 383 and the offence of criminal intimidation as defined in s. 503. it is unnecessary to dilate on those differences in the present case. all that we need say is that on the finding of the learned magistrate which finding was affirmed by the high companyrt the appellant was clearly guilty of the offence of criminal intimidation. we therefore hold that the companyviction of the appellant under s. 506 is companyrect. we further agree with the high companyrt that numberprejudice was caused to the appellant by reason of the defect if any in the charge as to the intent of the appellant. he was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him. we number go to the second point. learned companynsel for the appellant has drawn our attention to ss. 435 and 439 of the companye of criminal procedure. leaving out what is number essential for our purpose s. 435 states in substance that the high companyrt may call for and examine the record of any proceeding before any inferior criminal companyrt situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the companyrectness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such inferior companyrt. section 439 then states  we are again leaving out what is number essential for our purpose  that in the case of a proceeding the record of which has been called for by the high companyrt it may in its discretion exercise any of the powers companyferred on a companyrt of appeal and may enhance the sentence. in the case under our companysideration it is obvious from the materials on the record that the high companyrt called for the record on june 14 1956 in order to satisfy itself as to the propriety of the sentence passed by the learned magistrate and on the materials placed before us it is number possible to say that the high companyrt was aware that a few days earlier than june 14 1956 the appellant had preferred an appeal to the sessions judge of delhi. the argument before us is that when an appeal was pending before the sessions judge the high companyrt had numberpower to call for the record of the proceeding of the learned magistrate in order to satisfy itself about the propriety of the sentence passed. learned companynsel has put his argument in the following way. firstly he submits that the sentence passed by the learned magistrate was itself one of the points for companysideration in the appeal before the sessions judge and the question of the propriety of that sentence companyld only arise after that appeal had been disposed of. secondly he submits that the expression any proceedings of such inferior companyrt in s. 435 cannumber refer to the companyrt of the magistrate when an appeal was pending before the session judge. learned companynsel submits that in the circumstances of this case the power to call for the record of any proceeding before any inferior criminal companyrt given by s. 435 companyld be exercised only in respect of the proceeding before the learned sessions judge of delhi after the latter had dealt with the appeal. we do number think that these companytentions are companyrect. firstly these companytentions do number take numberice of what happened on august 17 1956 when the appeal pending before the sessions judge of delhi was transferred to the high companyrt itself for hearing. assuming that that order was valid and we shall presently give reasons for holding that it was a valid order of transfer the legal position was really this the high companyrt had before it the appeal preferred by the appellant as also the rule for enhancement of the sentence which had been issued after calling for the record under s. 435 criminal procedure companye. it is necessary to mention here that sub-s.  2  of s. 439 says that numberorder under s. 439 shall be made to the prejudice of an accused person unless he has an opportunity of being heard either personally or by pleader in his own defence and sub-s.  6  says that when an opportunity is given to a companyvicted person to show cause why his sentence should number be enhanced he will be entitled also to show cause against his companyviction. the numberice to show cause why the sentence should number be enhanced was issued in the present case by reason of the provisions of sub-s.  2  of s. 439 and in showing cause the appellant was entitled to show that the companyviction itself was wrong. the whole case against the appellant was therefore at large before the high companyrt. in the circumstances of this case there is numberpoint in the distinction which learned companynsel for the appellant is seeking to make as to the meaning of the expression such inferior companyrt for when the high companyrt was itself in seizin of the appeal the inferior companyrt from whose decision the appeal was being heard was clearly the companyrt of the magistrate who companyvicted and sentenced the appellant. after the appeal had been transferred from the file of the sessions judge of delhi the latter was numberlonger in the picture. secondly we do number companysider that learned companynsel for the appellant is right in limiting the scope of s. 435 in the way suggested by him. if the high companyrt was number aware of the filing of an appeal it was open to it to call for the record of the proceeding before the magistrate in order to satisfy itself whether the sentence passed was a proper one or number. when however it was brought to the numberice of the high companyrt that an appeal was pending before the sessions judge of delhi it companyld order that the appeal be withdrawn to the high companyrt so that the appeal and the rule companyld be heard together. we are unable to hold that the high companyrt companymitted any illegality in adopting the companyrse which it did. we must make it clear that we are number companysidering in the present case the question whether in exercise of the companybined powers of appeal and revision it is open to the high companyrt to set aside an order of acquittal. that is a different question altogether one aspect of which was dealt with by the privy companyncil in kishan singh v. the king emperor  1928  l.r. 55 i.a. 390. some of the earlier decisions of indian high companyrts on that question were referred to by their lordships. the later decisions on the same question were briefly summarised is a decision of the patna high companyrt ambika thakur v. emperor a.i.r.  1939  pat. 611. as we are number dealing with the question of the power of the high companyrt to set aside an acquittal in exercise of the companybined powers of appeal and revision numberuseful purpose will be served by reviewing the decisions on that question. it is sufficient to state that there is clear authority in the decision of the privy companyncil in in re chunbidya  1934  l.r. 62 i.a. 36 that in the exercise of its revisional powers under s. 439 criminal procedure companye a high companyrt upon having the record of a criminal proceeding brought to its numberice on an appeal from the companyviction therein can call upon the appellant to show cause why the sentence should number be enhanced and having heard and dismissed the appeal can forthwith enhance the sentence under that revisional power although precluded by s. 423  as it stood prior to its amendment in 1955  from doing so in the appeal. it is true that the appeal in the present case was originally preferred to the sessions judge of delhi and was subsequently transferred to the high companyrt. to that extent the present case can be distinguished from the facts of the case which the privy companyncil was companysidering  in re chunbidya   1934  l.r. 62 i.a. 36. we do number however think that on principle the distinction is of any materiality. provided the appeal was validly transferred for hearing to the high companyrt it was open to the high companyrt to enhance the sentence in exercise of its revisional power under s. 439 criminal procedure companye when it dismissed the appeal on merits after hearing the appellant. there can be numberdoubt in the present case that the appellant has had an opportunity of being heard both as to the companyrectness of his companyviction and the propriety of the sentence. section 423 criminal procedure companye deals with the powers of the appellate companyrt in disposing of an appeal. this section was amended by the companye of criminal procedure  amendment  act 1955  26 of 1955  which came into force on january 1 1956 and sub-s.  1a  was added which says that where an appeal from a companyviction lies to the high companyrt it may enhance the sentence numberwithstanding anything inconsistent therewith companytained in clause  b  of sub-s.  1 . we wish to make it clear that we are number basing our decision on the provisions of sub-s.  1a . those provisions do number apply in the present case because an appeal from the companyviction of the appellant did number lie to the high companyrt but lay to the sessions judge of delhi. the appeal came to the high companyrt on a valid order of transfer made under s. 526 criminal procedure companye. we are basing our decision on the power of the high companyrt to enhance the sentence under s. 439 criminal procedure companye after having given the appellant an opportunity to show cause in the matter of his companyviction as well as sentence. the decision of the privy companyncil in in re chunbidya  1934  l.r. 62 i.a. 36 was a decision with reference to s. 423 as it stood before its amendment in 1955. if in the present case an appeal from the companyviction lay to the high companyrt it would have been unnecessary for the high companyrt to invoke its powers under s. 439 criminal procedure companye. it companyld act under its powers under sub-s.  1a  of s. 423 criminal procedure companye. as however the appeal came to the high companyrt on an order of transfer the high companyrt had before it the appeal as well as the rule asking the appellant to show cause why the sentence should number be enhanced. it was necessary therefore for the high companyrt to companysider both the appeal and the rule and this the high companyrt did in the judgment which it pronumbernced on december 21 1956.

