judgement:
Appeal No. 481 of 1965.
Appeal from the judgment and order, dated April 30, 1965, of the Bombay High Court in Special Civil Application No. 447 of 1965.
C. B. Agarwala, section N. Prasad, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
section V. Gupte, Solicitor General, and B. R. G. K. Achar, for respondent Nos. 2 to 4.
The Judgment of the Court was delivered by Subba Rao J.
This appeal by certificate raises the question of the true construction of the provisions of sections 19 and 25 of the Bombay Municipal Borough Act, 1925 (Bom.
Act 18 of 1925), hereinafter called the Act, read with section 3 of the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Laws) Act, 1964, hereinafter called the Maharashtra Act.
The facts lie in a small compass.
The last general election of the, members of the Bhusaval Borough Municipality was held 697 under the provisions of the Act in the year 1960.
The first general meeting thereafter was held on February 18, 1961.
Under the provisions of section 25 of the Act.
in the normal course the life of the Municipality would have expired on February 17, 1965; but, under section 3 of the Maharashtra Act the term of the Councillors of the Municipality was, by fiction, extended to and inclusive of December 31, 1965.
On July 18, 1964, the appellant was elected the President of the Municipality; and on the same day the Municipality passed a resolution to the effect that the term of the office of the President shall be "the residue of the term of office of the Municipality".
On the assumption that the term of the President expired on February 17, 1965, the Collector of Jalgaon issued a notice on March 2, 1965, calling for a meeting of the Municipality on March 15, 1965, for electing a new President.
Thereafter, the appellant filed an application under articles 226 and 227 of the Constitution in the High Court of Maharashtra for the issue of an appropriate order setting aside the notice issued by the Collector.
There the appellant contended that, as the term of office of the Municipality had been extended by the Maharashtra Act up to December 31, 1965, he was entitled to continue in office as President till that date.
A Division Bench of the said High Court rejected that contention and dismissed the petition.
Hence the appeal.
The short question in the appeal is whether the expression "the residue of the Municipality" in the resolution of the Municipality, dated July 18, 1964, means the residue of the Municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act.
Mr. Agarwala, learned counsel for the appellant, contended that the appellant would get the extended term provided in the Maharashtra Act, because in effect it was an "extension" under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act, with the result the "residue" of the "term" was extended to December 31, 1965.
The learned Solicitor General, on the other hand, argued that the second proviso to section 19 of the Act had no application, for it dealt only with an extension by notification or otherwise under the provisions of the Act and the statutory extension given by the Maharashtra Act could not possibly be an extension under the Act; that even if the Maharashtra Act had the effect of amending section 25 of the Act with the result that the life of the 698 members of the Municipality was extended by the amendment of the Act itself, it would not help the appellant as the scope of the resolution passed by the Municipality should be construed on the basis of the circumstances existing at the time the resolution was passed, i.e., previous to the election of the President, and at that time the councillors of the Municipality could have only passed the resolution fixing the term of the President during the residue of the life the Municipality had at that time : to put it in other words, the intention of the Councillors, who passed the resolution, could be gathered only from the circumstances, statutory or otherwise, existing at the time the resolution was passed.
The problem presented from different angles by the learned counsel can only be solved on a true interpretation of the said provisions.
It will, therefore, be convenient at this stage to read the relevant provisions.
Section 19 of the Act : (1) Save as otherwise provided in this Act a president or vice president, shall hold his office for such term, not less than one year or not less than the residue of the term of office of the municipality, whichever is less and not exceeding four years, as the municipality shall, previous to the election of the president or vicepresident determine, or until the expiry within the said term of his term of office, as councillor, but shall be eligible for reelection : Provided that. . .
Provided further that where the term of office of a municipality :Is extended under this Act to a term not exceeding in the aggregate five years the president and vice president holding offices immediately before the date with effect from which such term is extended shall continue to hold their respective offices until the date on which the term so extended expires.
Section 25 of the Act : (1) Councillors nominated or elected at a general election under this Act, shall, save as otherwise provided in this Act, hold office for a term of four years, extensible by order of the State Government to a term not exceeding in the aggregate five years, if on any occasion the State Government shall think fit, for 699 reasons which shall be notified together with the order in the Official Gazette so to extend the same Section 3 of the Maharashtra Act Postponement of municipal elections.
Notwith standing anything in any Act by or under which any municipality is constituted or established, (a) (b) the term or extended term of office, of the Councillors or members of a municipality, who were in office on the date of the commencement of the Ordinance (and whose term or extended term will expire before the 31st day of December 1965), shall be deemed to be extended to and inclusive of the 31st day of December 1965.
SCHEDULE (See section 2) 2.
The Bombay Municipal Boroughs Act, 1925 (Bom.
XVIII of 1925).
The combined effect of these two Acts may be stated thus Under section 25 of the Act the term of the Councillors of the Municipality is 4 years.
It may be extended by the State Government to a term not exceeding in the aggregate five years.
If the term is so extended by the Government in the manner prescribed by section 25 of the Act, under the second proviso to section 19 of the Act the term of the President also is automatically extended to the date on which the term so extended expires.
The expression " under this Act" in the second proviso to section 19 of the Act certainly attracts the extension of the term of the councillors under section 25, as it is an extension under the Act.
The impact of section 3 of the Maharashtra Act on the provisions of the Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act.
If that be the legal effect of section 3 of the Maharashtra Act, the second proviso is not attracted to the instant case, as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the councillors fixed under section 25 of the Act.
Therefore for the present purpose we leave out of consideration the second proviso to section 19 and approach the problem on the basis of the fiction that the term of the 700 councillors prescribed under section 25 of the Act was extended up to December 31, 1965.
If that be so, the next question is whether on July 18, 1964, when the Municipal councillors passed a resolution to the effect that the term of office of the appellant shall be the residue of the Municipality, their intention was that his term should extend only up to February 17, 1965, i.e., the date when the term of the Municipal councillors would have expired but for the statutory extension given by the Maharashtra Act.
The intention of the Municipality can be gathered only from the circumstances, statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
Under section 19 of the Act, the Municipality can fix the term of office of the President between one and four years, except when the residue of the term of the Municipality is less than one year.
But the second proviso to section 19 also contemplates the extension of the term of office of the Municipality under the provisions of the Act.
It is, therefore, not possible to predicate that at the time the resolution was passed the Municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act.
With the knowledge of such a possible extension, when the members used the elastic expression "residue", it is not reasonable to attribute to them the intention that they meant only the residue of the term available to them at that time.
If that was their intention they would have prescribed a definite date on which the term of the President would expire.
That apart, there is sufficient material on the record which indicates that the councillors designedly used the word "residue" instead of fixing a precise date.
It appears that it was in the contemplation of the councillors at the time of the election of the President that there was a possibility of the term of the Municipality being extended.
In the Statement of Objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act, it was observed as follows "In July, 1963, Government appointed a Committee for the purpose of considering the question of unification of the four Municipal Acts which are at present in force in the State.
As substantial changes are envisaged in the unified municipal law, it is considered expedient that the advantages of the new and uniform pattern of administration should be available to all those municipalities concerned simultaneously with the holding of general election in accordance with the pro visions of the unified law.
Consequently, the Munici 701 parties that are elected or may be elected under the existing Acts may be short lived, and the time, energy and expenditure incurred on holding any more general elections would be wasteful.
It has, therefore, be on decided to postpone the general elections to such muni cipalities from the promulgation of the Ordinance until the 31st of December, 1965, by which time the new unified municipal law is expected to be enacted.
" This indicates that the question of extension of the term of the municipalities was under serious consideration even in July 1963.
Indeed, on or about July 18, 1964, when the term of the Presitent of the Municipality was extended, the Municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years.
It is, therefore, clear that on the basis of statutory and other circumstances obtaining at the time the extension was made, the councillors clearly expected that the term of the Municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality; the intention appears to be that the term of the President should synchronize with the life of the Municipality existing or extended, as the case may be.
