judgement:
vil Appeal No. 2931 (N) of 1981.
From the Judgment and Order dated 7.10.1980 of the Madhya Pradesh High Court in Miscellaneous First Appeal No. 78 of 1974.
L.M. Singhvi, D. Bhandari and A.K. Sanghi for the Appellant.
T.S. Krishnamurthy Iyer and S.K. Gambhir for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This Civil Appeal by special leave is from the order dated 7.10.1980 of the High Court of Madhya Pradesh, Jabalpur in Misc (F) Appeal No. 78 of 1974, allow ing the appeal and enhancing compensation for land acquired by the Improvement Trust, Bhopal.
The Improvement Trust, Bhopal, hereinafter referred to as 'the Trust ', acquired 152 acres of land of Village Jamal pura by Notification dated 30th April, 1965 issued under Section 68 of the Madhya Pradesh Town Improvement Trust Act, 1960, hereinafter referred to as 'the Act ', and took posses sion of the land sometimes in June, 1967.
Out of these acquired land the instant appellant owned 12.62 acres where upon stood a house, a well and some trees.
The whole of the acquired land including that of the appellant was within the limits of Bhopal Municipal Corporation.
On 25.3.1966 Notifi cation under Section 71 of 911 the Act was issued vesting the land in the Trust.
The Trust offered compensation at the rate of Rs.950 per acre (@ 14 paise per sq.
ft.) amounting to Rs.11,997.00; for the well Rs.3,108; and for the trees Rs.815 and for compulsory acqui sition 15% amounting to Rs.2,400.
The appellant made refer ence, No. 8 of 1970 to the Compensation Tribunal under Section 72(3) of the Act.
The Tribunal awarded compensation at the rate of Rs.6,000 per acre (Rs.0.28 Paise per sqr.
ft.) for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees.
Thus the Tribunal by its award dated 25th November, 1972 awarded a total sum of Rs.1,20,060 inclusive of interest as compensation to the appellant, as against his claim at the rate of Rs.20,000 per acre for the land, Rs.20,000 for the building, Rs.5,000 for the well, Rs.2,500 for the trees and Rs. 10,000 for loss of business and earnings, his total claim amounting to Rs. 13,39,560.
On appeal, being Misc.
(F) Appeal No. 78 of 1974, the High Court maintained the award in respect of the Build ing, well and the trees, but enhanced the compensation in respect of the land determining the market value at Rs. 12,000 per acre and the total area being 12.62 acres the total compensation inclusive of that allowed for the house etc.
and 15% solatium worked out to Rs. 1,84,293.
Dissatis fied, the appellant obtained leave and filed this appeal.
Dr. L.M. Singhvi learned counsel for the appellant submits, inter alia, that the house and the well were gross ly undervalued; that both the Tribunal as well as the High Court misdirected themselves in treating the land as agri cultural land but not as urbanised developed land on the erroneous ground that there was no building activity of substantial nature at the time of acquisition in spite of the fact that a part of the land was already converted to Abadi, that both the Tribunal as well as the High Court failed to take into consideration the potential value of the land; and that evidence of sales of similar plots was not accepted on the ground that those pertained to small plots; and that the High Court committed an error when it deducted the development charge from the agreed price instead of adding it to the agreed price while calculating the market value.
Mr. Krishnamurthi learned counsel for the respondent Trust submits that the house and the well were properly valued; that it was not correct that the Tribunal did not correctly consider the question of the nature of the land which it held to be agricultural because it did not find therein any building activity of substantial nature.
At any rate, counsel submits, the High Court took into considera tion the potential value of the land and as such there was no omission to consider any 912 relevant material or misdirection in this regard.
Counsel, however, fails to explain the reason of deducting the devel opment charge from the agreed price, instead of adding it, while calculating market value of the lands on the basis of evidence produced by the claimant.
This, however, according to counsel, is not a sufficient ground for our interference in this appeal under Article 136 of the Constitution of India.
In an appeal under Article 136 of the Constitution of India involving the question of valuation of acquired land, this Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied, as was held in Atmaram Bhagwant vs Collector of Nagpur, A.I.R. 1929 P.C. 92.
In Dollar Company, Madras vs Collector of Madras, the Land Acquisition Officer awarded Rs. 800 per ground as compensation and the City Civil Court on reference awarded at the rate of Rs. 1,000 pet ground, and the High Court on appeal awarded Rs.1800 per ground.
The appellant himself purchased the suit land about 10 months before the Notification under Section 4 was made at a price of Rs.410 per ground whereafter the appellant has spent a little money on filling up a pond.
Dismissing the appeal it was observed that this Court interferes with the judgment of the High Court only if the High Court applies a principle wrongly or because some important point affecting valuation has been overlooked or misapplied.
A Court of appeal inter feres not when the judgment under attack is not right, but only when it is shown to be wrong.
As there was no error in principle in the High Court judgment nor had any of the limited grounds on which that Court 's jurisdiction could be legitimately exercised was made out, the appeal was dis missed.
Therefore, it is for the the appellant to show that there is ground for interference in this case.
As regards the value of the house, the Land Compensation Tribunal clearly observed that it visited the spot and found that the house 'was in extremely dilapidated condition having big cracks in foundation, walls and pillars.
The foundation was getting loose.
The roof of asbestos sheets was sagging, indicating that the wood rafters had been badly damaged.
Doors and windows were in bad condition.
The two verandahs of the house were temporary, with roof of asbestos sheets. ' The house, according to the Tribunal might be 20 to 25 years old and depreciation would be 5% per year.
Considering the above factors 913 we are of the view that the compensation awarded, namely, Rs.5,000 is reasonable.
Also from evidence we find that Rs.3,000 for the well was reasonable.
There was no error of principle and hence there can be no grievance on these counts.
Regarding nature of the land the Tribunal noted that the claimants in most of the references asserted that the ac quired land should be valued as urban house site because of alleged potential value and had claimed compensation between the Rs.3 to Rs. 1 per sqr.
The Trust disputed the claim and urged that the lands at the time of acquisition, were either agricultural or merely fallow land and they had absolutely no urban site value.
The claimants also urged that the lands were situated within Corporation limits and lands of some of the claimants were already diverted (con verted).
We agree with Mr. Krishnamurthi that though the Tribunal treated it as agricultural, the High Court proceed ed on the principle of developed land.
It is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner.
Dr. Singhvi argues that failing to consider potential value is an error of principle.
It is an accepted principle as was laid down in Gajapatiraju vs Rev. Divisional Officer, A.I.R. 1939 P.C. 98 that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from willing purchaser.
The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded.
Neither must be considered as acting under compulsion.
The value of the land is not to be estimated at its value to the purchaser but this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded.
The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth.
Any sentimental value for the vendor need not be taken into account.
The vendor is to be treated as a vendor willing to sell at the market price.
Section 23 of the Land Acquisition Act, 1894, enumerates the matters to be considered in determining compensation The first to be taken into consideration is the market value of the land on the date of the publication of the Notification under Sec tion 4(1).
Market value is that of a willing vendor and a willing purchaser.
A willing vendor would naturally take into consideration such factors as would contribute to the value of his land including its unearned increment.
A will ing purchaser would also consider more or less the same factors.
There may be many ponder 914 able and imponderable factors in such estimation or guess work.
Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining compensation.
Section 25 provides that the amount of compen sation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11.
As was observed in Gajapatiraju (supra) sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentiali ty.
In such a case the court has to ascertain as best as possible from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with that particular potentiality.
In the instant case also the ac quired land possesses Some important features being located within the Corporation area and its potentiality for being developed as a residential area.
In such a situation in determining its market value, where there was no sufficient direct evidence of market price, the Court was required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in this par ticular position and with this particular potentiality.
It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined, that is, the date of the notification under Section 4, but also by reference to the use to which it is reasonably capable of being put in the future.
A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however willing a vendor he is.
is not likely to be content to sell the land for its value as waste or agricultural land as the case may be.
The possibility of its being used for building purposes would have to be taken into account.
However, it must not be valued as though it had already been built upon.
It is the possibilities of the land and not its realised possibilities that must be taken into considera tion, In other words, the value of the land should be deter mined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it of.
It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration in determining the market value of the land.
In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities.
However, only rea sonable and fair capabilities but not far fetched and hypo thetical capabilities are to be taken into consideration.
In sum, in estimating 915 the market value of the land all of the capabilities of the land, and all its legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner.
The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas.
The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of the imagination.
In Mahabir Prasad Santuka vs Col lector, Cuttack, [1987] 1 S.C.C. 587 the evidence on record was that the land was being used for agricultural purposes but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site and that on industrialisation of the neighbouring areas the prices increased tremendously, and that aspect, it was held, could not be ignored in determining compensation.
