judgement:
ivil Appeal No. 2294 1968.
Appeal from the Judgment and Order dated 25 9 1967 of the Madhya Pradesh High Court in Misc.
Petition No. 595/66.
L.N. Sinha, Sol.
Genl, B. Datta and Girish Chandra for the Appellants.
906 S.K. Gambhir, amicus curiae, for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
If the jurisprudence of remedies were understood and applied from the perspective of social effi caciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court.
Judges must never forget that every law has a social pur pose and engineering process without appreciating which justice to the law cannot be done.
Here, the socio legal situation we are faced with is a colliery, an explosive, an accident, luckily not lethal, caused by violation of a regulation and consequential cancellation of the certificate of the delinquent shot firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari.
We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrongly laid down by the High Court, were set aside and declared a right and he was not insisting on the formal reversal of the order affecting the respondent (who is unrepresented before us).
We proceed on that footing.
The few necessary facts may be narrated to bring up the legal issue in its real setting.
The respondent was a shot firer in a colliery and being a risky, technical job, had to possess a certificate for it.
He handed over an explosive to an unskilled hand who fired it, an accident occurred and one Bhadu, employed in the mine, was injured.
The Regional Inspector of Mines imme diately enquired into the cause of the accident and found, on the respondent 's virtual admission, qualified by some prevarication, that the shots were fired not by himself but by a cutter, an unauthorised person for shot firing to whom the respondent had wrongfully entrusted the work.
Thereby he contravened the relevant Coal Mines Regulations.
The Regional Inspector gave him an opportunity for explana tion and, after considering the materials before him, for warded the papers to the Chairman of the Board together with a recommendation for cancellation of the certificate under Reg. 26.
The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, which included the delinquent 's admission, and cancelled the shot firing certificate.
The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26.
Was Regulation 26, in the context and set.
g of the Mines Act, misinterpreted by the High Court at all? This is the short question canvassed before .us.
We permit our selves a few observations Which serve as perspective set ters.
Law is meant to serve the living and does not beat its abstract wings in the jural void.
Its functional fulfilment as social engineering depends or its sensitized response to situation, subject matter and the complex of realities which require 907 ordered control.
A holistic understanding is simple justice to the meaning of all legislations.
Fragmentary grasp of rules can misfire or even backfire, as in this case.
It is a notorious fact that collieries Indian collieries, both before and after nationalisation are strategic sources of the nation 's fuel and, operationally, areas of tragic human hazards.
We need coal, we want miners to bring it from the bowels of the earth.
The dangerous technology is not yet so perfect in India as to ensure risk free extraction.
And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torn down homes, a little monetary compensation, a flutter in Parliament, a longdrawn out Commission, a routine Report about lapses and recipes and the little man 's life or death lot continuing to receive callous considera tion at the hands of the law, law matter, law enforcer this sombre colliery disaster sequence must educate and inform the jurisprudence of high risk opera tions.
In short, the Mines Act (and Regulations) must receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected.
The relevant regulation is only a tiny inset in the larger justice of the statute.
The Mines Act has a scheme designed to avoid accidents and ensure safety.
A system of certificates, supervisions and penalties is part of this scheme.
The broad responsi bility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on the lesser men.
Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro considerations of responsibility to the community.
The Board must quit, as a legal penalty, if any dreadful deviation, deficiency, default or negligence anywhere in the mine occurs.
In the present case a microbreach is being punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapegoats.
Although, in this ease, only injury, not death, has oc curred, there is a good case for new principles of liabil ity, based on wider rules of sociological jurisprudence, to tighten up the law of omission and commission, at the highest levels.
Responsibility and penalty must be the concomitants of highly paid power vested in the top brass.
Back to the pedestrian statement of facts.
The re spondent 's curious contention, accepted by the learned Judge, is best understood after reading Regulation 26: "26.
Suspension of an Overman 's, Sir dar 's, EngineDriver 's, shot firer 's, or Gas testing Certificate (1) If, in the opinion of the Regionl Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gas testing Certificate has been granted ii incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written expla nation, suspend his certificate by an order in writing.
10 206SC1/77 908 (2) Where the Regional Inspector has suspended a certificate under sub regulation (1) he shall within a week of such suspen sion report the fact to the Board together with all connected papers including the expla nation if any received from the person concerned.
(3) The Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certif icate, or cancel the certificate.
" The plain purpose of the regulation is to pre empt further harm by suspending the certificate of the shot firer 'if in the opinion of the Regional Inspector ' he 'is incompetent or is guilty of negligence or misconduct in the performance of his duties. after giving the person an opportunity to give a written explanation '.
This suspension is itself a punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, can cellation of the certificate by the Board.
Before taking such action by way of cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes 'such enquiry as it thinks fit '.
In the present case, the Board had an explanation (styled an appeal) from the respondent, and also a recommendation by the Regional Inspector for cancellation of the certificate.
The latter had not suspended the delinquent but had merely hold an enquiry, reached the prima facie view of guilt and and instead of suspension at once, only made a recommenda tion to the Board for cancellation.
The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries (see sections 7 & 14).
He has to report to the Board on breaches of regulations and condi tions.
The Board, in its turn, has the over all charge of the safe management of the mine.
Derelictions and viola tions must reach its vigilant eye and be visited with prompt action.
Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely mishaps and introduction of the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama.
Any deviance on the part of these high powered authorities must be visited with tortious or criminal liability.
Such is the price which high position must pay for the consequences of calamitous failures.
Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long grown out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament has entrusted plenary management.
We emphasize this matter to awaken the law makers to evolve a code of strict liability calling to utmost care not only the crowd of workers and others but the few who shall care or quit so that subterra nean occupations necessary for the nation are made as risk proof as technology and human vigilance permit. 909 Unfortunately, the High Court surrendered to nar rowness of interpretation of Regulation 26 by accepting the submission of the respondent.
To be literal in meaning is to see the skin and miss the soul of the Regulation.
The judicial key to construction is the composite perception of the deha and the dehi of the provision.
So viewed, Reg. 26 is easy of comprehension.
The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable.
The argument runs thus.
Without first suspending the cer tificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter.
Since the Region al Inspector did not suspend the respondent, the Board had no jurisdiction.
Secondly, the Regional Inspector had no power to recommend, but only to report and so the Board 's order, influenced by the recommendation, was bad in law.
Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, void ing the order.
