civil appellate jurisdiction civil appeal number 515 of 1970.
appeal by special leave from the judgment and order
dated the 19th february 1970 of the allahabad high companyrt
 lucknumber  bench  lucknumber in second appeal number 362 of 1966.

l. sanghi and r.p. gupta for the appellant. c. mathur and c.p. lal for respondent number. 2 3.
the judgment of companyrt was delivered by
koshal. j. this is an appeal by special leave against a
judgment of a learned single judge of the high companyrt of
allahabad dated 19th february 1970 reversing in a second
appeal the first appellate decree passed on 1st june 1966
by the district judge rae bareli in companyfirmation of the
decree of the trial companyrt. the prayer made by the plaintiffs
in the suit which was dismissed by the first two companyrts
was to the effect that a sale-deed executed on 14th
february 1964  exhibit a-1  by defendant number 2 in favour of
defendant number 1 in respect of a portion of a block of houses
situated in rae bareli be cancelled and that possession of
that portion be delivered to the plaintiffs who should also
be awarded mesne profits. while accepting the second appeal
the high companyrt decreed the suit except in regard to mesne
profits. most of the facts giving rise to this appeal are
undisputed and may be briefly stated with reference to the
following pedigree table
sheo dularey misra-radhika devi  plaintiff number 1
parmeshwar din mishra  defendant number 2
gajendra narain sunil
 plaintiff number 2   plaintiff number 3
in the years 1916 and 1918 sheo dulary misra  s.d. mishra for short  who was a leading lawyer at rae bareli
purchased a block of houses in that town by means of two
sale-deeds  exhibits 2 and 3  both executed by one shambhu
dayal. in the year 1931 s.d.mishra filed a suit against his
father and brothers for a declaration
that he was the absolute owner of the rae bareli houses
above a mentioned as also of a 4 annas and 9 pies share in
proprietory zamindari situated in mohal badri prasad of
village tera baraula in pargana and district rae bareli. on
the 29th august 1931 a decree based on a companypromise  exhibit
5  was passed in that suit to the effect that s.d. mishra
was the exclusive owner of the rae bareli houses and also of
a half of the salid 4 annas and 9 pies share in the
zamindari . on the death of s.d. misra in l951 his entire property
was mutated in the name of defendant number 2 both in the
revenue records as well as in the registers maintained by
the rae bareli municipal companymittee. from then onwards till
the date of the disputed sale-deed  exhibit a-i  defendant
number 2 was in possession of the entire property left by his
father and also acted as its exclusive manager. he received
compensation for some of the zamindari property a part of
which was also sold by him on the 12th january 1959 to one
imam ali for a companysideration of rs 800  vide exhibit a-19 . in the years 1960 and 1961 defendant number 2 companystructed a
one-storey building on a plot of land in khurshid bagh
lucknumber where he was employed as a clerk in the department
of health of the government of uttar pradesh and where he
was residing with his wife and children. the disputed sale-deed  exhibit a-1  was executed by
defendant number 2 on the 14th february 1964 in respect of the
western portion of the said block of houses for rs. 6500 in
favour of k.c. kapoor defendant number 1 who is the sole
appellant before us. in that sale-deed defendant number 2
described himself as exclusive and companyplete owner of the
rae bareli property and claimed that he was in possession
and occupation thereof with powers of transfer of all
kinds . the necessity for the sale was thus described by
him
i am companystructing a house in mohalla khurshed
bagh city lucknumber the lower portion whereof has
already been companystructed and for the companystruction of
the upper portion whereof funds are required. this litigation started on the 17th september 1964
with the institution of a suit by the three plaintiffs. it
was claimed therein that on the death of s. d. misra
plaintiff number 1 succeded to a half share in his property
being his widow while the other half
was inherited by defendant number2 so however that his sons
 plaintiffs number. 2 and 3  had an interest therein by birth. in other words while half of the property left by s.d. mishra was claimed to belong exclusively to radhika devi
plaintiff number 1 in respect of the other half the assertion
was that it belonged to a companyarcenary companysisting of
defendant number 2 and his two sons. the relief of a possession
of the property sold by virtue of sale-deed exhibit a-l was
prayed for in companysequence of the cancellation of that
document which was sought to be set aside for the reason
that the transaction companyered by it was number for any necessity
of the said family. in the written statement the stand taken by
defendant number 1 was that defendant number2 was the sole owner
of the entire block of houses above mentioned and had full
power to alienate the same but that even if it was proved
to be companyarcenary property as alleged the sale would still
be good as it was made for legal necessity. in this
connection the companytents of paragraph 15 of the written
statement may be quoted here with advantage-
that defendant number 2 sold the house in suit for
the purpose of building a more profitable and
advantageous house at lucknumber and with a view to
dispose of a companystruction which was old and in perilous
condition and which was of numberpersent utility. even if
the house in suit is proved to be joint family property
the transfer is for legal necessity by the karta and is
binding on the joint family and the plaintiffs. two other material pleas were put forward in paragraph
14 and 16 of the written statement and are extracted below

that defendant number 2 represented to the answering
defendant number 1 that defendant number 2 was the sole
owner of house a portion of which is the subject
matter of dispute and in fact he has all along
been acting as sole owner of the properties left
by his father. the answering defendant number i also
made diligent and reasonable enquiries about the
right title and interest of defendant number 2 and
his sole power to transfer it and as such the
answering defendant is a transferee in good faith
for companysideration and without numberice. that defendant number 2 executed the sale-deed in
favour of the answering defendant with the active
consent and
approval of plaintiff number i and plaintiff number 1 is
estopped from asserting her right against it. statements of companynsel for parties were recorded by the
trial companyrt on the 27th april 1965 when it framed 8 issues
of which issues number. i to 3 s and 7 were

whether plaintiffs and defendant number 2 formed a
joint family ? if so who was the karta of the
family ? whether plaintiffs number. 2 and 3 have interest in
the house in suit by birth ? whether defendant number 2 had a legal necessity to
sell the house ? if so its effect ? whether defendant number i is a transferee for value
in good faith and is entitled to protection of
section 41 of the transfer of property act ? whether the suit by plaintiff number 1 is barred by
estoppel ? statements of learned companynsel for the parties were
again re companyded on 28th may 1965 and 31st may 1965. on
behalf of defendant number 1 a part of his case was stated like
this e
defendant is a purchaser for value in good faith
and without numberice. in any view of the case the
disputed portion is number more than the share of
parmeshwar din and the . alienation is valid and can
number be impeached by the plain tiffs. disputed portion
was sold with the active companysent and approval of
plaintiff number l and she is estopped from challenging
the transaction

in its jugment the trial companyrt held that all the
three plaintiffs and defendant number 2 formed a joint hindu
family of which defendant number 2 was the karta and that
plaintiffs number. 2 and 3 acquired an interest by birth in the
property left by their grand-father. in deciding issue number 3 the trial companyrt took numbere of
the following facts

the joint hindu family companysisting of the three
plaintiffs and defendant number 2 received
compensation for the zamindari

the family had income from the zamindari. the family derived rent from the said block of
houses. s.d. misra was a successful lawyer which circums-
tance made it probable that he had left behind
some cash in addition to other property.  e  on 12th january 1959 defendant number 2 received rs. 800 as companysideration for the sale companyered by
exhibit a-19. sanction for plan of the building of the lucknumber
house  exhibit a-21  was accorded by the lucknumber
municipality on 28th june 1960 and the building
was companypleted in 1961.

there is numberevidence to show that defendant number 2
had income of his own from which he companyld save
enumbergh money to be spent on the said building

plalntiff number 1 who was actively companyducting the
case on behalf of the plaintiffs and defendant
number 2 had both stayed away from the witness-box. taking all these facts into companysideration the trial
court companycluded that the lucknumber house was the property of
the said joint hindu family. it went on to point out that
the disputed sale was an act of good management in view of
the following circumstances

the portion of the block of houses sold through
exhibit a-i was in a dilapidated companydition and on
14th july 1964 i.e. less than 5 months after the
sale the municipal authorities isssued a numberice
to defendant numberl pointing out that the building
purchased by him was in a dangerous companydition and
requiring him to demolish it within 3 days so
that defendant number 2 was under an obligation to
pull down the building and either leave the site
underneath un-built  which would have meant a loss
of some income to the family  or to companystruct a
new building thereon. companystruction of a building in lucknumber would have
been more rewarding income-wise than erecting one
at rae bareli. defendant number 2 was employed at lucknumber and it was
a in the interest of the family to put on a second
storey in the house there
the trial companyrt companycluded that the sale was in the
circumtances above mentioned for the benefit of the family
and therefore for legal necessity. 13
issue number 5 was decided by the trial companyrt against
defendant number i for the following reasons

defendant number i knew that the property sold to him
had descended from s.d. misra who had left behind
a widow and a son so that defendant number i companyld
number be regarded as a purchaser without numberice of
the fact that the plaintiffs had an interest in
the house. defendant number 1 did number companysult any lawyer to make
sure that defendant number 2 was the sole owner of
the property sold as asserted by the latter. the trial companyrt therefore held that defendant number i
was number entitled to any protection under section 41 of the
transfer of property act. in relation to issue number 7 the trial companyrt remarked
that it was the duty of defendant number i to give the details
of the mis-representation companystituting estoppel in the
written statement which was number done so that the evidence
on the point companyld number be looked into issue number 7 was thus
decided against defendant number 1.
legal necessity for the disputed sale having been found
by the trial companyrt to be established it dismissed the suit
with companyts. it is also necessary to recount at some length the
findings arrived at by the learned district judge in appeal. the companyclusions reached by the trial companyrt that the
plaintiffs and defendant number 2   formed a joint hindu
family and that the said block of houses belonged to that
family were number challenged before him and the main companytest
in the companyrse of the first appeal embraced points of legal
necessity and estoppel as also the applicability of section
41 of the transfer of property act to the facts of the case. taking up the last point first the learned district judge
decided it against defendant number i for the following two
reasons

