judgement:
Appeals Nos.
41 44 of 1960.
182 Appeals 'by special leave from the judgment and order dated April 13, 1956, of the former Nagpur High Court in Misc.
Civil Case No. 27 of 1954.
K. N. Rajagopal Sastri and D. Gupta, for the appel.
J. M. Thakar, section N. Andley, Rameshwar Nath, P. L. Vohra and J. B. Dadachanji, for the respondent.
March 6.
The Judgment of the Court was delivered by KAPUR, J.
These are four appeals by the Commissioner of Income tax in Income tax Reference made under section 66 A(2) of the Income tax Act (hereinafter termed the 'Act ').
The question for decision is whether the respondent is "an association of persons" within the meaning of section 3 of the Act.
The appeals relate to two Income tax assessments and two Excess Profits Tax assessments the former for the year,% 1946 47 and 1947 48 respectively, corresponding to the accounting years February 1, 1945, to September 30,1945, and October 1, 1945, to August 21, 1946, the latter are in regard to chargeable account.
ing periods February 1, 1945, to September 30, 1945, and October 22, 1945, to March 31, 1946.
The decision of the Excess Profits Tax appeals is consequent upon the decision of the Income tax appeals.
The facts may now be stated: In 1945 the Deputy Commissioner of Buldana evolved a scheme for the distribution of cloth in his district and with the sanction of the Government of C. P. appointed four persons, viz., Haji Ahmed Haji Ali & Co., Bhanji Kuwarji, Trimbaklal Tribhovan Das and Deolal Rangulal as sole agents for the import of cloth from mils in various places in India and for distribution of the same to retailers.
Two of them Haji Ahmed Haji Ali & Co. and Bhanji Kuwarji carried on the business as from February 1, 1945, to the end of September 1945.
The profits of the business in proportion of the capital contributed by these persons were distributed between these two persons.
After September 1945 there was a change in the group of importers and some others also joined the group and the profits of 183 the subsequent period were similarly distributed between the members of the group as it was then constituted in proportion to the capital contributed by each of them.
On March 12, 1947, the Income tax Officer issued a notice under section 22(2) of the Act to the respondent callinga upon it to submit a return of the income of the group for the assessment year 1946 47.
This was served on Haji Ahmed Haji Ali & Co but that firm did not furnish any return contending that there was no privity of contract among members of ;the group.
A notice was then issued under section 22(4) of the Act and on the production of the books, the Income tax Officer ascertained the income for the year ending September 1945 and assessed liability for payment of income tax under section 23(4) of the Act.
He assessed the 'respondent as "an association of persons" both for purposes of Income tax and Excess Profits tax.
An application under section 27 of the Income tax Act was dismissed by the Income tax Officer.
Similarly for the year 1947 48 a notice was again issued and served on Haji Ahmed Haji Ali & Co. and similarly the group was assessed as an association of persons to Income tax and it was also assessed to Excess Profits tax for the period October 22, 1945, to March 31, 1946, and an application under section 27 of the Income tax Act was dismissed in regard to this period also.
Appeals were taken against the orders of assessments of Income tax and Excess Profits tax but they were dismissed by the Appellate Assistant Commissioner.
Appeals were then taken to the Income tax Appellate Tribunal but they also were dismissed by an order dated April 18, 1950.
An application for making a reference to the High Court was dismissed by the Tribunal but an order was obtained from the High Court under section 66(2) of the Act and four questions were.
ordered to be referred to the High Court.
The question relevant for the appeals is the following. ",Whether under the facts and circumstances of the case, the Buldana District Main Cloth Importers ' Group constituted an 'Association of persons ' within the meaning of section 4 of the Income tax Act, 184 1922, and was liable to be assessed to income tax and excess profits tax in that status?" The order of the Tribunal dated April 18, 1950, shows that for different periods the group which imported the cloth was differently constituted but Haji Ahmed Haji Ali & Co. was a common member.
The books relating to the business were maintained by Haji Ahmed Haji Ali & Co. and every time there was a change in the constituents of the group separate set of books was maintained by them and the profits from those enterprises were divided between the various persons who formed the group at the material times.
It was contended before the Tribunal that there was no "Association of persons" and that the cloth imported was issued to the importers who sold the cloth on their own account.
The Tribunal however found: "The accounts themselves show that the import and distribution of cloth was done on joint basis.
The purchases were on,joint account, the sales were on joint account, the profit was first ascertained on the joint account and then distributed according to their agreed share of profits.
In: our opinion the assessment has been rightly made on the status of an association of persons.