All the three points serve to warn the courts how over judicialisation can be subversive of the justice of the law.
Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Board 's power is independent and is ignited by the report of the Regional Inspector.
Such a report exists here.
There is an overall duty of over sight vested in the Board to enforce observance of rules of safety.
To invalidate the Board 's order because the Regional Inspector did not suspend the certificate is a fallacy.
Now to the next point.
The vice that vitiates the Board 's order is stated to be the recommendation contained in the Regional Inspector 's report.
Had he suspended and reported, he would have been in order.
But suspension, on an enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicity conveys a recommendation.
The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.
And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice.
The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one done by the Regional Inspector.
Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.
He has thus been heard and compliance with Reg. 26, in the circum stances, is complete.
Natural justice.
is no unruly horse, no lurking land mine, nor a judicial cure all.
If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. 'Unnatural expansion 910 of natural justice, without reference to the administra tive realities and other factors of a given case, can be exasperating.
We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.
No man shall be hit below the belt that is the conscience of the matter.
Shri Gambir, who appeared as amicus curiae and indus triously helped the Court by citing several decisions bear ing on natural justice, could not convince us to reach a contrary conclusion.
It is true that in the context of article 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant.
Certainly we agree with 'the principles expounded therein.
But then we cannot look at law in the abstract or natural justice as a mere artifact.
Nor can we fit into a rigid mould the concept of reasonable opportunity.
Shri Gambhir cited before us the decisions in Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings.
The ratio therein hardly mili tates against the realism which must inform reasonable opportunity ' or the rule against bias.
If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision making body, after fair and independent considera tion, reaches a conclusion which tallies with the recommen dations of the subordinate authority which held the prelim inary enquiry, there is no error in law.
Recommendations are not binding but are merely raw material for considera tion.
Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contra vention of the canons" of natural justice.
We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly why it takes the decision it does unless the circumstances are so clear that the conclud ing or decretal part of the order speaks for itself even regarding the reasons which have led to it.
It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful.
These general observations must be tested on the con crete facts of each case and every miniscule violation does ,not spell illegality.
If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
We are satisfied that the order of the Board cannot be anathematised as condemning the man without being heard.
The appeal, on the point of law, must be allowed but, in the light of the concession made, as stated earlier, we leave the formal order of the High Court undisturbed.
No costs.
S.R. High Court orders main tained.

summary:
Under regulation 26(1) if, in the opinion of the Regional Inspector, a person to whom an Overman 's, Sirdar 's, Engine driver 's, Shot firer 's, or Gastesting Certificate has been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving the person an opportunity to give a written explana tion, suspend his certificate by an order in writing.
U/r 26(2) he shall within a week of such suspension report the fact to the Board together with all connected papers includ ing the explanation, if any received from the person con cerned.
U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certificate, or cancel the certificate.
The respondent, a shot firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which re sulted in an accident injuring one Bhadu.
The Regional Inspector u/r 26(1) gave him an opportunity for an explana tion in writing and after considering the materials before him forwarded the papers to the Chairman of the Board together with a recommendation for cancellation of the cer tificate under Regulation 26(3).
The Board bestowed its judgment on the materials gathered which included the delin quent 's admission, and cancelled the shot firing certifi cate.
The High Court allowed the writ petition assailing the orders of cancellation of the licence and held: (1) The Board had no jurisdiction since the Regional Inspector did not suspend the certificate first before reporting (2) The Regional Inspector had no power to recommend but only to report and so the Board 's order influenced by the recommen dation was bad in law and (iii) the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence violated natural justice, void ing the order.
Accepting the Court, HELD: (1 ) Law is meant to serve the living and does not beat its abstract wings in the jural void.
Its functional fulfilment as 'social engineering ' depends on its scruti nized response to situation, subject matter and the complex of realities which require ordered control.
A holistic understanding is simple justice to the meaning of all legis lations.
Fragmentary grasp of rules can, n misfire or even backfire, as in this case.
[906 H, 907 A] (2) The judicial key to construction is the composite perception of the daha and the dahi of the provision.
To be literal in meaning is to see the skin and miss the soul of the Regulation.
[909 A B] (3) Over judicialisation can be subversive of the justice of the law.
To invalidate the Board 's order because the Regional.
Inspector did not suspend the certificate is a fallacy.
The Board 's power is independent and is ignited by 905 the report, which exists in this case, of the Regional Inspector.
There is an overall duty of oversight vested in the board to enforce observance of rules of safety.
[909 D] (4) To set aside the order on the ground that the Re gional Inspector had no power to recommend but only to suspend and report that his recommendation influenced the Board 's order is to enthrone a processual nicety do dethrone plain justice.
Suspension, on a.n enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicitly conveys a recommendation.
The differ ence between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee Recommendations are not binding but are merely raw materials for consideration.
Where there is no surrender.
of judge ment by the Board to the recommending Regional Inspector, there is no contravention of the cannons of natural justice.
[909 E F, 910D E] (5) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all.
If fairness is shown by the decision maker to the man proceeded against, the form features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation.
no breach of natural justice can be complained of.
Unnatural expansion of natural justice.
without reference to the administrative realities and other factors of a given case, can be exasperating.
Courts cannot look at law in the abstract or natural justice as a mere artifact.
Nor can the), fit into a rigid mould the concept of reasonable opportunity.
If the totality of cir cumstances satisfies the Court that the party visited with gelverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
In the instant case, the Board cannot be anath ematised as condemning the man without being heard.
The respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.
He has thus been heard dad compli ance with Regulation 26 in the circumstances is complete.
[909G H, 910 A G] Tereaesai 's case ; ; Management of DTU ; Tandon 's case referred to.
Observations: Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long drawn out commissions whose verdicts often prove dilatory 'shelter ' for the men in whom Parliament his en trusted plenary management.
Any sensitive jurisprudence of colliery management must make it cardinal to pt nish the Board vicariously for any major violations and dreadful disasters, on macro:considerations of responsibility to the community.
The Board must quit, as a legal pendry, if any dreadful deviation.
deficiency, default or negligence anywhere in the mine occurs.
This is a good case for new principles of liability, based on wider rules of sociologi cal jurisprudence to tighten up the law of omission and commission at the highest levels.
Responsibility and penal ty must be the concomitants of highly paid power vested in the top brass.
Any deviance on the part of these high powered authorities must be visited with tortious or criminal liabilities.