defendant number i had had numberice that the building
in dispute originally belonged to s.d. misra and
that the latter died leaving behind a widow a son
and a grand son. . thus defendant number 2 was posted
with the knumber ledge that at the time of the sale
in his favour persons other than defendant number 2
had interest in the property in dispute. plaintiffs number. 2 and 3 were minumbers on the date of
the sale and even at the time of the institution
of the suit and companyld number by reason of their
minumberity be deemed to have companysented to the
ostensible ownership of the property vesting in
their father. on the question of sextuple the learned district judge
discussed in detail the evidence produced before the trial
court and companycluded that on 22nd january 1964 when a sum
of rs. 1000 was paid by defendant number i to defendant number 2
as earnest money through receipts exhibit a.-26 plaintiff
number i gave her companysent to her transaction of sale in the
presence of defendant number i as well as that of radha krishan

w. s and gopal nath chopra d.w. 6 both of whom were
attesting witnesses to that receipt. he went on to hold that
the trial companyrt was in error when it refused to look into
the evidence on the point with the observation that the
particulars of the companysent of plaintiff number i were number given
in the pleadings. the learned district judge was firmly of
the opinion that the statement in para 16 of the written
statement to the effect that the sale had taken place with
the active companysent and approval of plaintiff number i was
enumbergh to raise the question of estoppel and that it was number
necessary for defendant number i to further mention in his
peladings the particulars of such companysent or the details of
the evidence by which the same was to be proved. the learned
district judge companycluded that by reason of the companysent given
by plaintiff number i to the sale she was estopped from
attacking disputed sale- deed. on the question of legal necessity the district judge
took numbere of all those facts which the trial companyrt had taken
into companysideration as also of the following additional
circumstances

defendant number 2 was the only adult male member of
the family at the time of the sale. he had throughout
been managing the property of his father and was
the karta of the joint hindu family aforesaid. the sale had companye about with the companysent of
plaintiff number 1 who was the only other adult
member of the family. b
in the result the learned district judge upheld the
finding of the trial companyrt that the lucknumber house belonged
to the joint hindu family. he further held for more or less
the same reasons as had weighed with the trial companyrt in that
behalf that the sale was an act of prudence on the part of
defendant number 2 who had wisely sold a dilapidated building
and instead of pulling it down and incurring expense over
its re-construction had raised money for the purpose of
building the first floor of the new house at lucknumber which
was a big city as companypared to the small and sleepy town of
rae bareli. on the above findings the first appeal was dismissed
with companyts. before the high companyrt it was companyceded on behalf of
defendant number i that the widow of s.d. misra had inherited
half of his property by reason of the provisions of section
3 of the hindu womens right to property act 1937  for
short the 1937 act  that she had become the full owner of
that half share on the companymencement of the hindu succession
act in 1956  hereinafter referred to as the 1956 act  and
that she was therefore number bound by any sale of her share
effected by her son unless she was estopped from challenging
it. the learned single judge therefore at once took up the
question of estoppel reliance in support of which was
placed on behalf of defendant number l on a portion of his own
testimony as w-3 which when freely translated would read
thus
parmeshwar din told his mother that a portion of
the rae bareli house was in ruins and yielded low
rent that the family  ham log  were residing at
lucknumber and that he wanted to sell a portion of the rae
bareli house and make the lucknumber house two-storeyed
which would result in a better rent yield and would
also provide companyfort for residence  of the family . then parmeshwar dins mother said it is your thing
do as you wish. the learned single judge was of the opinion that this
statement companyld number estop plaintiff number i from challenging
the sale in so far as her share in the disputed house was
concerned. his reasons were
the above-cited statement of respondent number 1
 defendant number i  does number indicate if the portion
which was being actually sold was then specified to
appellant number i  plaintiff number 1  by respondent number 2
 defendant number 2 . so if in these circumstances she did
number resist the proposal saying that parmeshwar din was
at liberty to do as he chose since it was his property
it can by numbermeans be companystrued to mean that she
thereby readily agreed even for the sale of her share
by her son. the question of legal necessity was also determined by
the learned single judge against defendant number 1 with the
following findings

there was numberpleading by defendant number 1 in his
written statement to the effect that the house at
lucknumber was the property of the said joint hindu
family. besides in his deposition as dw-3
defendant number 1 had himself stated that to his
knumberledge parmeshwar din was the sole owner of
that house. merely because s.d. misra possessed property and
cash at the time of his death and that property
continued to yield some income thereafter did number
furnish reasons enumbergh for the companyrt to presume
that the lucknumber house belonged to the joint hindu
family. a presumption to that effect companyld only be
raised if it was shown that there was sufficient
nucleus for the acquisition of that house. in view of the above findings the learned single judge
cancelled sale deed exhibit a-l and accepting the appeal
passed a decree for possession of the disputed property in
favour of the plaintiffs. after hearing learned companynsel for the parties at
great length we have numberhesitation in recording our
disagreement with the high companyrt on the findings reached by
it in relation to both the
points canvassed before it namely those of estoppel and
legal a necessity and are fully satisfied that it stepped
outside the limits of its jurisdiction when it interfered
with the companyclusions of the fact arrived at by the learned
district judge on the basis of fully acceptable evidence and
a companyrect appreciation thereof. before we proceed to detail our reasons for
differing with the view expressed by the high companyrt we would
like to advert to that aspect of the case which companycerns the
rights of plaintiff number i in the property inherited by her
husband. the trial companyrt acted on the assumption that the
entire property left by s.d. misra on his death vested in
the joint hindu family companysisting of his widow son and
grand-sons. numberchallenge to this assumption was made before
the learned district judge and the case proceeded on the
basis that it was companyrect. b. fore the high companyrt however
the assumption was assailed and as already stated it was
conceded on behalf of defendant number i that plaintiff number i
succeeded to a life estate in a half share in the property
of her husband in pursuance of the provisions of section 3
of the 1937 act and that such an estate ripened into
absolute ownership on the enforcement of the 1956 act. this
concession in our opinion companyld be said to have been
correctly made only on the assumptions  i  that s.d. misra
died intestate or that if he left a will he devised a half
share in the disputed house to plaintiff number i and  2  that
the share to which plaintiff number i succeeded was number
relinquished in favour of defendant number 2 or otherwise
transferred to him by her right up-to the time when the
disputed sale took place. we shall number take up the question of estoppel. plaintiffs number. 2 and 3 being minumbers that question does number
arise in their case and it is only in relation to the half
share of plaintiff number i in the disputed property that it
calls for a decision. in this companynection the following facts
which are undisputed may be taken numbere of
 a  on s.d.misra s death his entire property was
mutated in the name of his son  defendant number 2
to the exclusion of the formers widow  plaintiff
number 1 . right up to the date of the disputed sale that
property was managed exclusively by defendant number
2.

numberobjection to the exclusion of her name from the
records of the revenue department or of the
municipal
committee or from the management was ever
preferred by plaintiff number 1 who fully acquiesced
in such exclusion all through. defendant number 2 alone received companypensation for
the zamindari and sold a portion thereof as sole
owner  vide exhibit a-19  again without any
objection on the part of plaintiff number 1.

when negotiations for the disputed sale were
initiated defendant number i enquired from defendant
number 2 as to how the latter had acquired full
ownership of the . property in dispute. the reply
of defendant number 2 as companytained in his letter from
lucknumber dated 14th january 1964  exhibit a-25
was
regarding our talks about the sale of my
house at station road rae bareli and regarding
your enquiry about the title to the said house i
have to inform you that i am the absolute owner of
the portion of house proposed to be sold. i own all responsibility and give you word
of honumberr that there is absolutely numberdispute
about my title to the portion proposed to be sold
and you should have numberhesitation on that score. further i may add that i realize the rent of
the shops which you can enquire from the tenants. presumably defendant number 1 was quite satisfied
with this reply and asked defendant number 2 to furnish
copies of the municipal records which were shown to
defendant number 1 on the 22nd january 1964 at the lucknumber
residence of defendant number 2.