On the question as to whether the land was urbanised developed land or not we find that the Tribunal consolidated all the 15 references arising out of the acquisition for the purpose of recording evidence and, that is, how it came to consider the Exts.
P 1, P 2, P 3, and P 8 being agreements of sale executed by Phool Chand Gupta who was father of the claimant in reference No. 1 of 1970 while the petitioners reference was No. 8 of 1970.
Similarly the Ext.
D 1 to D 6 also pertained to small plots of land out of land in refer ence No. 1 of 1970.
The High Court rightly held that the Exts.
P 1, P 2, P 3 and P 8 and the sale deeds Exts.
D 1 to D 6 furnished a more reliable data for working out the market value.
If those lands were the urban developed house site lands, their prices would have reflected the same.
It cannot, therefore be said that High Court was in error in taking the above Exts.
into consideration.
However, poten tial value was not separately considered.
P 1, P 2, P 3 and P 8 were agreements of sale executed on 29th July, 1961 in respect of small parcels of land wherein the vendor agreed to sell the land at that time at the rate of 14 annas per sqr.
to Rs. 1 per sqr.
It was further agreed that the vendees would pay development charges at the rate of 4 annas per sqr.
The vendor and the respective vend ees were examined It should be noted that the Exts. were agreements to sell and not sales.
The High Court observed.
that the idea behind those transactions was that the vendor would apply to the revenue authority for diversion and the town planning authority for sanction of lay out plan and the sale deeds would be executed after the land was developed.
The High Court also noted that 916 there was nothing to show that the agreements were prepared only to be used later as evidence of market value.
In Decem ber 1960 Phool Chand Gupta applied for diversion of his land to the Sub Divisional Officer.
In January 1961 application was also made to the Town Planning Authority for sanction of the lay out plan but in the meantime the land was notified for acquisition under the Land Acquisition Act sometimes in 1962 and Phool Chand Gupta tried to extricate his land from acquisition which, however, did not materialise and, as already noted, on 30.4.65 the instant notification to ac quire under Section 68 of the Act was issued.
Rejecting the contention that the agreements were spurious, the High Court observed that the very fact that applications were made for diversion and for sanction of lay out plan went to show that the owner was interested in the development in the land and in selling it after dividing it into plots.
Thus, the High Court, rightly took into consideration the above Exts, which pertained to a part of the acquired land of 152 acres.
The High Court also considered the sale deeds Exts.
D 1 to D 6 which pertained to small plots of lands out of land in reference No. 1 of 1970.
Those sale deeds were registered in 1966 67, but the agreements to sale were entered into in 1959 62.
The respective purchasers and the vendors were examined.
The market value on the basis of Ext.
D 2 made in the sale deed of 1962 selling only to 12.50 sqr.
for Rs.260 which worked out to Rs.8712 per acre.
The High Court did not say that these Exts. were rejected.
By Ext.
P 5, P 6 and P 32 small parcels of land, at Kumharpura were sold.
Kumharpura was noted to be two to three furlongs away from the acquired land.
The market rate according to these Exts.
ranged from Rs. 1.88 to 2.34 per sqr.
The High Court observed that these sales could not be a useful guide for determining the market value of land acquired.
We are of the view that compared to Exts.
P 1, P 2, P 3 and P 8 Exts.
P 5 and P 6 and P 32 were less indicative of the market value of the acquired land.
We feel that the appellant should have no grievance for rejection of these sales of Kumharpura.
We find force in the contention of Dr. Singhvi that potential value was not taken into account in this case to the extent it should have been done.
From the award dated 25.11.1972 it appears that the acquired land was situated at Village Nissatpura, within Corporation limits of Bhopal Town and consisting of Khasra No. 190/ 73, 136/74, 178/74, 135/75 76, the total area being 12.62 acres.
The High Court found that the land was bounded on three sides by three roads: towards the eastern side by Berasia road; towards the western side by Sultania road; and towards the northern side by P.G.B.T. College Road.
Southern boundary of the land was a Nala.
The High 917 Court also noticed that the land abutted to roads, namely, Berasia road and P.G.B.T. College road and the claimant had a house on the land and that the claimant had stated that he had obtained water and electricity connection from the Corporation and the electricity Board.
: 7.60 acres of land out of 12.62 acres had been diverted and the land was even.
At paragraph 14 of the special leave petition it is stated that the land is approachable from two different and important localities of Bhopal Town.
From Bajaria Chowk Shahjanabad, a road, called Sultania Infantry road, proceeds Military Lines called Sultania Infantry lines.
On both sides of this road, there is the thickly habited locality of Shahjahanabad, till about two furlongs.
Slightly ahead is the enterance porch gate of the Military lines.
Just before the gate, a tarred road bifurcates on the right hand side and it enters the acquired land of Swatantra Kumar Ref.
No. 1/70.
This tarred road was constructed by the Trust after acquisition of the lands.
It goes on all sides of village Jamalpura, which is surrounded on all sides by the lands of Ref.
No. 1/70.
A part of land of Ref.
No. 1/70 was developed after acquisition, and the tarred road reaches the developed plots.
We have to note that such detail evidence was not there before the Tribunal and no benefit of development pursuant to and after the acquisition can be taken into consideration.
Even so, from the map and juxtaposition we have no doubt that the acquired land had potentialities which deserved to be counted.
In U.P. Government vs
H.S. Gupta, A.I.R. 1957 S.C. 202 where in computing compensation for acquisition of an estate outside the Municipal area the High Court had given valid and weighty reasons for adopting the principle that the valuation should be on plot wise though there was certain advantages in computing the value at the block rate where vast area of land was acquired, this Court held that in the circumstances of that case the proper mode of valuation was plot rate basis.
In the instant case the application of the principle that if the land has to be sold in one block consisting of a large area, the rate likely to be fixed per sq.
ft. would be lower than if an equal extent of land is parcelled out into smaller bits and sold to different pur chasers could not be found fault with.
The price fetched for smaller extent of land similarly situated with the same kind of advantages and drawbacks can also be applied to a large area valued plot wise instead of block wise.
In the instant case relying on Exts.
P 1, P 2, P 3 and P~8 and considering the fact that applications were made for diversion and for sanction of a lay out plan the High Court found that it went to show that the owner was interested in developing the land and in selling it by 918 dividing it into plots.
The lowest rate of price in these agreements was 14 annas per sqr.
and the agreements mentioned that 4 annas per sqr.
ft. Would be needed for developing the land.
This charge was to be paid by the purchaser.
So the price of developed land would be Rs. 1/2 per sqr.
The evidence of M.P. Jain (D.W. 9), Senior Draftsman of the Improvement Trust went to show that ex penses for improvement of land ranged from Rs. 1.50 to 2 per sqr.
The statement of Shri Jain was recorded in 1972.
Making some allowance for the increase in the rate the High Court considered it proper to hold that in 1965 when this land was acquired the charges for improvement would have worked at 75 paise (12 annas) per sqr.
It had also come in the evidence of Shri Jain that 50 to 60 per cent of the land had to be left for roads, drainage, gardens, school etc.
and it was only then that the lay out plan was sanc tioned.
High Court, accordingly, deducted improvement charges at the rate of 12 annas per sqr.
ft., and the market rate for unimproved land in the light of these agreements worked out to 6 annas per sqr.
As 50% of the land at least had to be left out for roads etc; so the market rate of 3 annas per sqr.
ft. was applied for the entire unde veloped land.
Market rate thus worked out to Rs.8,000 per acre approximately.
However, the High Court awarded Rs. 12,000 per acre.
There was an additional factors in the calculation.
Mr. Krishnamurthi therefore submitted that the High Court took into consideration the potential value of the land as a developed area but while making calculation it may have committed mistake.
To our mind the error was in wholly overlooking the basic price agreed to be paid by the purchaser and the standard of development they visualised.
The whole of the basic price could not be expected to be eaten up by the development of the land to the standard contemplated by the vendor and purchaser.
When the willing vendor has agreed to sell land at 14 annas per sqr.
after development and the development charge was to be paid by the willing purchaser, it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc.
and not beyond that.
Considering this aspect of the matter and the potential value of the land as urban developed area we are of the view that the compensation may justly be enhanced by 1/6th to Rs. 14,000 per acre and we do so.
We maintain 15% solatium but raise the rate of interest to 9% on the enhanced compensation from today till payment.
We leave it open for the appellant to move for higher inter est and solatium if entitled by virtue of subsequent judg ment of this Court, if any.
In the result, this appeal is allowed as above.
We make no order as to costs.
Y.L. Appeal allowed.

summary:
Respondent Town Improvement Trust Bhopal acquired 152 acres of land in village Jamalpura under section 68 of the Madhya Pradesh Town Improvement Trust Act within the munici pal limits of Bhopal.
That land included 12.62 acres of land belonging to the appellant on which stood a house, a well and some trees.