[908 F H, 907 D FI (The Court emphasised the need for evolving a code of strict liability calling to utmost care not only the crowd of workers and others but the few shall care or quit so that subterranean occupations necessary for the nation are made as risk proof as technology and human vigilance permit).


judgement:
Appeal No. 1988 of 1968.
Appeal by Special Leave from the Judgment and Decree dated 21/22 3 1968 of the Gujarat High Court in First Appeal No. 760/60.
S.T. Desai, I. N. Shroff and H.S. Parihar for the Appel lants.
J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by the legal representa tives of the defendant in the suit by special leave against the judgment and decree of the High Court of Gujarat.
The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one half share of the suit house and the moveable properties mentioned in the plaint.
One Fakirchand had three sons, Nathubhai, Lallubhai and Nanabhai.
Nanabhai is the defend ant whose legal representatives are the present appellants in this Court.
Lallubhai 's son, Manilal, was the first plaintiff and his mother and widow of LaIIubhai, Bai Mani, was the second plaintiff.
The second plaintiff is since dead and his legal representatives are respondents 2(b) and 2(c) in this appeal.
Nathubhai, Lallubhai and Nanabhai were originally the members of a joint Hindu family.
The case of the plaintiffs, respondents in this appeal, is that the three brothers Nathubhai, Lallubhai and Nanab hai were members of a joint undivided Hindu family and when they were joint in the year 1940 Nathubhai died leaving his widow Bai Kashi.
Subsequently in the year 1942 Lallubhai died.
On 24th January, 1956 Bai Kashi, the widow of Nathubhai, died while the family continued to be a joint undivided Hindu family.
According to the respondents the properties were never partitioned though the three brothers were staying and messing separately and each branch carried on its business separately.
The family immoveable and moveable properties were never divided.
The respondents also questioned the validity of a sale deed executed by Bai Kashi on 25th April, 1955 in favour of the appellants of her share in the immoveable property as it was not for legal necessity.
In the written statement the appellants denied that the three brothers were members of a joint family.
They pleaded that the brothers were separated and each branch used to do its own business keeping their earnings separately and messing separately.
So far as the suit house was concerned it was divided though not by metes and bounds and the 922 brothers lived in separate portions of the house.
The appellants claimed that they were entitled to 2/3 share in the house as Bai Kashi the widow of Nathubhai had sold her share by registered deed 25th April, 1955 to the appellants.
On these pleadings 9 issues were framed of which three are relevant for the purpose of this appeal.
They are: (1) Does the defendant prove that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was also divided (through not by metes and bounds) at the time of the.
death of Nathubhai ? (2) Does he further prove that the sale deed executed by Bai Kashi in respect of the one third share of the suit house was for legal necessity anti to satisfy her debts ? and (3) Do the plaintiffs prove that after Bai Kashi 's death they become entitled to.
a one half share in the whole of the suithouse ? The trial court found that the three brothers had become separate in status before the deaths of Nathubhai and Lallubhai.
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant and recorded the finding in favour of the defendant.
Regarding the second issue it found that the defendant had failed to prove that there was legal necessity for Bai Kashi to sell away the share in the suit house.
On the third issue the trial court recorded a find ing that after Bai Kashi 's death the respondents became entitled to 1/2 share in the whole of the suit house.
On appeal the High Court confirmed the findings or the trial court on three issues and dismissed the appeal.
The findings of both the courts below that the defendant and his two brothers had separated and the suit house was also divided by metes and bounds was not challenged before us by the counsel for the respondents.
So also the finding that the sale deed executed by Bai Kashi in respect of her 1/3 share of the suit house was not proved to have been for legal necessity.
The only point that was raised by the counsel for the appellants is that the respondents ' plea that the three brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survi vorship having been negatived by the courts below the suit ought to have been dismissed and that the courts erred in finding a new case of succession to the property of Bai Kashi without the necessary pleadings.
It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not sup ported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree grant ed by courts below would be right even though the claim to the 1/2 share is not based on succession.
The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint.
The averment in the plaint is that on 24th January, 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family.
923 There is no alternate claim that in the event of the parti tion being negatived the plaintiff would be entitled to 1/2 share of Bai Kashi by succession.
The 3rd issue that was raised was whether on Bai Kashi 's death the appellants became entitled to 1/2 share in the whole suit house.
The trial court on that issue found that Bai Kashi became enti tled to 1/2 share of her husband in the suit house under the Hindu Women 's Rights to Property Act, 1937.
As her interest was only a limited interest known as Hindu Women 's Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the .
On this basis the trial court was of the view that on the death of Bai Kashi her share would go to the reversion ers.
On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full broth ers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai.
The court held that the claim of the plaintiff for 1/2 share should be decreed though there is no specific claim on the plea of separation and heirship.
The defend ant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widow 's estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession.
The High Court has not dealt with this issue satisfactorily.
The High Court after referring to the pleadings observed that the plaintiffs claimed 1/2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before the trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashi 's death and therefore the plain tiff would be entitled to 1/3 share.
After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether the defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiff 's suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point.
This reference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashi 's share after her death.
In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi.
In fact, the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathub hai 's 1/3 share in the suit house absolutely.
It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11 206SCI/77 the Mitakshara school in Gujarat.
We find that the question 924 that arose mainly whether the respondents are entitled to succeed to Bai Kashi 's 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appel lants.
While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allot ment of 1/3 share by metes and bounds cannot be resisted.
Though the brothers became separate admittedly there was no division by metes and bounds.
There is also no dispute that the respondents are entitled to.
1/3 share in the house.
Therefore though they became separated in status the suit house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house.
To this extent the decree of the courts below will be modified.
But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants ' plea that the respondents are not entitled to succeed to Bai Kashi 's 1/2 share the question is remitted to the High Court for consideration.
The High Court will consider as to.
whether the respondents are entitled to succeed to 1/2 of the 1/3 share of Bai Kashi and pass a decree accordingly.
To this extent the appeal is allowed and the decree of the trial court and the High Court modified.
The parties will bear their own costs in this appeal.
P.H.P. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent plaintiffs filed a suit for partition and allotment of one half share of the suit house and the move able properties.
One Faqir Chand had 3 sons, Nathubhai, Lallubhai and Nanabhai.
Nanabhai was the defendant in the suit whose legal representatives are appellants.
Lallub hai 's heirs are the plaintiffs.
According to the plain tiffs the three brothers were members of a Joint Undivided Hindu Family.