In our view, therefore, the order of the High Court is not Correct and the same is set aside.
A writ will issue prohibiting the Collector from holding the election of the President of the Municipality of the Bhusaval Borough till December 31, 1965.
The controversy arose because the relevant provisions are not free from ambiguity.
We, therefore, think that this is a fit case where the parties may be directed to bear their own costs; throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was elected President of the Bhusaval Borough Municipality in Bombay State in July 1964.
On the same day the Municipality passed a resolution to the effect that the term of office of the President would be "the residue of the term of office of the municipality".
The four years ' term of the municipality as provided in section 25 of the Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was due to expire on February 17, 1965.
However in the meanwhile the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Laws Act, 1964 was passed, and under section 3 thereof the term of the councillors of the municipality was by fiction extended to December 31, 1965.
The Collector of the area on the assumption that the term of the President ending on February 17, 1965, issued notice for a fresh election in March 1965.
The appellant filed an application under articles 226 and 227 of the Constitution and contended that as the term of office of the municipality had been extended up to December 31, 1965 he was entitled to be President till that date under the resolution passed by the Municipality.
The High Court ,. jetted the contention.
The appellant, with a certificate of fitness granted by the High Court, came to this Court.
The short question in the appeal was whether the expression "the residue of the municipality" in the resolution of the municipality meant the residue of the municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act.
On behalf of the appellant it was argued that the appellant would get the extended term provided by the Maharashtra Act, because in effect it was an extension under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act with the result that 'residue ' of the 'term ' was extended to December 31, 1965.
HELD : (i) The impact of section 3 of the Maharashtra Act on the provisions of the Municipal Boroughs Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act.
If that was the legal effect of the Maharahtra Act, the second proviso to section 19 was not attracted to the instant case as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the Councillors fixed under section 25 of the Act.
Therefore for the present purpose the second proviso to section 19 had to be left out of consideration and the problem had 696 to be approached on the basis of the fiction that the term of the Councillors prescribed under section 25 of the Act was extended up to December 31, 1965.
[699 G 700 A] (ii) The intention of the municipality could be gathered only from the tances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
The second proviso to section 19 contemplates the extension of the term of office of the Municipality under the Act.
It was therefore not possible to predicate that at the time the resolution was passed the municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act.
Moreover from the Statement of objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act it appeared that the question of extension of the term of the municipalities in the State was under serious consideration even in July 1963.
Indeed on or about July 18, 1964 when the term of the President was extended, the municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years.
It was therefore clear that on the basis of the statutory and other circumstances obtaining at the time the extension was made, the councillors clearly expected that the term of the municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality; the intention appeared to be that the term of the President should syncbronise with the life of the municipality existing or extended as the case may be.
[700 B 701 D] The order of the High Court was therefore not correct and had to be set aside.


judgement:
minal Appeal No. 107 of 1965.
Appeal by special leave from the judgment and order, dated June 22, 1965 of the Bombay High Court in Criminal Applica tion No. 613 of 1965.
Niren De, Additional Solicitor General and B. R. G. K. Achar, for the appellant.
R. K. Garg, D. P. Singh, M. K. Ramamurthi and section C. Agar wala for respondent No. 1.
The Judgment of the Court was delivered by Subba Rao J.
Prabbakar Pandurang Sanzgiri, who has been detained by the Government of Maharashtra under section 30(1)(b) of the Defence of India Rules, 1962, in the Bombay District Prison in order to prevent him from acting in a manner pre judicial to the defence of India, public safety and maintenance$ of public order, has written, with the permission of the said Government, a book in Marathi under the title "Anucha Antarangaat" (Inside the Atom).
The learned Judges of the High Court, who had gone through the table of contents of the book.
expressed their opinion on the book thus : ". . we are satisfied that the manuscript book deals with the theory of elementary particles in in objective way.
The manuscript does not purport to be a research work but it purports to be a book written with a view to educate the people and disseminate knowledge regarding quantum theory.
" The book is, therefore, purely of scientific interest and it cannot possibly cause any prejudice to the defence of India, public safety or maintenance of public order.
In September, 1964, the detenu applied to the Government of Maharashtra seeking permission to send the manuscript out of the jail for publication; but the Government by its letter, dated March 27, 1965, rejected the request.
He again applied to the Superintendent, Arthur Road Prison, for permission to send the manuscript out and that too was rejected.
Thereafter, he filed a petition under article 226 of the Constitution in the High Court of Maharashtra at Bombay 704 for directing the State of Maharashtra to permit him to send out the manuscript of the book written by him for its eventual publication.
The Government of Maharashtra in the counter affidavit did not allege that the publication of the said book would be prejudicial to the objects of the Defence of India Act, but averred that the Government was not required by law to permit the detenu to publish books while in detention.
The High Court of Bombay held that the civil rights and liberties of a citizen were in no way curbed by the order of detention and that it was always open to the detenu to carry on his activities within the conditions governing his detention.
It further held that there were no rules prohibiting a detenu from sending a book outside the jail with a view to get it published.
In that view the High Court directed the Government to allow the manuscript book to be sent by the detenu to his wife for its eventual publication.
The State of Maharashtra has preferred the present appeal against the said order of the High Court.
The contentions of the learned Additional Solicitor General may be briefly stated thus : When a person is detained he loses his freedom; he is no longer a free man and, therefore, he can exercise only such privileges as are conferred on him by the order of detention.
The Bombay Conditions of Detention Order, 1951.
which regulates the terms of the first respondent 's detention, does not confer on him any privilege or right to write a book and send it out of the prison for publication.
In support of his contention he relies upon the observations of Das, J., as he then was, in A. K. Gopalan vs State of Madras(1) wherein the learned Judge has expressed the view, in the context of fundamental rights, that if a citizen loses the freedom of his person by reason of a lawful detention, he cannot claim the rights under article 19 of the Constitution as the rights enshrined in the said article are only the attributes of a free man.
Mr. Garg, learned counsel for the detenu, raised before us the following two points : (1) a restriction of the nature imposed by the Government on the detenu can only be made by an order issued by the appropriate Government under cls.
(f) and (h) of sub r.
(1) of r. 30 of the Defence of India Rules, 1962, hereinafter called the Rules, and that too in strict compliance with section 44 of the Defence of India Act, 1962, hereinafter called the Act, and that as the impugned restriction was neither made by such an order nor did it comply with section 44 of the Act, it was an illegal restriction on his personal liberty; and (2) neither the detention order nor the (1) ; , 291.
705 conditions of detention which governed the first respondent 's detention enabled the Government to prevent the said respondent from sending his manuscript book out of the prison for publication and, therefore, the order of the Government rejecting the said respondent 's request in that regard was illegal.
Article 358 of the Constitution suspends the provisions of article 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by the President under article 3 5 9 suspended the enforcement, inter alia, of article 21 during the period of the said emergency.
But the President 's order was a conditional one.
In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order made thereunder.
If a person was de lived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof, his right to move the said Courts in that regard would not be suspended.
The question, therefore.
in this case is whether the first respondent 's liberty has been restricted in terms of the Defence of India Rules whereunder he was detained.
If it was in contravention of the said Rules, he would have the right to approach the High Court under article 226 of the Constitution.
In exercise of the Dower conferred on the Central Government by section 3 of the Act, the Central Government made the Defence of India Rules.
Under section 30 of the Rules the Central Government or the State Government, if it is satisfied with respect to any person that in order to prevent him from acting in any manner prejudicial to the matters mentioned therein, it is necessary so to do, may make an order directing that he be detained.
Under subr.
4 thereof he shall be liable to be detained in such place and under such conditions as to maintenance, discipline and the punishment of the offence and the breaches of discipline as the Central Government or the State Government, as the case may be, may from time to time determine.
In exercise of the power con ferred under sub r.
(4) of r. 30 of the Rules, the Government of.
Maharashtra determined that the conditions as to maintenance, discipline and the punishment of offenses and breaches of discipline governing persons ordered to be detained in any place in the State of Maharashtra, shall be the same as those contained in the Bombay Conditions of Detention Order, 1951.