number as to the order of transfer. the provisions of s. 527 criminal procedure companye appear to us to be a sufficient answer to the companytention urged on behalf of the appellant. it states inter alia that whenever it is made to appear to the high companyrt that such an order is expedient for the ends of justice the high companyrt may order that any particular case or appeal be transferred and tried before itself. this is stated in express terms in s. 526 i  e  iii  and sub-s.  3  of s. 526 states expressly that the high companyrt may act on its own initiative in passing such an order. in this particular case the high companyrt had the further circumstance that it had earlier issued a rule for enhancement of sentence without knumbering perhaps that an appeal had been filed to the sessions judge of delhi a few days earlier. when this latter circumstance was brought to the numberice of the high companyrt it thought it expedient for the ends of justice to transfer the appeal to the high companyrt. we are unable to agree with learned companynsel for the appellant that the high companyrt companymitted any illegality in passing the order of transfer. it is true that the records does number disclose that any numberice was issued to the appellant before the order of transfer was made. it was open to the high companyrt to act on its own initiative and the appellant can make numbergrievance of the order of transfer on the ground of prejudice because the appellant was fully heard both as to the companyrectness of his companyviction and the propriety of the sentence originally passed against him by the learned magistrate. as to the last point that the procedure adopted had deprived the appellant of his right of getting first a decision from the companyrt of appeal and then anumberher from the high companyrt in the exercise of its revisional jurisdiction we do number think that there is any substance in it. the high companyrt had validly before it both the appeal and the rule for enhancement of sentence. it heard the appellant fully with regard to both. therefore numberquestion arises of depriving the appellant of any his rights under the companye criminal procedure. in companyclusion we wish to add that we have companysidered in the present case the question if the high companyrt companymitted any illegality in passing the two order one on june 14 1956 and the other on august 17 1956. we have held that the high companyrt companymitted numberillegality. numberhing said in this judgment should be taken as companymending or encouraging a departure from the usual practice which we understand is that when an appeal is pending before an inferior companyrt the high companyrt exercises if necessary its powers of revision after the appeal has been disposed of.


civil appellate jurisdiction civil appeal number 3677 of
1984.
from the judgment and order dated 17.5.1982 of the
delhi high companyrt in f.a. number 30 of 1975.

p. malhotra and n.k. sharma for the appellant. p. goyal ms. sunita vasudeva and r.c. verma for the
respondents. the judgment of the companyrt was delivered by
ojha j. this appeal by special leave has been filed by
the national insurance companypany limited new delhi against a
judgment of the delhi high companyrt in an appeal under section
110-d of the motor vehicles act 1939  hereinafter referred
to as the act . necessary facts may be stated herein in a nutshell. shri jugal kishore respondent number 1 was on 15th june
1969 driving a threewheeler scooter when he met with an
accident with bus number dlp-
3699 driven by shri rai singh respondent number 2 and owned
by m s. delhi janata companyoperative transport society limited
respondent number 3 he sustained injuries companysequent upon
which he made a claim for companypensation before the motor
accident claims tribunal delhi against respondent number. 2
and 3 and the appellant which was the insurer of the bus
aforesaid. the claim of respondent number 1 was companytested by
the appellant and also by respondent number 3 but proceeded ex
parte against respondent number 2. the tribunal awarded
compensation in the sum of rs.10.000 recoverable jointly and
severally from the appellant and respondent number 3. aggrieved
by the award of the tribunal respondent number 1 preferred an
appeal before the high companyrt of delhi and asserted that the
amount of companypensation awarded by the tribunal was
inadequate. his appeal was allowed by the high companyrt and the
award was modified. the high companyrt awarded a sum of rs. 100000 as companypensation to respondent number 1 with interest
at 9 per cent per annum from the date of institution of the
claim till realisation with companyts against the driver as well
as the owner of the bus as also against the appellant
insurance companypany. before granting special leave this companyrt required the
appellant to deposit rs. 100000 namely the amount of
compensation awarded by the high companyrt and permitted
respondent number 1 to withdraw the same. special leave was
granted on 14th september 1984 by the following order of
this companyrt. under the orders of this companyrt the appellant has
deposited rs. one lac which is the amount of
compensation awarded to the claimants. the
claimants have withdrawn the amount without
furnishing security. special leave granted on companydition that in
the event of reversal of the decision of the high
court the said amount shall number be refunded by
the claimants. stay of further execution of the
award companyfirmed. it has been urged by the learned companynsel for the
appellant that in view of the statutory provision companytained
in this behalf in clause  b  of sub-section  2  of section
95 of the act as it stood on the date of accident namely
15th june 1969 which happens to be prior to 2nd march
1970 the date of companymencement of amending act 56 of 1969
numberaward in excess of rs.20000 companyld have been made against
the appellant. before dealing with the submission we may
point out that the policy under which the bus aforesaid was
insured had number been
filed either before the tribunal or before the high companyrt. a
photostat companyy of the policy has however been filed in
this companyrt and learned companynsel for the respondents did number
have objection in the same being admitted in evidence. clause  b  of sub-section  2  of section 95 of the act as it
stood at the relevant time reads as under
95.  1

subject to the proviso to sub-section  1  a
policy of insurance shall companyer any liability
incurred in respect of any one accident up to
the following limits namely
 a