According to the respondents the properties were never partitioned though the three brothers were stay ing and messing separately and each branch carried on its business separately.
The respondents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale was not for legal necessity.
The appellants contended that the three brothers were separate and each branch used to do its business separately.
That as far as the suit house was concerned it was divided though not by metes and bounds and that the brothers lived in separate portions of the house.
The appellants claimed that they were entitled to 2/3 share on the house.
The Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai.
It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant.
It came to the conclusion that the defendant had failed to prove that there was any legal necessity for Bai Kashi to sell the share in the suit house and that after Bai Kashi 's death the respondent was entitled to one half share in the suit house.
The Trial Court found that Bai Kashi became entitled to one ' half share of her husband in the suit house under the Hindu Women 's Rights to Property Act, 1937.
As her interest was only a limited interest known as Hindu Women 's Estate when Bai Kashi died in January 1956, she had not become the full owner of the share under the .
The court was of the view that on the death of Bai Kashi her share would go to the reversioners.
The court held that the parties were governed by Mayukh school which over rules the Mitakshara school and, therefore, after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai.
The court held that the claim of the plaintiff for one half share should be decreed though there was no specific claim on the plea of separation and heir ship.
The High Court dismissed the appeal and confirmed the findings of the Trial Court.
In an appeal by Special Leave the appellants contended that the respondents ' plea that the 3 brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the court erred in making out a new case of succession to the property of Bai Kashi without necessary pleadings.
Allowing the appeal partly, HELD: 1.
On the question whether the respondents are entitled to one half share on her death has not been dealt with by the High Court.
This Court agreed with the concur rent findings of the Trial Court and the High Court that the family was separate and that the sale deed by Bai Kashi in favour of the appellants was not for legal necessity.
However, the claim of the respondent for partition and allotment of 1/3 share by metes and bounds 921 cannot be resisted.
Though the brothers became separate admittedly there was no division by metes and bounds.
There is also no dispute that the respondents are entitled to 1/3 share in the house.
[924 A C] 2.
The High Court did not deal satisfactorily with the contention of the defendant that the Trial Judge erred in saying that Bai Kashi had only a widow 's estate when she died in the absence of any issue as to who were heirs of the deceased Bai Kashi.
On the question whether respondents are entitled to succeed to Bai Kashis 1/2 share, the Court remitted the matter to the High Court for consideration.
[924 C D]


judgement:
Appeal No. 2269 of 1972.
(From the Judgment and Order dated 9 5 1972 of the Allahabad High Court in Special Appeal No. 125/70).
J.P. Goyal, G.S. Chatterlee and Shree Pal Singh, for the Appellants (Other than 2nd appellant).
S.M. Jain and S.K. Jain, for the Appellant No. 2.
V.M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain, S.S. Khanduja, Urea Dutta and Miss Manik Tarkunde, for Respondents Nos. 1, 4, 5, 7 and 8.
S.K. Mehta, for Respondents Nos. 11 12.
The Judgment of the Court was delivered by CHANDRACHUD, J.
This appeal by certificate raises a question as regards the validity of a will executed by an eighty year old woman 579 five days before her death.
The testatrix Jaggo Bai had a muchmarried son called Beni Chand, the last of whose three marriages has given birth to this long litigation.
Beni Chand 's first wife, Chameli Bai, died leaving behind Re spondents 3, 5, 6, 7 and 8 as her heirs.
His second wife Kamla Kunwar is Respondent 1.
Respondent 4 is her daughter and respondents 9 and 10 are her grand daughters.
Beni Chand had no male issue from his two wives and therefore, in 1928, he gambled for a ion by marrying Ved Kumari.
That marriage created dissensions in the family, partly because Ved Kumari belonged to a different caste but more substan tially because the entry of yet another woman in the house hold was like a last straw.
On October 26, 1961 Jaggo Bai made a will disinheriting her son Beni Chand and the chil dren born of Ved Kumari, and bequeathing her extensive properties to the progeny born of Chameli Bai and to Kamla Kunwar and her progeny.
Jaggo Bai died on October 31, 1961.
Kamla Kunwar who was appointed under Jaggo Bai 's will as an executrix filed a petition in the Allahabad High Court for probate of the will.
Beni Chand filed a caveat contend ing that the will was a forgery and was prepared in collu sion with one Dwijendra Nigarm, an advocate, while Jaggo Bai was lying in an unconscious state.
A learned single Judge of the High Court dismissed the petition on the ground that the propounder of the will had failed to explain the suspicious circumstances surrounding the execution of the will.
That judgment was reversed in appeal by a Division Bench of the High Court, which upheld the validity of the will.
This appeal by certificate is directed against the appellate judgment of the High Court.
There is no gainsaying the fact that the execution of the will is shrouded in circumstances which require a cogent explanation, particularly as the testatrix was ad vanced in age and the provisions of the will are prima facie unnatural.
But, we do not see enough reason for rejecting the conclusion of the High Court that the executrix who propounded the will has offered a satisfactory explanation of those circumstances.
The relations between Jaggo Bai and her son Beni Chand were strained beyond words.
A long span of over 30 years following upon Beni Chand 's marriage with Ved Kumari is littered with ,a spate of litigations between the mother and son.
Beni Chand gave to his mother a good look of law and law courts, civil and criminal.
Exasperated by his unfilial contumacy, Jaggo Bai executed a gifit deed of her Stridhan properties excluding him scrupulously from her bounty.
Later, she executed a document of a testamen tary nature disinheriting him.
These instruments were on persuasion cancelled but Beni Chand did not mend his ways.
On October 26, 1961 when the impugned will was executed by Jaggo Bai, a litigation was still pending between the mother and son, and just 3 or 4 days before the execution of the will, the eighty year old Jaggo Bai had to appear in the Court.
In this background, the fact that Jaggo Bai did not give any part of her properties to Beni Chand cannot be described as unnatural.
Add to that the stark fact that the testatrix while disinheriting Beni Chand, bequeated the entire property to his wife, Kamla Kunwar, the children born of her and to the progeny born of Beni Chand 's first wife Chameli Bai.
Jaggo Bai.
580 never reconciled herself to Beni Chand 's third marriage with Ved Kumari and she excluded that branch from the be quest.
It is alleged that Dwijendra Nigam, an advocate, con spired with Jaggo Bai 's pro deceased daughters 's son Ratan Lal to forge the will.