The Bombay Conditions of Detention Order, 1951, does not contain any condition as regards the writing of books by a detenu or sending them out of jail for publication.
Briefly stated, the scheme of the said p. C. and I./65 2 706 provisions is that a person can be detained if the appropriate Government is satisfied that in order to prevent him from doing the prejudicial acts mentioned in r. 30 of the Rules it is necessary to detain him in prison subject to the conditions imposed in the manner prescribed in sub r.
(4) of r. 30 of the Rules.
To put it in a negative form, no restrictions other than those prescribed under sub r.
(4) of r. 30 can be imposed on a detenu.
If the appropriate authority seeks to impose on a detenu a restriction not so prescribed, the said authority will be interfering with the personal liberty of the detenu in derogation of the law whereunder he is detained.
If that happens, the High Court, in terms of Art 226 of the Constitution, can issue an appropriate writ or direction to the authority concerned to act in accordance with law.
We have gone through the provisions of the Bombay Conditions of Detention Order, 195 1.
There is no provision in that Order dealing with the writing or publication of books by a detenu.
There is, therefore, no restriction on the detenu in respect of that activity.
Sub rule (iii) of r. 17 of the said Order reads "All letters to and from security prisoners shall be censored by the Commissioner or the Superintendent, a% the case may be.
If in the opinion of the Commissioner or the Superintendent, the dispatch or delivery of any letter is likely to be detrimental to the public interest or safety or the discipline of the place of detention, he shall either withhold such letter, or despatch or deliver it after deleting any objectionable portion therefrom.
In respect of the censoring of letters of security prisoners, the Commissioner or the Superintendent shall comply with any general or special instructions issued by Government.
" The Maharashtra Government has not relied upon this rule.
In deed, in the counter affidavit its case was not that it prohibited the sending of the book for publication under the said sub rule, but that it was not required by law to permit the detenu to publish books while in detention; nor was it its case before the High Court that the publication of this book was detrimental to public interest or safety or the discipline of the place of detention.
Prima facie the said sub rule applies only to letters to and from security priso ners and does not regulate the sending out of prison books for publication.
Indeed, the learned Additional Solicitor General does not rely upon this provision.
707 Let us now consider the validity of the argument of the learned Additional Solicitor General.
He relies upon the following observations of Das, J., as he then was, in A. K. Gopalan 's case(1), at p. 29 1.
"If a man 's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his 'own inclination may direct, ' reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business.
These are attributes of the freedom of the per son and are consequently attached to the person." ' Relying upon these observations it is argued that freedom to publish is only a component part of that of speech and expression and that in the light of the said observations, as the detenu ceased ' to be free in view of his detention, he cannot exercise his freedom to publish his book.
In other words, as he is no longer a free man, his right to publish his book, which is only an attribute of personal liberty, is lost.
The principle accepted by Das, J., as he then was, does not appear to be the basis of the conclusion arrived at by the other learned Judges who agreed with his conclusion.
Different reasons are given by the learned Judges fro arriving at the same conclusion.
As has been pointed out by this Court in the second Kochunni 's case(2) the views of the learned Judges may be broadly summarized under the following heads : (1) to invoke article 19(1) of the Constitution, a law shall be made directly infringing that right; (2) articles 21 and 22 constitute a self contained code; and (3) the freedoms in article 19 postulate a free man.
Therefore, it cannot be said that the said principle was accepted by all the learned Judges who took part in A. K. Gopalan 's case(").
The apart, there are five distinct lines of thought in the matter of reconciling article 21 with article 19, namely, (1) if one loses his freedom by detention, he loses all the other attributes of freedom enshrined in article 19; (2) personal liberty in article 21 is the residue of personal liberty after excluding the attributes of that liberty embodied in article 19; (3) the personal liberty included in article 21 is wide enough to include some or all of the freedoms mentioned in article 19, but they are two distinct fundamental rights a law to be valid shall not infringe both the rights; (4) the expression "law" in article 21 means a valid law and, therefore, even if a person 's liberty is deprived by law of detention, the said law (1) ; (2) 708 shall not infringe article 19; and (5) article 21 applies to procedural law, whereas article 19 to substantive law relating to personal liberty.
We do not propose to pursue the matter further or to express our opinion one way or other.
We have only mentioned the said views to show that the view expressed by Das, J., as he then was, in A. K. Gopalan 's case(1) is not the last word on the subject.
In this case, as we have said earlier, we are only concerned with the question whether the restriction imposed on the personal liberty of the first respondent is in terms of the relevant provisions of the Defence of India Rules.
Here, the first respondent 's liberty is restricted under the Defence of India Rule 's subject to conditions determined in the manner prescribed in Sub r.
(4) of r. 30 thereof.
We find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu.
If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu.
In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons.
We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu arc not privileges conferred on him, but are the conditions subject to which his liberty can be restricted.
As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra infringed the personal liberty of the first respondent in derogation of the law whereunder he is detained.
The appellant, therefore, acted contrary to law in refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publication.
In the view we have taken, another argument advanced by Mr. Garg, namely, that the restriction can only be imposed by an order made under section 30 (f) or (h) of the Rules and that too in strict compliance with section 44 of the Act need not be considered.
That question may arise if and when an appropriate condition is imposed restricting the liberty of a detenu in the matter of sending his books for publication.
We do not express our view on this question one way or other.
In the result, the order passed by the High Court is correct.
The appeal fails and is dismissed.
Appeal dismissed.

summary:
The first respondent was detained by the Government of Maharashtra under r. 30(1) (b) of the Defence of India Rules, 1962.
The conditions of detention under sub rule 4 of r. 30 of the said rules were prescribed to be the same as those under the Bombay Conditions of Detention Order, 1951.
While so detained the first respondent wrote a book of scientific interest and sought permission from The State Government to send it out of jail for publication.
The request having been rejected he filed a writ petition under article 226 of the Constitution praying for a direction to the State Government to permit him to send out the manuscript for Publication.
The High Court held that The book was in no way prejudicial to the defence of India etc., and allowed the petition.
The State Government by special leave appealed to this Court.
It was contended on behalf of the, appellant that the first respondent not being a free person could exercise only such privileges a, , were conferred on him by the order of detention, and the Bombay Conditions of Detention Order, 1951 which regulated the terms of the respondent 's detention did not confer on him any privilege or right to write a book and send it out of the prison for publication.
HELD : (i) It cannot be said that the Bombay Conditions of Detention Order, 1951 which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu.
If this argument were to be accepted it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu.
In the matter of liberty of a subject such a construction shall not be given to the said rules and regulations unless for compelling reasons.
[7O8 C D] (ii) The said conditions regulating the restriction on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted.
As there is no condition in the Bombay Conditions of Detention Order, 1951, prohibiting a detenu from writing a book or sending it for publication, the State of Maharashtra in refusing to allow the same infringed the personal liberty of the first Respondent in derogation of the law whereunder he was detained.
[708 E] (iii) The effect of the President 's order under article 359 of the Constitution was that the right to move the High Court or the Supreme Court remained suspended during the period of emergency if a person was deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order made thereunder.
If a person was deprived of his personal liberty not under the Act or rule or order made thereunder but in contravention thereof his right to move the said courts in that regard would not be suspended.
[705 C D] 703 Since the State Government 's refusal to allow publication of the first respondent 's book was in contravention and derogation of the 'law under which he was detained he had the right to move the High Court under article 226 and the said High Court was empowered to issue an appropriate writ or direction to the said Government to act in accordance with law.


judgement:
ivil Appeal No. 420 of 1963.
Appeal from the judgment and decree dated September 9. 1960 of the Andhra Pradesh High Court in Appeal Suit No. 300 of 1955.
M. Suryanarayana Murti and T.V.R. Tatachari, for the appellant.
K.R. Chaudhuri, for respondents 1 to 13.