" The High Court, when the matter went to it after the statement of the case by the Tribunal, held that before a group of persons could be called an "association of persons" it had to be established that they were in the nature of partners, i.e., the members of the group of their own volition or free will had joined in a venture with a view to earn profits.
As the members of the group were appointed by the Deputy Commissioner a,% importers their participation could not be held to be of free will but it was under compulsion and therefore they were not an "association of persons" within the meaning of the Act.
The High Court referred to and relied upon various cases to which it is not necessary to make any reference.
As to what constitutes an association of persons was laid down by this Court in the Commissioner of Income tax, Bombay North vs Indira Balkrishna (1) and in 185 Mohammad,Noorulla vs Commissioner of Income tax decided on January 18, 1961, where the business was carried on as one unit and by the consent of all the parties who were heirs of deceased Mohammad Omer Sahib and during the period when an administration B suit between them was being fought in courts of law.
In the present case the Tribunal has found that the It import and distribution of cloth which was the business carried on by the respondent, was dune on a joint basis.
The purchases were joint; so were the sales and the profits were ascertained on a joint basis and then distributed according to the capital contributed by each member of the group.
This finding which is one of fact makes the respondent an "association of persons" and it makes no difference that the business was carried on because the Deputy Commissioner of the district had appointed the members constituting the group to import and distribute the cloth in the district.
The respondent, it.
is not disputed, worked the scheme which was framed by the Deputy Commissioner and the working of the scheme produced profits and it made no difference that the scheme was at the instance of or under the control of the Deputy Commissioner.
Dealing with the argument of similar control Sarkar, J., in Commissioner of Income tax, Madhya Pradesh & Bhopal vs Vyas and Dhotiwala (2) observed as follows: "The Tribunal thought that since the scheme was completely under the control of the Deputy Commissioner the assessees could not be said to have carried on business by working the scheme.
We are unable to see that the fact of the control of the Deputy Commissioner can prevent the working of the scheme by the assessees from being a business carried on by them.
In our view, it only comes to this that the asaessees had agreed to do business in a certain manner.
" We are in respectful agreement with this observation.
In our view the respondent was an association of (1) [1961] 3 S.C.R.513.
(2) [1959] Supp. 1 S.C.R. 39,43 196 persons and was rightly so assessed to Income tax and Excess Profits Tax.
The appeals are therefore allowed with costs.
One hearing fee.
Appeals allowed.

summary:
A scheme for the distribution of cloth was evolved by the Deputy Commissioner of the District who appointed a group of persons as sole agents for the import of cloth from Mills and distribution of the same to retailers.
Though for different periods the group was differently constituted, one of the members, firm 'H ' remained a common member.
The profits of the business were distributed amongst the members of the group in proportion of the capital contributed by them.
The Income tax Officer issued notice under section 22(4) Of the Indian Income tax Act, and on production of books of account assessed the respondent as an "Association of Persons".
The High Court was of the opinion, inter alia that before a group of persons could be called an "Association of Persons" it had to be established that they were in the "nature of partners", which was not so in the instant case, as the members of the group were appointed by the Deputy Commissioner as importers; the participation of the group could not be held to be of free will but under compulsion and therefore they were not an "Association of Persons" within the meaning Of section 3 Of the Indian Income tax Act.
Held, that where a business is carried on and the profits ascertained on a joint basis, and then distributed according to the capital contributed by each.
member of the group, the group is an "Association of Persons" and it makes no difference that the scheme which produced profits was at the instance of or under the control of the Deputy Commissioner or that he had appointed the members constituting the group.
Commissioner of Income tax, Bombay North vs Indira Bal krishna; , , referred to.
Mohamed Noorullah vs Commissioner of Income tax, ; , relied on.


judgement:
Appeal No. 20 of 1960.
Appeal from the judgment and decree dated September 5, 1956, of the Judicial Commissioner 's Court at Ajmer in Civil First Appeal No. 3 of 1956.
B. D. Sharma, for the appellant.
M. C. Setalvad, Attorney General of India, C. L. Agarwala, M. K. Ramamurthy, R. K. Garg, D. P. Singh and section C. Agarwal, for the respondents I and 3. 1961.
April 3.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by the,, plaintiff against the judgment and decree of the Judicial Commissioner, Ajmer, confirming the decree of the trail Judge dismissing the suit.
it comes before us on a certificate under articles 132(1) and 133(1)(c) of the Constitution granted by the High Court of Rajasthan after the Reorganisatiion of the States.
The suit was filed by the appellant for recovery of Rs. 23,998 12 0 as price of goods supplied in the year 1947 to the Ruler of Jaipur State, (including interest) and damages suffered by the appellant due to the refusal of the defendants to take delivery of some other goods similarly ordered.