But from the long and varied cross examination of Nigam it is difficult to discover any reason why he should do so.
He received no benefit under the will and had no interest either in seeing that the progeny born of Beni Chand 's first two wives should get the property or in ensuring that Beni Chand, Ved Kumari and their children should be left out.
It is significant that Beni Chand who alleged by his caveat that Nigam was the villain of the piece, did not file any affidavit in support of his caveat and what is more important, he did not enter the witness box to substantiate his accusation.
The charge that Nigam and Ratan Lal forged the will is thus left to chance and guess work.
As for Ratan Lal, who is respondent 2 to this appeal, he admitted the execution of the will though it was against his interest to do so.
If the will is set aside, Beni Chand and Ratan Lal will each be entitled on intestacy to a moiety in Jaggo Bai 's estate, which was her Stridhana property.
Ratan Lal gets nothing under the will of his grand mother Jaggo Bai.
These features of the case dispel the suspicion arising out of the circumstances that the testatrix was at the threshold of death when she made the will, that she was far too advanced in age to bring to bear an independent judgment on the disposal of her property and that she disinherited her only son under her will.
It has to be mentioned that though over eighty years of age, Jaggo Bai was not an in valid, that just a few days before her death she had ap peared in the court in a case relating to Zamindari Bonds between her and Beni Chand, that a criminal case launched by Beni Chand against her was defended by her Zealously leading to an order of composition two or three months before her death and that in spite of the unkind cuts that Beni Chand had inflicted on her she wanted to try and help him at one stage.
In an old letter (exhibit 161 Ga) which she wrote to him, she said plaintively: "Now have a short span of life.
I shall not be coming to see what happens hereafter.
Please do not injure my heart.
Come back at once . ".
These entreaties fell on deaf ears.
Beni Chand dragged his mother from pillar to post over a course of twenty years and he never came back.
He lived separately from her and did not bother to attend to her even when she was dying.
He awoke to his son ship only when it came to claiming the mother 's estate.
Two circumstances would appear to have influenced the judge ment of the learned Single Judge in ho1ding that the will was not proved to be Last will and testament of Jaggo Bai.
The first circumstance is that the thumb mark which Jaggo Bai is alleged to have made on the will does not bear the usual endorsement that it is of the left or the right thumb and secondly that neither of the two attesting witnesses was examined to prove the formal execution of the will.
The Division Bench of the High Court, sitting in appeal against the judgment of the learned Single Judge, has ac cepted the explanation 581 offered by Shri Nigam that the endorsement remained to be made through inadvertence.
Nigam had no personal interest in the matter and the explanation, being unmotivated, could reasonably be accepted.
The learned judges also accepted the evidence of the Advocate that he himself held the right hand of Jaggo Bai and took the impression of that thumb on the will.
That meets the argument that an impression admitted to be of Jaggo Bai 's left thumb does not tally with the one on the will.
The two will not tally since the two thumbs would have different characteristics.
The will was executed in triplicate, one copy of which was deposited with the District Registrar on October 28, 1961, that is, two days after the will was executed.
It is difficult to believe that a practising advocate would run the risk of depositing a forged will with a public official while the testatrix was still alive.
Beni Chand lived in the same town as his mother, though separately from her and it is impossible in the very nature of things that as alleged by him, Nigam and Ratan Lal took the thumb impression of Jaggo Bai while she was lying unconscious.
Jaggo Bai might lose her conscious ness but she was possessed of a large estate and in the normal course of human affairs, she would,.
while uncon scious, be surrounded by a large number of close relatives of which there were many in the town of Banda in which she lived.
To think that Nigam could steal a thumbimpression of the dying woman puts a strain on one 's credulity, particu larly when he stood to gain nothing and Ratan Lal, the alleged coconspirator, would be better off without the will.
It is a strange plea that Ratan Lal who, on intestacy, stood to gain a one half share in his grand mother 's estate chose to exclude himself by fabricating the will.
There is some evidence that a portion of Jaggo Bai 's right thumb was mutilated but on examination of the relevant circumstances in that behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testa trix was so badly damaged as to be incapable of producing an impression.
With these plain findings of fact, we see no reason for interfering by going into minute details of the evidence.
There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness 's evidence.
Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested.
It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Since by section 63 of the Succession Act, 1975 a will has to be attested by two or more witnesses, section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will.
But this argument overlooks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai.
None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary docu ment as an attesting witness cannot take the place of evi dence showing due execution of the document.
By attestation is 582 meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by sec tion 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiv ing a personal acknowledgment from the executant regards the execution of the document.
Nigam 's evidence shows that he and the other two witnesses saw the testatrix putting her thumb mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb mark on the will.
The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily.
It is well settled that the onus probandi Iies in every case upon the party propounding a will, and he must satisfy the con science of the Court that the instrument so propounded is the last will of a free and capable testator.(1) By "free and capable testator" is generally meant.
that the testator at the time when he made the will had a sound and disposing state of mind and memory.
Ordinarily, the burden of proving the due execution of the will is discharged if the propound er leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested.
For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by section 68 of the Evidence Act.
But where, as in the instant case, the circumstances sur rounding the execution of the will are shrouded in suspi cion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence.
The testatrix was advanced in age being past eighty years of age, the will contains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the will.
There can be no dispute that these are gravely suspicious circum stances.
But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind.
Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circum stances attendant on the execution of the will raise a suspicion as regards its due execution.
The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the will and if there be any doubt regarding the due execu tion, he must satisfy the conscience of the court that the testator had a sound and disposing state of mind and memory when he made the will.
"Reasonable scepticism, not an obdu rate persistence in disbelief nor a resolute and impenetra ble incredulity" is demanded of the testamentary judge: "He is never required to close his mind to the truth".
(2) Gajendragadkar J. who spoke for the Court in Iyengar 's case(3) noticed these (1) See Jarrman on Wills (6th Ed., D 50) and H. Venka tachala lyengar vs
B.N. Thijmajamma & Ors.
[1959] Suppo.
1 S.CR. 426.
(2) See Harmes vs Hinksen per Lord Du Parcq.
(3) [1959] Supp.
2 S.CR.
583 observations of Lord Du Parcq with approval and said: It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judi cial mind must always be open though vigilant, cautious and circumspect." Bearing these principles in mind and giving equal weightage to openness and vigilance, the position emerging from the evidence may be briefly summed up thus: Beni Chand 's behaviour was far too unfilial and remorseless for him to find a place in the affections of his mother Jaggo Bai.