where the vehicle is a vehicle in which
passengers are carried for hire or reward or
by reason of or in pursuance of a companytract of
employment in respect of persons other than
passengers carried for hire or reward a
limit of twenty thousand rupees and in
respect of passengers a limit of twenty
thousand rupees in all and four thousand
rupees in respect of an individual passenger
if the vehicle is registered to carry number
more than six passengers excluding the driver
or two thousand rupees in respect of an
individual passenger if the vehicle is
registered to carry more than six passengers
excluding the driver
 c
on the plain language of the aforesaid clause  b  which
applies to the instant case it is apparent that the
liability of the appellant companyld number be in excess of
rs.20000. learned companynsel for the respondents however
urged that numberwithstanding the provision companytained in this
behalf in clause  b  aforesaid it was open to the insurer to
take a policy companyering a higher risk than companytemplated by
the aforesaid clause  b  and companysequently the said clause
had to be read subject to the terms of the policy which was
taken in the instant case. we find substance in this
submission in view of the decision of this companyrt in
pushpabai purshottam udeshi and others v. m s ranjit ginning
and pressing company and anumberher 1977 a.c.j. 343 where it was
held that the insurer can always take policies companyering
risks which are number companyered by the re-
quirements of section 95 of the act. we have accordingly perused the photostat companyy of the
policy to ascertain whether risk for any amount higher than
the amount of rs.20000 companytemplated by clause  b  aforesaid
was companyered. our attention was invited by learned companynsel
for the respondents to the circumstance that at the right
hand companyner on the top of page 1 of the policy the words
commercial vehicle companyprehensive were printed. on this
basis and on the basis that the premium paid was higher than
the premium of an act only policy it was urged by the
learned companynsel for the respondents that the liability of
the appellant was unlimited and number companyfined to rs.20000
only. we find it difficult to accept this submission. even
though it is number permissible to use a vehicle unless it is
covered at least under an act only policy it is number
obligatory for the owner of a vehicle to get it
comprehensively insured. in case however it is got
comprehensively insured a higher premium than for an act
only policy is payable depending on the estimated value of
the vehicle. such insurance entitles the owner to claim
reimbursement of the entire amount of loss or damage
suffered up to the estimated value of the vehicle calculated
according to the rules and regulations framed in this
behalf. companyprehensive insurance of the vehicle and payment
of higher premium on this score however do number mean that
the limit of the liability with regard to third party risk
becomes unlimited or higher than the statutory liability
fixed under sub-section  2  of section 95 of the act. for
this purpose a specific agreement has to be arrived at
between the owner and the insurance companypany and separate
premium has to be paid on the amount of liability undertaken
by the insurance companypany in this behalf. likewise if risk
of any other nature for instance with regard to the driver
or passengers etc. in excess of statutory liability if any
is sought to be companyered it has to be clearly specified in
the policy and separate premium paid therefor. this is the
requirement of the tariff regulations framed for the
purpose. companying to the photostat companyy of the policy in the
instant case it would be seen that section ii thereof deals
with liability to third parties. sub-section  1  minus the
proviso thereto reads as hereunder

subject to the limits of liability the companypany
will indemnify the insured against all sums
including claimants companyt and expenses which the
insured shall become legally liable to pay in
respect of

death or bodily injury to any person caused
by or
arising out of the use  including the loading
and or unloading  of the motor vehicle. damage to property caused by the use
 including the loading and or unloading  of
the motor vehicle . the schedule to the policy indicates the limits of
liability and the amount of premium paid. the limits of
liability are indicated as hereinbelow
limits of liability
limit of the amount of the companypanys such amount as is necessary
liability under section ii-1 1  in to meet the requirements of
respect of any one accidentthe motor vehicle act 1939
limit of the amount of the companypanys
liability under section ii-1 11  in
respect of any one claim or series of
claims arising out of one event rs.20000/-
the premium paid on the other hand is shown as below
premium rs.415.00
add 1/2 on i.e.v. rs.200.00
add for 53 pass 9 of rs.2.50 rs.132.50
add for driver companyductor rs.10.00
---------
757.50
---------
a perusal of the policy therefore indicates that the
liability undertaken with regard to the death or bodily
injury to any person caused by or arising out of the use
 including the loading and or un loading  of the motor
vehicle falling under section ii 1  i  has been companyfined to
such amount as is necessary to meet the requirements of the
motor vehicle act 1939. this liability as is apparent
from clause  b  of sub-section  2  of section 95 of the act
was at the relevant time rs.20000 only. the details of the
premium also indicate that numberadditional premium with regard
to a case falling under section ii 1  i  was paid by the
owner of the vehicle to the insurance companypany. it is only
the vehicle which was companyprehensively insured the insureds
estimate of value including accessories  i.e.v.  thereof
having been shown as rs.40000. in this view of the matter
the submission made by learned
counsel for the respondents that the appellant had in the
instant case undertaken an unlimited liability does number
obviously have any substance. the liability under the policy
in the instant case was the same as the statutory liability
contemplated by clause  b  of sub-section  2  of section 95
of the act namely rs.20000. an award against the appellant
could number therefore have been made in excess of the said
statutory liability. learned companynsel for the appellant then urged relying on
the decision of this companyrt in british india general
insurance company limited v. captain itbar singh and others air
1959 supreme companyrt 1331 that in view of the sub-section  6
of section 96 of the act numberinsurer to whom the numberice
referred to in sub-section  2  thereof has been given is
entitled to avoid his liability to any person entitled to
the benefit of any such judgment as is referred to in sub-
section  1  thereof otherwise than in the manner provided
for in sub-section  2 . on this basis it was urged that the
appellant was number entitled to assert that its liability was
confined to rs.20000 only inasmuch as this is number one of
the defences specified in sub-section  2  of section 96 of
the act. we find it difficult to agree with this submission
either. firstly in paragraph 12 of the report of this very
case it has been held that sub-section  2  of section 96 in
fact deals with defences other than those based on the
conditions of a policy. secondly from the words to avoid
his liability used in sub-section  6  of section 96 it is
apparent that the restrictions placed with regard to
defences available to the insurer specified in sub-section
 2  of section 96 are applicable to a case where the insurer
wants to avoid his liability. in the instant case the
appellant is number seeking to avoid its liability but wants a
determination of the extent of its liability which is to be
determined in the absence of any companytract to the companytrary
in accordance with the statutory provisions companytained in
this bahalf in clause  b  of sub-section  2  of section 95
of the act. in the instant case since as seen above the
appellant did number undertake in the policy any liability in
excess of the statutory liability the award against it companyld
be only in accordance with the said statutory liability. before parting with the case we companysider it necessary
to refer to the attitude often adopted by the insurance
companies as was adopted even in this case of number filing a
copy of the policy before the tribunal and even before the
high companyrt in appeal. in this companynection what is of
significance is that the claimants for companypensation under
the act are invariably number possessed of either the policy or
a companyy thereof. this companyrt has companysistently emphasised that
it is the duty of the party
which is in possession of a document which would be helpful
in doing justice in the cause to produce the said document
and such party should number be permitted to take shelter
behind the abstract doctrine of burden of proof. this duty
is greater in the case of instrumentalities of the state
such as the appellant who are under an obligation to act
fairly. in many cases even the owner of the vehicle for
reasons knumbern to him does number choose to produce the policy
or a companyy thereof. we accordingly wish to emphasise that in
all such cases where the insurance companypany companycerned wishes
to take a defence in a claim petition that its liability is
number in excess of the statutory liability it should file a
copy of the insurance policy along with its defence. even in
the instant case had it been done so at the appropriate
stage necessity of approaching this companyrt in civil appeal
would in all probability have been avoided. filing a companyy of
the policy therefore number only cuts short avoidable
litigation but also helps the companyrt in doing justice between
the parties. the obligation on the part of the state or its
instrumentalities to act fairly can never be over-
emphasised. in the result this appeal succeeds and is allowed to
this extent that the liability of the appellant is fixed at
rs.20000 together with interest as allowed by the high
court.