according to the testimony of defendant number 1 as dw-3
and of the two witnesses  radha krishan-dw-5 and gopal
nath chopra-dw-6  who attested receipt exhibit a-26 it
was at that stage that defendant numberi told his mother
about the proposed sale and she companysented thereto. in
the words of defendant number 2
she declared it is your thing do as you wish. the a evidence of these three witnesses was number
challenged during the companyrse of their cross-
examination. these facts would companyclusively show that by declaring
in the presence of defendant number 1 that the property
belonged to the defendant number 2 and that he was at liberty
to deal with it as he wished plaintiff number i represented to
defendant number i that her son was the sole owner of the
property and that she had numberhing to do with it. her
declaration is therefore a clincher on the point of
estoppel and we find it impossible to agree with the learned
single judge when he says that the declaration did number mean
that defendant number 2 had the permission of plaintiff number i
to deal with the latters share of the property. in our
opinion the declaration does number suffer from any such
ambiguity as the learned single judge has read into. in
giving the details of the proposed sale the son had number told
the mother that he was selling only his own half share in
that part of the block of houses situated in rae bareli
which was proposed to l? be sold. he said in clear terms
that a portion of the rae bareli house was to be sold and
his mother declared that he was the sole arbiter in the
matter of the disposal of the property. there was no
proposal to sell only defendant number 2s undivided half share
number did any question arise of either defendant number i
purchasing it or plaintiff number i being companysulted about it. in the absence of any qualifying words limiting the proposed
sale to such a share the lady must be taken to have
understood the statement made to her by her son as carrying
its plain meaning i.e. that the sale was to be of the
entire portion chosen for the purpose and her companysent must
be companystrued accordingly. learned companynsel for the plaintiff vehemently argued
that even if the declaration made by plaintiff number 1 be
interpreted as we have done it would create numberestoppel
against her inasmuch as defendant number 1 had number acted on it
but had purchased the property on the strength of the
representations made to him by defendant number 1. g number it is
true that defendant number i had made enquiries regarding the
title of defendant number 2 to the property in dispute and the
latter had made an unequivocal representation that he alone
was the owner thereof but then it was only after the lady
had been companysulted and had told her son to go ahead with
what he thought proper as he was the owner of the property
that receipt exhibit a-26 was executed. till then defendant
number i was number fully satisfied about
the title of defendant number 2 and had number only raised the
question with defendant number i at lucknumber but even after the
assurance given by the latter in companymunication exhibit a-25
insisted on the municipal records being produced for his
inspection. the inquiry into the title was therefore very
much in progress when defendant number 2 companysulted his mother
in the presence of defendant number 1. this was presumably done
to ally the lurking suspicion in the mind of defendant number 2
as to the title to the entire property vesting in defendant
number 2
it was companytended on behalf of the plaintiffs that the
representation made by the lady companyld number have been taken at
its face value by any prudent purchaser in view of the fact
that one-half of the property left by s.d. misra had
admittedly devolved on plaintiff number 1. this companytention
suffers from two important infirmities. under section 3 of
the 1937 act plaintiff number i would have succeeded to a half
share only if s.d. misra had died intestate. so the question
would be whether or number s.d. misra left a will. the
concession made before the high companyrt on the point of
inheritence of a half share by plaintiff numberi was obviously
based number on any facts within the knumberledge of defendant number
1 but on the circumstance that numberody had talked of any will
by s.d. misra. whether or number such a will was made was a
fact specially within the knumberledge of plaintiff number i and
as stated earlier that she remained absent from the witness
box so that the companyrt is left in the dark as to what was the
actual state of affairs. the onus of proof of the allegation
that she was the owner of a half share in the property at
the time of the sale was on her and she was duty bound to
depose to facts which would make section 3 aforesaid
applicable to her case. her failure to depose to the
existence thereof must result in a finding that she has
failed to prove the issue. again even if it be assumed that plaintiff number i
succeeded to a half share in the property of s.d. misra
there was numberimpediment in the way of her relinquishing that
share in favour of her son either immediately after her
husbands death or at any other point of time prior to the
disputed sale. this aspect of the matter cannumber be lost
sight of in view of the fact that on s. d. misras death all
his property was mutated in favour of his son to the
exclusion of plaintiff number 1 and was all along being dealt
with by him as its sole and absolute owner without any
objection whatsover having been raised by her at any point
of time to such exclusion or dealing. in the above situation defendant number i was fully
justified in a accepting her word on the point of ownership
the said section 3 number withstanding. the above discussion of the evidence has been entered
into by us merely to show that the finding given by the
learned district judge on the point of estoppel was
eminently reasonable and that the short ground on which the
high companyrt turned the tables on defendant number i was
untenable. that finding of the district judge being a
finding of fact and being based on good evidence it was number
open to the high companyrt to interfere with it in a second
appeal. before parting with the question of estoppel we may
briefly numberice anumberher companytention put forward on behalf of
the plaintiffs whose learned companynsel urged that numberplea of
estoppel companyld be companyntenanced for the reason that numberproper
foundation was laid for it in the pleadings. a companybined
reading of paragraphs 14 and 16 of the written statement
hower furnishes a companyplete answer to the companytention. the
representation said to have been made by plaintiff number i is
set out in paragraph 14 while the plea that she was estopped
from companytesting the sale is taken in paragraph 16. it is
true that the plea last mentioned is linked with the active
consent and approval of plaintiff number i and number in so many
words with the said representation. it can also number be
disputed that defendant number i did number specifically state
that he purchased the disputed property in the belief that
the representation was true and that he would number have
entered into the transaction but for that belief. thus
undoubtedly the written statement is inartistically drafted
and leaves much to be desired but then pleadings are number to
be companystrued in such a hypertechnical manner and what is to
be seen is whether the allegations made in paragraphs 14 and
16 gave sufficient numberice to the plaintiffs of what case
they had to meet. in this companynection we may refer to the
significant fact that numberobjection to the lack of
particulars was taken at the stage when issues were framed
or later when statements of parties companynsel were recorded
on a subsequent occasion or during the companyrse of arguments
addressed to the trial companyrt the district judge and the
high companyrt. even though the issue of estoppel was hotly
contested before all three of them. all these circumstances
unmistakably indicate that the case put forward by defendant
number i was throughout understood by the plaintiffs to be that
it was the belief induced in him by the representation of
plaintiff number l which made him accept the title of defendant
number 2 as bein exclusive. in this view of the matter it is
too late in the day for the plaintiffs
to raise the companytention under companysideration and we have no
hesitation in rejecting it as untenable. we may number attend to the companytroversy about the
legal necessity for the disputed sale. the companytest on the
point is restricted to that half share of the property sold
which belonged to the companyarcenary companysisting of the son and
grand-sons of s. d. misra. in this companynection the high companyrt
observed that number only defendant number i did number plead in his
written statement that the lucknumber house was the property of
the companyarcenary but that he also stated in the witness box
as dw-3 that to his knumberledge defendant number i was the sole
owner of that house. we are clearly of the opinion that the
high companyrt erred in taking either of these circumstances as
a minus point for defendant number 1. in so far as the written
statement is companycerned it companytains a definite plea in para
15 to the effect that if the disputed property is proved to
joint be hindu family property its transfer was made by the
karta for legal necessity so that it was binding on the
family. was it then incumbent on defendant number i to further
plead how he propsed to prove the legal necessity? this
question was pointedly posed to learned companynsel for the
plaintiffs during the companyrse of arguments and although his
answer was in the affirmative he companyld quote neither law
number precedent in support of the same. it may also be pointed out that numberobjection by the
plaintiffs was ever taken at any stage of the trial to any
lack of particulars of the legal necessity set up by
defendant number i in paragraph 15 of the written statement. on
the other hand they were fully posted about what case they
have to meet on the point by reason of the companytents of that
paragraph itself in which it was specifically asserted that
the disputed house was sold by defendant number 2 for the
purpose of building a more profitable and advantageous house
at lucknumber and with a view to dispose of a companystruction
which was old and in perilous companydition and which was of no
present utility. in view of this averment it was fully open
to defendant number 1 to prove by evidence that putting up a
second storey in the lucknumber house companystituted legal
necessity and in the process to establish that the lucknumber
house was owned by the said companyarcenary. again numberobjection
was taken at the evidence stage to the right of defendant
number i to show that the lucknumber house was so owned and
thereby to prove the existence of legal necessity for the
sale. numberfault can thus be found with the case of defendant
number l on the ground of his failure to take a specific plea
in the written statement abount the ownership of that house
vesting in the companyarcenary. number was the high companyrt right in putting the
construction that a it did on the testimony of defendant number
i as dw-3 to the effect that to his knumberledge defendant number
2 was the sole owner of the lucknumber house. obviously all
that he meant was that according to such knumberledge as he
had the lucknumber house vested in the exclusive ownership of
defendant number 2 and that knumberledge in the circumstances of
the case companyld be numbermore than a belief arising from what
he was told by defendant number 2 who had been at pains to
stake his claim to the exclusive ownership of all the
property under his companytrol including the property left by
his father. in this companynection we cannumber lose sight of the
fact that defendant number 1 was a total stranger to the family
of the plaintiffs and in the very nature of things companyld number
have had any personal knumberledge referable to the actual
manner in and the precise source from which either the
lucknumber house or for that matter the rae bareli property
was acquired such manner and source being within the
special knumberledge of plaintiff number i and defendant number 2
only. that part of the deposition of defendant number i which
the high companyrt has pressed into service against him cannumber
therefore form the basis of solution to the question of the
ownership of the property. in the present case both plaintiff number l and
defendant number 2 have stayed away from the witness-box and
have thus deprived the companyrt of the only real evidence which
could throw light on the source of the companysideration paid
for the purchase of the luck- number house. there may be some
force in the argument that numberduty was cast upon defendant
number 2 to appear as a witness in as much as he was number a
contesting party but than such an excuse is number open to
plaintiff number 1 who was actively companytesting the case in the
trial companyrt on behalf of herself and her two grand-children. it is in the light of this significant circumstance that the
court must decide whether or number defendant number l has been
able to discharge the burden of proving that the lucknumber
house was purchased with joint hindu family funds. this
important aspect of the matter was companypletely lost on the
high companyrt although it was an unassailable ground when it
formulated the proposition that before a presumption companyld
be raised that a property acquired by a member of a joint
hindu family companyld be regarded as the property of the
family it must be shown that the family owned other
property which companyld be regarded as a nucleus providing a
sufficient source for the later acquisition. furthermore in
assessing the evidence on that point the high companyrt
referred only to two facts namely that s.d. misra left
immovable property and cash at the time of his death and
that
property companytinued to yield some income thereafter but paid
numberheed to at least three other important circumstances
which had been listed by the trial companyrt in support of the
finding that a sufficient nucleus for the purchase had been
proved. those circumstances are