The appellant being not satisfied with the amount of compensation offered to him by the Trust, made a Reference to the Compensation Tribunal.
The Tribunal awarded compensation at the rate of Rs.6,000 per acre for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees.
Thus the Tribunal awarded a total sum of Rs.1,20,000 as compensation as against a claim of Rs.13,39,560 made by the appellant.
On appeal, the High Court, maintained the award in respect of the building, well and the trees but enhanced the same so far as the land is concerned by determining the market value of Rs.12,000 per acre.
Working or this basis, including 15% solatium, the total amount of compensation awarded worked out to he Rs. 1,84,923.
Being dissatisfied with the Order of the High Court, he has come up to this Court after obtaining special leave.
The main contentions urged by the appellant are (i) that the house and well are undervalued; (ii) that the land ought to have been treated as urbanised developed land; (iii) that potential value of the land has not 909 been taken into consideration while determining compensa tion; (iv) that the value of the sales of similar plots has wrongly been rejected.
Partly allowing the appeal, this Court, HELD: In determining market value, where there was no sufficient direct evidence of market price, the Court is required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in its particular position and with its particular potentiali ty.
[914C D] A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however, willing a vendor he is, is not likely to be content to sell the land for its value as waste or agricultural land as the case may be.
The possibility of its being used for building purposes would have to be taken into account.
However, it must not be valued as though it had already been built upon.
It is the possibilities of the land and not its realised possibilities that must be taken into consideration.
[914E F] In estimating the market value of the land, all the capabilities of the land and all its legitimate purposes to which it may be applied, or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is put at the time applied by the owner.
The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas.
[915A B] The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of imagination.
[915B C] A court of appeal interferes not when the judgment under attack is not right, but only when it is shown to be wrong.
[912E] In an appeal under article 136 of the Constitution of India involving the question of valuation of acquired land, the Supreme Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied [912B C] 910 When the willing vendor had agreed to sell land at 14 annas per sq.
feet after development and the development charge was to be paid by the willing purchaser it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc.
and not beyond that.
Con sidering this aspect of the matter and the potential value of the land as urban developed area the Court took the view that the compensation may justly be enhanced by 1/6th i.e. to Rs.14,000 per acre.
Solatium 15% was maintained but the rate of interest was raised to 9% on the enhanced compensa tion till payment.
[918F G ] Atmaram Bhagwant vs Collector ofNagpur, A.I.R. 1929 P.C. 92, followed; Dollar Company Madras vs Collector of Madras, ; Gajapatiraju vs Rev. Divisional Officer, ; Mahabir Prasad Santuka vs Collector, Cuttack, [1987] 1 S.C.C. 587 and U.P. Government vs
H.S. Gupta, A.I.R. 1957 S.C. 202.


judgement:
Appeal No. 150 of 1955.
Appeal from the judgment and decree dated August 20, 1952, of the Punjab High Court in Regular First Appeal No. 107 of 1949 arising out of the judgment 140 1100 and decree dated March 22, 1948, of the Court of the sub Judge 1st Class, Panipat, in Suit No. 361 of 1947.
Dr. J. N. Banerjee and K. L. Mehta, for the appellant.
Gopal Singh, for respondents Nos.
1 to 9.
May 23.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
If a Hindu governed by the customary law prevailing in the Punjab succeeds to his maternal grandfather 's estate, is the property in his hands ancestral property qua his own sons? This is the short and interesting question of law which arises in this appeal.
The appellant is the son of Sarup, respondent 10.
On the death of his mother Musammat Rajo, respondent 10 inherited the suit properties from his maternal grandfather Moti.
On March 22, 1927, he executed a registered mortgage deed in respect of the said properties in favour of Shibba the ancestor of respondents I to 9 for Rs. 5,000.
Subsequently, on April 12, 1929, he sold the equity of redemption to the said mortgagee Shibba for Rs. 11,000.
In Suit No. 145 of 1946 filed by the appellant in the court of the Sub Judge, Panipat, from which the present appeal arises, the appellant had claimed a declaration that the two transactions of mortgage and sale in question did not bind his own reversionary rights, because the impugned transactions were without consideration and were not supported by any legal necessity. 'His allegation was that his family was governed by the custom prevailing in the Punjab and, under this custom, the property in suit was ancestral property and he was entitled to challenge its alienation by his father respondent 10.
Respondents 1 to 9 disputed the appellant 's right to bring the present suit and urged that the alienations by respondent 10 were for consideration and for legal necessity.
It was, however, common ground that respondent 10 and the appellant were governed by the custom prevailing in the Punjab.
The learned trial judge held that the property in dispute was ancestral qua the appellant 1101 and that the impugned alienations were not effected for consideration or for legal necessity.
He, however, held that the appellant was not born at the time when the mortgage deed in question was executed and so he was not entitled to challenge it.
In the result the appellant was given a declaration that the sale in dispute did not bind the appellant 's reversionary rights in the property after the death of respondent 10.
The appellant 's claim in regard to the mortgage was dismissed.
Respondents 1 to 9 went in appeal against this decree to the District Judge at Karnal and contended that the suit had abated in the trial court as a result of the death of one of the defendants pending the decision of the learned trial judge.
The learned District Judge rejected this contention but he set aside the decree and remanded the suit for proceedings for substituting the legal representatives of the deceased defendant Ram Kala.
After remand the legal representatives of the deceased Ram Kala were brought on record and ultimately the original decree passed by the trial court ",as confirmed by the learned trial judge.
Respondents I to 9 again challenged this decree by preferring an appeal to the District Judge at Karnal.
The learned District Judge held that the value of the subject matter of the suit was more than Rs. 5,000 and so he ordered that the memorandum of appeal should be returned to respondents I to 9 to enable them to file an appeal before the High Court.
That is how respondents I to 9 took their appeal to the High Court of Punjab.
The High Court took the view that the appeal had in fact been properly filed the District Court; but even so it did not ask respondents 1 to 9 to go back to the District Court, but condoned the delay made by the said respondents in the presentation of the appeal before itself and proceeded to deal with the appeal on the merits.
The High Court held that the property inherited by respondent 10 was 'not ancestral property qua the appellant, and so it allowed the appeal preferred by respondents 1 to 9 and dismissed the appellant 's suit.
In view of the fact that the point of law raised before the High Court was not free from doubt the High 1102 Court ordered that parties should bear their own costs throughout.
The appellant then applied for and obtained a certificate from the High Court under the first part of section 110 of the Code of Civil Procedure.
It is with this certificate that the present appeal has come before this Court and the only point which has been raised for our decision is whether the property in suit can be held to be ancestral property between the appellant and respondent 10.
Under the Hindu law, it is now clear that the only property that can be called ancestral property is property inherited by a person from his father, father 's father or father 's father 's father.
It is true that in Raja Chelikani Venkayyamma Garu vs Raja Chelikani Venkataraman ayyamma (1) the Privy Council had held that under Mitakshara law the two sons of a Hindu person 's only daughter succeed on their mother 's death to his estate jointly with benefit of survivorship as being joint ancestral estate.
This decision had given rise to a conflict of judicial opinion in the High Courts of this country.
But in Muhammad Husain Khan vs Babu Kishva Nandan Sahai (2) this conflict was set at rest when the Privy Council held that under Hindu law a son does not acquire by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather.
The original text of the Mitakshara was considered and it was observed that the ancestral estate in which, under the Hindu law, a son acquires jointly with his father an interest by birth, must be confined to the property descending to the father from his male ancestor in the male line.
Sir Shadi Lal, who delivered the judgment of the Board, explained the earlier decision of the Privy Council in Raja Chelikani Venkayyamma Garu 's case (1) and observed that in the said case " it was unnecessary to express any opinion upon the abstract question whether the property which the daughter 's son inherits from his maternal grandfather is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him." The learned Judge further clarified the position by stating that the (1) (19O2) L.R. 29 I.A. 156.
(2) (1937) L.R. 64 I.A. 250.
1103 phrase 'ancestral property ' used in the said judgment was used in the ordinary meaning, viz., property which devolves upon a person from his ancestor and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father.
Thus there is no doubt that under the Hindu law property inherited by a person from his maternal grandfather is not ancestral property qua his sons.
The question which arises in the present appeal is: what is the true position in regard to such a property under the Customary law prevailing in the Punjab ? This question has been considered by Full Benches of the High Court of Punjab on three occasions.
Let us first consider these decisions.
In Lehna vs Musammat Thakri (1), it was held by the Full Bench (Roe section J. and Rivaz J., Chatterji J. dissenting) that " in the village community where a daughter succeeds, either in preference to, or in default of, heirs male, to property which, if the descent had been through a son, would be ancestral property, she simply acts as a conduit to pass on the property as ancestral property to her sons and their descendants and does not alter the character of the property simply because she happens to be a female ".