civil appellate jurisdiction civil appeal number 1655 of
1966.
appeal from the judgment and decree dated august 25 1964 of
the patna high companyrt in letters patent appeal number 119 of
1958.

goburdhun and r. goburdhun for the appellant. v. gupte d. p. singh and n. nettar for respondent number
1.

p. singh for respondents number. 2 to 4.
the judgment of the companyrt was delivered by
shelat j.-two questions arise in this appeal. the first is
whether the transaction evidenced by ex. 1 dated march 20
1915 was a family arrangement so as to companyfer on the
appellant an his father nanhku prasad since deceased
title to a half share in the house in dispute. the second
is that even if it was so whether such title became
extinguished as a result of adverse possession for the
statutory period by baijnath the deceased husband of
respondent 1.
the parties are near relations. the following genealogy
explains the relationship amongst them
rajkumar singh
lalji singh amar singh ramji singhraghunandan
reshmi kuer patreja kuersingh
nanhku pd. suba faujdar balkeshwar singh
 plff. number1
shambu pd. decnath singh
 plff. number 2
sonadhari girwardhari kamaldhari
tarke shwar pd. baijnath pd. alias
alias daljit nanu babu kamta prasad
 deft. number 2  died in 1948
phul kumari devi
 sons of deft.  widow
2-number. 3 to 7  deft. number 1.
there is numberdispute that amar singh purchased from his own
funds under a registered deed dated january 20 1898 the
land on which the house in dispute stands. his son
nankhu the deceased father of the present appellant was
taken in adoption sometime prior to march 20 1915 by ramji
singh and his wife patreja kuer as they had numberissue
whereupon nankhu ceased
to have any interest in the properties owned by amar singh
and his branch. in 1933 nankhu and the present appellant
then a minumber filed suit number 33 of 1933 against sonadhari
tarkeshwar baijnath and reshmi kuer  the widow of amar
singh wrongly described by the high companyrt as the wife of
rajkumar in the genealogy set out in its judgment  in
respect of certain properties which bad numberhing to do with
the house in dispute. the written statement filed in that
suit was that nankhu had been paid the price of his share in
the house in dispute and that the entire house
consequently belonged to and was since then in the ex-
clusive possession of the defendants. that suit went upto
the high companyrt when in 1941 a companypromise application was
filed by the parties settling that suit. but as the suit
had numberhing as aforesaid to do with the house in dispute
numberhing was said about the allegation that nankhu had been
paid off in respect of his interest in that house. in 1949 nankhu and the appellant filed the instant suit for
a declaration of their half share in the house in dispute. in answer to the suit the respondents raised three defenses
 1  that nankhu and the appellant derived numberinterest
under ex. 1.  2  that assuming that they derived such
interest it was relinquished by them on being paid the
price thereof and  3  that in any event they lost their
interest by reason of adverse possession by the respondents
the trial companyrt rejected all the three defenses raised by
the respondents and decreed the suit holding that nankhu
had acquired one half share in the said house under ex. i.
against that decree two appeals were filed in the high
court one by respondent i and the other by some of the
other respondentdents. these appeals were heard first by a
learned single judge of the high companyrt. before the learned
single judge the finding of the trial companyrt that nankhu and
the present appellant had number relinquished their interest in
the house on their being paid the price thereof was number
disputed. the only questions agitated before the learned
single judge therefore were whether nankhu had a half
share that is to say whether he derived his title to the
half share under and by virtue of ex. 1 and if so whether
he lost it as a result of adverse possession by the
respondents. in respect of the first question. the parties urged two
conflicting pleas. nankhu and the appellant companytended that
ex. i was a family arrangement under which he got half
share in the house and that that family arrangement was
valid and binding on the parties. the respondents on the
other hand companytended that ex. i was only a ladavi deed
that is a deed of relinquishment. the argument on behalf
of nankhu and the appellant was that there were outstanding
disputes between the different branches of the family of
rajkumar and those disputes
were ultimately settled at the instance of and with the aid
of certain family friends resulting in ex. i by way of a
family arrangement. therefore even if nankhu and the
appellant were number able to show their anterior title to the
house they were entitled under ex. i to a half share
therein. the learned single judge accepted the companytention
raised by nankhu and the appellant. his reasoning in this
connection was that although the land on which the suit
house stood was purchased by amar singh out of his own
funds it was purchased in the furzi name of lalji but
there was numberevidence that lalji ever admitted to be the
furzidar of amar singh. companysequently though nankhu by his
adoption lost all interest in the properties of amar
singh yet the fact that in ex. i amar singh acknumberledged
nankhu having a half share in the house indicated that there
was some apprehension in the mind of amar singh of a future
dispute and that it was such an apprehended dispute which
ex. 1 while dealing with the house settled. the learned
single judge added that even assuming that there was no
existing or apprehended dispute and the settlement was made
out of companysideration for the peace of the family or
preservation of its properties the settlement would have
to be regarded as a family arrangement. regarding the plea
of adverse possession he upheld the finding of the trial
court that nankhu and the appellant had established their
acts of possession during the statutory period and that
consequently the companytinuity and exclusiveness of the
respondents adverse possession had been disrupted. on
these findings he dismissed the appeals and companyfirmed the
decree passed by the trial companyrt. respondent i thereupon filed a letters patent appeal which
was heard by a division bench of the high companyrt. the same
two questions were reagitated namely as to the nature of
ex. 1 and as to the adverse possession. on the first
question the reasoning adopted by the division bench was on
the following lines
 1  that the executants of ex. i formed
three companyflicting groups namely

suba faujdar and balkeshwar
constituting one group of members of laljis
branch being executants 1 to 3

raghunandan and his son kamaldhari
being executants 4 and 5 and companystituting
raghunandans branch and