The Judgment of Sarkar and Raghubar Dayal, JJ. was delivered by Sarkar J. Ramaswami, J. delivered a separate Opinion.
Sarkar, J.
In a certain money suit, being Small Cause Suit No. 9 of 1953.
a decree had been passed against Narasimhaswamy and his four sons who were members of a Mitakshara Hindu joint family.
In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successors in interest are the appellants.
The father Narasimhaswamy 's share had not been put up for sale because= an application fo.r his adjudication as insolvent was then pending.
The sale to Sivayya was duly confirmed.
Thereafter Sivayya sold the properties purchased by him at the auction to one Prakasalingam.
On November 6, 1939, an order was made.
under O. 21, rr.
35(2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to Prakasalingam along with the members of the joint family in actual ' possession.
This order was duly carried out and possession was delivered to Prakasalingam by publishing that fact by beat of drum as prescribed in these rules.
Subsequently, Prakasalingam re transferred the properties to Sivayya.
On October '16, 1951, Sivayya filed the. suit out of which this appeal arises, against the then members of the joint family whose Sup. /65 12 632 number had by that time increased, and various other persons holding as alienees from them, asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession.
The trial Court decreed the suit but held that Sivayya was not entitled to a 4/5th share but only to a 2/3rd share because before the decree a 5th son had been bom to Narasimliaswamy who had not been made a party to the suit or the execution proceedings and whose share had not consequently passed under the auction sale.
Some of the defendants appealed to the High Court of Andhra Pradesh from this judgment.
The High Court allowed the appeal on the ground that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act.
Sivayya had filed a cross objection in the High Court on the round that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without a discussion of its merits in view of its decision on the question of limitation.
Sivayya having died pending the appeal in the High Court, the appellants as his successors in interest, have come up to this Court in further appeal under article 133 of the Constitution.
Various questions had been raised in the trial Court but only two survive after its decision.
They are, whether the suit was barred by limitation and whether Sivayya was entitled to a 4/5th share.
On the question of limitation, two articles of the Act were pressed for our consideration as applicable to the ease.
They are articles 144 and 120.
We consider it unnecessary to decide in this ,case which of the two articles applies for in our view, the suit was not barred under either.
As earlier stated the High Court held that article 144 applied.
The application of this article seems to us to present great difficulties to some of which we like to refer.
That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the, plaintiff.
This article obviously contemplates a suit for possession.
of property where the defendant might be in adverse possession of it as against the plaintiff.
Now, it is well settled that the purchaser of a copartner 's undivided interest in joint family property is not entitled to possession of what he has purchased.
His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener 63 3 whose share he had purchased.
His right to possession "would date from the period when a specific allotment was made in his favour": Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain (1) It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made.
That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession.
Support for this view may be found in some of the observations in the Madras full bench case of Vyapur vs Sonamm Boi Ammani (2).
In the case in hand the learned Judges of the High Court thought that the applicability of article 144 to a suit like the present one was supported by the decision of the Judicial Committee in Mahant Sudarsan Das vs Mahan Ram Kirpal Das(3).
We feel considerable doubt that the case furnishes any assistance.
It held that article 144 extends the conception of adverse possession to include an interest in immovable property as well as the property itself.
In that case a purchaser of an undivided share in a property which was not coparcenery property, had obtained possession of that share and he was held to have acquired title to it by adverse possession.
That was not a case of a person who was not entitled to possession.
We are not now concerned with adverse possession of an interest in property.
Having expressed our difficulties on the matter let us proceed on the assumption without deciding it, that article 144 is applicable.
Even so, it seems to us that the suit is not barred.
It is not in dispute that in order that the suit may be barred under the article the defendant must have been uninterrupted possession for twelve years before the date of the suit.
Now, in.
the present case that was not so.
By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the, defendants was interrupted.
Time has, therefore, to commence to run from that date and so considered, the suit having been brought within twelve years of that date, it was not barred under that article.
That would follow from the case of Sri Radha Krishna Chanderji vs Ram Bahadur (4) where it was held that delivery of formal possession also interrupted the continuity of adverse possession.
It was however said that the order for delivery of possession (1) ; ,188.
(3) (1949) L.R. 77 I.A. 42.
(2) Mad.
(4) A.I.R. 1917 P.C. 197.
634 made in the present case was a nullity because Sivayya and his transferee who had purchased an undivided share in coparcenery property were not entitled to any possession at all.
We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity.
It is not a case where the order was without jurisdiction.
It was a case where the learned Judge making the order had, while acting within his jurisdiction, one wrong in law.
Such an order has full effect if it is not set aside, as it was not in this case.
Yelumalai Chetti vs Srinivasa Chetti(1) to which we were referred, does not support the contention that the order was a nullity There a purchaser of an undivided share in coparcenery property at an execution sale had applied for possession under section 318 of the Code of Civil Procedure of 1882 which corresponds to 0 21, r. 95 of the present Code.
That application was dismissed as barred by limitation.
Later, the purchaser who had subsequently acquired the interest of the other coparceners in the property under a private sale, filed a suit for possession of the whole.
it was contended that the suit was barred under section 244 of the old Code (= section 47 of the present Code) as the purchaser could only proceed by way of execution.
In dealing with that contention it was said that though the purchaser of an undivided share in coparcenery property was only entitled to ask for a partition, it was not competent to a court on a mere application for execution by a purchaser of such a share at a court sale, to order a partition and, therefore, the dismissal of the application under section "II 8 of the old Code had no effect by way of yes judicature on the second Suit for Possession.
This case said nothing about the legality of an order under 0.
21, rr. 35, 95 or 96.
It seems to us that the question of adverse possession is one of fact.
If the person against whom adverse possession is set up, should that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him.
The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law.
Under the order for delivery of symbolical possesSion, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents.
In respect of the present suit time under article 144 must, therefore, commence from that interruption.
We wish to observe here that this aspect of the matter exposes the anomaly that seems to arise from the application of article 144 to this case.
If Prakasalingam 's possession under the order of (1) Mad.
63 5 November 6, 1939 was no possession in law because, as is contended, he was not entitled to possession at all, then it would be difficult to hold that at that time somebody else was holding the property adversely to him.
Since Prakasalingam or his successor Sivayya was not entitled to possession till after the decree in a suit for partition brought by him, article 144 would seem to be inapplicable to that suit.
Learned counsel for the respondents referred us to Mahadev Sakharam Parkar vs Janu Namji Hatle(1) and Jang Bahadur Singh vs Hanwant Singh(1) to show that the delivery of symbolical possession does not avail the appellants.
On behalf of the appellants it was said that these decisions are no longer good law in view of the judgment of the Judicial committee in Sri Radha Krishan Chanderji 's (3) case.
Apart however from the merits of this contention which no doubt, deserve consideration, the principle of these cases does rot seem to us to be applicable to the present case.
That principle was expressed in the case of Jang Bahadur Singh (2 ) which also is clearly to be implied from the decision in the case of Mahadev Sakharam Parkar(1) in these words, "If possession was delivered in accordance with law that undoubtedly would, as between the parties to the proceedings relating to delivery of possession, give a new start for the computation of limitation and the possession of the defendants would be deemed to be a fresh invasion of the plaintiff 's right and a new trespass on the property.
But if possession was not delivered in the mode provided by law, that delivery of possession cannot, in our opinion, give a fresh start to the plaintiff for computing limitation.
" By the words "in accordance with law" the learned Judges meant, in accordance with the Code of Civil Procedure and not any other law.
These cases dealt with an order for delivery of symbolical possession where an order for actual possession could have been made under the Code.
Because of this, it was held that the order for delivery of symbolical possession did not interrupt the adverse possession of the defendant.
That is not the case here.
The only order for delivery of possession that could possibly be made under the Code in the present case was under 0.
21 rr.
35(2) and 96 because the other members of the family whose share had not been sold were certainly entitled to remain in possession.
The fact that ;,I view of the provisions of the Hindu law the order made is illegal, is irrelevant for the present purpose.
That would not bring the case within the principle of either the Bombay case or the Allahabad case.