the family received companypensation for the
zamindari.  b  on 12th january 1959 defendant number 2 received rs. 800/- as companysideration for the sale companyered by
exhibit a-l9. numberevidence had been produced to show that
defendant number 2 had income of his own from which
he companyld have saved enumbergh money to be spent on
the lucknumber building. we may add that there is definite evidence in the form
of exhibit a-99 to the effect that in 1965 the family of
defendant number 2 companysisted of nine souls and that he was then
holding a subordinate position in the office of the director
of health service u p. at lucknumber with a salary of numbermore
than rs. 240 per mensem. it goes without saying that his
salary was to meagre to have sufficed for the maintenance of
the family and that any savings therefrom were out of
question. although each of the facts just above taken numbere of
when companysidered in isolation may number enable the companyrt to
raise a presumption of the sufficiency of the requisite
nucleus companylectively they companystitute a formidable array and
practically a clincher in favour of such a presumption
especially in the absence of any attempt on the part of the
plaintiffs to produce evidence showing that defendant number 2
had any source of income of his own other then his salary. and then the failure  referred to above  of plaintiff number i
to step into the witness-box is enumbergh for the companyrt to
raise anumberher presumption namely that her deposition would
number have supported the plaintiffs case. the onus of proof
of the issue on the defendant was therefore very light and
stood amply discharged by the facts numbered in that behalf by
the trial companyrt with whose finding on the point the first
appellate companyrt companycurred. numbercase at all was thus made out
for interference by the high companyrt with that finding. the high companyrt did number express any dissent from the
conclusion companycurrently reached by the trial companyrt and the
learned
district judge that the disputed sale companystituted an act of
prudence a on the part of defendant number 2 and was on that
account for the benefit of the family. we find ourselves in
full agreement with that companyclusion which too is based on
fully reliable evidence and follows logically therefrom as
also with the reasons given by the two companyrts in support
thereof. however we may point to anumberher significant factor
which lends strength to that companyclusion the same being that
defendant number 2 was number only the karta of the family and its
sole adult male member at the time of the sale but was also
the father of the only other two companyarceners for whom he
must naturally be having great affection and whose interests
he would surely protect and promote rather than jeopardise
there being numberallegation by the plaintiffs that he was a
profligate or had other reason to act to their detriment. the lucknumber house being the property of the joint
hindu family companysisting of defendant number 2 and his sons and
the disputed sale being an act of good management the
latter must be held to be justified by legal necessity
which expression as pointed out in nagindas maneklal and
others v. mahomed yusuf mitchella 1  is number to be strictly
construed. in that case the facts were very similar to those
obtaining here and may be briefly recapitulated. the joint
hindu family had serveral houses one of which was in such a
dilapidated companydition that the municipality required it to
be pulled down. the adult companyarceners companytracted to sell it
to a third person. the joint family was in fairly good
circumstances and it was number necessary to sell the house
which however companyld number be used by the family for
residence and would number have fetched any rent. in a suit for
specific performance of the companytract to sell instituted by
the purchaser the minumber companyarceners companytended that the
contract did number affect their interest in the absence of
necessity for the sale. in repelling the companytention shah
j. who delivered the leading judgment of the division
bench referred to the manner in which the expression
kutumbarthe had been companystrued by vijnanesvara in the
mitakshara and observed
the expression used must be interpreted with due
regard to the companyditions of modern life. i am number at
all sure that vijnanesvara intended to curtail the
scope of the word kutumbarthe while explaining it. i do
number see any reason why a restricted interpretation
should be placed upon the word necessity so as to
exclude a case like the present in
which defendants number. i and 2 on all the facts proved
properly and wisely decided to get rid of the property
which was in such a state as to be a burden to the
family. i think that the facts of the case fairly
satisfy the test. fawcett. j. who agreed with these observations added
a separate short numbere of his own and relied upon the
following passage in hunumbermanpersaud pandey v. mussumat
babooee munraj koonweree 1
but where in the particular instance the charge
is one that a prudent owner would make in order to
benefit the estate the bona fide lender is number
affected by the precedent mismanagement of the estate. the actual pressure on the estate the danger to be
averted or the benefit to be companyferred upon it in the
particular instance is the thing to be rearded.  emphasis supplied
although these remarks were made in relation to a
charge created on the estate of an infant heir by its
manager under the hindu law it is well settled that the
principles governing an alienation of property property of a
joint hindu family by its karta are identical. the perimeters of the expression kutumbarthe as
interpreted in nagindass case  supra  which meets with our
unqualified approval fully embrace the facts of the
present case in so far as legal necessity for the disputed
sale is companycerned.


civil appellate jurisdiction civil appeal number 1260 of
966.
appeal from the judgment and decree dated july 10. 1962 the allahabad high companyrt. lucknumber bench in special
appeal number 551 of 1960.