In addition to the ex Ruler of Jaipur, his Military Secretary and one Mohabat Singh, an employee of the ex Ruler, were also joined as defendants, on the plea that they had placed the orders as agents of, the ex Ruler.
The suit was filed on February 28, 1951.
The ex Ruler raised the plea that the suit was incompetent, as the consent of the Central Government under section 87 B of the Code of Civil Procedure was not obtained and asked that the suit be dismissed.
The other defendants denied the claim and also their lability on various grounds.
It may be mentioned the Military Secretary (second 704 defendant) has since died, and this appeal is now directed against the ex Ruler and Mohabat Singh only.
The Subordinate Judge held that though the suit was filed prior to the enactment of section 87 B by section 12 of the Code of Civil Procedure (Amendment) Act, 1951 (11 of 1951), it could not be continued against the ex Ruler.
He adjourned the hearing for four months to enable the appellant to obtain the necessary consent.
The appellant applied to the Central Government for its consent, but it was refused.
He also applied in revision to the Judicial Commissioner, contending that section 87 B of the.
Code of Civil Procedure offended the equality clause in article 14 of the Constitution and was thus void, but the Judicial Commissioner rejected the contention.
He also refused a certificate on the ground that there was no final order as required by article 132(l)of the Constitution.
The suit was subsequently dismissed against all the three defendants.
In regard to the ex Ruler, it was held that no suit lay against him without the consent of the Central Government, and in regard to the remaining defendants, it was held that they were protected by section 230 of the Indian Contract Act.
Sub section (3) of that section was held inapplicable, inasmuch as a suit could be filed against the ex Ruler with the consent of the Central Government.
The appellant appealed to the Judicial Commissioner, Ajmer, but the appeal was dismissed.
He obtained a certificate, as stated above, and this appeal has been filed.
Two main questions have been raised in this appeal.
The first is that the dismissal of the suit against the ex Ruler was erroneous.
In support of this contention, it is urged that section 87 B of the Code of Civil Procedure is ultra vires the Constitution in view of article 14, and, in the alternative, that section 87 B, even if valid, cannot apply to this suit, which was pending when the section was enacted.
The right to continue the suit being a substantive right, cannot, it is submitted, be taken away except by a law which is made applicable to pending actions, either expressly or by necessary intendment.
Against the other respondent, it is contended that he was liable as an agent or at least, as a 705 sub agent, in view of the provisions of section 230(3) of the Indian Contract Act.
We are not concerned with the merits of the claim, and they have not been mentioned at the bearing.
We shall begin by considering whether section 87 B is ultra vires and void.
It is said that it discriminates in favour of ex Rulers of Indian States by creating an immunity from civil actions.
Prior to the present Constitution, Part IV of the Code of Civil Procedure contained provisions in respect of suits in particular cases.
This was divided into three parts.
Sections 79 to 82 dealt with suits by or against the Crown or Public Officers in their official capacity and section 88 provided for suit of interpleader.
We are not concerned with them.
Sections 83 to 87 dealt with suits by aliens and by or against Foreign Rulers and Rulers of Indian States.
Sections 83 and 84 provided respectively when aliens and foreign States may sue.
Section 85 provided for the appointment by Government of persons to prosecute or defend Princes or Chiefs.
Section 86 provided for suits against Princes, Chiefs, Ambassadors and Envoys.
It created partial ex territoriality by granting them exemption from civil jurisdiction except when an action was brought with the consent of the Central Government.
The first sub section provided: "Any such Prince or Chief, and any ambassador or envoy of a foreign State, may in the case of the Ruling Chief of an Indian State with the consent of the Crown Representative, certified by the signature of the Political Secretary, and in any other case with the consent of the Central Government, certified by the signature of a secretary to that Government, but not without such consent, be sued in any competent Court.
" The remaining four sub sections dealt with the kinds of suits and the conditions under which they could be brought and certain other aspects Of ex territoriality.
Section 87 laid down the style of Princes or Chiefs as parties to suits.
After the coming into force of the Constitution, 89 706 certain adaptations were made by the President by the Adaptations of Laws Order 1950, but we are not concerned with them.
Suffice it to say that the protection continued in view of article 372 of the constitution (unless it was void under the Chapter on Fundamental Rights) till we come to the enactment of Act 11 of 1951.
The impact of the Fundamental Rights provisions on section 86 as originally enacted and on the new section 87 B being the same, we need not consider the matter separately.
When the Indian States integrated with British India, the Rulers of States and the Government of India entered 'Into covenants and agreements.