(1) Bom.
(2) All.
(3) A.I.R. 1917 P.C. 197.
636 Learned counsel for the respondents however contended that 0. 21, r. 35(2) only applied where there was a decree for joint possession and it did not apply to the present case because here there was only an order for delivery of joint possession and not a decree.
This contention cannot be accepted because under section 36 of the Code the provisions relating to the execution of decrees are applicable to execution of orders.
In any case, the order is clearly within the terms of 0. 21, r. 96.
The delivery of symboli cal possession made in this case was quite in terms of the Code and so amounted to an interruption of the respondent 's adverse possession and the period of limitation for the purpose of the application of article 144 would start from the date of such delivery.
As the suit was brought within twelve years from the date of that delivery of possession, article 144 even if it applies, does not bar it.
We then turn to article 120.
In Bai Shevantibai vs Janardan R. warick(1) it has been held that to a suit like the present, this is the article that applies.
Learned counsel for the respondents himself contended that this was the appropriate article to be applied.
This article applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues.
Learned counsel for the respondents relied on the observation in Shevantibai 's(1) case that in a suit like the present one.
the period of limitation under article 120 commences to run from the date of the sale.
This the case no doubt held, but we think in that respect it did not lay down the law correctly.
It has been held by this Court in Mst.
Rukhmabai vs Lala Laxminarayan (2 ) and C. Mohammad Yunus vs Syed Unnissa(3) that the right to sue accrues for the purpose of 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it.
Now whatever the nature of the plaintiff 's right in the present case, there is nothing to show that right was ever challenged in any way by the respondents.
It is impossible, therefore, to hold that his suit was barred under article 120.
The result is that the suit was not barred whether article 144 or article 120 applied to it.
It remains now to deal with the cross objection.
We do not think that it has any merit.
Both the courts below have held that what Sivayya purchased at the auction sale was the share of the four sons of Narasimhaswamy in the joint family properties.
At the date of the auction sale that share which was originally (1) A.I.R. 1939 Bom.
(3) ; (2) ; 637 4/5th had been reduced to 2/3rd by the birth of another son, Venugopal, to Narasinihaswamy who had not been made a party either to the suit or the execution proceedings.
It is irrelevant to enquire whether after his birth the fifth son 's share could be proceeded against in the execution of the decree in suit No. 9 of 1933.
It is enough to say that was not in fact done.
What was purchased at the execution sale was only the shares of Venugopal 's four brothers at the date of the sale and this was 2/3rd.
That being so, we think Sivayya was not entitled to get Venugopal 's 1/6th share also allotted to hi in in the partition suit.
The crossobjection must fail.
We may add that no claim has been made against Narasimhaswamy 's share whose insolvency once ordered, appears subsequently to have been annulled.
In the result we would allow the appeal, set aside the judgment and decree of the High Court except as to the dismissal of the cross objection and restore that of the learned trial Judge.
The appellants will be entitled to proportionate costs here and in the High Court.
Ramaswami, J.
The question of law involved in this appeal is what is the period of limitation applicable to a suit filed by an alienee of a coparcener of an undivided share in the joint family property for general partition.
The appellants are the legal representatives of the deceased plaintiff Mamidi China Venkata Sivayya.
The suit was filed by him on October 16, 1951 for partition and separate possession of the 4/5th share in the joint family properties.
It is alleged that he purchased the undivided share of defendants 2 to 5 at a Court auction sale held on December 21, 1936 in execution of a decree of the Court of Small Causes.
The sale was confirmed on February 23, 1937.
Later on i.e., on March 5, 1939 the purchaser Sivayya sold the right he had purchased to one Prakasalingam who, it is alleged, obtained symbolic delivery of possession of the undivided share of the joint family properties on November 6, 1939.
It appears that Sivayya obtained a reconveyable of the right from Prakasalingam on April 11, 1945.
Sivayya brought the present suit on October 16, 1951 against the other coparceners and alienees from some of the coparceners.
The suit was filed by Sivayya for general partition.
The main defence of the contesting defendants was that the suit was barred by limitation.
The trial court held that the suit was governed by Article 144 of the Limitation Act and Article 120 did not apply.
The trial court also found that there was symbolic delivery of possession in favour of Prakasalingam on November 6, 1939 and there was break up of adverse 638 possession of defendants 1 to 5 and that the suit was, therefore, brought within time.
The trial court held that the 1/6th share of the 6th defendant one of the coparceners did not pass to the plaintiff as the 6th defendant was born before the Court sale and he was not implement as a party in the present case.
The trial court accordingly gave a decree for partition and separate possession to the plaintiff of 2/3rds share of the properties mentioned in Sch. 'A ' of the plaint.
The defendants preferred an appeal before the High Court of Andhra Pradesh against the judgment and decree of the trial court.
The plaintiff also filed a Memorandum of Cross Objections claiming the 1/6th share of the 6th defendant also.
The High Court held that Article 144 of the Limitation Act applied to the suit and the adverse possession of the defendants commenced from the date of the auction sale and that the suit was barred by limitation as it was filed on October 16, 1951 i.e., more than 12 years after the auction sale.
The High Court also held that the symbolic delivery had no legal effect and did not break the adverse possession of the defendants.
Accordingly the High Court allowed the appeal and the suit was dismissed with costs throughout.
The present appeal is presented on behalf of the legal representatives of the deceased plaintiffs against the judgment and decree of the High Court of Andhra Pradesh.
Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family.
It is wellsettled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property.
The purchaser acquires only an equity to stand in the alienor 's shoes and work out his rights by means of a partition.
The equity depends upon the alienation being one for value and not upon any contractual nexus.
The purchaser does not become a tenant in common with the other members of the joint family.
He is not entitled to joint possession with them.
The alienee 's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property.
Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener.
Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family.
(Mayne 's Hindu Law, eleventh edition, page 489).
639 On behalf of the appellants learned Counsel put forward the argument that the right of the alienee to sue for partition is a continuing right and there is no period of limitation for enforcing such right.
In my opinion, there is no warrant for this argument.
A suit for partition filed by the alienee from a coparcener is not, in a technical sense, a suit for partition and, as already stated, such a suit will not have the necessary effect of breaking up the joint ownership of the members of the family in the joint property nor the corporate character of the family.
As observed by Bhashyam Ayyangar, J. in Aiyyangari Venkataramayya vs Aiyyagari Ramayya "The vendee 's suit to enforce the sale by partition is not a suit for 'partition ', in the technical sense in which 'partition ' or 'vibhaga ' is used in the Hindu law.
A suit for partition, in the technical sense, can be brought only by an undivided member of the family.
The right to such partition is personal to him and not transferable.
Such a suit can be brought only in the lifetime of the coparcener and even if so brought, it will abate if he should die before final decree, without leaving male issue.
A partition in the technical sense, whether effected amicably or by decree of Court, breaks up not only the joint ownership of property, but also the family union, i.e., the corporate character of the family.
Each member thereafter becomes a divided member with a separate line of heirs to himself.
An undivided member of a family, though he may alienate either the whole (Gurulingappa vs Nandappa I.L.R. , or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred. . .
The transferee, however, does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property".
In my opinion, a suit like the present one will fall within Article 144 of the Limitation Act.
(1) I.L.R. at p. 717.
64 0 It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property.
But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition.
What the alienee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit of partition and have the property alienated set apart for the alienor 's share, if possible.
In the present case the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor.
It is not right to consider such a suit as a suit for more partition.
The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor 's share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor 's share.
What the plaintiff seeks is actual delivery of possession.
In my opinion, such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly stated in Thai vs Dakshinamutthy(1).
If Article 144 is the proper article applicable, when does time commence to run ? According to the third column of Article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff.
As I have already pointed out, the possession of the non alienating members of the family cannot be deemed to be possession on behalf of the alienee also, because the purchaser alienee does not acquire any interest in the property sold and does not become tenant in common with the members of the family nor is he entitled to joint possession with them.