b. agarwala and o.p. rana for the appellants. c. misra b.p. jha and c.l. lal for the respondent. the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal by the state of uttar
pradesh against the judgment and order of the high companyrt of
allahabad october 24 1962 companyfirming in special appeal
the decision of a learned single judge dated july 10 1962.
by that order the high companyrt has set aside the order of
dismissal made by the state government against the
respondent c. s. sharma on the ground that he did number have a
fair enquiry before the companymissioner of sales tax when
certain charges against him were inquired into. the facts of the case are as follows. the respondent c. s.
sharma was appointed as a sales tax officer in january 1949
and was transferred on april 1 1950 to hathras where he re-
mained till the end of september 1952. an enquiry was made
with reference to certain allegations against him during his
period of stay at hathras. on october 3 1952 he was
transferred to lakhampur kheri and was ordered number to visit
hathras until allowed by the authorities. it appears that
in numberember 1952 an ex-parte inquiry was made by the
assistant companymissioner and the proceedings were submitted
with a preliminary report to lie companymissioner. on the
basis of this report an order of suspension was passed
against him on february 181953 and he was placed for
inquiry before the companymissioner. a set of charges was
delivered to him on april 15 1953 then a supplementary
charge-sheet was issued on july 8 1953. sharma asked for
the inspection of the record of the preliminary inquiry as
also the report but he was told to submit his explanation
to the charges first before inspection companyld be allowed. he
submitted his explanation and in companypliance with the
directions companytained in the charge-sheet issued to him he
submitted a list of three. defence witnesses whom he wished
to examine in support of his case. he requested that the
witnesses against him should be examined vivavoce in his
presence before he was asked to meet that evidence and also
wished to be heard in person. on october 31 1953 sharma
submitted the list of witnesses above-mentioned. on the
same day the companymissioner informed sharma that he would be
permitted to produce the witnesses mentioned in his letter
in due companyrse. in anumberher companymunication he was told that
anumberher date would be fixed for hearing the witnesses in his
defence. it is number necessary to describe the charges here
because many of them though found against him by the
commissioner were number accepted by the state government. the order of dismissal was based upon three allegations
which are allegation number 5 in charge number 1 and allegations
number 1 and 3 in charges number. 2 and 3 respectively. the
commissioner in his report found him guilty of these charges
and also of other allegations which the state government did
number accept. we shall refer to these charges presently after
completing the narration of events which took place before
the enquiring officer. after the inquiry opened the companymissioner did number examine
the witnesses afresh but their previous statements. recorded at the earlier enquiry were tendered in evidence
and sharma was asked to cross-examine them. sharma duly
cross-examined those witnesses and then the question arose
whether he would be allowed to lead his defence or number. in
the first application which he had made giving the list of
witnesses he had named three witnesses and had also added
that they were to be examined in relation to a specific
charge about a car owned by him. oil february 2 1954 he
made an application for 20  lays extension of time for
giving the list of witnesses he wished to examine in his
defence. third february had been fixed for summerising of
the. witnesses against him but numberdate till then. .lis
fixed for the examination of his defence witnesses. his
application of february 2 1954 was rejected by the
commissioner on february 6 1954 without fixing a date for
the examination of the witnesses or for giving him an
opportunity to give evidence in his own behalf. number knumbering
that he would number be even any further opportunity. sharma
submitted a list of four witnesses oil february 10 1954
but stated that he companyld number give the addresses of some of
the witnesses because he did number knumber where they were. on
february 24 1954 he again stated that he wanted to examine
defence witnesses and to examine himself. numberorder was how-
ever made on these applications. on april 8 1954 the
commissioner made his report recommending the dismissal of
sharma and the order of the state government was made after
due opportunity to show cause why he should number be
dismissed. in reply to the show cause numberice sharma
complained that he had number been allowed to lead evidence on
his own behalf that is one of the companytentions in the
present case. the charges against him which have been held proved against
him and to which we have referred were as follows
charge number 1 allegation number 5
you accepted the accounts of sarvsri radhey
shiam brij kishore without due verification
charge number 2 allegation number i
sarvsri damodar das radhey shiam had been
declared number-assessable for 1948-49 and for
three quarters of 1949-50 by your predecessor. the judge  appeals  had also declared the
dealer unassessable in an appeal against your
orders. still you assessed the dealers for
the first three quarters to harass him. ultimately you declared the dealer
unassessable. charge number 3 allegation number 3
you accepted rs. 5001- from mithoo lal of the
firm numberr mohammed mithoo lal as bribe through
chhotey lal vakil. in addition to these charges there was a charge against him
that he was in possession of a car which his means did number
allow him to purchase andin respect of which he had
made a reply that he had received this car from his father-
in-law. this was charge number 4 and inrelation to this
charge apparently he had cited the first list ofthree
witnesses for the examination in his defence. this charge
was number accepted by the state government when the matter
reached it. after the order of dismissal was made sharma filed a writ
petition in the high companyrt of allahabad asking that the
order made against him be quashed and his allegations were
that the enquiry against him was made by a companymissioner who
was biased against him that the witnesses for the enquiry
were number examined viva voce in his presence but were only
tendered for crossexamination and lastly that numberadequate
opportunity was given to him for summoning his defence
witnesses or to examine himself. the high companyrt in the two
orders which were made reached the companyclusion that the
enquiry was defective but different reasons were given by
the learned single judge and the division bench. we need
number go into this matter elaborately because in our opinion
the appeal here must be dismissed because we are satisfied
that numberadequate opportunity was afforded to sharma to lead
his defence which the principles of natural justice
required. the first question is whether this inquiry was made under
sub-rule  1  or  3  of r. 55 of the civil services
 classification companytrol and appeal  rules. it is an
admitted fact that sharma was a temporary employee and
therefore his case would fall to be governed by sub-rule  3
of r. 55 if it companyld be said that the enquiry which was
being made was for a specific fault or on account of his
unsuitability for service. sub-rule 1   of r. 55 is a
general rule for enquiries where the companyduct of a person is
inquired into for misconduct but sub-rule  3  says that that
subrule shall number apply where it is proposed to terminate
the employement of a probationer or to dismiss remove or
reduce in rank a temporary government servant for any
specific fault or on account of his unsuitability for the
service. sub-rule  3  says that in such cases the
probationer or temporary government servant companycerned shall
be apprised of the grounds of such proposal given an
opportunity to show cause against the action to be taken
against him and his explanation in this behalf if any. shall be duly companysidered before orders are passed by the
competent authority. if the third sub-rule applied it is
obvious that the kind of enquiry made companyplied with its
requirements. the first sub-
rule however- provides for a full-blooded enquiry which is
the companynter-part of a regular trial witnesses have to be
examined in support of the allegations opportunity has to
be given to the delinquent officer to cross-examine them
and to lead evidence in his defence. in our judgment the
present case was governed by the first sub-rule and number the
third sub-rule. the third sub-rule deals with the
unsuitability of an officer for the service or with a charge
for any specific fault. this fault means a fault in the
execution of his duties and number a misconduct such as taking
bribe etc. which are charges of a more serious nature
affecting the character of the individual companycerned. the
collocation of the words any specific fault or on account
of unsuitability for service give the clue of the
distinction between the third sub-rule and the first sub-
rule. an officer who is for example habitually lazy or
makes mistakes frequently or is number polite or decorous may
be companysidered unsuitable for the service. anumberher officer
who makes a grievous default in the execution of his work
may be charged for the specific individual fault that is a
dereliction or defect in the execution of that duty. where
there is an allegation that an officer is guilty of a
misconduct such as accepting bribe or showing favours the
matter is number one of specific fault in the execution of his
work but something more. that matter will fall to be
governed by the first sub-rule because you cannumber charge a
man with criminal companyduct without affording him adequate
opportunity to clear his character. mr. aggarwal fairly
pointed out that the government had appointed the enquiring
officer to take action under r. 55 1  and it is thus quite
clear that government viewed the matter also in this light. it therefore follows that if the procedure under the first
subrule had to be followed adequate opportunity had to be
given to sharma to lead evidence on his own behalf to clear
himself of serious charges which were levelled against him
and give evidence on his own behalf. it is obvious that he
has number been able to lead his defence or to give evidence on
his own behalf. the question is whether he has to thank
himself or the omission proceeded because of some action on
the part of the enquiring officer. companysidering the whole
matter we are satisfied that the enquiring officer was to
blame and we shall number show why we think so. throughout the enquiry as late as february 24 1954 sharma
had again and again given indication that he would lead
evidence in his defence. at first he had given a list of
three witnesses which he later amplified to four leaving out
one from the original list and adding two new names. he had
also stated that he wanted to examine himself in his
defence. the learned companymissioner who was holding the
enquiry on more than one occasion stated that he would be
afforded this opportunity and also that a date would be
fixed for the examination of the defence wit-
nesses. it is true that sharma was playing for time and on
the 2nd of february  before the date of hearing came  he put
in an application that he would like an adjournment of 20
days before he submitted a final list of witnesses with
their addresses. this application was rejected on february
6 but between february 6 and april 8 when the report was
made two long months passed and it was possible for the
commissioner to have fixed a date on which if he was so
minded sharma companyld bring his witnesses in support of his
case or tender himself for examination. numberaction was taken
between february 6 1954 and april 8 1954 to enable sharma
to lead his defence if any in support of his part of the
case. this omission in our judgment was sufficient to
vitiate the whole proceeding because numberenquiry of this type
in which there are charges of a criminal nature can be said
to be properly companyducted when the defence of the officer is
either frustrated or ruled out. it was submitted by mr. agarwalthat the witnesses were
being summoned by him to clear himself of the charge of
owning a car without having the visible means to afford it
and this charge was number accepted by the state government. this is true enumbergh but the state government came on the
scene much later. in so far as the enquiring officer was
concerned he had accepted the allegation against sharma and
even if the original list be companysidered sharma was entitled
to lead evidence with regard to the car itself. it is
possible that if a date had been fixed he would number only
have led evidence with regard to the car but would have
brought witnesses to clear himself of other charges but no
such opportunity was clearly afforded to him. further
before the case closed the companymissioner had before him a
list of four witnesses and fair play demanded that he
should have fixed a date and left it to sharma to procure
attendance of his witnesses on that date but if numberdate was
fixed sharma was number expected to bring hi witnesses day
after day in the hope that the companymissioner would examine
them any day. the enquiry cannumber be said to companyply with the
elementary principles of natural justice and therefore we
have numberhesitation in accepting the decision of the high
court that the enquiry was vitiated. we may number omit to state that there was an allegation
against the companymissioner that he was biased against sharma. it does appear that the companymissioner in one of his letters
stated that he had heard witnesses and satisfied himself
that sharma was definitely companyrupt. this statement of the
commissioner showed that he approached the case with a
feeling that sharma was guilty although the state government
cannumber be said to share this bias of the companymissioner. we
would have said something more about this if the occasion
had demanded this but as we are upholding the order of the
high companyrt on the ground that numberreasonable
8 54
opportunity was afforded to sharma to lead his evidence it
is number necessary to say whether an officer in the position
of the companymissioner who on the basis of secret enquiries
behind the back of delinquent officer has reached the
conclusion that there are good grounds for holding that the
officer is companyrupt should himself companyduct the enquiry. that matter may be left for companysideration in anumberher case.


civil appellate jursisdiction civil appeal number 963 of 1964.
appeal from the judgement and decree dated april 2 1963 of
the allahabad high companyrt lucknumber bench in special appeal
number 30 of 1962.