In those covenants, it was agreed that the privileges, dignities and titles of the Indian Princes would be continued to be recognised.
When the Constitution was enacted, the assurance in the covenants was respected, and article 362 was included in the Constitution.
It reads: "In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (i) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." The reference to article 291 merely indicates that those covenants or agreements were meant which the Ruler of any Indian State had entered into with the Central Government before the commencement of the Constitution.
This description is not repeated in article 362, but is incorporated by reference.
The mention of article 291 in article 362 has no further significance, and the generality of the assurance in the latter Article is not lessened.
The privilege of ex territoriality and exemption from civil jurisdiction except with the consent of the Central Government was one of long standing, and when the Amendment Act of 1951 was passed, sections 83 to 87 were reenacted.
We are not concerned with all the changes that were made, and reference to some 707 of them is unnecessary.
Section 86 was amended by deleting all references to Ruling Chiefs of Indian States and the first sub section was reenacted as follows: "86.
(1) No Ruler of a foreign State may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:" (proviso omitted).
Sub section (3) gave protection against arrest and, except with the consent of the Central Government, against execution of decrees against the property of any such Ruler.
Section 87 laid down the style of foreign Rulers as parties to suits.
Section 87 A was added to define "foreign State" and "Ruler" and to make the exemption only available to a State and its head, recognised as such by the Central Government.
Section 87 B, with which we are concerned, was specially enacted in respect of suits against Rulers of former Indian States.
It provided: "87 B. (1) The provisions of section 85 and of sub sections (1) and (3) of section 86 shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State.
(2) In this section (a)former Indian State 'means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section; and (b) 'Ruler ' in relation to a former Indian State, means the person who, for the time being, is recognised by the President as the Ruler of that State for the purposes of the Constitution.
" By this provision, which is very much the same as the former section 86, the privilege previously enjoyed by the Rulers of Indian States was continued.
In this historical background, the question of dis crimination raised in the appeal must be examined.
It is easy to see that the ex Rulers form a class and the special legislation is based upon historical considerations applicable to them as a class.
The Princes 708 who were, before integration, sovereign Rulers of Indian States, handed over, after the foundation of the Republic, their States to the Nation in return for an annual Privy Purse and the assurance that their personal rights, privileges and dignities would be respected.
The Constitution itself declared that these rights, etc., would receive recognition.
A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above it is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to, be attained.
It is further contended that the Article speaks of privileges but not of immunities, and we were referred to certain other Articles of the Constitution where "immunities" are specifically mentioned.
It is not necessary to refer to those Articles.
Immunity from civil action may be described also as a privilege, because the word "Privilege" is sufficiently wide to ' include an immunity.
The Constitution was not limited to the choice of any particular words, so long as the intention was clearly expressed.
In our opinion, the words "personal rights and privileges" are sufficiently comprehensive to embrace an immunity of this character.
It is, therefore, clear that the section cannot be challenged as discriminatory, because it arises from a classification based on historical facts.
It is next contended that section 87 B only applies the provisions of sub sections
(1) and (3) of section 86, that tile words of the latter section are not retrospective, that the suit was filed before the enactment of section 87 B, and that the substantive right of the plaintiff to continue his suit could not be taken away in the absence of express language or clear intendment.
The words of section 86(l) are "No Ruler of a foreign State may be sued in any court.
This precludes, it is said, only the initiation of a suit and not the continuance of a suit already filed before the section was enacted.
In our opinion, these arguments cannot be accepted.
The word "sued" means not only the filing of a suit or a civil proceeding but also their pursuit through Courts.
A person 709 is sued not only when the plaint is filed, but is sued also when the suit remains pending against him.
The word "sued" covers the entire proceeding in an action, and the person proceeded against is sued throughout the duration of the action.
It follows that consent is necessary not only for the filing of the suit against the ex Ruler but also for its continuation from the time consent is required.
In view of the amplitude of the word "sued", it is not necessary to consider generally to what extent pending cases are affected by subsequent legislation or refer to the principles laid down in The United Provinces V.,, Atiqa Begum (1), Venugopala Reddiar vs Krishnaswamy Reddiar (2) or Garikapatti Veeraya vs N. Subbiah Choudhury (3).
If the language of section 86 read with section 87 B were applicable only to the initiation of a civil suit, these cases might have been helpful; but since the words "may sue" include not only the initiation of a suit but its continuation also, it is manifest that neither the suit could be filed nor maintained except with the consent of the Central Government.
In Atiqa Begum 's Case (1), Varadachariar, J. referred to the two principles applicable to cases where the question of retrospectivity of a law has to be considered.