It is clear that in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the nonalienating coparceners would be adverse to the alienee, from the date on which he became entitled to sue for general partition and possession of his alienor 's share.
The fact that the alienee has purchased an undivided interest of joint family property is not inconsistent with the conception of adverse possession of that 64 1 interest.
As Lord Radcliffe observed in Sudarsan Das vs Ram Kirpal Das(1) : "Now it is the respondents ' case it is in fact their main contention on this issue that the appellant has never at any time had 'adverse ' possession against them because, the disputed property being a fourteen undivided share, his possession has been throughout no more than a joint possession with them.
And the joint possession which coparceners enjoy in respect of the undivided property involves that, prima facie, the exclusive possession of any one of them is not adverse to the others.
Their Lordships have no doubt of the validity of this general rule : but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant 's possession has been adverse to the owners of the other shares.
In truth there is some confusion involved in the argument.
What is in question here is not adverse possession of the block of property in which the various undivided interests subsist but adverse possession of one undivided interest.
Article 144 certainly extends the conception of adverse possession to include an interest in immovable property as well as the property itself nor was it disputed in argument by the respondents that there could be adverse possession of an undivided share, given the appropriate circumstances.
" In the present case, therefore, adverse possession began to run from the date of purchase of the undivided share i.e., from December 21, 1936 but it was submitted on behalf of the appellants that Prakasalingam obtained symbolic delivery and possession of the undivided share on November 6, 1939 after notice to defendants 2 to 5 and there was a fresh cause of action to Sustains the present suit for possession.
It was contended on behalf of the respondents that the symbolic delivery was illegal and the executing court was not competent to make an order of delivery of possession, either symbolic or actual with regard to the sale of an undivided interest of joint family property.
In support of this argument reliance was placed on the decision in Yelumalai Chetti vs Srinivasa Chetti (2 ) in which it was held that the purchaser at a Court sale of the share of an undivided member of a joint Hindu family acquires only a right to sue for partition and for delivery of what may be allotted as the share of such undivided member (1) A.I.R 1950 C.44at p. 47.
(2) I.L.R. 642 and the Court cannot, on a mere application for execution by such purchaser, enforce his right by an order for partition.
It was further held that no such order can be made under section 318 of the Code of Civil Procedure and the dismissal by the Court of an application by the purchaser under section 318 cannot be a bar to a suit by the purchaser for partition.
Even assuming that the ,grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order, it cannot be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law.
I am, therefore, of the opinion that the rant of symbolic possession by the court in favour of Prakasalingam after notice to the defendants 2 to 5 was tantamount in law to delivery of actual possession and, there fore, sufficient to break up the continuity of adverse possession in favour of the defendants.
In Sri Radha Krishna Chanderji vs Ram Bahadur(1) it was held by Lord Sumner that symbolic posses sion was available to dispossess a party sufficiently where he was a party to the 'Proceedings in which it was ordered and given.
I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article 144 of the Limitation Act and the view taken by the High Court on this part of the case is not correct and must be overruled.
On behalf of the appellants it was also argued that a decree for 5/6th share of the joint family properties and not merely for 2/3rds share should have been granted.
The claim of the appellants was rejected by the trial court.
It is not disputed by the plaintiff that the 6th defendant was born before the Court sale and it is also not disputed that the execution case was taken out only against defendants 2 to 5.
It is manifest that the plaintiff is not entitled to recover the possession of the share of the 6th defendant in execution proceedings and there is no merit in the cross objection filed on behalf of the plaintiff in the High Court.
am unable to accept the argument advanced by the appellants ' on this point.
For these reasons I hold that the judgment and decree of the High Court should be set aside and the judgment and decree of the trial court should be restored and a preliminary decree of partition of the properties should be ranted as mentioned in the trial court 's decree.
The appeal is accordingly allowed with costs, Appeal allowed.
(1) A.I.R.1917 P.C. 197.

summary:
A decree was passed in a money suit against N and his four sons who were members of a Mitakshara Hindu joint family.
In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5 th share, were put up for auction in December, 1936 and purchased by section N 's interest was not put up for sale as it was the subject matter of insolvency proceedings.
The sale to S was duty confirmed.
S sold the properties to P.
On November 6, 1939 an order was made under 0.
21 rr.
33(2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchase to P along with the members of the joint family already in possession.
This order was carried out and possession was delivered to P by publishing that fact by beat of drum as prescribed in the rules.
Subsequently P retransferred the properties to section On October 16, 1951 S filed a suit against the then members of the joint family and various alienees asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession.
The trial court decreed the suit but held that S was not entitled to a 4/5th share but only to a 2/3rd share because before the decree a 5th son had been born to N who had not been made a party to the suit or the execution proceedings and whose share had consequently not passed under the auction sale.
Some of the defendants filed an appeal to the High Court which allowed the appeal holding that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act.
S had field a coss objection in the High.
Court on the ground that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without discussion of the merits in view of its decision on the question of limitation.
S having died the appellants as his successors in interest appealed to this Court under article 133 of the Constitution.
The two questions that arose for decision were (1) whether the suit was barred by limitation under article 144 or article 120 and (2) whether S was entitled to a 4/5th share.
HELD : (Per Sarkar and Raghubar Dayal, JJ.) (i) (a) 'Me view that the suit was barred under article 144 of the suit presented great difficulties.
The article obviously contemplates a suit for possession of property where the defendant might be in possession of it as against the plaintiff.
However, the purchaser of a copartner 's undivided interest in joint family property is not entitled to possession of what he has purchased.
His only right is to sue for partition of the property and ask for allotment to him of that which an partition might be found to fall to the share of the copartner whose share he has purchased.
His right to possession would date from the period when a specific allotment is made in his favour.[632 H] 629 S was therefore not entitled to possession till a partition had been made.
As possession of the defendants could tie adverse to him only if he was entitled to possession the difficulty in applying article 144 arose.
[633 B] Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain, ; , relied on.
Vyapuri vs Sonamma Boi Ammani, Mad. 81, referred to.
Mahant Sudarsan Das vs Mahan Ram Kirpal Das, (1949) L.R. 77 I.A 42, distinguished.
(b) Even on the assumption that article 144 applied the suit was not barred.
In the present case the defendants were not in uninterrupted possession for twelve years as required by the Article.
By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted.
Time had therefore to commence to run from that date, and the suit having been brought within twelve years of that date, it was not bared under that article.
[633 F G] Sri Radha Krishna Chanderji vs Ram Bahadur, A.I.R. (1917) P.C. 197, relied on.
It could not be said that the order of delivery of possession was a nullity though S and his transferee who had purchased an undivided share in copartners property were not entitled in law to any possession at all.
In making the order the learned Judge had gone wrong in law but he had acted within his jurisdiction.
Such an order has full effect if it is not set aside.
[634 A B] Yelumalai Chetti vs Srinivasa Chetti, Mad. 294, distinguished.
Mahadev Sakharam Parkar vs janu Namji Hatle, (1912) I.L.R. and fang Bahadur Singh vs Hanwant Singh All.
520, held inapplicable.
(ii) Article 120 applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues.
[636 D] The right to sue accrues for the purpose of article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it.
In the present case there was nothing to show that the right was ever challenged in any way by the respondents.
It was impossible therefore to hold that the suit was barred under article 120.
[636 F] Mst.
Rukhmabai vs Lala Laxminarayan, ; and C. Mohammad Yunus vs Syed Unnissa, ; , relied on.
Bai Shevantibai vs Janardan R. Warick, A.I.R. 1939 Bom.
322 disapproved in so far as it held that the right to sue accrued from the date of sale.
(iii) The cross objection had no merit.
What S purchased at the auction sale was the share of the sons of S then bom, in the joint family Properties.
At the date of the auction sale that share which was originally 4/5th had been reduced to 2/3rd by the birth of another son to N who had not been made a party either to the suit or the execution proceedings.
What was purchased at the execution sale was only the shares of the four elder sons of N and their share at the date of sale was 2/3rd.