Chatterji J., however, held that the word "ancestral" can only be used in a relative and not in a fixed or absolute sense in customary law, and before this character can be predicated of any property in the hands of a male owner, it must be found that it has descended to him from a male ancestor and in the case of a claim by collaterals, from a male ancestor common to him and the claimants.
It is apparent from the majority judgment that the learned judges did not find the alleged custom about the character of the property proved by any evidence.
They proceeded to deal with the question rather on a priori considerations and the main basis for the decision appears to be that the property cannot lose its character of ancestral property merely because it has come through a female who succeeded her father in default of male heirs.
Chatterji J. dissented from this (1) [1895] 30 P.R. 124.
1104 approach.
He observed that he could not recall any instance in which property derived from or through any female ancestor among Hindus had been decided to fall within the category of ancestral property under the customary law.
He also pointed out that the statement of the learned author of the Digest on the Customary Law of the Punjab on this point did 'not support the majority view.
Thus it would not be unreasonable to say that the majority decision in this case is not a decision on the proof of custom as such.
The same point was again raised before a Full Bench of the High Court of Punjab in Musammat Attar Kaur vs Nikkoo (1).
Sir Shadi Lal C. T. who delivered the principal judgment of the Full Bench conceded that there was " a great deal to be said in favour of the proposition that, unless the land came to a person by descent from a lineal male ancestor in the male line, it should not be treated as ancestral." He also conceded that the decision in the earlier Full Bench case of Lehna (2) did not rest upon any evidence relating to custom on the subject but was based on what the majority of the judges considered to be the general principles of the customary law, and upon the argument abinconvenienti.
The learned Chief Justice then took into account the fact that the question about the character of such property even under the Hindu law was not free from doubt and he referred to the conflict of judicial opinion on the said point.
Having regard to this conflict the learned Chief Justice was not inclined to reopen the issue which had been concluded by the earlier Full Bench decision, and basin(, himself on the doctrine of stare decisis he held that the majority decision in Lehna 's case (2), should be treated as good law.
It would be noticed that the judgment of Sir Shadi Lal C. J. clearly indicates that, on the merits, he did not feel quite happy about the earlier decision in Lehna 's case (2).
It appears that the same question was again raised before another Full Bench of the High Court of Punjab in Narotam Chand vs Mst.
Durga Devi (3).
In this (1) Lah. 356.
(2) [1895] 30 P.R. 124.
(3) I.L.R. 1105 case the main question which arose for decision was under article 2 of the Punjab Limitation (Custom) Act I of 1920.
This article governs suits for possession of ancestral immoveable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom.
It provides for two periods of limitation according as a declaratory decree is or is not claimed.
In dealing with the point as to whether the suit in question attracted the provisions of article 2 of Act I of 1920, the Full Bench had to consider whether the property in suit was ancestral property or not; and that raised the same old question whether property from maternal grand father in the hands of a grandson can be described as ancestral property or that such property in the hands of a daughter can be given that description.
The matter appears to have been elaborately argued before the Full Bench.
The previous Full Bench decisions were cited and reference was made to two decisions of the Privy Council which we will presently consider.
Mahajan J., as he then was, who delivered the main judgment of the Full Bench held that the property inherited by a Hindu from his maternal grandfather is not ancestral qua his descendants under the customary law of the Punjab.
The learned judge also held that the two Privy Council decisions cited before the court had in effect overruled the earlier Full Bench decisions of the Punjab High Court.
It is this last decision of the Full Bench which has been followed by the High Court in the present proceedings.
The appellant contends that the high Court was in error in not following the earlier Full Bench decisions on this point and it is urged on his behalf that the decision of the last Full Bench in Narotam Chand 's case (1), should not be accepted as correct.
We do not think that the appellant 's contention is well founded.
So far as the statement of the customary law itself is concerned, Rattigan 's Digest which is regarded as an authority on the subject, does not support the appellant 's case.
Inpara.
59 of the Digest of Civil Law for the Punjab chiefly based on the customary law it is (1) I.L.R. 1106 stated that ancestral immoveable property is ordinarily inalienable (especially amongst Jats, residing in the Central Districts of the Punjab) except for necessity or with the consent of male descendants or, in the case of a sonless proprietor, of his male collaterals.
Provided that the proprietor can alienate ancestral immoveable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence.
Following this statement of the law the learned author proceeds to explain the meaning of ancestral property in these words: "Ancestral property means, as regards sons, property inherited from a direct male lenial ancestor, and as regards collaterals property inherited from a common ancestor ".
Thus, so far as the customary law in the Punjab can be gathered, the statement of Rattigan is clearly against the appellant.
Then as regards the first Fall Bench decision in Lehna 's case (1), as we have already pointed out, there is no discussion about any evidence of custom and indeed no evidence about the alleged custom appears to have been led before the learned judges.
It is, therefore, difficult to accept this decision as embodying the learned judges ' considered view on the question of custom as such.
That in effect is the criticism made by Chatterji J. in his dissenting judgment and we are inclined to agree with the views expressed by Chatterji J. When this question was raised before the second Full Bench in Mst.
Attar Kaur 's case (2), Sir Shadi Lal C. J. rested his decision on stare decisis mainly because the true position on the said question even under the Hindu law was then in doubt.
This consideration has now lost all its validity because, as we have already indicated, the true position under the Hindu law about the character of such property has been authoritatively explained by Sir Shadi Lal himself in the Privy Council decision in Muhammad Husain Khan 's case (3 ).
That is why we think not much useful guidance or help can be derived from this second Full Bench decision.
The last Full Bench decision in Narotam Chand 's case (4), is (1) [1895] 30 P.R. 124.
(2) Lah.
(3) (1937) L.R. 64 I.A. 250.
(4) I.L.R. 1107 based substantially on the view that, as a result of the Privy Council decision in Muhammad Husain Khan 's case (1), the two earlier Full Bench decisions must be taken to have been overruled.
Besides, the learned judges who constituted this Full Bench have also examined the merits of the two earlier judgments and have given reasons why they should not be takedas correctly deciding the true position under the customary law.
In our opinion, the view taken by this Full Bench is on the whole correct and must be confirmed.
It would now be necessary to consider the two Privy Council decisions on which reliance has been placed by Mahajan J., as he then was, in support of his conclusion that they have overruled the earlier Full Bench decisions.
In Attar Singh vs Thakar Singh(") the Privy Council was dealing with a suit by Hindu minors to set aside their father 's deed of sale of the lands in suit to the defendants on the ground that they were ancestral.
It was held that, as the plaintiffs claimed through their father as son and heir of Dhanna Singh, the onus was on them to show that the lands were not acquired by Dhanna Singh and, as that onus was not discharged, the lands must be deemed to be acquired properties of Dhaiina Singh and that deed could not be set aside.
The parties to this litigation were governed by the customary law of the Punjab.
In dealing with the character of the property in suit, Lord Collins who delivered the judgment of the Board observed that " it is through father, as heir of the above named Dhanna Singh, that the plaintiffs claimed, and unless the lands came to Dhanina Singh by descent from a lineal male ancestor in the male line, through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.
" This statement indicates that, according to the Board, it is only where property descends from the lineal male ancestor in the male line that it partakes of the character of ancestral property.
It may be conceded that the question as to whether property inherited from a maternal grandfather is ancestral property or (1) (1937) L.R. 64 I.A. 250.
(2) (1908) L.R. 35 I.A. 206.
141 1108 not did not arise for the decision of the Board in this case; but it is significant that the words used by Lord Collins in describing the true position under the Hindu law in regard to the character of ancestral property are emphatic and unambiguous and this statement has been made while dealing with the case governed by the customary law of the Punjab.
This statement of the law was cited with approval and as pertinent by Sir Shadi Lal when he delivered the judgment of the Board Muhammad Husain Khan 's case (1).
The learned judge has then added that " Attar Singh 's case (2), however, related to the property which came from male collaterals and not from the maternal grandfather and it was governed by the custom of the Punjab; but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships ".
The effect of these observa tions would clearly appear to be that the test laid down in Attar Singh 's case(2) would apply as much to the Hindu law as to the customary law of the Punjab.
In our opinion, these observations made by Sir Shadi Lal are entitled to respect and have been rightly relied upon by Mahajan J., as he then was, in the last Full Bench case (Narotam Chand 's case (3)), to which we have already referred.
We may add that it may not be technically correct to say that these observations overrule the earlier Full Bench decision of the Punjab High Court on the point.
We entertain no doubt that, if the relevant observations of Lord Collins in Attar Singh 's case (2) had been considered in the second Full Bench decision, they would have hesitated to rely on the doctrine of stare decisis in support of their final decision.
There is one more point which still remains to be considered.