They are that vested rights should not be presumed to be affected, and that the rights of the parties to an action should ordinarily be determined in accordance with the law, as it stood at the date of the commencement of the action.
But, the learned Judge pointed out that the language of the enactment might be sufficient to rebut the first, and cited the case of the Privy Council in K. C. Mukherjee vs Mst.
Ram Ratan Kuer (4).
Here, the matter can be resolved on the language of the enactment.
The language employed is of sufficient width and certainty to include even pending actions, and the contrary rule applies, namely, that unless pending actions are saved from the operation of the new law,they must be taken to be affected.
The word "sued ", as we have shown, denotes not only the start but also the continuation of a civil action, and the (1) [1940] F.C.R.110 (2) (3) [1957] S.C.R.4ss.
(4) Pat.
710 Prohibition, therefore, affects not only a suit instituted after the enactment of section 87 B but one which, though instituted before its enactment, is pending.
In our judgment, the present suit was incompetent against the first defendant, the ex Ruler of Jaipur.
It is contended that defendants 2 and 3 acted as the agents of the ex Ruler and placed the order with the appellant.
The position of the Military Secretary since dead) was on a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him.
Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary.
Those letters he signed "for the Military Secretary".
He was not acting as the agent of the ex Ruler but was performing the ministerial act of signing the letters on behalf of the Military Secretary.
This cannot be said to have constituted him an agent.
The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary.
In our opinion, the dismissal of the suit was justified in the circumstances of the case.
The appeal fails, and is dismissed with costs.
The appellant will pay court fee on the memorandum of appeal, as he was allowed to file this appeal as a pauper.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant filed a suit for the recovery of money as price of goods supplied against the Ex Ruler of Jaipur.
Subsequently section 87 B was introduced in the Code of Civil Procedure making the provisions of section 86 in respect of suits against rulers of foreign States applicable to the rulers of former Indian States.
The Ex Ruler raised the plea that the suit was incompetent as the consent of the Central Government had not been obtained as required by section 87 B.
The appellant contended: (i) that section 87 B violated article 14 Of the Constitution and was void, (ii) that section 87 B did not apply to the continuation of a suit pending at the time when section 87 B was enacted but only to the filing of a suit after the enactment of that section.
Held, that section 87 B did not violate article 14 Of the Constitu tion and was not void.
Section 87 B of the Code of Civil Procedure merely continued the privilege which was formerly enjoyed by the Rulers of Indian States and in regard to which the covenants entered into by the Ex Rulers and the Government of India provided for their continuance.
This agreement about the privileges was further assured by article 362 Of the Constitution.
The Ex Rulers thus formed a class and the special legislation was based upon historical considerations applicable to them as a class.
The classification was based on a distinction which was real and substantial and it bore a just relation to the object sought to be attained.
Held, further, that the suit was incompetent against the Ex Ruler of Jaipur.
The protection of section 87 B read with section 86 applied both to the filing of a suit and to its, pursuit through the courts.
Section 86 provides that "No Ruler. . may be sued in any court. . .
A person is "sued" not only when the plaint is filed against him, but is "sued" also when the suit remained pending against him.
The word "sued" covers the entire proceedings in an action.
Consequently, the consent of the Central Government was necessary not only for the filing of the suit against the Ex Ruler but also for its continuation from the time consent was required.
703 Held, further, that section 87 B was on its terms applicable to pending suits and there was no saving in favour of pending actions.
K. C. Mukherjee vs Mst.
Rath Ratan Kuer, Pat. 268, applied.


judgement:
Case No. 275 of 1951.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated April 11, 1951, of the High Court of Judicature at Calcutta (Das Gupta and Mookerjee JJ.) in Criminal Revision Case No. 1028 of 1950 arising out of the Order dated November 23, 1950, of the Presidency Magistrate, 8th Court, Calcutta, in P. R. Case No. 2107 of 1950.
N.C. Chakravarti for the appellant.
B.Sen for the respondent.
M.C. Setalvad, Attorney General for India (P. A. Mehta, with him), for the intervener.
December 5.
The Judgment of the Court was delivered by BOSE J.
This is an appeal under article 132 (1) of the Constitution.
Leave to appeal was granted by the High Court at Calcutta.
84 646 The appellant was convicted under section 7 (1) of essential Supplies (Temporary Powers) Act of 1946 for an offence said to have been committed on the 24th of October, 1950 The conviction was on At two counts: (1) for selling cloth above the controlled rate and (2) for not issuing a cash memo.
The sentence was rigorous imprisonment for three months and a fine of Rs. 200 with another three months in default.