That 630 being so S was not entitled to get the 1/6th share of the fifth son also allotted to him in the partition suit.
[637 B C] Per Ramaswami, J. : (i) The purchaser of a share of joint Hindu family property doe , not acquire any interest in the property he cannot claim to be put.
in possession of any definite place of Property.
A suit for partition filed by the alienee from a is not, in a technical sense, a suit for partition and such a suit have the necessary effect of breaking up the joint ownership of the members of the family in the joint family in the joint property nor the corporate character of the family.
Such being the rights of the alienee his right to sue for partition cannot be said to be a continuing right subject to no period of limitation for enforcing it.
[638 F H] Aiyyagari Venkataramayya vs Aivyagari Ramayya, I.L.R. 25 referred to.
(ii) Though the alienee of an undivided interest of a Hindu is not entitled to joint possession with other copartners or to separate possession of any part of the family property he is entitled to obtain possession of that part of the family property which might full to the share of his alienor at a partition.
[640 B] In the present case the alienee instituted a suit for general the prayer that he may be put in possession of that part of the family property which may be allotted to his share.
It is not right to such a suit as a suit for mere partition.
The main relief sought by the plaintiff is the relief of possession of that part of the property which may be allotted to the alienor 's share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor 's share.
what the plaintiff seeks is actual delivery of possession.
Such a suit falls within the of article 144 of the Limitation Act.
[640 B D] Thani vs Dakshinamurthy.
I.L.R. , appoved (iii) the possession of the non alieniting members of the family cannot be said to be possession on behalf of the alienee also because the purchaser alienee does not acquire in interest in the property sold and does not become tenant in common with the members of the family tier is he entitled to joint possession with them.
In the absence of clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee the possession of his alienors share.
The fact that the alienee has purchased an undivided interest is not inconsistent with the conception of adverse possession, of that interest.
[640 E H] Sudarsan Das vs Ram Kirpat Das, A.I.R. 1950 P.C. 44, reliel on.
According to the third column of article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff.
In the present case, therefore, adverb possession bengon to run from the date of purchase of the undivided share i.e. front December 21.
[640 E; 641 FF] (iv) However the grant of symbolic possession bv the court in favour of P after notice to defendants 2 to 5 was tantamount in law to delivery of actual possession and therefore efficient to break up the continuity of adverse "scion in favour of the defendants.
Even assuming that the grant of symbolic possible ought not to have been made and that, 631 the executing court acted illegally in making such an order, it could not be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law.
[642 B] Yelumalai Chetti vs Srinivasa Chetti,I.L.R. , referred Sri Radha Krishna ' Chanderii vs Ram Bahadur, A.I.R. 1917 P.C. 197, relied on.
According the suit of the plaintiff was no.t barred by limitation under ' article 144 of the Limitation Act and the view taken by the High Court on this part of the case was not correct.
[642 D]


judgement:
Appeal No. 435 to 437 of 1959.
Appeals from the judgment and decree dated April 24, 1953 of the Patna High Court in First Appeals Nos. 119, 192 and 189 of 1948 respectively.
section T. Desai, U. P. Singh and D. Goburdhan, for the appellants.
G. section Pathak, B. Dutta & K. K. Singh, for the respondents Nos. 2, 3 (a), 3 (d), 4 (a) to 4 (c), 5, 6, 7 (a), 8 to 14, 15 (a) to 15 (c), 16, 18 to 20, 21 (a), 21 (b), 22, 23, 25 to 32, 33 (a), 33 (b), 34 to 38, 39(a) to 39(d), 40 to 42, 44, 45, 46(a) to 46(d), 47, 48, 49, 74 to 79 and legal representatives of respondent No. 1 (in C. As.
435 and 436 of 1959) and respondents Nos.
14 759 to 16, 18(a), 18(d), 19(a) to 19(c), 21, 23, 25, 26 and legal representatives of respondent No. 1 (in C.A. No. 437 of 1959).
Sarjoo Prasad, Kanhaiyaji and A. G. Ratnaparkhi, for respon dent No. 80 (in C.As.
435 and 436/1959) and respondent No. 1 (in C.A. No. 437 of 1959).
D. P. Singh, for respondent No. 81 (in C.As.
435 and 436 of 1959).
The Judgment of the Court was delivered by Bachawat J.
After stating the facts of the case and discussing the evidence his Lordship proceeded :] On the question of title also, the plaintiffs must fail.
In the plaint, the basis of their claim of title was (a) occupation of 426 bighas 18 kathas and 9 dhurs of Dubha Taufir by their ancestor Naurang Thakur as occupancy tenant and the record of his rights in the survey papers of 1892 and (b) the oral arrangement with the Dumraon Raj.
The first branch of this claim is obviously incorrect.
The survey papers of 1892 do not record occupancy tenancy rights of Naurang Thakur in 426 bighas 18 kathas and 9 dhurs.
In the High Court, counsel for the plaintiffs conceded that in the Khasra of 1892 1893 survey the plaintiffs ' branch was recorded as tenant for about 19 bighas only.
The oral arrangement is not established, and the second branch of this claim also fails.
The Subordinate Judge did not examine the basis of the plaintiffs ' claim of title.
His finding in favour of the plaintiffs ' title was based chiefly on (1) oral evidence, (2) depositions of witnesses in previ ous litigations, (3) possession, (4) an admission of the Maharaja.
The oral evidence on the point is not convincing.
The claim is not supported by the documentary evidence.
The survey papers of 1892, 1895, 1904, 1909 and 1937 do not support the plaintiffs ' claim of occupancy rights in the lands in suit.
The depositions of witnesses in other litigations do not carry the matter further.
The deposition of defendant No. 1 1, Ram Dass Rai, in Suit No. 217 of 1911 is of weak evidentiary value.
Though admissible against him as an admission, it is not admissible against the other defendants.
The other depositions relied upon do not satisfy the test of section 33 of the Indian Evidence Act, and are not admissible in evidence.
We have already found that the plaintiffs and their ancestors were not in possession of the disputed land since 1909.
The oral evidence as to their possession before 1909 is not convincing, and we are not inclined to accept it.
The documentary evidence does not support the story of their possession before 1909.
With 760 regard to the admission of the Maharaja in Suit No. 247/10 of 1913 relating to the plaintiffs ' title to 244 bighas, we find that in his written statement the Maharaja asserted his khas zeraiti rights and denied the alleged guzashta kastha rights of the plaintiffs ' ancestors.
It seems that in Bihar 'guzashta kasht ' means a holding on a rent not liable to enhancement.
Later, on June 10, 1913, a petition was filed on his behalf stating that the plaintiffs ' ancestors were tenants in occupation of the disputed land having guzashta kasht rights.
The Maharaja was interested in the success of the suit, and it was necessary for him in his own interest to make this admission.
The admission was made under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun.
Though this petition was filed, the written statement of the Maharaja was never formally amended.
In the circumstances, this admission has weak evidentiary value.
In this suit, the plaintiffs do not claim tenancy right either by express grant or by adverse possession.
Title cannot pass by mere admission.
The plaintiffs now claim title under cl.
(1) of section 4 of Regulation XI of 1825.
The evidence on the record does not establish this claim.
The claim of title based upon cl.
(1) of section 4 of Regulation XI of 1825 was not clearly made in the pleading.
It was clearly put forward for the first time in the High Court.
It was contended that the decision in Suits Nos. 22 to 31 and 199 of 1937 conclusively established this claim.
The High Court rightly pointed out that those suits did not relate to any portion of the subject matter in the present suit, and the decision in those suits cannot operate as res judicata.
The plaintiffs now contend that the judgment is admissible to show that the plaintiffs ' ancestors asserted title to other Taufir lands as an accretion to frontier Dubha Mal plots under the Regulation and their claim was recognised.
But the plaintiffs ' ancestors did not consistently assert such a title.
In Attestation Dispute Cases Nos. 1 to 253 of village Dubha they claimed title to the lands in suit as an accretion to their 77 bighas, and this claim was negatived.