Having regard to the principle of stare decisis, would it be right to hold that the view expressed by the High Court of Punjab as early as 1895 was erroneous ? the principle of stare decisis is thus stated in Halsbury 's Laws of England(4): (1) (1937) L.R. 64 I.A. 250.
(2) (1908) L.R. 35 I.A. 206.
(3) I.L.R. (4) 2nd Edn., Vol.
XIX, P. 257, para.
1109 " Apart from any question as to the Courts being of co ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other, ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally.
But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake.
" The same doctrine is thus explained in Corpus Juris Secundum(1) " Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.
This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.
" The Corpus Juris Secundum (2), however, adds a rider that "previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous.
The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.
" In the present case it is difficult to say that the doctrine of stare decisis really applies because the (1) VOL XXI P. 302, para. 187.
(2) VOI.
P. 322, para.
110 Correctness of the first Full Bench decision has been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in .950.
Besides, in 1908, the Privy Council made emphatic observations in Attar Singh 's case (1) which considerably impaired the validity of the first Full Bench decision ; so it would be difficult to say that the decision of the first Full Bench has been consistently followed by the community since 1895.
It cannot also be said that reversal of the said decision shakes any title or contract.
The only effect of the said decision was to confer upon the son of the person who inherited the property from his maternal grandfather the right to challenge his alienation of the said property.
It is doubtful if such a right can be regarded as the right in property.
It merely gives the son 'in option either to accept the transaction or to avoid it.
It cannot be said today that any pending actions would be disturbed because this right has already been taken away by the Full Bench in 1950.
In this connection, it may also be relevant to consider another aspect of this matter.
If it is held that the property inherited from maternal grandfather is not ancestral property, then it would tend to make the titles of the alienees of such property more secure.
Besides, we are satisfied that the decision of the first Full Bench is wholly unsustainable as a decision on the point of the relevant custom.
We are, therefore, inclined to take the view that the doctrine of stare decisis is in applicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.
In the result we confirm the finding of the High Court that the property in suit is not ancestral property and that the appellant has no right to bring the present suit.
The appeal accordingly fails and must be dismissed.
The appellants will pay the respondent 's costs in this Court; and parties will bear their own costs in the courts below.
Appeal dismissed.
(1) (1908) L.R. 35 I.A. 2o6.

dataset_name: IN-Abs

summary:
Under the customary law of the Punjab property inherited by a Hindu male from his maternal grandfather is not ancestral property qua his sons.
Narotam Chand vs Mst.
Durga Devi, I. L. R. (1950) Punj. 1, approved.
Lehna vs Musammat Thakyi, (1895) 30 P. R. I24 and Musammat Attar Kaur vs Nikkoo, Lah. 356, not approved.
The rule of stare decisis is not an inflexible rule and is inapplicable where the decision is clearly erroneous and when its reversal does not shake any titles or contracts or alter the general course of dealing.


judgement:
Civil Appeal No. 326164 of 1988.
From the Judgment and Order dated 3.7.1987 of the Kerala High.
Court in T.R.C. Nos.
54 to 57 of 1983.
A.K. Ganguli and C.N. Sreekumar for the Appel lant.
A.S. Nambiar and K.R. Nambiar for the Respond ents.
The Judgment of the Court was delivered by 722 RANGANATHAN, J.
M/s. Cardamom Planters ' Association, Bodinayakanur, (hereinafter referred to as 'the society ') appeals from orders of the Kerala High Court upholding its liability to the levy of surcharge under the Kerala (Sur charge on Taxes) Act, 1957, as amended in 1970.
The Kerala General Sales Tax Act, 1963, imposes sales tax on every dealer whose total turnover for any year ex ceeds a specific sum.
The sum prescribed was initially Rs. 10,000 but was gradually stepped up to Rs.20,000 in 1971, Rs.25,000 in 1976, Rs.35,000 in 1980, Rs.50,000 in 1981, Rs.75,000 in 1982 and Rs.1 lakh in 1984.
The expressions 'dealer ', 'taxable turnover ', 'total turnover ' and 'turn over ' are defined in section 2 of the Act.
The relevant portions of these definitions read as follows: Section 2 (viii) "Dealer" means any person who carries on the business of buying, selling, supplying or distributing goods, executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether, or for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes.
(b) XX XX XX (c) a commission agent, a broker or a del credere agent or an auctioneer or any other merchantile agent, by whatever name called, who carries on the business of buying, sell ing, supplying or distributing goods (execut ing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods) on behalf of any principal.
" Section 2 (xxiv) "taxable turnover" means the turnover on which a dealer shall be liable to pay tax as deter mined after making such deductions from his total turnover and in such manner as may be prescribed .
Section 2 (xxvi) 723 "total turnover" means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax . .
Section 2 (xx vii) "turnover" means the aggregate amount for which goods are either bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own ac count or, on account of others, whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horti cultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise,, shall be excluded from his turn over.
Explanation (i)"Agricultural or horticultural produce" shall not include XXX XXX XXX (ii) tea, coffee, rubber, cardamom or timber.
XXX XXX XXX In 1957, the Kerala Legislature introduced a surcharge on sales tax.
Section 3 of the Kerala Surcharge on Taxes Act, 1957 reads as follows: "The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover exceeds Rs.30,000 a year, be increased by a surcharge at the rate of five per centum of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963 shall, as the case may be, apply to the levy and collection of the said surcharge.
" Kerala Act 40 of 1976 stepped up the rate of surcharge by amending section 3(1) to read as follows: (1) The tax payable under the Kerala General Sales Tax Act, 1963, shall, in the case of a dealer whose turnover 724 (a) is not less than one lakh rupees but does not exceed ten lakhs rupees in a year, be increased by a surcharge at the ,rate of five per centum, and (b) exceeds ten lakhs rupees in a year, be increased by a surcharge at the rate of eight per centum, of the tax payable for that year and the provisions of the Kerala General Sales Tax Act, 1963, shall apply in relation to the said surcharge as they apply in relation to the tax payable under the said Act.
We may note here two important features of the latter Act.
the first is that, unlike sales tax which the dealer is entitled to get reimbursed from the purchaser of the goods sold by him, the surcharge has to be borne by the dealer himself, for sub section (2) of section 3 of the Surcharge Act prohibits the dealer from collecting the surcharge payable by him under sub section (1) on pain of prosecution under sub section (3).
The second is that while a dealer might be liable to sales tax at different rates on the turnover of the different goods dealt in by him, he has to pay a surcharge calculated on the amount of the sales tax payable by him in respect of his total dealings throughout the year.
The assessee is a society registered under the Socie ties ' Registration Act.
Its members are cardamom growers in the State of Kerala.
Under the Cardamom Act (Act 42 of 1965), read with the Cardamom (Licensing & Marketing) Rules, 1977, no person is entitled to carry on business as auction eer, dealer or exporter of cardamom except under and in accordance with the terms and conditions of a licence issued under the Act and Rules.
One of the conditions of the grant of licence to a person as an auctioneer is that he "shall not charge more than one per cent of the sale price as commission for the services rendered by him".
It is common ground that it is the society that has obtained the relevant licence for this purpose and that the individual cardamom growers who are members of the society have no such licence.
The society conducts weekly cardamom auction sales at two places, Santhanpara and Bodinayakanur.
The planters leave their produce with the society.
The produce of all the growers is mixed together and put to auction.
It is open to the planters to be present at the auction.
If any planter desires to sell at a specific price he can express his opinion in advance to the association.
If he wants to with draw his lot put up for sale he could do so.
Stitching charges and miscellaneous 725 charges are to be paid to the society.
The society collects 1% as commission out of the sale proceeds from each of the planters.
Besides sale of cardamom, which constitutes the major part of its turnover, the society also sells other goods such as gunnies, pesticides, sprayers, manure and the like.
It is contended on behalf of the appellants that the society has sold the goods only in its capacity as a commis sion agent for various principals and that, on the general principles of agency, an agent like the assessee can be liable to surcharge only to the same extent as the principal whom it represents.
Hence it cannot be made liable for any surcharge in respect of the sales effect by it on behalf of principals whose sales through the society do not exceed the limits set out in section 3(1) of the Surcharge Act.
The above contention was accepted by the Tribunal in the appeals against the assessments made on the society for the assessment years 1967 68 to 1969 70.
The sales tax assess ments of the society for 1973 74 to 1976 77 were completed by the 'Sales Tax Officer on the basis of the Tribunal 's order.
These assessments were, however, set aside by the Deputy Commissioner of Sales tax who was of the opinion that the society was liable to pay surcharge on its aggregate turnover in each of these years and he directed accordingly.
The assessee preferred appeals to the Appellate Tribunal from the orders of the Deputy Commissioner.