He had bruised her so badly that she could not possi bly reward him with a precious inheritance.
But she gave her estate not to strangers but to his children born of the first two wives and to the second wife Kamla Kunwar.
She also gave him a personal right of residence in one of the houses.
Shri Nigam, the advocate, had no personal motive or bias to hatch a conspiracy to forge the will.
He received no benefit under the will, directly or indirectly.
And Ratan Lal was the least suitable co conspirator because, he stood to lose under the will what he would have got without it.
He would have been an equal sharer with Beni Chand in Jaggo Bai 's estate under section 15(1)(a)) of the .
The entire property comprised in the will was Jaggo Bai 's Stridhana.
The will was read out to Jaggo Bai and in spite of her advanced years she was in a sound state of mind and body.
The chosen few do possess that privilege.
Thus the executrix has successfully discharged what, in the circumstances, was a heavy onus of proving the due execution of the will and of offering a satisfactory explanation of the suspicious circumstances surrounding the will.
We are in agreement with the Division Bench of the High Court, which was conscious of the special rules governing proof of testamentary instruments, that the will propounded by the executrix is the last will and testament of Jaggo Bai, made while she was in a sound and disposing state of mind and memory.
Beni Chand who opposed the grant of probate to his wife Kamla Kunwar died during the pendency of the appeal in this Court.
He is now represented by his legal representatives almost all of whom supported the grant of probate.
The one person from amongst the heirs of Beni Chand who stoutly pressed this appeal is Vikram Chander, one of the sons of Beni Chand, born of his third wife Ved Kumari.
While Kamla Kunwar 's appeal was pending before the Division Bench of the High Court, Beni Chand alienated some of the properties included in the will to a person called Sadhu Prasad.
The alienation was purportedly made on the basis that the learned Single Judge of the High Court had set aside the will and had refused to grant the probate to the executrix.
The alienee Sadhu Prasad is also an appel lant before us, having joined Beni Chand in filing the appeal.
We have had the benefit of the arguments advanced by Mr. Jain on behalf of the alienee but nothing that he has urged is enough to upset the view taken by the Division Bench of the High Court.
The only argument advanced by Mr. Jain to which refer ence need be made is that even alienees are entitled to citations in probate proceedings and in the absence of such citations the grant of probate is 584 vitiated.
In support of this submission reliance is placed on a judgement of the Madhya Pradesh High Court in Banwari lal Shriniwas vs Kumari Kusum Bai and Ors.
C) It was held in that case that any interest, however slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose the grant of probate.
A purchaser, there fore, who acquires an interest in the estate of the testator by reason of a transfer by his heirs must be cited in testa mentary proceedings.
We will assume without affirming that this is the true position in law but the important distinc tion is that the alienee in the instant case is a trans feree pendeme lite who purchased some of the properties included in Jaggo Bai 's will while the Letters Patent Appeal was pending in the Allahabad High Court.
In the very nature of things no citation could be issued to him prior to the commencement of the probate proceedings.
In fact, we felt that the alienee had no right to be heard in this appeal.
Nevertheless, we heard his counsel on the point whether the executrix has established the will.
One reason why we heard the alienee is that he should not be able to raise any objection later that the decision in these proceedings is for some reason or the other not binding upon him.
The property included in the will is for the time being in the possession of a Receiver appointed by the Court.
Since we have upheld the will, the Receiver shall have to hand over the property to the executrix, Kamla Kunwar, who is respondent 1 to this appeal.
We however direct that the Receiver shall continue in possession Of the property for a period of 4 months from today and hand it over to respondent 1 on the expiry of that period.
The alienee Sadhu Prasad may, if so advised, file a suit within that period for such relief as he is advised to seek and obtain interim orders, if he may, within that period as regards the possession of the property alienated to him.
Subject to such orders, if any, the Receiver shall hand over the property to respond ent 1, Kamla Kunwar.
Mr. Tarkunde who appears on behalf of respondents 1, 4, 5, 7 and 8 made a statement before us on the conclusion of the arguments in the appeal that even if we uphold the validity of the will, his clients would be willing to make an ex gratia payment to 4 out of the 5 children born to Beni Chand from Ved Kumari.
Two daughters Subhashni Seth and Chander Rekha and three sons, Pratap Chander, Vikram Chander and Khem Chander were born to Beni Chand from Ved Kumari.
Mr. Tarkunde has given an undertaking to this Court on behalf of his clients that they shall pay a sum of Rs. 20,000/ to each of the two daughters, Subhashni Seth and Chander Rekha and a similar amount to each of the two sons, Pratap Chander and Khem Chander.
Under this arrangement, no amount whatsoever shall be payable to Vikram Chander and not certainly to the alienee Sadhu Prasad.
According to the undertaking, the aforesaid amount totalling Rs. 80,000/ shall be paid to the four persons mentioned above within one year of the date on which respondent 1 obtains actual pos session of the properties included in the will, which were alienated ,by Beni Chand.
Mr. Tarkunde also agrees and undertakes on behalf of 1) A.I.R. 1973 M.P. 69.
585 clients that in the event that the aforesaid amount or any part of it is not paid as stipulated, the persons to whom the amount is payable, or any one or more of them, shall be entitled to recover it in execution of this judgment as if there were a decree in favour of each of them in the sum of Rs. 20,000/ .
In the result, we dismiss the appeal and direct that the costs of the appeal shall be paid equally by Vikram Chand er, the son of Beni Chand and by the alienee Sadhu Prasad.
M.R. Appeal dismissed.

summary:
Three or four days before her death, Jaggo Bai executed a will, bequeathing her Stridhana property to her son Beni Chand 's second wife Kamla Kunwar and her children, and also to the progeny horn of his first wife.
Bern Chand, his third wife and her children were excluded from the will.
Beni Chand opposed the probate of the will contending that it was a forgery and challenged the execution of the will.
A single Judge of the High Court held that the propounder of the will had failed to explain the suspicious circumstances surrounding its execution, but in appeal, the Division Bench upheld the validity of the will.
Dismissing the appeal, the Court HELD: (1) The mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document.
An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.
[581H. 582A] (2) The onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
Where the circumstances surrounding the execution of the will are shrouded in suspi cion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of auspicious circumstances which can satisfy a prudent mind.
[582C, E F]


judgement:
Appeal No. 841 of 1974.