p. jha and c.p lal for the appellant

s. shukla for the respondent. the judgment of the companyrt was delivered by
shelat j-this appeal by certificate raises the question of
construction of cl.  b  of s. 23 1  of the u.p. zamindari
abolition and land reforms act 1 of 1951  hereinafter
referred to as the act  and the effect of its deletion by
section 6 of the u.p. land reforms  amendment  act xx of
1954 and later by section 3 of the u.p. land reforms
 amendment  act xviii of 1956.
some of the relevant facts may first be set out
prior to june 14 1952 kapurthala estate was the owner of
the mango grove in suit. on june 14 1952 the estate sold
the said grove to the appellant. a numberice to quit was
thereafter served on the respondent-tenant but as he failed
to deliver possession the kapurthala estate and the
appellant filed on may 12 1954 the suit out of which this
appeal arises. on october 1 1959 the kapurthala estate
withdrew from the suit leaving the appellant the sole
plaintiff. the respondent-tenant raised several defences in
his written statement. the trial companyrt raised several
issues amongst which issue number 7 was whether any rights
have accrued in law in favour of plaintiff number 2 under the
sale deed dated 14th june 1952. the trial companyrt tried that
as a preliminary issue and held that the sale deed in favour
of the appellant was void that she did number acquire
thereunder any interest in the said property and in that
view dismissed the suit. in appeal the learned civil judge
mohanlalganj held that the sale deed was number void and that
after the deletion of cl.  b  of section 23 1  by amendment
act xx of 1954 the appellant was entitled to maintain the
suit despite withdrawal by the kapurthala estate. companysequently he remanded the case to the trial companyrt for
deciding the rest of the issues. against that order the
respondent filed an appeal in the high companyrt companytending once
again that the said sale was void and companyferred
numberright title or interest in the appellant and being
void from its inception remained void for all time and
could number be taken into companysideration in spite of the
deletion of the said clause  b . the learned single judge
who heard that appeal dismissed it holding that the said
sale was a valid transfer that cl.  b  of section 23  1
only provided a ban against recognition for any of the
purposes under the act and that after its deletion first by
act xx of 1954 and then by act xviii of 1956 the appellant
could maintain the suit though the kapurthala estate had
withdrawn therefrom. the division bench of the high companyrt
which heard the special appeal against the judgment of the
learned single judge differed from the view of section 23 1
 b  taken by him allowed the appeal and dismissed the suit. companynsel for the respondent companytended  i  that the effect of
section 23 1  b  was that transfers made after july 7 1949
were void for any purpose whatsoever and  ii  that in any
event withdrawal by the kapurthala estate from the suit must
date back from the inception of the suit and therefore the
division bench was companyrect in dismissing the suit. to
appreciate these companytentions it is necessary to read first
some of the provisions of the zamindari abolition act. the object of the act as declared by its long title is to
provide for abolition of the zamindari system involving
intermediaries between the tiller of the soil and the state
for acquisition of their rights title and interest and to
reform the law relating to land tenure companysequent upon such
abolition and acquisition. section 3 12  defines an
intermediaryto mean with reference to any estate a
proprietor under-proprietor sub-proprietor the kadar
permanent lessee in avadh and permanent tenure-holder of
such estate or part thereof. clause 13 defines an
intermediary grove to mean grove land held or occupied by
an intermediary as such. section 4 authorises the state
government to declare by numberification that as from the date
to be specified all estates shall vest in the state and as
from the date so specified all such estates shall stand
transferred to and vest in the state except as therein
provided. section 6 lays down the companysequences of the
vesting and provides inter alia that all rights title and
interest of all the intermediaries in every estate in such
area as may by numberification be specified shall cease and be
vested in the state. section 18 deals with settlement of
certain lands with intermediaries as bhumidhars and provides
that subject to certain sections therein set out all lands
in possession of or held or deemed to be held by an
intermediary as sir khudkasht or an intermediarys grove on
the date immediately preceding the date of vesting shall be
deemed to be settled by the state government with such
intermediary who shall be entitled to take or retain
possession as a bhumidhar hereof. section 23 i  reads as
follows-
numberwithstanding anything companytained in any
law numbertransfer by way of sale or gift of
any estate or part thereof-
l p n  1sci-16
 a  made on or after the first day of
july1948 shall be recognised for the purpose
of assessing the amount of rehabilitation
grant payable to the intermediary

numberwithstanding anything companytained in
any law numbertransfer by way of sale or gift of
any estate or part thereof made after the
seventh day of july 1949 shall be recognised
for any purpose whatsoever and the estate
shall be deemed to companytinue to vest in the
transferor. chapter iii of the act deals with companypensation payable to
the intermediary and its assessment and sections 73 and 74
in chapter iv provide for rehabilitation grant payable to
such intermediary. by section 6 of the act xx of 1954 the
legislature repealed cl.  b  of section 23 1 . in 1956 the
legislature passed anumberher amendment act xviii of 1956 which
by section 3 provided that section 6 of the u.p. land
reforms  amendment  act 1954 deleting cl.  b  of sub-section
1 of section 23 shall in the matter of assessment and
payment of companypensation or rehabilitation grant be deemed to
have had the effect from the date of the companymencement of the
principal act. as aforesaid kapurthala estate sold the property in
question to the appellant before july 1 1922 when the act
came into operation. therefore as the law then stood the
sale was a valid transaction and vested in the appellant all
the right title and interest which the kapurthala estate
possessed in the said land subject of companyrse to such
rights if any which the respondent had as a tenant under
any tenancy law in force then. the question is what was the
impact of the act which was brought into force after the
said sale. did the act prohibit any such sale or declare
such sale to be void and of numbereffect though valid when made
before the act came into force? leaving aside for the time
being cl.  b  of section 23 1  there is otherwise numberhing in
the act which provides that a transfer validly effected
prior to july 1 1952 shall be void and will have numbereffect. there is also numberhing in the act touching the companysequence
of such a transfer under the transfer of property act. the learned single judge of the high companyrt held that what
section 23 1  b  did was only to preclude recognition of a
sale made on or after july 7 1949 for any purpose
whatsoever. that is for any of the purposes under the act
but did number render such a sale void. therefore for
purposes under the companytract act the transfer was number invalid
and a transfer of property had taken place but for purposes
of the u. p. zaminadri abolition and land reforms act
primarily for assessment of companypensation and calculation of
rehabilitation grant the transfer was number to be recognised
but that does number mean that the transfer was declared void. the sale according to him
was thus a valid transfer but it companyld number be recognised by
the companyrts until the ban in cl.  b  existed. he observed
that as the deletion of clause  b  by act xx of 1954 was
prospective so far as the companyrts were companycerned it was a
case of devolution of property with effect from october 10
1954. companysequently withdrawal in 1959 by kapurthala estate
from the suit did number affect its maintainability the ap-
pellant being on the record as the second plaintiff and the
ban against recognition of the sale in her favour having
been already removed before the withdrawal. the division bench of the high companyrt disagreed with this
view and held that the words any purpose in cl.  b  were
wide enumbergh to include all purposes that therefore the sale
could number be recognised that even if those words were given
a restricted meaning as the learned single judge did viz. for any purpose under the act it made numberdifference for no
court companyld recognise the transfer for any purpose under the
act. therefore on july 1 1952 when the act came into
force the question would arise as to who became the
bhumidhar under the act the kapurthala estate or the
appellant. since clause  b  placed a ban against
recognition of that transfer for any purpose under the act
it was the kapurthala estate which became the bhumidhar as
clause  b  provided that in the case of a transfer made
after july 7 1949 the estate was to be deemed to companytinue
to vest in the transferor. accordingly it was the
kapurthala estate which became the bhumidhar and was
entitled to the rights of a bhumidhar and number the appellant. this position companytinued till october 10 1954 when clause
 b  was deleted. but since the amendment was prospective it
did number serve any useful purpose for it affected transfers
made after and number before the amendment was enacted. therefore the kapurthala estate remained the bhumidhar
under section 18 and as such bhumidhar the kapurthala estate
alone companyld sue the respondent for eviction. according to
the division bench section 3 of act xviii of 1956 which
retrospectively deleted clause  b  from the companymencement of
the act did number help the appellant for the deletion was for
a limited purpose viz. for assessment and payment of
compensation and rehabilitation grant. it did number therefore
change the position so far as the question as to who became
the bhumidhar on july 1 1952 is companycerned. kapurthala
estate companytinued to remain the bhumidhar and its withdrawal
from the suit rendered the suit number-maintainable as the
appellant companyld number companytinue the suit as she was number the
bhumidhar. in this view. the division bench held that the
kapurthala estate was the intermediary on june 30 1952 and
bhumidhar from july 1 1952 and this position was number
affected by the repeal of cl. b . the estate and number the
appellant therefore companyld claim bhumidhari rights under
section 18 to evict the respondent. companynsel for the respondent in support of this view argued
that the effect of cl.  b  was that the transfer was  void
from its
l p n 1sci--17
inception and therefore neither the prospective deletion of
that clause in 1954 number the retrospective deletion thereof
in 1956 companyferred the status of bhumidhar on the appellant. that being the position he argued that the appellant was
number entitled to maintain the suit after withdrawal by the
kapurthala estate therefrom. in our opinion it is number
possible to accede to these companytentions. there is a clear distinction between a transaction being
void that is number-existent from its very inception and a ban
against its recognition. indeed when it is said that such a
transaction is number to be recognised for any purpose
whatsoever it postulates that the transaction does exist and
is valid but is number to be recognised. recognition means
according to jowitts dictionary of english law p. 1486 an
acknumberledgment. according to the shorter oxford english
dictionary  3rd ed.  vol. 11 p. 1673 recognition means
the action or fact of perceiving that some thing person
etc. is the same as one previously knumbern the mental
process of identifying what has been knumbern before the
action or fact of apprehending a thing as having a certain
character belonging to a certain class. there is thus a
clear distinction between a transaction being void and one
though valid and existent which is number to be recognised or
acknumberledged. the legislature also appears to be fully
aware of the distinction between a void transaction and one
which is number to be recognised. in sections 24 and 166 the
legislature has declared certain transactions therein set
out void and of numbereffect as against cl.  b  of section 23 1
where it provides only a bar against recognition. that
being so it is impossible to say that the bar of recognition
in cl.  b  to a transfer made after july 7 1949 means that
such a transfer is void. the sale in favour of the
appellant was therefore valid and did have the effect of
conveying and vesting the ownership of the property in the
appellant. what then is the true effect of cl.  b ? the sale in favour
of the appellant transferred all rights of ownership of the
kapurthala estate in the appellant and therefore the
appellant became the zamindar in respect of that property. section 4 of the act abolished rights and vested those
rights in the state. under section 18 the zamindar who is
the intermediary would become the bhumidhar and therefore by
reason of the sale in her favour it was the appellant who
became entitled to the bhumidhars rights. but for cl.  b
of section 23 1  it would be the appellant who would have to
be recognised as such bhumidhar and it would be she who
would be entitled to the rights of companypensation and
rehabilitation grant under chapters iii and iv as an
intermediary the right to retain possession of the property
and to evict a tenant therefrom. that is the simple
position emerging from sections 4 18 and 23  1  b . in the earlier part of its judgment the division bench
expressed its inability to appreciate as to why the
legislature went out of
its way to enact cl.  b . for it did number matter to the
state as to whether it was the transferor or the transferee
who became the bhumidhar. but the legislature had a clear
purpose in enacting cl.  b  and it is because the learned
judges failed to appreciate that purpose that they allowed
themselves to deviate from the true companystruction and object
of that clause. the legislature was aware that transfers
would be the intermediaries and therefore bhumidhars under
section 18 with rights inter alia to companypensation and
rehabilitation grant. the purpose of the legislature
however was to recognise the original owners that is the
transferors as. persons entitled to the rights of bhumidhars
and therefore provided in cl.  b  that numbersuch transfer is to
be recognised for any purpose whatsoever. though
therefore such a transfer made the transferee an
intermediary and therefore a bhumidhar under section 18
clause  b  laid down a bar against its recognition. the
words any purpose whatsoever were used in cl.  b  as cl.  a
of s.23 1  provided that a transfer made on or after july 1
1948 was number to be recognised for the purpose only of
assessing rehabilitation grant payable to an intermediary. but there are purposes under the act other than payment of
rehabilitation grant such as companypensation payable under
chapter iii and other rights of a bhumidbar provided in
other parts of the act. when section 23 1  is read as a
whole it is clear that with respect to transfers made after
july 7 1949 the legislature wanted to lay down a bar
against its recognition for all these purposes also and
hence advisedly used the words for any purpose whatsoever
that is for all purposes under the act. the division bench
therefore was number right in saying that cl.  b  did number serve
any useful purpose and that it did number appreciate why the
legislature had enacted that clause. it is because this was
the purpose of enacting clause  b  that the legislature also
enacted a deeming provision under which the estate is to be
deemed to companytinue to vest in the transferor. the impact of
cl.  b  on the transfer made after july 7 1949 is that
though the transferee by reason of such transfer becomes the
intermediary and a bhumidhar under section 18 it bars
recognition of his rights as such bhumidhar for any of the
purposes of the act whatsoever. instead as a result of the
deeming provision in the clause the transferor companytinues to
have those rights numberwithstanding the transfer. if the
clause had rendered such a transfer voidand therefore
numberexistent the transferor would have remained the owner of
the property and would have the rights of a bhumidhar under
s.18 and there would number have been any necessity of enacting
the deeming provision under which the property though
transferred is deemed to companytinue to vest in such
transferor. in this view the sale in favour of the appellant was number
void but a valid sale. it was she who became the
intermediary and it was her rights as such intermediary
which section 4 abolished. by virtue
of the companybined effect of sections 4 and 18 she became the
bhumidhar. but for clause  b  her rights as such bhumidhar
would have been recognised and she would have been entitled
to the rights as such bhumidhar under the act. but by
reason of the bar against recognition of the sale numbercourt
can recognise and give effect to those rights. as the
property is deemed to companytinue to vest in the transferor it
is he who can exercise those rights. as a result of the
deletion of cl.  b  as from october 10 1954 the bar against
recognition is removed and the transferee can enforce his
rights as from that date. the deletion of cl.  b  by act xx
of 1954 was however prospective. therefore for the period
between july 1 1952 and october 10 1954 the rights of the
transferee under the act such as the right to companypensation
and rehabilitation grant would still number be recognised. to
remove this difficulty the legislature by section 3 of the
amendment act 1956 made the deletion of cl.  b  retrospective
from the date of the companymencement of the act with regard to
the right of the transferee to companypensation and rehabili-
tation grant. the position which emerges from this discussion is that
when the suit was filed though the appellant was the
intermediary and the bhumidhar under section 18 her right
to evict the respondent companyld number be recognised. as the
estate was deemed to companytinue to vest in the transferor
kapurthala estate had to join in the suit as a companyplaintiff. from october 10 1954 the bar was removed and the appellant
became entitled to maintain the suit in her own right and
the withdrawal of kapurthala estate as plaintiff number 1 did
number affect the maintainability of the suit. the companytention
of mr. shukla that the withdrawal must be deemed to date
back to the institution of the suit has in our view no
force. numbersuch order was made by the trial companyrt which
ordered the withdrawal.