amar singh for himself and as the
guardian of baijnath then a minumber sonadbari
for himself and as guardian of his minumber son
tarkeshwar and nankhu who had
as earlier stated gone to the line of ramji
on his adoption being executants 67 and 8
 2  that the disputes in settlement of
which ex. i was executed by these three
groups were as its recitals show
 a  companyflicting claims made by the said
three sets of executants as to whether they
were joint or separate in status the claim of
executants 1 to 3 being that all the members
of rajkumars family were still members of an
undivided hindu family and that therefore
although the properties stood in the names of
and were in possession of individual members
they companytinued to be joint family properties
including properties standing in the names of
female members namely reshmi and patreja
 b  the allegation by executants 4 and 5
 raghunandans branch  that all the four
branches of rajkumars four sons were separate
and yet claiming share in the properties
standing in the names of members of laljis
branch and
 c  the claim by executants 6 7 and 8
 amar singh sonadhari and nankhu-by number in
the line of ramji  that the parties were
separate in status and therefore the
properties in the names of the two said
females belonged exclusively to them and the
members of the other branches had numberinterest
whatsoever in them-
 3  that the trial companyrt and the learned
single judge were in error in holding that
what ex. i did was to evidence relinquishment
by the rest of the members of the family of
their claims in properties standing in the
names of or in possession of particular
members and thereby acknumberledging their
anterior title in such properties. in fact
nankhu had numbersuch anterior title number companyld
be in law have any such title in the house in
dispute in view of his having got out of amar
singhs branch as a result of his adoption by
ramji
 4  that there was numbersubsisting or
apprehended dispute between amar singh and his
family on the one hand and nankhu on the
other the latter number having made any claim
for a share in the house in dispute and that
therefore there was numberquestion of
preservation of peace or family property
there being numberhing on record to show that
nankhu had held out any threat to the family
peace or property therefore there was a
total want of mutuality as in companysideration of
nankhu getting a half share
amar singh got numberhing in return and cases of
the type of williams v. williams 1  had no
application
 5  that the recitals in ex. i showed that
the only dispute which prevailed at the time
was branchwise and in that dispute nankhu
did number set up any companytest against amar singh
and his branch and indeed both of them acted
in companycert both claiming that the members of
rajkumars family were separate and the
properties standing in the names of reshmi and
patreja were their exclusive properties
 6  that acknumberledgement of exclusive title
of amar singh and sonadhari  executants 6 and
7  to certain properties and likewise
acknumberledgement of exclusive title of nanhku
 executant number 8  to certain other properties
set out in paras 3 and 4 of ex. i were number by
way of settlement of any existing or
apprehended dispute between them and
therefore that part of ex. i companyld number be
regarded as providing any companysideration for
conferring the half share in the disputed
house on nanhku. on this reasoning the division bench declined to treat ex. i as a family arrangement. the companyclusion of the bench
clearly signified that it had relied on two fundamental
premises  1  that there were only three sets of executants
the third set companysisting of executants 6 7 and 8 and  2
that amar singh and nanhku had acted in companycert as there
were numberconflicting claims by and between them. in view of this companyclusion there was numberneed for the divi-
sion bench to go into the question of adverse possession. however it decided to do so for the reason that although
the finding on the question of adverse possession was
concurrent it had bee- seriously challenged before it. on this question the division bench firstly relied on the
municipal assessment register for 1900-1901  ex. d  and
the extract from the demand register of a patna municipality
for 1915-16  ex. e . ex. d showed the name of amar singh
as the sole owner of the property. ex. e mentioned
sonadhari and baijnath only as the owners of the house as
amar singh had died soon after ex. i was brought into
existence. the division bench was impressed by the fact
that though only recently in march 1915 nanbkus half
share in the house had been acknumberledged in ex. 1 his name
was deliberately omitted in ex. e which meant that
sonadhari and baijnath had openly asserted their title to
the whole of the house and yet anhku took numbersteps to assert
his title. number did he at any time
 1  1867 2 cb. a. 294.
pay his share of the municipal taxes and the companyts of
repairs carried out later on by baijnath. the division
bench was also impressed with the fact that even when
baijnath in his written statement in suit number 33 of 1933
claimed that nanhkus share had been paid off and be had
since then been in exclusive possession of the entire house
nankhu took numbersteps to vindicate his title until he and his
son filed the present suit in 1949. the division bench came
to the companyclusion that there was number only an assertion of a
hostile claim by baijnath but that that assertion was
accompanied by an ouster which remained open and companytinuous
throughout the statutory period. as regards the evidence
khat nanhku and sometimes his wife came and stayed in the
house the division bench took the view that these were
casual visits in the nature of visits of guests of the
defendants and therefore did number have the effect of
interrupting the companytinuity and the exclusiveness of
possession by the respondents. the bench even observed that
the respondents had companypleted their title by adverse
possession long before baijnath claimed exclusive possession
in his said written statement in 1933. in this view the
division bench held that nanhkus title in the house was
extinguished by adverse possession. the division bench
accordingly allowed the respondents appeal with companyts all
throughout. both the companyclusions of the division bench have
been challenged before us as incorrect. on the question as to the nature of ex. i a large number of
decisions were cited at the bar to show when a transaction
can be said to be a family arrangement. it is number necessary
to advert to them as most of them have been companysidered by
this companyrt in its previous decisions wherein principles as
to when an agreement can properly be regarded as a family
arrangement have been set out thus in pullaiah v.
narasimham 1  after setting out how companyrts in england view
family arrangements subba rao j.  as he then was  observed
that the companycept of such a family arrangement has also been
accepted by companyrts in india adapting the companycept to suit
the family set up in this companyntry which is different in many
respects from that obtaining in england. after examining
some earlier decisions which be characterized as
illustrations of how family arrangements were viewed he
summarized the law as to a family arrangement as follows -
briefly stated though companyflict of legal
claims in praesenti or in future is generally
a companydition for the validity of a family
arrangement it is number necessarily so. even
bona fide disputes present or possible which
may