Appeal by Special Leave from the Judgment and Order dated 30 3 1970 of the Kerala High Court in Writ Appeal No. 39/70 and Civil Appeal No. 1575 of 1970.
Appeal by Special Leave from the Judgment and Order dated 22 12 1969 of the Kerala High Court in O.P. No. 211/65, 939 V. Sivarama Nair and ,4.
section Nambiar for the Appellants in both :the Appeals.
M.C. Bhandare and K.M.K. Nair for Respondent No. 1 in CA 841 and R. 2 in CA 1575/70.
(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1 in CA No. 1575/70.
K.S. Ramanurthi, N. Sudhakaran and P.K. Pillai for Respondent No. 45 in CA 1575/70.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Since these two appeals involve identi cal questions, we propose to state the facts of one of these only.
The decision in Civil Appeal No. 1575 of 1970 will govern the other appeal.
The three appellants were .appointed as temporary Junior Engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Serv ices Rules.
Appellants 1 and 2 were appointed on June 6 and June 8, 1951 respectively while the third appellant was appointed on June 30, 1950.
A few years later they were appointed to the very same posts after selection by the Public Service Commission and in course of time, orders were issued under rule 23(a) of the aforesaid rules permit ting them to commence their probation from dates anterior to the dates of their appointments after selection by the Public Service Commission but subsequent to the dates of their initial 'appointments under rule 10(a)(i)(1).
The first appellant was permitted to commence his probationary period on July 4, 1954, the second on July 18, 1954 and the third on March 15, 1953.
On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to.
the Kerala State.
which was formed by inclusion therein of parts of the States of Madras and Travancore Cochin.
As in other States, so in Kerala, it became necessary to fix rules of seniority governing employees drawn from different States, parts of which were integrated in Kerala.
A conference of Chief Secretaries of various States was held on May 18 and 19, 1956, to consider problems arising out of reorganisation of States and the consequent integration of services.
Pursuant to the decision taken in that Conference, the Government of Kerala passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States and holding posts declared to be equivalent shall be determined by considering the length of continuous service in the equated grade, whether such serv ice is temporary or officiating, quasi permanent or permanent.
The order, however, expressly provided that in the aforesaid determination, the period for which an ap pointment was held "in a purely stop gap or emergency ar rangement" was to be excluded.
On April 3, 1957 the.
Gov ernment of India issued a directive under section 117 of the States ReorganisatiOn Act stating that it was agreed that in determining the relative seniority as between two persons holding posts declared as equivalent to each other and drawn 'from different States the length 12 206sC1/77 940 of continuous service, whether temporary or permanent, in the particular grade should be taken into account, exclud ing "periods for which an appointment is held in a purely stop gap or fortuitous arrangement.
" On April 2, 1958 the Government of Kerala issued a clarificatory order stating that for computing length of continuous service "only short periods for which an appointment was held in purely stop gap or emergency appointment will be excluded.
" It issued another order on August 16, 1961 stating that one year of temporary service of Junior Engineers allotted from Madras would be excluded for the purposes of fixing their inter state seniority.
Representations were made against this order to the Government Of India which directed by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore Cochin or Madras personnel prior to November 1, 1956 before regulari sation of their appointments should be taken into account for the purposes of deciding interstate seniority, only if such service is either regularised, or it is in a time scale of pay and is reckoned for grant of increments in the time scale and is continuous.
On May 16, 1962 the Govern ment of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequently, in October 1962 a provi sional integrated gradation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos.
145, 137 and 123 respectively.
Employees drawn from the Travancore Cochin area being evidently prejudiced by the decision of the Kerala Govern ment made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government.
The first alternative thus recommended was that the officers allocated to Kerala from the former Madras State may be allowed the benefit of emer gency service towards seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would have been count ed for interstate seniority on November 1, 1956, had these officers remained in Madras.
The second alternative was that the principles laid down by the Government of Madras in their order dated July 17, 1957 be accepted.
By the third alternative it was stated that the Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emergency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
On May 10, 1963 the Government of Kerala passed an order adopting the first two alternatives but not the third.
The appellants thereafter field a writ petition in the Kerala High Court which was disposed of in December 1964 by directing them to file representations to the Government of India on the basis of a certain decision rendered by the High Court earlier.
The appellants accordingly made repre sentations and on.
those being rejected, they filed a writ petition in the High Court in August 1965.
That writ peti tion having been dismissed, they have filed this appeal by special leave.
941 The question which arises for decision is whether the services rendered by the appellants under rule 10(a) (i) (1) of the Madras State and Subordinate Services Rules must be taken into account for the purpose of fixing.
their seniori ty in the service of the Kerala Government as from November 1, 1956.
It is urged on behalf of the appellants that the aforesaid service ought to be taken into account because such service can be taken into account under rule 23, sec ondly because such service is not liable to be excluded by reason of the directives issued earlier by the Government of India and thirdly because if the appellants had remained in Madras, the temporary service rendered by them would have been taken into account for fixing their seniority.
Counsel for the appellants says that they were granted increments from the date of theft initial appointments, that the temporary service rendered by them was counted for the.
purpose of eligibility for promotion to the higher post of Assistant Engineers, that they were duly qualified to hold the post of Junior Engineers, that they were entitled and permitted to appear for departmental tests which are open only to the probationers, that their service books were opened from the data of their initial appointments, and that the concurrence of the Public Service Commission was ob tained for continuing them in service after the expiry of three months and then again after the expiry of one year.
These facts and circumstances, according to the appellants, would justify the counting of temporary service rendered by them for the purpose of fixing their seniority.
Having given every consideration to these matters we think it impossible to accept the appeal.
A fact of funda mental importance which permeates every one of these consid erations is that the appellants were appointed under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules which runs thus: "10.
Temporary appointments. (a)(i)(1) Where it is necessary in the public interest owing to.
an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing au thority may temporarily appoint a person, otherwise than in accordance with the said rules.
" This provision contemplates the making of temporary appoint ments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.
Such appointments, in terms, are permitted to made otherwise than in accordance with the rules.
The letters of appointment issued to the appellants mention expressely that they were appointed under rule 10(a) (i)(1), that the appointments were "purely temporary necessitated on account of the non availability of regularly selected candi dates conferring no claim for future appointment as Junior Engineers . and that the appointment is liable to be terminated at any time without previous notice.
" In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants Were appointed purely as a matter of stop gap or emergency arrangement.