The Tribunal allowed the appeals by a common order dated 3rd November, 1982 following its order for the earlier assessment years.
It set aside the revisional orders passed by the Deputy Commissioner and restored the assessments made by the Sales Tax Officer for the assessment years 1973 74 to 1976 77.
The High Court, on revision by the Department, has set aside the orders of the Tribunal and restored the orders of the Deputy Commissioner.
Hence these appeals.
We are unable to see any flaw in the High Court 's rea soning.
The present assessee is clearly a dealer within the meaning of the statute, particularly in view of the inclu sive part of the definition contained in clause (c).
This is also the finding of the Tribunal and is also admitted by the assessee.
Likewise, the provisions of section 5 of the Sales Tax Act and section 3 of the Surcharge Act, read with the definitions of the words 'turnover ' 'taxable turnover ' and 'total turnover ', leave no doubt that the assessee 's taxable turnover has to be determined by taking the aggregate price of all the goods sold by it.
There is no statutory warrant for breaking up the sales turnover of the assessee by reference to 726 the turnover of the principals on whose behalf it deals.
Also, a logical corollary of the assessee 's argument would be that, even in respect of tax, the society can be assessed to sales tax only on the aggregate turnover relating to those of its principals who are liable to tax under section 5 of the Act.
The High Court has rightly pointed out that the assessee had not claimed, for purposes of sales tax, that the turnover of goods dealt with by it on behalf of principals who did not have a taxable turnover should be excluded.
If this be so, the High Court observes rightly, it is difficult to see on what principle the assessee can seek, in the matter of surcharge, the exclusion from its taxable turnover, of the turnover of principals who would not have been subjected to a surcharge if they had directly sold the goods entrusted by them to the assessee for sale.
This is particularly so because the Surcharge Act does not envisage a fresh determination of the assessee 's turnover at all.
It prescribes nothing more than a simple arithmetical calcula tion of the prescribed percentage on the sales tax deter mined as payable by the assessee for that year.
There can be no doubt about this figure.
The statute does not permit the computation of the surcharge, for whatever reason, on a part only of the tax determined as payable by the assessee for the year in question.
On behalf of the assessee, objection has been taken to the levy of surcharge in the manner in which it has been levied on three grounds: 1.
The general principle of law is that the liability of an agent is co extensive with that of the principal and his liability to tax or surcharge, in respect of transactions put through on behalf of a principal, cannot be higher than that which the principal would have himself incurred had he directly sold the goods; 2.
It is contrary to the principle underlying rule 9(k) of the Kerala Sales Tax Rules under which "the turnover of sales or purchases made by a dealer through his agent in respect of which tax has been paid by the agent" is excluded from his taxable turnover; 3.
The assessee has been placed in a financial predicament because .all that the assessee can get out of the sales is the commission which cannot exceed 1% of the turn over and, since the statute has prohibited it from collecting any part of the surcharge from the purchasers or the principals the society, has to meet the surcharge liability out of its meagre commission earnings.
We are unable to see how these contentions can help the assessee 727 to overcome the surcharge levy.
The general principle of the law of agency, as rightly pointed out by the High Court, cannot prevail in the face of the statutory provisions.
The assessee 's contention, upheld by the Tribunal in its earlier order, is this: " . . an agent is as many dealer as he has principals . an agent can be assessed . only on the aggregate of the turnover relating to principals who are liable to tax under section 5 and surcharge can likewise be levied only in respect of the turnover of the princi pals where total turnover is not less than Rs.30,000.
" This will also mean that, after the amendment of section 3 of the Surcharge Act in 1976 that the agent will be liable to a surcharge at 8% in respect of the turnover on behalf of principals whose total turnover exceeds Rs. 10 lakhs, at 5% in respect of the turnover on behalf of principals having turnover of between Rs.1 lakh and Rs. I0 lakhs and no sur charge in respect of the turnover on behalf of principals with turnovers of less than Rs. 1 lakh.
This may be equita ble but it clearly amounts to running a coach and pair through the statutory provisions.
As already pointed out, these provisions clearly treat a commission agent as a dealer and make him liable to sales tax as well as surcharge in respect of his entire turnover.
The Act does not contem plate any dissection of this turnover into transactions on behalf of various principals by reference to their individu al liability to pay either sales tax or surcharge.
The question of statutory interpretation apart, it will easily be seen that the assessee 's contention, which is equally applicable to the levy of both sales tax and sur charge, would make the whole Act unworkable.
A commission agent will be dealing on behalf of hundreds of constituents and each of his constituents may be dealing not only through him but also through several other agents.
The transactions may not be confined to the territories of one State and may be spread over the entire Indian sub continent.
The sales through different agents may be of different goods attract ing liability to tax at different rates.
It may be that a principal whose sales through one commission agent may not come upto the limits of turnover for levy of tax or sur charge may have been dealing through other agents and, if assessed directly, may have a turnover exceeding those limits.
In this state of affairs, it will be absolutely impracticable, if not impossible, for a Sales Tax Officer having jurisdiction over one particular commission agent to make his sales tax assessment on the basis suggested 728 by the assessee.
That would require the collection of data, in the assessment of every commission agent, regarding the entire sales turnover of each of his constituents who may or may not be assessed by the officer assessing the particular commission agent.
The assessment order on the commission agent would then have to be split up, as it were , into a number of parts each containing the determination of turn over, tax and surcharge qua each of the constituents.
These determinations require exercises which cannot be practically undertaken by an officer assessing a commission agent but can easily be undertaken by the different officers assessing the principals.
That is why the statute evolved a very simple procedure to meet the situation.
It brought the commission agent within the definition of a dealer and made his aggregate turnover liable to tax.
But it provided at the same time that the turnover so included and taxed in the hands of the agent should be excluded from the turnover of the principal, where he is separately assessed.
This is rule 9(k).
Rule 9(k) confers an exemption not on the commission agent but on the principal and does not help the assessee.
So far as sales tax is concerned, this rule provides com plete protection against double taxation.
The rate of tax on any type of goods being uniform irrespective of the turn over, the turnover in regard to that item will get assessed only at one place: either in the hands of the principal or in the hands of the agent but not both.
The treatment of the commission agent as a dealer no doubt means that an agent will be taxed where his turnover exceeds the relevant limits even though some or all the principals who sold through him may have turnovers below those limits.
But he is not really affected as he can collect the sales tax from the purchasers and thus reimburse himself.
The difficulty that has arisen in regard to the sur charge stems principally from the requirement that the society has to pay it out of its funds and cannot reimburse itself either from its vendees or its principals.
This difficulty has been further accentuated by the fact that, in regard to cardamom, its earnings are limited to a small commission which cannot be varied by it at its desire.
These considerations cannot however justify a different interpre tation as the statutory provisions are clear.
A suggestion was mooted before us that the hardship to the assessee on this account is so substantial that this requirement should be held to be an unreasonable restriction violating article 19.
This is a new contention involving investigation into facts which we are not inclined to permit the assessee raise here for the first time.
We may, howev er, mention that during, the hearing of these appeals, we 729 adjourned the appeals to enable the assessee to move the State in this behalf but we were told that its efforts were unsuccessful.
We need hardly say that the assessee will be at liberty to pursue the matter, put forward its difficul ties and seek to persuade the State Government to either reduce or dispense with the surcharge in regard to cardamom sales or to sanction an increase in the rate of commission chargeable by the assessee on its cardamom sales and, fail ing such efforts, to challenge the validity of the levy for the future, if so advised, in appropriate proceedings.
In the circumstances, we affirm the view taken by the High Court and dismiss these appeals.
We, however, make no order as to costs.
Y. Lal Appeals dismissed.

summary:
The appellant assesse is a Society registered under the Societies Registration Act.
Its members are Cardamom growers in the State of Kerala.
The Society conducts the business as an auctioneer under a licence issued to it under the Carda mom Act (Act 42 of 1965) read with the Cardamom (Licensing and Marketing) Rules, 1977, one of the Conditions of this licence being that as an auctioneer it shall not charge more than one percent of the sale price as commission for the services rendered by it.
It is common ground that the socie ty has obtained the relevant licence and the individual members/growers of Cardamom had no such licence.
The mode of the business was that planters left their produce with the Society and the Society after mixing the produce of all the growers, put the same to auction.
The Society collected 1% as commission out of the sale proceeds from each of the planters.
Besides cardamom, the Society sold other goods also.
The Kerala General Sales Tax Act 1963 imposes sales tax on every dealer whose total turnover for any year exceeds a specified sum which differed from year to year.
In 1957 the Kerala Legislature introduced a surcharge on sales tax.
Section 3 of the Kerala Surcharge on taxes Act 1957 pre scribes that the tax payable under the Kerala General Sales Tax Act 1963, shall, in the case of a dealer whose turnover exceeds Rs.30,000 a year, be increased by a surcharge at the rate of 5% of the tax payable for that year.