a. i. r. 1966 s. c. 1837.
number involve legal claims will suffice. members of a joint hindu family may to
maintain peace or to bring about harmony in
the family enter into such a family arrange-
ment. if such an arrangement is entered into
bona fide and the terms thereof are fair in
the circumstances of a particular case companyrts
will more readily give assent to such
arrangement than to avoid it. even in england family arrangements are viewed as arrange-
ments governed by principles which are number applicable to
dealings between strangers. the companyrts when deciding the
rights of parties under family arrangements companysider what
is most for the interest of families and have regard to
considerations which in dealings between persons number members
of the same family would number be taken into account. matters
which would be fatal to the validity of similar transactions
between strangers are number objections to the binding effect
of family arrangements.  see halsburys laws of england
 3rd ed.  vol. 17 215 . thus in williams v. williams 1
the companyrt held that a family arrangement might be such as
the companyrt would uphold although there were numberrights in
dispute and if sufficient motive for the arrangement was
proved the companyrt would number companysider the adequacy of companysi-
deration. but the question of companysideration or mutuality
would arise as williams case 1  shows when other
considerations such as existing or an apprehended dispute
or the question of preservation of property or honumberr of the
family are absent so that it is number necessary for a valid
family arrangement that there must exist actual companypetitive
claims or disputes or that the arrangements must be backed
by proper companysideration. even disputes likely to arise in
future or preservation of family property and honumberr would
be sufficient to uphold an arrangement bona fide made
between the members of a family. what actually happens when such a family arrangement is made
is explained by bose j. in sahu madho das v. mukund ram 1
in the following words
it is well settled that a companypromise or
family arrangement is based on the assumption
that there is an antecedent title of some sort
in the parties and the agreement acknumberledges
and defines what that title is each party
relinquishing all claims to property other
than they had previously asserted to the
portions allotted to them respectively. that
explains why numberconveyance is required in
these cases to pass the title from the one in
whom it resides to the person receiving it
under the
 1  1867 2 ch. a. 294.  2  1955 2 s. c. r. 22.
family arrangement. it is assumed that the
title claimed by the person receiving the
property under the arrangement had always
resided in him or her so far as the property
falling to his or her share is companycerned and
therefore numberconveyance is necessary. he went on to say that this was number the only kind of
arrangement which the companyrts would uphold and that they
would take the next step of upholding an arrangement under
which one set of persons abandons all claims to all title
and interest in all the properties in dispute and
acknumberledges that the sole and absolute title to all the
properties resides in only one of their number  provided he
or she had claimed the whole and made such an assertion of
title  and are companytent to take such properties as are
assigned to them as gifts pure and simple from him or her or
as a companyveyance for companysideration when companysideration is
present. in such a kind of arrangement where title in the
 entire property is acknumberledged to reside in only one of
them and thereupon that person assigns parts of it to others
there would be a transfer by that agreement itself which
obviously in such a case would need a registered document. this decision lays down the assumption underlying a family
arrangement namely of an anterior title and its
acknumberledgement in one to whom a property or part of it
falls under the arrangement.  see also rani mewa kuwar v.
rani hulas kuwar 1 . therefore it is number necessary that
there must exist an anterior title sustainable in law in
such a person which the others acknumberledge. the arrangement under challenge has to be companysidered as a
whole for ascertaining whether it was made to allay
disputes existing or apprehended in the interest of
harmony in the family or the preservation of property. it
is number necessary that there must exist a dispute actual or
possible in the future in respect of each and every item of
property and amongst all members arrayed one against the
other. it would be sufficient if it is shown that there
were actual or possible claims and companynterclaims by parties
in settlement whereof the arrangement as a whole had been
arrived at thereby acknumberledging title in one to whom a
particular property falls on the assumption  number actual
existence in law  that he had an anterior title therein. in the light of these decisions we must number examine ex. i
to see if the companytention of the appellant that it was a
family arrangement is companyrect or number. the document ex. 1 after reciting the death of the companymon
ancestor rajkumar his leaving him surviving four sons and
the
 1   1873-1874  l. r. 1 i. a. 157. at 166.
deaths of certain other family members thereafter reads as
follows
signs of ill feeling developed among us the
executants number. 1 to 8 and at the time of
survey and settlement operations dispute in
connection with the properties arose. on
account of dispute wrong statements and claim
were made. on account of which the names of
some of us the executants were recorded in a
wrong manner on the record of rights and in
the office of the land registration
department in respect of some of the
properties having regard to the real state of
affairs and title. at the time of the survey
and settlement operations etc. the claims and
allegations of us the executants number. 1 to 3
were that we the executants are all members
of the joint family and the properties
standing in the names of a certain member of
the family as well as those in the name of
certain female member of the family belong to
the joint family. companytrary to this the
claims and allegations of us executants number. 4
to 5 were that all the four sons of raj kumar
singh became separate and that executants number. 1 to 3 always companytinued to remain separate
from the  other  executants and executants
number. 4 and 5 separate from the  other
executants and executants number. 6 to 8 separate
from the other executants but in spite of
this allegation of separation executants number. 4 and 5 on account of dispute made companytrary
to the real state of affairs with respect to
certain properties owned and possessed by
executants number. 1 to 3 and executants number. 6
to 8 also made allegations and claims of
separation and it was alleged that executants
number. 1 to 5  ?  neither had number have any
connection and companycern with the properties
which were and are in the names of mosst. patriga kuer and mosst. reshmi kuer although
numberparty was member of a joint family number was
any property joint. as the dispute among us
the executants is companytrary to the real state
of affairs and in case the said dispute
continues there is apprehension of
consideration loss and damage to us the
executants therefore on the advice of the
well wishers of the parties and of the
respectable persons and on the advice of the
legal advisers of the parties as also with a
view to set at rest all kinds of dispute it
was settled that all the disputes should be
put to an end by executing a deed of
agreement by way of a deed of relinquishment
of claims  ladavi  and the property which is
actually owned and possessed by a certain
party should be declared to belong to that
party exclusively and as a
matter of fact the family of us the
executants is separate and the property
which stands in the name of a certain person
has been purchased from his or her funds and
in respect of his or her name should companytinue
to remain entered in the land registration
department etc. and the name should be entered
if the same is number entered and the other
parties totally gave up their claim with
respect thereto. then follow parts 1 to 4 in each of which certain properties
are set out and in respect of which title of each of the
four sets of the executants is acknumberledged by the rest. para 4 which relates to properties falling to the share of
nanhku executant 8 companymences with the declaration by the
rest of the executants including amar singh and sonadhari
that nanhku was the adopted son of ramji and patreja kuer
that certain properties set out therein were exclusively
acquired by patreja kuerand that nanhku as the adopted son
of ramji and patreja kuer was exclusively entitled to them
on the death of patreja and that we the executants number. 1 to 5 6 and 7 and the heirs of executant number 6 neither
have number shall have any claim title or possession and
connection in respect thereof in any manner and on any
allegation. following up the arrangement made in paras i
to 4 four schedules giving particulars of properties which
were acknumberledged to be belonging to the four sets of
executants were appended to ex. 1. as regards two houses. one at rajipur and the other in dispute schs. 3 and 4 both
set out a half share in them as belonging to executants 6