The survey records of 1892, 1895, 1904 and 1909 disclose that the ancestors of the plaintiffs held some of the frontier plots of Dubha Mal.
The High Court was, therefore, asked to draw the inference that their ancestors held those plots during 1845 to 1863 when the Taufir lands accreted.
The question is whether such an inference should be drawn.
Now, if a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn.
The presumption of future continuance is noticed in Illustration (d) to section 114 of the .
In 761 appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration.
The rule that the presumption of continuance may operate retrospectively has been recognished both in India, see Anangamanjari Chowdhrani vs Tripura Soondari Chowdhrani (1) and England, see Bristow vs Cormican(2), Deo vs Young(1).
The broad observation in Manmatha Nath Haldar vs Girish Chandra Roy(4) and Hemendra Nath Roy Chowdhury vs Jnanendra Prasanna Bhaduri(5) that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported.
The presumption of continuity weakens with the passage of time.
How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.
In the present case, the High Court rightly refused to draw the inference from the state of things during 1892 to 1909 that the ancestors of the plaintiffs held frontier plots of Dubha Mal in 1863.
The High Court pointed out that even during 1894 to 1905 the ownership of some of the plots had changed, and also that the frontier Mal plots and the corresponding Taufir plots were not always held by the same person.
In 1845, part of the Mal lands was under water.
The frontier Mal lands reformed between 1845 to 1863 were subject to annual inundation.
It is well known that settlements of char lands are seasonal and temporary.
There is a considerable gap of time between 1892 and 1845.
It is not safe to assume that the state of things during 1894 to 1905 existed during 1845 to 1863.
In exhibit L 1 (13), the Khatian of Mauza Dubha published on January 2, 1912, the tenancies of serveral plots held by the ancestors of the plaintiffs are described as Sharah Moaiyan (at fixed rate of rent).
The plaintiffs contend that this record read in conjunction with section 50(2) of the Bengal Tenancy Act, 1885 shows that the ancestors of the plaintiffs must have held those plots from the time of the, Permanent Settlement.
The contention is based on fallacious reasoning.
Section 50(2) of the Bengal Tenancy Act, 1885 raises in a suit or proceeding under the Act a presumption that a raiyat has held at the same rate of rent since the Permanent Settlement, if it is shown that the rate of rent has not been changed during the last 20 years.
Fixity of rent may arise not only from this presumption but also from express grant.
An entry in the 1.
(1887) L.R. 14 I.A. 101, 110.
2. , 669 670.
; , 4. , 770.
5. 5, 117.
762 record of rights showin that the tenancy was at a fixed rate of rent does not necessarily mean that the tenant was holding the land from the time of the Permanent Settlement.
The point based on the entries in exhibit L 1(13) was not taken in the Courts below, and the circumstances under which they came to be made and the question whether they relate to the frontier plots of Dubha have not been investigated.
We think that this new point ought not to be allowed to be raised at this stage.
The suit as framed must fail, even if we presume that the ancestors of the plaintiffs ' branch held some of the frontier plots in Dubba Mal between 1845 and 1863, when the Taufir lands accreted.
The ancestors of the defendants third party 's branch also held numerous frontier plots of Dubha Mal between 1892 and 1909, and making the same presumption in their favour, it would appear that they also held numerous frontier plots of Dubha Mal between 1.845 and 1863.
The ancestors of the plaintiffs ' branch and defendants 3rd party 's branch separately held and enjoyed the several frontier plots of Dubha Mal, and on the plain tiffs ' own case, the ancestors of the plaintiffs ' branch would be entitled to the alluvial accretions in front of their plots and similarly, the ancestors of the defendants 3rd party 's branch would be entitled to the alluvial accretions in front of their plots.
The alluvial accretions of each plot must be apportioned by drawing perpendicular lines from its boundary points to the new course of the Ganges, so that each plot acquires a new river frontage in proportion to its old river frontage.
The plaintiffs could claim no more than the alluvial accretions to the plots, held by the ancestors of their branch.
In the Courts below, no attempt was made by the plaintiffs to apportion the accretions amongst the several frontier plots.
Without further investigation, the alluvial accretions in respect of each plot cannot be ascertained.
This is not a fit case for remand at this late stage.
The further case of the plaintiffs that the defendants3rd party lost their title to their portion of the Taufir lands is not established.
It is neither alleged nor proved that the plaintiffs and the defendants 3rd party jointly owned and possessed the Taufir lands.
In the absence of pleading and proof of joint title and possession, the plaintiffs ' claim for recovery of the entire Taufir lands must fail.
Realising this difficulty, counsel for the plaintiffs made an entirely new case before us.
He submitted that Dihal Thakur.
the common ancestor of the plaintiffs and defendants 3rd party owned all the frontier plots of Dubha Mal between 1845 and 76 3 1863 and consequently acquired occupancy rights in all the Taufir lands accreted in front of his plots, those rights have now devolved jointly upon the plaintiffs and defendants 3rd party, and the plaintiffs and defendants 3rd party are jointly entitled to the entire Taufir lands.
There is no trace of this case in the pleadings and the judgment of the trial Court.
This case was not made even in the High Court.
On the contrary, the plaintiffs ' case all along has been that the branches of the plaintiffs and defendants 3rd party separately possessed and enjoyed their respective plots.
Moreover, we are not inclined to draw the presumption that Dihal Thakur owned all the frontier plots of Dubha Mal between 1845 and 1863.
Even if we assume that the descendants of Dihal Thakur owned the frontier plots in 1892 or even in 1882, we are unable to infer that Dihal Thakur held them between 1845 and 1863.
The case is made here for the first time, and was not the subject matter of an enquiry in the Courts below.
There is neither pleading nor proof that Dihal Thakur held any of the frontier plots of Dubha Mal at any time, or that the branches of the plaintiffs and defendants 3rd party inherited their respective holding from Dihal Thakur.
To establish their claim based upon cl.
(1) of section 4 of Regu lation XI of 1825, the plaintiffs must also prove that the Taufir lands were gained by gradual accession from the recess of the river.
Having regard to our conclusions on the other points, we do not wish to express any opinion on this question.
Even if the Taufir lands were gained by gradual accession, this gain did not accrue for the benefit of the plaintiffs.
The plaintiffs have failed to establish that they or their ancestors held any plot or plots to which the accretions were annexed.
The plaintiffs have failed to prove their title based upon cl.
(1) of section 4 of Regulation XI of 1825.
They have also failed to establish their claim of title based upon oral arrangements.
Their claim of title based upon occupation of the disputed lands is also not established.
They have failed to prove that they were in occupation of the disputed lands.
Moreover, mere occupation does not confer tenancy rights.
The result is that Civil Appeals Nos. 435 and 436 of 1959 must fail.
C. A. Nos.
435 to 437 dismissed.

summary:
The appellants claimed title to the lands in dispute on the basis of section 4(1) of the Bengal Alluvion and Deluvion Regulation XI of 1825.
To establish their claim based upon the clause, the appellants had to prove that the lands were gained by gradual accession from the recess of the river and that the lands were accretions to plots in the possession of the appellants or their ancestors.
Since the survey records from 1892 to 1909 showed that appellants ' ancestors held some of the frontier plots, the High Court was asked to draw the inference that they held those plots during 1845 to 1863 when the lands in dispute accrcted.
The High Court refused to draw the inference.
In appeal to this Court, HELD : If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and, in appropriate cases, backwards, may be drawn under section 114, Evidence Act.
But it was not safe to assume in the present case that a state of things during 1892 to 1909 existed during 1845 to 1863 since the interval of time was too Inng.
[760 H] Anangamanjari Chowdhrani vs Tripura Sundari Chowdhrani, (1887) L.R. 14 I.A. 101, 110, approved.
Observation contra in Manmath Nath Haldar, vs Girish Chandra Roy, , 770 and Hemendra Nath Roy Chowdhury vs Jnendra Prasanna Bhaduri, , 117, disapproved.