The provisions of the Kerala General Sales Tax Act were made applicable to the levy and collection of the said surcharge.
Kerala Act 40 of 1976 stepped up the .rate of surcharge.
The important feature of the latter Act is that unlike sales tax, which the dealer was entitled to get reimbursed from the purchaser of the goods sold by him, the surcharge had to be borne by the dealer himself, as 720 Sub Section (2) of Section 3 of the Surcharge Act prohibited the dealer from collecting the surcharge payable by him.
Further the dealer might be liable for sales tax at differ ent rates on the turnover of the different goods dealt with by him, he was to pay surcharge calculated on the amount of the sales tax payable by him in respect of his total deal ings throughout the year.
The assessee 's contention was that the Society sold goods only in its capacity as a commission agent for various principals and that on the general principle of agency, an agent like the assessee could be liable to surcharge only to the same extent as the principal whom it represented.
On this plea, it could not be made liable for any surcharge in respect of the sales effected by it on behalf of the princi pals whose sales through the Society did not exceed the limits set out in Sec.
3(1) of the Surcharge Act.
The Tribunal had accepted the above contention of the appellant in the appeals against the assessment for the assessment years 1967 68 to 1969 70.
The sales Tax assess ments of the appellant for the assessment years 1973 74 to 1976 77 were completed by the Sales Tax Officer following the aforesaid order of the Tribunal.
These assessments were set aside by the Dy.
Commissioner of Sales Tax who took the view that the Society was liable to pay surcharge on its aggregate turnover in each of the assessment years.
The appellant assessee preferred appeals to the Appellate Tribu nal against the orders of the Deputy Commissioner.
The Tribunal allowed the appeals following its order relating to the earlier assessment years.
It accordingly set aside the orders of the Dy.
Commissioner and restored the assessments made by the Sales Tax Officer for the assessment years 1973 74 to 1976 77.
The Department moved revision petitions before the High Court against the order of the Appellate Tribunal.
The High Court accepted the revision of the De partment and set aside the order of the Tribunal.
Hence these appeals by the assessee.
It was contended by the appellant (i) that the liability of an agent is co extensive with that of principal and its liability cannot be higher than that of principal; (ii) that it is contrary to the principle underlying rule 9(k) of the Kerala General Sales Tax Act whereunder the turnover of sales or purchases made by a dealer through his agent in respect of which tax has been paid by the agent, is excluded from his taxable turnover and (iii) that the assessee has been placed in a financial predicament in that it has to pay he surcharge from out of the meagre commission of 1% limited by the statute.
721 Dismissing the appeals, this Court, HELD: The Surcharge Act does not envisage a fresh deter mination of the assessee 's turnover at all.
It prescribes nothing more than a simple arithmetical calculation of the prescribed percentage on the sales tax determined as payable by the assessee for that year.
It does not permit the compu tation of the surcharge, for whatever reason, on a part only of the tax determined as payable by the assessee for the year in question.
It does not contemplate any dissection of the turnover into transactions on behalf of various princi pals by reference to their individual liability to pay either sales tax or surcharge.
The contentions urged on behalf of the petitioner create a number of difficulties and or about a very simple procedure, evolved by the statute to meet the present situation It brought the Commission agent within the definition of a dealer and made his aggregate turnover liable to tax.
But it provided at the same time that the turnover so included and taxed in the hands of the agent should he excluded from the turnover of the principal, where he is separately assessed.
[726C D, 727E F, 728C] Rule 9(k) confers an exemption not on the Commission agent but on the Principal and does not help the assessee.
[728D] The rate of tax on any type of goods being uniform irrespective of the turnover, the turnover in regard to that item will get assessed only at one place: either in the hands of the principal or in the hands of the agent but not both.
[728D] A suggestion was mooted before us that the hardship to the assessee on this account is so substantial that this requirement should be held to he an unreasonable restriction violating Article 19.
This is a new contention involving investigation into facts which this Court is not inclined to permit the assessee to raise here for the first time.
[728G H]


judgement:
ivil Appeal No. 3255 of 1989.
From the Judgment and Order dated 29.7.1985 of the Bombay High Court in W.P. No. 2137 of 1979.
V.A. Bobde, S.D. Mudaliar and A.G. Ratnapaxkhi for the Appellant.
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
For the Respondent No. 4 in person (not present).
The Judgment of the Court was delivered by SHARMA, J.
Notice for final disposal of the case was served on the respondents.
Heard the learned counsel for the parties.
Special leave is granted.
This case is dependent on the correct meaning and scope of Rule 59 of the Mineral Concession Rules, 1960 (hereinafter referred to as the Rules).
A certain area in village Bazargaon, District Nagpur was reserved for Nistar purposes (that is, for grazing of cattle etc.).
The respond ent No. 4 applied for grant of a mining lease in regard to the said area which was allowed.
The appellant, who is a local resident, challenged the allotment on the ground that the procedure for settlement as laid down in Rule 59 read with Rule 58 was not followed before the grant.
Rule 58 deals with availability of areas for re grant of a mining lease and requires an entry to that effect to be made in a 832 register referred to in Rule 21(2) of the Rules, and a notification to be published in the official gazette at least 30 days in advance.
The purpose obviously is to enable the members of general public to apply for the proposed lease.
Rule 59 directs the procedure in Rule 58 to be fol lowed in the cases mentioned thereunder in the following terms: "59.
Availability of certain areas for grant to be notified In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting licence or mining lease, grant the licence or lease after following the procedure laid down in rule 58.
" The appellant contends that as the prescribed procedure had not been followed, the grant in favour of the respondent No. 4 is illegal and fit to be set aside. ' 4.
Admittedly the disputed area was reserved for Nistar purposes and when an application for grant of mining lease was earlier made by a third party it was rejected on the ground that it was so~ reserved.
Further, there is no dis pute that before the impugned grant was made in favour of the respondent No. 4 the procedure prescribed by Rule 58 was not followed, and no opportunity was given to any other person before entertaining the request of the respondent No. 4.
The question in this background is whether Rule 59 is attracted to the case.
The appellant 's application under Article 226 of the Constitution was dismissed by the Bombay High Court on the ground that Rule 59 was confined to cases where earlier reservation was made for mining purposes.
The stand of the respondents that the expression "reserved for any purpose" in rule 59 does not cover a case where the area was reserved for Nistar purposes or for any purpose other than that of mining was accepted.
Earlier the expression "reserved for any purpose" was followed by the words "other than prospecting or mining for minerals", which were omitted by an amendment in 1963.
Mr. Dholakia, learned counsel for the respondents, appearing in support of the 833 impugned judgment, has contended that as a result of this amendment the expression must now be confined to cases of prospecting or mining for minerals and all other cases where the earlier reservation was for agricultural, industrial or any other purpose must be excluded from the scope of the rule.
We are not pursuaded to accept the suggested interpre tation.
Earlier the only category which was excluded from the application of Rule 59 was prospecting or mining leases and the effect of the amendment is that by omitting this exception, prospecting and mining leases are also placed in the same position as the other cases.
We do not see any reason as to why by including in the rule prospecting and mining leases, the other cases to which it applied earlier would get excluded.
The result of the amendment is to extend the rule and not to curtail its area of operation.
The words "any purpose" is of wide connotation and there is no reason to restrict its meaning.
We do not see any ground for limiting the scope of the rule so as to deprive the members of general public to approach the State with competitive terms.
It is clearly in the public interest to notify the proposal to grant a mining lease, so that the best deserving person may have a chance to be considered.
The State and its authorities will, in that case, have the choice of selecting the most suitable person by following the just and equitable criteria laid down by the Rules.
If, on the other hand, the rule is con strued as suggested by the respondents, a resourceful appli cant can succeed in striking an un deserved bargain to the prejudice of the public interest.
We are, therefore, of the view that Rule 59 covered the present case and the grant in favour of the respondent No. 4 was illegally made in violation of Rule 58.
According ly, the appeal is allowed, the judgment of the High Court is set aside and the decision to grant the mining lease in question to the respondent No. 4 is quashed.
The State Government may now issue a notification and take other steps in accordance with law before proceeding further.
There will be no order as to costs.
P.S.S. Appeal allowed.

summary:
Rule 58 of the Mineral Concession Rules, 1960, which deals with availability of areas for regrant of a mining lease, requires a notification to be published in the offi cal gazette at least 30 days in advance.
Rule 59 directs the procedure laid down in Rule 58 to be followed in the case of any land in respect of which the State Government had re fused to grant a prospecting licence or a mining lease on the ground that it was required to be reserved for any purpose.
The expression "reserved for any purpose" was earlier followed by the words "other than prospecting or mining for minerals", which was omitted by an amendment in 1963.