and 7 and the other half as belonging to executant 8 i.e. nanhku in each of them. as already stated the fundamental premise on which the
division bench proceeded to companysider ex. i was that there
were three sets of executants namely those belonging to
laljis branch i.e. executants 1 to 3 those belonging to
raghunandans branch i.e. executants 4 and 5 and the third
set companysisting of amar singh and sonadhari executants 6 and
7 and nanhku executant 8. the second premise on which the
division bench rested its entire reasoning was that whereas
there were disputes between the three sets of executants
there were numberdisputes between amar singh sonadhari and
nankhu that in fact the three of them acted in companycert and
that therefore one half share given to nanhku in the house
in dispute was altogether voluntarily given without any
anterior title and without any claim or dispute raised by
nanhku in respect thereof. in our view both the premises
were incorrect rendering the companyclusion drawn therefrom
untenable. it is true that amar singh had in 1898 purchased out of his
own moneys the land on which the suit house stands. it is
also true that nanhku was adopted sometime. before the
execution of ex. 1 and therefore on the date of its
execution he companyld number have any valid claim enforceable in
law any property belonging to amar singh and his branch. but as stated earlier a dispute or a companytention the
settlement of which can companystitute a family arrangement
need number be one which is actually sustainable in law. the
harmony in a family can be unsettled even by companypetitive and
rival claims which cannumber be upheld in law. therefore if
amar singh and the other executants or some of them were to
challenge for instance the factum or the validity of
nanhkus adoption or if numberwithstanding his adoption
nanhku were to make a claim in properties held by amar singh
and his branch or if some of the executants were to claim
that the family of rajkumar was still a joint and undivided
family or that though the members of the family were
separate the properties held in the individual names of
some of them including reshmi kuer and patreja kuer were
joint there would be sufficient disputes to companystitute a
settlement of them a family arrangement. a claim made by
executants 1 to 5 that the properties held by reshmi kuer
and patreja kuer were number their separate properties but-were
joint family properties liable to be partitioned amongst
all was bound to affect both amar singh and nanhku if such
a claim were to be persisted and dragged to a companyrt of law
there is numbergainsaying that it would put into jeopardy number
only the interests of amar singh and nanhku but also the
harmony of the family. the recitals in ex. i clearly show that whereas members of
laljis branch were claiming that the family was still joint
and undivided and therefore they had interest in all the
properties irrespective of their standing in the names of
particular individuals raghunandan and his son claimed that
the members of the family were number joint and yet claimed
share in all the properties including those standing in the
names of reshmi kuer and patreja kuer. thus the claims by
executants 1 to 5 were definitely hostile to the interests
of amar singh to the extent of the properties standing in
the name of reshmi kuer and of nanhku to the extent of the
properties standing in the name of patreja kuer. the claims
made by the branches of lalji and raghunandan sought to
bring all the properties into hotch potch including those
held by resbmi kuer and patreja kuer thus affecting the
rights of amar singh and nanhku in the different properties
and number the same properties. their interests therefore
were number identical and there was thus numberreason for them to
act jointly. indeed there was numberevidence whatsoever and
numberhing in ex. i itself to show that they were acting in
concert as assumed by the division bench. 13-1 s. c. india/71
it is true that the recitals in ex. i do number expressly set
out any companyflict of claims between amar singh and nanhku. nevertheless it is significant that in para 4 of ex. i the
executants found it necessary to insert therein a
declaration number only by executants 1 to 5 but also
executants 6 and 7 that nanhku was the adopted son of ramji
and patreja kuer that on the death of patreja kuer he as
such adopted son was absolutely entitled to the properties
set out therein in addition to those which stood in the name
of patreja kuer. if the adoption of nankhu was accepted by
all and was number made the subject matter of any doubt or
dispute there was numbernecessity of including such a
declaration and in particular joining executants 6 and 7 in
such a declaration. if amar singh and nanhku were acting in
concert why had amar singh and his son sonadhari as
executants 6 and 7 to be joined as declarants to the
adoption of nanhku. para 4 of ex. i also shows that there
were certain bonds and mortgage deeds standing in the name
of patreja kuer which were acquired from out of the personal
funds of ramji. such a statement had to be acknumberledged in
paragraph 4 presumably because rights in those bonds and
deeds were number admitted to be the exclusive rights of
patreja. if those rights were to be treated as joint family
property as claimed by executants 1 to 5 amar singh would
get a share in them and to that extent his interest must be
said to be in companyflict with that of nanhku. a similar
result would follow if properties standing in the name of
rashmi kuer were to be treated as joint family properties. it would number therefore be companyrect to assume that in the
disputes amongst the different branches of the family. nanhku and amar singh were acting in companycert or that there
was numberconflict of interest between them. in our judgment
the parties to ex. i arrived at a settlement in view of
claims and cross claims by some against the others. taken
as a whole and in the light of the recitals and the
statements in the operative part of the document indicating
conflicts amongst the members of the family the document
represented an arrangement bona fide entered into for
settling existing or at any rate apprehended disputes and
therefore satisfied the tests of a family arrangement laid
down in the decisions earlier referred to. in this view
nanhku must be said to have acquired a half share in the
house in dispute under ex. 1.
on the question of adverse possession by a companysharer against
anumberher companysharer the law is fairly well settled. adverse
possession has to have the characteristics of adequacy
continuity and exclusiveness. the onus to establish these
characteristics is on the adverse possessor. accordingly
if a holder of title proves
that he too had been exercising during the currency of his
title various acts of possession then the quality of those
acts even though they might number be sufficient to companystitute
adverse possession as against anumberher may be abundantly
sufficient to destroy that adequacy and interrupt that
exclusiveness and companytinuity which is demanded from a person
challenging by possession the title which he holds.  see
kuthali moothavar v. paringati kunharankutty 1 . as between
co-sharers the possession of one companyharer is in law the
possession of all companysharers. therefore to companystitute
adverse possession ouster of the number-possessing companyharer
has to be made out. as between them therefore there must
be evidence of open assertion of a hostile title companypled
with exclusive possession and enjoyment by one of them to
the knumberledge of the other.  see lakshmi reddy v. lakshmi
reddy 1  and also mohammad baqar v. naim-un-nisa bibi.  3
but once the possession of a companysharer has become adverse
as a result of ouster a mere assertion of a joint title by
the dispossessed companysharer would number interrupt the running
of adverse possession. he must actually and effectively
break up the exclusive possession of his companysharer by re-
entry upon the property or by resuming possession in such a
manner as it was possible to do.  see wuntakal yalpi
chanabasavana gowd v. y. mahabaleshwarappa 4  . the mere
fact that a dispossessed companysharer companyes and stays for a few
days as a guest is number sufficient to interrupt the
exclusiveness or the companytinuity of adverse possession so as
number to extinguish the rights of the dispossessed companysharer.  see ammakannu ammal v. naravanaswami mudaliar 5  . on this issue the parties led companysiderable evidence oral
and documentary. on examination of that evidence both the
trial companyrt and the learned single judge gave a companycurrent
finding that even if the possession by the respondents was
adverse the appellant and his father had done acts of
possession at various intervals which were sufficient to
interrupt both the companytinuity and the exclusiveness of
possession by the respondents. the division bench however
did number agree with the companycurrent finding on a reappraisal
of the evidence. by it. it is number necessary for us to go
into the details of that evidence once again as certain
facts clearly emerge out of the evidence to prevent the
extinguishment of nanhkus and the appellants title in the
property as a result of adverse possession by the
respondents. the principal facts which impressed the division bench were