The trial was before the 8th Presidency Magistrate at Calcutta who adopted a summary procedure.
There was an application for revision before the High Court but it was dismissed.
An application for leave to appeal to this Court was then filed.
It was granted on a ground which was not taken either in the original court or in the revision before the High Court, namely that the Essential Supplies Act of 1946 under which the appellant was convicted was not in force on the 24th of October, 1950, and so there could be no conviction under it.
The validity of this Act was challenged in Joylal Agarwala vs The State(1) but this Court he Id that the Act was valid up to the 31st of March, 1950, that being the life of the Act at the date relevant to that case.
It is necessary to explain that the Act is a temporary Act and that its life has been extended from time to time after the date of its first expiry for a year at a time.
The latest extension at the date of the previous case was up to the 31st of March, 1950.
We therefore start with the position that the Act was a good Act up till that date.
The Act was further extended up till the 31st of March, 1951, by a resolution dated the 20th of December, 1949.
This is the extension with which we are concerned and which is now challenged, the argument being that there was no legislative body in existence on that date competent to extend the life of the Act for another year.
The Gazette notification setting out the resolution is in the following terms (1) ; 647 `` New Delhi, the 22nd December, 1949.
No. F. 7 WL (1) 47.
The following resolution which wag passed by the Constituent Assembly (Legislative) at its meeting held on the 20th of December, 1949, is hereby published for general information : In pursuance of the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in sections 2 and 3 of the said Act for a further period of twelve months commencing on the first day of April, 1950.
" It has to be seen whether the body which passed that resolution had the power to extend the Act.
It can be accepted, because of the decision in Joylal Agarwala vs The State(1), that the Constituent Assembly had authority on 25th of February, 1948, and again on 23rd of March, 1949, to make two successive extensions of the Essential Supplies Act of a year each.
The only question, therefore, is whether any body continued to have that power on the dates material here.
The extensions jug t referred to were brought about as follows.
The Constituent Assembly derived its authority to pass the above resolution from section 4 A of the India (Central Government and Legislature) Act of 1946.
This was an Act of the British Parliament which originally conferred on the British Houses of Parliament the power of approving by resolution the extension of the period fixed by section 4.
Later, the Indian Independence Act of 1947 was passed by the British Parliament and in exercise of the powers conferred by sections 9 and 19 of that Act the Governor General by an Adaptation Order substituted the words " Dominion Legislature " for the words " Houses of Parliament " and thus enabled the Dominion Legislature to exercise the powers of Parliament in this behalf.
At the same time, the (1) ; 131.
648 Governor General introduced section4 A into the British Act of 1946, the India (Central Government and Legislature) Act, 1946, by way of adaptation and conferred on the Constituent Assembly the, powers of the Dominion Legislature.
Thus the Constituent Assembly became empowered to extend the period fixed in section 4 by the passing of a resolution and that in its turn had the effect of extending the life of the Essential Supplies Act of 1946, because section 1 (3) of that Act says that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act of 1946.
Now section 4 A provides that the Constituent Assembly shall have the powers of the Dominion Legislature under the British Act " until other provision is made by or in accordance with a law made by the Constituent Assembly under sub section (1) of section 8 of the Indian Independence Act, 1947.
" Turning to sub section (1) of section 8 we find that the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature " for the purpose of making provision as to the constitution of the Dominion.
" That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the constitution into being in two instalments and it did that by enacting article 394 and enacting in it that that article and certain others, including article 379, should come into force " at once " at once being the 26th of November, 1949 while the remaining articles were to come into force on the 26th of January, 1950.
Now article 379 (1) provides that `` Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the Provisional 649 Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.
" It was argued on behalf the appellant that because of this article the Constituent Assembly disappeared as a law making body on and after the 26th of November, 1949, and that its place was taken by the Provisional Parliament referred to by that article, and as the resolution of the 20th December, 1949, purports to be a resolution of the Constituent Assembly (Legislative) and not of the Provisional Parliament, it is a resolution of a body which no longer had authority to enact laws or pass a resolution of this kind affecting the laws of the land.
The learned Attorney General argues, on the other hand, that the Constituent Assembly continued to function as such and to retain its right to exercise its dual functions of constitution making and law making right up to the last stroke of midnight on the 25th of January, 1950.
The very next second, when a new day ushered in a new era for this country, it ceased to exist as a Constituent Assembly and its place was taken by the Provisional Parliament of India.
We need not decide this point, for even if the Provisional Parliament was intended to function on the 26th of November, 1949, and not from the 26th of January, 1950, it is clear that the Constituent Assembly was to continue in existence till " the commencement of the Constitution" which, by article 394, is the 26th of January, 1950.