Since 942 such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority.
Clause (iii) of rule 10(a) makes 'this position clearer by providing that a person appointed under clause (i) shall, whether or ' not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules.
The fact that the appellants were qualified to.
hold the posts cannot, there fore, entitle them to count for the purposes of seniority the period during which they served in a stop gap or emer gency arrangement.
Clause (v) of rule 10(a) provides that a person appointed under clause (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service .and that the services shall be liable to be terminated at any time without notice and without assigning any reason.
These provisions reflect significantly on the nature of the appointment held by the appellants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly ever count for sen iority in any system of service jurisprudence.
It is now only necessary to consider the appellant 's argument that had they remained in Madras, their entire service would have counted for purposes of seniority.
In support of this argument reliance was placed on the corre spondence between the Governments of Kerala and Madras, but neither that correspondence nor a certain order dated June 11, 1960, which is at exhibit P 17 in the record, can avail the appellants.
In a way of saying, the proof of pudding is in the eating.
It is needless to speculate as to what course the appellants ' destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to.
them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appoint ment.
As stated earlier, the appellants were appointed initially in June 1951 and June 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and March 1953.
This shows that the services rendered by the appellants under rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop gap, 'emergency or fortuitous arrangement.
The decision in C.P. Damodaran Nayar vs State of Kerala(1) on which the appellants ' counsel has placed reli ance for showing that temporary service of the kind rendered initially by the appellants can (1) ; 943 be counted for the purposes of seniority has no application to the instant case.
One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951.
He was in continuous service in than post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing that the said date was assigned to him as the date of commencement of his continuous service.
Dealing with the appeal arising out of the dismissal of his writ peti tion, this Court held that the service rendered by the appellant after his initial appointment was neither emergen cy service nor was it a purely stop gap or fortuitous ar rangement.
The distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was "appointed in a regular manner through the Public Service Commission" and therefore his appointment could not "by any stretch of imagination" be described as having been made to fill a purely stop gap or fortuitous vacuum (p. 876).
In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appel lants ' appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
The concurrence of the Public Service Commission to the continuance of the appel lants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selec tion by the Public Service Commission is required for any reason to be continued beyond three months or a year.
For these reasons we confirm the judgment of the High Court and dismiss this appeal.
There will be no order as to costs.
Civil Appeal No. 841 of 1974 will also stand dismissed but without an order of costs.
S.R. Appeals dis missed.

summary:
The three appellants, who were appointed as temporary junior engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules on 13 6 1950, 6 6 1951 and 8 6 1951 respectively, on being selected by the Public Service Com mission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15 3 1953, 4th July, 1954 and 18th July 1954 respectively.
On 1 11 1956, on the re organisation of States, they were allotted as junior engineers in the Kerala State which was formed by inclusion therein of parts of the Slates of Madras and Travancore Cochin.
For the propose of fixing the interstate seniori ty, several orders were passed, from time to time, both by the Central Government and the Government of Kerala.
A provisional integrated gradation list of junior engineers was prepared by the State Government in October 1962 giving the appellants ranks therein at serial Nos. 123, 132 and 145 respectively.
On a representation by the employees of the Travancore Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Govern ment on 16 2 1963.
They were: (1) The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towards seniority in the equated category if such service would have been regula rised from the date of their emergency appointment and if it would have been counted for interstate seniority on Novem ber 1, 1956 had these officers remained in Madras.
(2) The principles.
laid down by the Government of Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emer gency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
The Government of Kerala passed an order on May 10, 1963 adopting the first two alternatives but not the third.
The writ petition filed by the appellants in the Kerala High Court challenging he said orders dated 10 5 1963 was rejected.
In appeal by special leave, the appellants contended: (1) The emergency service rendered under Rule 10(a)(i)(1) of the Rules ought to be taken into account because such service can be taken into account under Rule 23(a) ibid (ii) Such service is not liable to be excluded by reason of the directives issued earlier by the Government of .India on 3rd April 1957 and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary service rendered by them would have been taken in.to account for fixing their seniority and (iv) Such service should count in view of the grant of increments to them from the date of their initial appointments in view of the temporary service rendered by them having been counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, they being duly qualified to hold the posts of Junior Engineers, they having been permitted to appear for departmental tests which are open only to the probationers, their service books having been opened from the. date of their appointment and the concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and again after the expiry of one year of their emergency service.
938 Dismissing the. appeals, the Court, HELD: (1) A fact of fundamental importance which perme ates every one of these cOnsiderations is that the appel lants were appointed under rule 10(a) (i)(1) of the Madras State and Subordinate Services Rules.
In face of the provi sions of these rules and the express terms of their ap pointment, to the effect, "that appointments were under rule 10(a) (i) (1) purely temporary necessitated on account of the non availability of regularly selected candi dates, conferring no claim for future appointment as junior engineers and they were liable to be terminated at any time without previous notice", it is clear.
that the appointments were purely as a matter of stop gap or emergency arrange ment and such service cannot be taken into account for the purpose of seniority from the date of their initial appoint ment.
[941 E, H, 942 A] (2) Clauses (iii) and (iv) of rule 10(a) reflect signif icantly on the nature of the appointment held by the appel lants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly even count for seniority in any system of service jurispru dence.
[942 C D] (3) The fact that the appellants were qualified to hold the posts cannot, in view of clause (iii) of rule 10(a) entitle them to count for the purpose of seniority the period during which they served in a stop gap or an emer gency arrangement.
[942 B] (4) The contention that if the appellants had remained in Madras their entire service would have counted for the purpose of seniority is without any merit and one of specu lation as to what course the appellants ' destiny would have taken had they remained in Madras.
The Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service.
Com mission, were quite subsequent to the dates of their initial appointment.
The services rendered by them under rule 10(a) (i)(1) were treated by the Government which appointed them as a matter of stop gap, emergency or fortuitous arrange ment.
[942 D G] (5) The concurrence of the Public Service Commission to the continuance of the appellants in the post filled by them, first after the expiry of three months and then after the expiry of one year was obtained not with a view to regularising the appointments but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to.
obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.
[943 E F] (6) In the instant case, the initial appointment was not only made without any reference to the Public Service Com mission but the various rules and the terms of the appoint ment shove that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
Their initial temporary services cannot therefore be counted for the purpose of seniority.
[943 B C] C.P. Damodaran Nayar vs State of Kerala ; , distinguished and held not applicable.