An application for grant of mining lease in respect of the disputed area had been rejected earlier on the ground that it was reserved for some other purpose.
Subsequently, however, a mining lease in regard to the said area was granted in favour of respondent No. 4.
The appellant chal lenged the allotment on the ground that the procedure for settlement as laid down in Rule 59 read with Rule 58 was not followed before the grant.
The High Court dismissed that application on the ground that Rule 59 was confirmed to cases where earlier reservation was made for mining pur poses.
Allowing the appeal, HELD: 1.
The grant of mining lease in favour of respond ent No. 4 was illegally made in violation of Rule 58 of the Mineral Concession Rules, 1960.
[833E F] 2.1 Rule 59 covered the instant case.
Earlier the only category which was excluded from the application of this Rule was prospecting 831 or mining leases.
The effect of the 1963 amendment is that by omitting the words "other than prospecting or mining for minerals", prospecting and mining leases have also been placed in the same position as the other cases.
The other cases to which the Rule applied earlier have not thus been excluded.
[833E B] 2.2 It is clearly in the public interest to notify the proposal to grant a mining lease.
The State and its authori ties will, in that case, have the choice of selecting the most suitable person by following the just and equitable criteria laid down by the Rules.
[833D]


judgement:
ivil Appeal No. 2443 of 1980.
From the Judgment and Order dated 8.9.80 of the Delhi High Court in S.A.O. No. 339 of 1980.
732 Mukul Mudgal for the Appellant.
Rajinder Sachhar and Mrs. J. Wad for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This is a tenant 's appeal against the decree for his eviction from certain disputed premises passed by the Rent Controller, Delhi and confirmed in appeal and second appeal.
The respondent, the owner of the premises, let it out to the appellant in 1961 as a monthly tenant.
An unregis tered deed of lease was executed on that occasion containing the following statement as one of the clauses: "That they will not assign or underlet or part with the premises hereby demised without the permission in writing of the landlord subject however to this proviso that they shall be entitled to assign or otherwise part with the possession of the said premises or any part thereof to their associate concerns without such consent but in any event the lessees shall be liable for the payment of the rent during the term hereby granted.
The appellant is a manufacturing company of Scooters, Pickup Vans and Auto Three Wheelers.
Alleging that the appellant had sub let the premises to M/s. United Automo biles without his consent, the respondent contended that the ground mentioned in section 14 (1) Proviso (b) of the Delhi Rent Control Act, 1958 was made out and the appellant was liable to be evicted.
The eviction proceeding was defended by the appellant on the ground that the M/s. United Automobiles are the authorised dealer and distributor of the product manufac tured by the appellant and has been in occupation of the premises in that capacity and can not, therefore, be de scribed as a sub tenant.
It was alternatively argued that in view of the term of the lease as quoted above the arrange ment with the M/s. United Automobiles can not be condemned as a sublease without the consent of the respondent.
The stand of the respondent has been that the above mentioned term, of the lease can not be looked into as document was not registered and further the M/s. United Automobiles can not be assumed to be an 'associate a concern ' within the meaning of the term.
The Rent Controller, as well as, the 733 appellate authority held that the afore mentioned term of the lease was not inadmissible and the appellant was enti tled to rely upon the same, but ordered eviction on the ground that M/s. United Automobiles was inducted in the premises as a sub lessee.
The High Court dismissed the appellant 's second appeal in limine, and in this situation the present appeal by special leave has been filed.
It has been strenuously contended by the learned counsel for the appellant that as, (i) the United Automo biles is a distributor of the product manufactured by the appellant on the basis of commission, (ii) it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent, and (iii) is entitled to be in possession only as long as it continues to be a dis tributor, it should be held to be an 'associate concern ' within the meaning of the aforementioned term of the lease.
In reply of the respondent 's contention that the term can not be taken into consideration as the deed is not a regis tered one, it was urged that the appellant, in view of the provisions of section 49 of the Registration Act, is entitled to rely upon the term for 'collateral purpose '.
The argument is that the document may not be admissible for the purpose of proving the existence of a lease or the terms thereof, but as the afore mentioned clause does not come within that category, in as much as, it merely amounts to a written permission to the appellant to create a sub lease, it can not be excluded from consideration on the ground of non registration.
There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of section 14(1) Proviso (b) of the Act.
The appellant Company has a separate legal entity and has nothing to do with M/s. United Automobiles 'except that the latter is the dealer distribu tor of some of its manufactured articles.
M/s. United Auto mobiles is not a licensee and is not in possession of the premises on behalf of the appellant.
The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicles; and does not include the right of enjoyment of the premises.
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. 'The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material.
The irresist ible conclusion is that the appellant has created a sub lease in favour of its dealer.
The question now is whether the clause in the lease mentioned above amounts to the respondent 's consent in writing.
The contention of the learned counsel for the respondent that 734 the aforesaid clause can not be looked into for want of registration of the lease deed appears to be correct.
Reli ance has been placed on the observations of Fazal Ali, J. in Sachindra Mohan Ghose vs Ramjash Agarwalla, A.I.R. 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.
The learned counsel for the appellant attempted to meet the point by saying that so far the consent of the landlord permitting sub letting is concerned, it does not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence.
We do not see any force in this argument.
The question whether a lessee is entitled to create a sub lease, or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it can not be disassociated from the lease and considered separately in isolation.
If a document is inad missible for non registration, all its terms are inadmissi ble including the one dealing with landlord 's permission to his tenant to sub let.
It follows that the appellant can not, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed.
There is still another reason to hold that the afore said clause can not come to the aid of the appellant.
A perusal of its language would show that it contains the respondent 's consent in general terms without reference to M/s. United Automobiles.
As a matter of fact M/s. United Automobiles came to be inducted as a sub tenant much later.
Can such a general permission be treated to be the consent as required by section 14 (1) Proviso (b) of the Act? It was held by this Court In M/s. Shalimar Tar Products vs S.C. Sharma, ; ; that Ss.
14(1) Proviso (b) and 16(2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible.
Since it is not suggested that the consent of the respondent was obtained specifically with reference to the Sub letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on can not save the appellant, even if it be assumed in its favour that the clause is admissible and the sUb lessee is appel lant 's associate concern.
The appeal, therefore, fails and is dismissed with Costs.

summary:
The respondent let out his premises to the appellant by way of an unregistered lease deed which inter alia stated that without the permission of the landlord the premises should not he sub let except to associate concerns, and the lessee was liable for payment of rent.
Alleging that the appellant, a manufacturing company of automobiles, had sub let the premises to M/s United Automobiles without his consent, the respondent initiated eviction proceedings.
The appellant contended that M/s United Automobiles, being the authorised dealer and distributor of the products manufactured by it, has been in occupation of the premises in that capacity and cannot therefore he described as a sub tenant.
Alternatively, in view of the specific term in the lease deed, the arrangement with the associate concern was not a sub lease without the consent of the respondent, it was contended.
The respondent took the stand that the term cannot be looked into, as the document was not regis tered and that M/s United Automobiles cannot be assumed to he an 'associate concern ' within the meaning of the term.
Both the Rent Controller and the appellate authority held that the term of the lease was not inadmissible, but ordered eviction on the ground that M/s United Automobiles was inducted in the premises as a sub lessee.
The appellant filed a second appeal before the High Court which dismissed it in limine.
Hence this appeal by special leave.
Dismissing the appeal, HELD: 1.
The appellant has created a sub lease in favour of its dealer, and has thus parted with the possession within the meaning of section 14(1) Proviso (b) of the Delhi Rent Control Act.
The appellant Com 730 731 pany has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer distributor of some of its manufactured articles.
M/s United Automobiles is not a licensee and is not in posses sion of the premises on behalf of the appellant.
The mone tary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoyment of the premises.
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle.
The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material.
[733E G] 2.
The question whether a lessee is entitled to create a sub lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation.
If a document is inadmissible for non registra tion, all its terms are inadmissible including the one dealing with landlord 's permission to his tenant to sub let.
The appellant cannot, in the present circumstances, be allowed to rely upon the clause in the unregistered lease deed.
[734C D] Sachindra Mohan Ghose vs Ramesh Agarwalla, A.I.R. 1932 Patna 97; referred to.
In the instant case, a perusal of the clause relied on by the appellant would show that it contains the respond ent 's consent in general terms without reference to M/s United Automobiles.
As a matter of fact M/s United Automo biles came to be inducted as a sub tenant much later.
Such a general permission cannot be treated to be the consent as required by section 14(1) Proviso (b) of the Act.
Since consent of the respondent was not obtained specifically with refer ence to the sub letting in favour of M/s United Automobiles, the clause in the lease deed cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub lessee is appellant 's associate concern.
[734E G] M/s Shalimar Tar Products vs S.C. Sharma, ; ; relied on.