that though in the demand register of patna
municipality for 1915-16  ex. e  sonadhari and baijnath
were the only
 1  1921 48 i. a. 395 404.

a. i. r. 1956 s. c. 548.

a. i. r. 1923 mad. 633.  2  1957 s.c.r. 195 202.  4  1955 1 s. c. r. 131 138.
persons named as occupiers nanhku had number taken steps to
include his name  2  that all throughout it was sonadhari
and baijnath who paid the municipal taxes and nanhku at no
time paid his share of the taxes or his share in the companyt of
repairs and laying of a water pipe in the house and  3
that though in his written statement in suit number 33 of 1933
baijnath claimed that he was in exclusive possession of
the house as he had paid nanhku the proportionate price of
his share nanhku did number take any steps to vindicate his
title until he and his son filed the present suit in 1949 by
which time the statutory period for adverse possession had
already been companypleted. there was however evidence  if nanhku and his wife having
stayed on different occasions in the house. but the
division bench was of the view that such acts of possession
were only casual and did number have the effect of interrupting
the adverse possession of the respondents. it needs to mention in this companynection that nanhku was all
along residing in a village and number in patna therefore his
acts of possession companyld only be when he came down from his
village for some work to patna. in 1915-1916 when
sonadhari got his name and that of baijnath entered in the
demand register  ex. e  it might be that nanhku did number
knumber that they had omitted his name. his half share in the
house had been acknumberledged in ex. i only recently by amar
singh and sonadhari as well. relations between the parties
had number yet become unfriendly so as to make nanbku suspect
that his name would be deliberately omitted in the municipal
records or that possession by sonadhari and later on by
baijnath would be treated by them as adverse. baijnath no
doubt was using the whole house but so long as his
possession did number amount to ouster his possession would be
that of both the companysharers. if baijnath used the entire
house except when nanhku stayed in it during his occasional
visits nanhku would naturally think that baijnath should
pay the taxes. it was number the case of the respondents that
baijnath ever demanded a share in the taxes or a share in
the companyt of repair and that such a demand was refused by
nanhku. the high companyrt on these facts was number right in
observing that the title of baijnath was already companypleted
by adverse possession long before baijnath filed his written
statement in 1933 as mere use and enjoyment by him of the
house in the absence of such use amounting to ouster would
number make it adverse possession. it was for the first time that in the written statement
filed in 1933 baijnath openly asserted his title to the
whole of the house. since that assertion was accompanied by
the fact that he was in enjoyment of the whole house that
act would amount
to ouster and adverse possession would companymence as from that
date. obviously the earlier possession companyld number be tacked
on to the subsequent possession because the plea in that
very written statement was that baijnath had paid off the
price of nanhkus share thereby implied admitting nankhus
title to a half share in the house. suit number 33 of 1933 in
which baijnath filed the said written statement was settled
in 1941. in the companypromise application filed by nankhu and
baijnath both of them stated that they were residing in
that house. that assertion by nanhku was never disputed by
baijnath. but apart from that assertion there was the fact that
nanhku had numberother place to reside in patna. his case was
that whenever he visited patna he used to stay in the house
in dispute. apart from that assertion being natural his
evidence in that companynection was companyroborated by prabhu
narain p.w. 4 an advocate residing in the neighbourhood. the division bench brushed aside his evidence without giving
any adequate reason although it bad been accepted by both
the trial companyrt and the learned single judge. in the light
of this evidence it is number possible to say that all
throughout the period from 1933 till the statutory period
for adverse possession was companypleted nanhku had number stayed
in the house at any time. respondent herself admitted that
on suit number 33 of 1933 being settled relations between
nanhku and baijnath became friendly. if that be so it was
natural that nankhu would stay in the house whenever be
visited patna in 1941 and thereafter. the municipal survey khasra  ex. 2  dated december 19 1933
mentions nanhku along with sonadhari and baijnath as owners
of the house. since this entry was made after baijnath had
made a hostile claim to the entire house in the written
statement filed in suit number 33 of 1933 on september 16
1933 the entry must presumably have been made at the
instance of nanhku. such an act on his part would be a
clear assertion of his title in the house. under the bihar
and orissa municipal survey act 1 of 1920 before such
khasra was finalised it had to be published and objections
to it if any had to be invited and disposed of. no
objection was ever raised by baijnath to the said khasra. it is surprising that baijnath did number resist the entry in
the khasra although he had made a claim to the whole of the
property only three months before the date of the khasra. that indicates that his claim as merely a companynterblast
against nanhkus suit. the view of the division bench that the occasional putting
up by nanhku and his wife in the disputed house was merely
casual and was. in the nature of visits as guests of the
respondents
cannumber be accepted. such stay however occasional
would. number be casual as it was accompanied by an open
assertion of his title as evidenced by the khasra  ex. 2 . it companyld number also be that he stayed in the house as the
guest of the respondents because after he filed the suit in
1933 and until it was settled his relations with baijnath
could number have been friendly. these acts on the part of
nanhku were ample enumbergh to interrupt the companytinuity and the
exclusiveness of possession by baijnath. the division bench also relied on a sale deed  ex. c  dated
october 12 1933 executed by baijnath and tarkeshwar in
favour of one kamalnain pandey. the high companyrt appears to
have taken the view that the land sold under ex. c
appertained to for was part of the land on which amar singh
had put up the disputed house and that although baijnath
and tarkeshwar sold part of that land numberobjection was
taken at any time to such a sale by nanhku. the recitals in
ex. c show that the land sold under ex. c. was jointly
purchased on january 20 1898 by. amar singh and one
gajadhar singh for companystruction of a house thereon. amar
singh had a share in the said land to the extent of i katha
15 dhurs while his c0-purchaser had a share of 2 kathas 15
dhurs. the recitals further show that amar singhs original
intention in purchasing the land was to build a house
thereon. he appears to have given up that idea as till this
sale took place the land was lying waste and unutilised. it
is important to numbere that this sale was for i katha 10
dhurs out of 1 katha 15 dhurs which was the share of amar
singh. this land obviously companyld number be the land on which
the house in dispute was built for if that was so
baijnath companyld number have sold away i katha 10 dhurs out of
the total extent of katha 15 dhurs to which amar singh was
entitled. the house companyld number have stood on 5 dhurs only. therefore the land sold under ex. c was a land different
from the one on which the disputed house was situate. this
conclusion is also borne out by the description of the sold
land in the schedule to ex. c where its numberthern boundary
is described as follows
numberth parti  waste  land thereafter the house of
us the executants. this description shows that between the disputed house and
the land sold under ex. c there was to the numberth of it some
waste .land. the land sold under ex. c being different
land the high companyrt was number right in relying on that sale
deed to prove adverse possession on the ground at nanhku
never took objection to the said sale. he companyld number as
this land had numberhing to do with the house in dispute. besides the evidence discussed above there was other
evidence. but the incidents therein described were
irrelevant on the question of adverse possession as they
took
place in 1948 and thereafter that is to say a long time
after title by adverse possession would have been companypleted
if such adverse possession were to be accepted as
established.