Consequently, the power conferred on it as a designated body, by the English statute, as adapted by the Governor General, could be validly exercised on the 20th of December, 1949, and was so exercised when it passed,the resolution of that date.
The Provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in section 4 of the English statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the Provisional Parliament into existence on the 26th of November, 1949 650 ( assuming that to be the case) be regarded as other provision" made by the Constituent Assembly within the meaning of section 4 A of the English Act.
It follows the Constituent Assembly was not deprived of these specially designated powers on the date of the resolution.
The next question is whether the Constituent Assembly had the power to extend the life of this particular piece of legislation beyond the 26th of January, 1950.
The question was posed in this way.
It was conceded that the Essential Supplies Act was validly extended up to the 31st of March, 1950.
The resolution which extended its life for another year beyond this was passed on the 20th of December, 1949, but it was argued that it could not take effect till after the expiry of the previous extension, that is, not until the 1st of April, 1950.
But by that time the Constitution had come into being and so neither the Constituent Assembly nor the Provisional Parliament could have extended the life of the temporary Act after its expiration on the 31st of March, 1950, because of Explanation III to article 372.
It follows that the Constituent Assembly which purported to effect the extension ahead of time could not do, in anticipation, what the Constitution says cannot be done after its commencement.
There is nothing in this contention.
The resolution of the 20th December, 1949, took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in section 4 of the English statute from the 31st of March, 1950, to the 31st of March, 1951.
The Essential Supplies Act fixed the date for its own expiration as the date flied for the expiration of the period mentioned in section 4 above.
Accordingly, it was an Act which was alive immediately before the 26th of January, 1950, and which was due, at that time, to expire of its own force, not on the 31st of March, 1950, but on the 31st of March, 1951, and as this was a law in force immediately before the commencement of the Constitution 651 it continued in force, because of article 372(1) and Explanation III, until it was due to expire.
That exhausts the constitutional points.
We bold that there was a body in existence.
at all material times competent to extend the life of the Act up till the 31st of March, 1951, and that it did so extend its life on the 20th of December, 1949.
The Act continued in force until after the Constitution and therefore was a living Act at the date of the offences, namely the 24th of October, 1950.
Counsel then sought to attack the conviction on other grounds but a,,; the leave to appeal was confined to the constitutional points be cannot so far as that is concerned, be permitted to travel further.
Of course, it would have been competent for him to file a separate petition for special leave to appeal on the other points but had be done so it would have followed the usual course and he would have been obliged to obtain special leave in the usual way.
We therefore treated this part of the argument as one asking for special leave to appeal.
We heard him fully and are of opinion that these remaining points are not ones on which special leave to appeal should be granted.
We therefore reject this irregular petition for special leave to appeal on its merits.
The appeal filed under article 132 (1) is also dismissed.
Appeal dismissed.
Agent for the intervener: G. H. Rajadhyaksha.

summary:
The Essential Supplies (Temporary Powers) Act, 1946, a temporary Act which was being extended from time to time after the date of its first expiry, for a year at a time, was extended up to the 31st March, 1951, from the 31st March, 1950, by a resolution passed by the Constituent Assembly (Legislative) at a meeting held on the 20th December, 1949.
The appellant who was convicted for an offence committed under the Act on the 24th October, 1950, contended that the Constituent Assembly had no power to extend the Act in view of, the provisions of article 379 (1) of the Constitution, and that at any rate it had no power to extend the duration of the Act beyond the 26th January, 1950 645 Held, that, even assuming that under article 379 (1) the Provi sional Parliament was intended to function from the 26th November, 1949, and not from the 26th.
January, 1950, as the Constituent Assembly was to continue in existence till the 26th January 1950, the power conferred on it as a designated body by the India (Central Government and Legislature) Act, 1946, of the British Parliament as adapted by the India (Provisional Constitution) Order, 1947, could be validly exercised on the 20th December, 1949, and was so exercised when it passed the resolution on that date.
The Provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in section 4 of the India Act of 1946 as that was not one of the powers conferred by the Constitution on the Provisional Parliament, nor can bringing the Provisional Parliament into existence on the 26th November, 1949, assuming that to be the case, be regarded as " other provision " made by the Constituent Assembly within the meaning of section 4 of the India Act of 1946.
Held further, that the resolution extending the life of the Act beyond the 26th of January, 1950, was not invalid, as it came into immediate effect and not on the 1st of April, 1950, when the previous extension expired.