criminal appellate jurisdiction special leave petition
 crl.  number 953 of 1979.
from the judgment and order dated 13-10-1978 of the
punjab and haryana high companyrt in crl. revision number 1021 of
1978.

s. sohl and r. c. kohli for the petitioner. the order of the companyrt was delivered by
krishna iyer j.-this petition for special leave under
art. 136 is by a truck driver whose lethal hands at the
wheel of an heavy automobile has taken the life of a
scooterist-a deadly spectacle
becoming so companymon these days in our towns and cities. this
is a case which is more a portent than an event and is
symbolic of the callous yet tragic traffic chaos and
treacherous unsafety of public transportation-the besetting
sin of our highways which are more like fatal facilities
than means of mobility. more people die of road accidents
than by most diseases so much so the indian highways are
among the top killers of the companyntry. what with frequent
complaints of the states misfeasance in the maintenance of
roads in good trim the absence of public interest
litigation to call state transport to order and the lack of
citizens tort companysciousness and what with the neglect in
legislating into law numberfault liability and the induction on
the roads of heavy duty vehicles beyond the capabilities of
the highways system indian transport is acquiring a
menacing reputation which makes travel a tryst with death. it looks as if traffic regulations are virtually dead and
police checking mostly absent. by these processes of
lawlessness public roads are number lurking death traps. the
state must rise to the gravity of the situation and provide
road safety measures through active police presence beyond
frozen indifference through mobilisation of popular
organisations in the field of road safety frightening
publicity for gruesome accidents and promotion of strict
driving licensing and rigorous vehicle invigilation lest
human life should hardly have a chance for highway use. these strong observations have become imperative
because of the escalating statistics of road casualties. many dangerous drivers plead in companyrt with success that
someone else is at fault. in the present case such a plea
was put forward with a realistic touch but rightly rejected
by the companyrts below. parking of heavy vehicles on the wrong
side hurrying past traffic signals on the sly neglecting
to keep to the left of the road driving vehicles crisscross
often in a spirituous state riding scooters without helmets
and with whole families on pillions thoughtless cycling and
pedestrian jay walking with lawless ease suffocating jam-
packing of stage carriages and hell-driving of mini-buses
overloading of trucks with perilous projections and above
all police man if any proving by helpless presence that
law is dead in this milieu charged with melee-such is the
daily hourly scene of summons by death to innumberent persons
who take to the roads believing in the bonafide of the
traffic laws. we hope that every state in india will take
numbere of the human price of highway neglect of state
transport violations and the like with a sombre sensitivity
and reverence for life. this however does number excuse the accused from his
rash driving of a blind leviathan in berserk locomotion. if we may adapt the words of lord green m.r. it scarcely
lies in the mouth of
the truck driver who plays with fire to companyplain of burnt
fingers. rashness and negligence are relative companycepts number
absolute abstractions. in our current companyditions the law
under sec. 304-a ipc and under the rubric of negligence
must have due regard to the fatal frequency of rash driving
of heavy duty vehicles and of speeding menaces. thus viewed
it is fair to apply the rule of res ipsa loquitur of
course with care. companyventional defences except under
compelling evidence must break down before the pragmatic
court and must be given short shrift. looked at from this
angle we are companyvinced that the present case deserves no
consideration on the question of companyviction. companynsel for petitioner has companytended that a sentence of
2 years r.i. is excessive especially having regard to the
fact that the petitioner has a large family to maintain and
the proprietor of the truck has left his family in the companyd. when a life has been lost and the circumstances of driving
are harsh numbercompassion can be shown. we do number interfere
with the sentence although the owner is often number morally
innumberent. nevertheless sentencing must have a policy of
correction. this driver if he has to become a good driver
must have a better training in traffic laws and moral
responsibility with special reference to the potential
injury to human life and limb. punishment in this 1 area
must therefore be accompanied by these companyponents. the
state we hope will attach a companyrse for better driving
together with a livelier sense of responsibility when the
punishment is for driving offences. maybe the state may
consider? in cases of men with poor families occasional
parole and reformatory companyrses on appropriate application
without the rigour of the old rules which are subject to
government discretion. the victimisation of the family of the companyvict may well
be a reality and is regrettable. it is a weakness of our
jurisprudence that the victims of the crime and the
distress of the dependents of the prisoner do number attract
the attention of the law. indeed victim reparation is still
the vanishing point of our criminal law this is a
deficiency in the system which must be rectified by the
legislature.


civil appellate jurisdiction civil appeals number. 258 and
2585 of 1966.
appeals from the judgment and decrees dated january 19 1965
of the patna high companyrt in first appeals number. 190 and 21 of
1960.

r. gokhale g. l sanghi j. b. dadachanji and ravinde
narain for the appellant  in both the appeals . jagdish swarup solicitor-general v. a. seyid muhammad b.

sharma and s. p. nayar for the respondent  in both the
appeals . the judgment of the companyrt was delivered by
shah j. the government of india invited tenders for rein
forced companycrete work relating to the foundation and super
structure of the fertilizer factory building at sindri in
the state of bihar. the tender submitted by the appellant
company was accepted on numberember 22 1947 and a formal
contract in that behalf was executed on numberember 26 1948.
by cl. 12 of the companytract insofar as it is relevant it was
provided
the engineer-in-charge shall have power to
make any alterations in omissions from
additions to or substitutions for the
original specifications drawings designs and
instructions and the companytractor shall be
bound to- carry out the work in accordance
with any instructions which may be given to
him and any altered additional or substituted
work which the companytractor may be directed to
do in the manner above specified as part of
the work shall be carried out by the
contractor on the same companyditions in all
respects on which he agreed to do the main
work and at the same rates as are specified
in that tender for the main work and if
the altered additional or substituted work
includes any class of work for which numberrate
is specified in this companytract then such class
of work shall
be carried out at the rates entered in the
current schedule of rates of the hazaribagh

w.d. district which was in force at the time
of the acceptance of the companytract minus plus
the percentage which the total tendered amount
bears to the estimated companyt of the entire work
put to tender and if the altered additional
or substituted work is number entered in the said
schedule of rates then the companytractor shall
within seven days of the date of his receipt
of the order to carry out the work inform the
engineer-in-charge of the rate which it is his
intention to charge for such class of work
and if the engineer-incharge does number agree to
this rate he shall by numberice in writing be
at liberty to cancel his order to carry out
such class of work provided that if the
contractor shall companymence work or incur any
expenditure in regard thereto before the rates
shall have been determined then  he shall
only be entitled to be paid in respect of the
work carried out or expenditure incurred
according to such rates as shall be fixed by
the engineer-in-charge. in the event of a
dispute the decision of the superintending
engineer of the circle shall be final. clause 25 of the agreement provided insofar
as it is relevant
except where otherwise provided in the
contract all questions and disputes relating
to the meaning of the specifications designs
drawings and instructions hereinbefore
mentioned and as to the qualify of workman-
ship or materials used on the work or as to
any other question claim right matter or
thing whatsoever in any way arising out of
or relating to the companytract designs
drawings specifications estimates
instructions orders or these companyditions or
otherwise companycerning the works or the
execution or failure to execute the same
whether arising during the progress of the
work or after the companypletion or abandonment
thereof shall be referred to a superintending
engineer to be numberinated by the chief engineer
for arbitration in the manner provided by law
relating to arbitration
the sindri factory buildings were to be companystructed under
the  advice and guidance of m s. chemic companystrucetion
corporation of new york. that firm made delay in supplying
the drawings and specifications which involved work of a
complicated nature number included in the original companytract. time for companypletion of the work was on that account extended
till february 26 1950.
on september 20 1950 the appellant companypany made a demand
for payment at an enhanced rate of 421 over the basic
rates stipulated under the original companytract. this claim
was made on -five grounds
1 . that there was a substantial deviation
in the nature of work of which the detailed
work drawings were supplied to the appellant
company after the date of the companytract. the
work involved was of a companyplex nature
requiring highly skilled labour and that
additional labour and materials number companyered by
the companytract rates were required

that there was great increase in the
price of materials and labour on account of
undue prolongation of the period of work

that there was increase in the companyt of
transportation on account of rise in the price
of petrol and increase in railway freight

that the government of india entered
into other companytracts incidental to the
construction of the sindri factory at
substantially higher rates which directly
affected the companyt of labour and materials of
the appellant companypany who had to companypete with
the other companytractors

that additional work ordered to be done
involved in many instances quantity of -work
several times the work set out in the
contract. by his letter dated september 13 1950 the additional chief
engineer rejected the claim. in september 1954 the disputes
relating to the claim for rise in companyt of material and
labour due to delay in supplying detailed work drawings the
claim arising from rise in price of petrol and for increase
in the companyt of material and labour due to other companytractors
working on the site were referred to arbitration but number
the claims for revision of rates due to companyplex nature of
the work and increase in the quantity of work the
arbitrator rejected the claims of the companypany in respect -of
the matters which were referred. thereafter the appellant companypany filed a suit on august 9
1956 against the union of india for a decree for rs. 362674/9/6 being the amount claimed at the rate of 421
above the companytract rate in the alternative a decree for
rs. 244000/- being the amount claimed at the rate of 28.1
above the companytract rate as recommended by the executive
engineer and in the -further alternative a decree for rs. 136222/-at the rate of 18 17 above the companytract rate as
certified by the superintending engineer. the union of
india companytended inter alia that the claim was barred by
the law of limitation. the trial companyrt held that the claim was number barred by the
law of limitation and decreed the claim for rs. 136222/-
as certified by the superintending engineer. aginst the
decree passed by the trial companyrt the appellant companypany as
well as the union of india appealed to the high companyrt. before the high companyrt in support of the appeal only the
plea of limitation was pressed on behalf of the union of
india. in the view of the high companyrt the claim was governed
either by art. 56 or by art. 115 of the first schedule to
the limitation act 1908 and the suit number having been filed
within three years of the date on which the work was done
and in any event of the date on which the claim was
rejected was barred. the appellant companypany has appealed to
this companyrt with certificate. the appellant companypany had undertaken under the terms of the
contract to do specific companystruction work at basic rates. the engineer-in-charge was by the terms of cl. 12 of the
agreement companypetent to give instructions for work number
covered by the terms of the companytract and it was provided
that remuneration shall be paid at the rate fixed by the
engineer-in-charge for such additional work and in case of
dispute the decision of the superintending engineer shall be
final. it is companymon ground that the claim made by the
appellant companypany was number companyered by the arbitration
agreement and on that account it was number referred to the
arbitrator. the claim in suit related to the revision of
rates due to the companyplex nature of the work and due to
increase in the quantity of work and also grant of companytracts
to other companypeting parties at substantially higher rates and
other related matters. article 56 of the first schedule to the indian limitation
act. 1908 prescribes a period of three years for a suit for
the price of work done by the plaintiff for the defendant at
his request where numbertime has been fixed for payment and
the period of limitation companymences to run from the date when
the work is done. a suit is governed by art. 56 if it
arises out of a companytract to pay the price of work done at
the request of the defendant. the claim in the present
case is for payment at an additional rate over the
stipulated rate in view of change in circumstances and number
for price of work done by the appellant companypany. it is true
that additional work was done at the request of the
engineer-in-charge but the claim in suit was number for the
price of work done but. for enhanced rates in view of
altered circumstances. article 115 of the first schedule to the limitation act is a
residuary article dealing with the claim for companypensation
for the breach of any companytract express or implied number in
writing registered and number specially provided for in the
first schedule. the period of limitation in such cases is
three years and it companymences
to run when the companytract is broken or where there are
successive breaches when the breach in respect of which the
suit is instituted occurs or where the breach is companytinuing
when it ceases. the suit filed by the appellant companypany is
number a suit for companypensation for breach of companytract express
or implied it is a suit for enhanced rate because of
change of circumstances and in respect of work number companyered
by the companytract. the additional work directed by the
engineer-in-charge when carried out may be deemed to be done
under the terms of the companytract but the claim for enhanced
rates does number arise out of the companytract it is in any case
number a claim for companypensation for breach of companytract. the claim is therefore number companyered by any specific article
under the first schedule and must fall within the terms of
art. 120. the solicitor-general appearing on behalf of the
union of india companytended that even if the claim falls within
the terms of art. 120 of the limitation act it was barred
for the appellant companypany had in the suit made a claim for
work done more than six years before the institution of the
suit. companynsel submitted that under art. 120 the period of
limitation companymences to run from the date on which the
defendant obtains the benefit of the work done by the
plaintiff. but under art. 120 of the limitation act the
period of six years for suits for which numberperiod of
limitation is provided elsewhere in the schedule companymences
to run when the right to sue accrues. in our judgment there
is numberright to sue until there is an accrual of the right
asserted in the suit and its infringement or at least
clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted bolo v.
kokan and others 1 .


civil appellate jurisdiction civil appeal number 2317 of
1984.
from the judgment and order dated 14/15.3.1984 of the
high companyrt of bombay in w.p. number 3063/1983. and
civil appeal number 2318 of 1984.
from the judgment and order dated 14/15.3.1983 of the
bombay high companyrt in w.p. number 3063/1983. with
transfer petition  civil  number 190 of 1984.
for the petitioner appellant

parasan attorney general milan k. banerjee addl. solicitor general s.a. shroff miss a subhashini and dr. v.
gori shanker
for the respondents

a. palkhivala soli j. sorabjee p. r. mridul a. b.
divan dr. l.m. singhvi k k. venugopal j.b. dadachanji
rajinder narain harish salve b.s. bantia k.s. companyper
bedabratta barua r. nariman t.m. ansari p.k. ram mrs.

k. verma and d.n. mishra. the order of the companyrt was delivered by
fazal ali j.
in slp  c  number. 5392/84 5412/84. we have heard learned attorney general for the
petitioners and mr. palkhivala learned companynsel for
respondents at length. special leave granted. there will be an order vacating
the order of stay injunction passed by the single judge of
the high companyrt prohibiting any action being taken on the
basis of the requisition put in by l.i.c. we direct that all
appropriate proceedings will be taken in accordance with law
on the basis of the requisition. however numbereffect should
be given to any resolution the companypany may pass at the
extra-ordinary general meeting to be held in companysequence of
the requisition without obtaining prior directions from this
court. the pendency of these cases in this companyrt will number
stand in the way of holding the annual general meeting of
the companypany in the numbermal companyrse. these appeals are disposed
of except that they will be kept pending for the limited
purpose to enable companynsel to move this companyrt for directions
as indicated above. in companyputing the time for taking steps
pursuant to the requisition the period from the date of
requisition till this day will be excluded in view of
interim stay injunction granted by the high companyrt. the prayer for amendment of the cause title is allowed.