Accordingly the Act with its duration extended by virtue of the resolution was an Act immediately in force before the commencement of the Constitution anti so was saved by article 372 (1) and Explanation III.


judgement:
Appeals Nos. 235 and 236 of 1960.
Appeals from the judgment and decree dated January 23, 1959 of the Assam High Court at Gauhati in Civil Rules Nos. 138 and 139 of 1958.
N. C. Chatterjee, Amjad Ali and K. R. Chaudhari, for the appellant (in C. A. No. 235 of 1960).
D. N. Mukherjee, for the appellant (In C. A. No. 236 of 1960).
section M. Lahiri, Advocate General, Assam and Naunit Lal, for the respondents.
April 4.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These two appeals arise out of two writ petitions Nos. 138 and 139 of 1958 filed respectively by the two appellants, Sonapur Tea Co. Ltd., of 15 D Sambhunath Pandi Street, Calcutta 9, and Musst.
Mazirunnessa, wife of Abdul Gafur of Village Bhoknamari, District Kamrup, in which they challenged the validity of the Assam Fixation of Ceiling on Land Holdings Act I of 1957 (hereafter called the Act).
The said writ petitions have been dismissed by the Assam High Court substantially on ground that since the impugned Act falls within the protection of article 31A the challenge made by the two appellants to the several provisions of the Act under articles 14, 19(1)(f) and 31(2) cannot be entertained Having dismissed the writ petitions principally on this ground the High Court granted certificates to both the appellants to come to this Court in appeal, 726 and so it is with the said certificates that the two appeals have been brought to this Court.
It is not necessary to set out the material facts leading to the two writ petitions in any detail.
It would be enough to say that under section 5 of the, impugned Act notices had been served on both the appellants by the respondent Deputy Commissioner and Collector of Kamrup calling upon them to submit a return giving the particulars of all their lands in the prescribed form and stating therein the selection of plot or plots of land (not exceeding in the aggregate the limits fixed under section 4) which they desired to retain under the provisions of the Act.
The appellants contended before the High Court that the impugned Act under which this notice had been served on them was invalid and ultra vires and so they wanted the notice issued under section 5 to be quashed.
That is the only relevant fact which needs to be stated for deciding the present appeals.
The Act received the assent of the President on December 7, 1956, and was published in the official State Gazette on January 16, 1957.
Subsequently it was amended by the amending Act XVII of 1957 and assent was obtained to the amendment thus made on November 8, 1957.
By a notification issued by the State Government on February 7,1958, the amended Act came into force on February 15, 1958.
It is relevant to consider briefly the broad features of the Act.
It has been passed because the Legislature deemed it necessary to make provision for the imposition of limits on the amount of land that may be held by a person in order to bring about an equitable distribution of land.
That being the object of the Act the principal provision of the Act imposes a ceiling on existing holding by s.4.
The act extends to the seven Districts specified in section 1(2), and from its operation are excepted the lands specified in cls.
(a) to (c) of s.2.
These clauses refer to lands belonging to any religious or charitable institution of a public nature, lands held for special cultivation of tea or purposes ancillary thereto and lands exceeding 150 bighas utilised for large scale cultivation of citrus in a compact block by any person before January 1, 1955, lands 727 utilised by efficiently managed farms on which heavy investments or permanent structural improvements have been made and whose break up is likely to lead to a fall in production, and lands held by a sugar factory or a co operative farming society for cultivation of sugarcane for the purpose of such factory.
It would thus be noticed that the measure of agrarian reform introduced by the Act has made exceptions in regard to lands which it thought should be left out of the operation of the Act in the interest of the economy of the State.
Section 3 is the definition section.
It defines land as meaning land which is or may be utilised for agricultural purposes or purposes subservient thereto and includes the sites of buildings appurtenant to such land.
Under section 3(g) the word 'landholder ' has the meaning assigned to it in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886).
'Landlord ' under section 3(h) is a person immediately under whom a tenant holds but does not include the Government; and 'owner ' under section 3(i) includes proprietor, land holder or settlement holder as defined in section 3 of the Assam land and Revenue Regulation I of 1886 but it does not include Government.
Section 3(o) defines 'tenant ' as meaning a person who holds land under another person and is, but for a special contract would be, liable to pay rent for that land to the other person, and includes a person who cultivates the land of another person on condition of delivering a share of the produce.
These are the only definitions which are relevant for our purpose.
Section 4 which is the key section of the Act prescribes ceiling on existing holding.
The limit prescribed is 150 bighas in the aggregate subject to its provisos.
Section 5 empowers the appropriate authorities to call for submission of returns by persons holding lands in excess of the ceiling.
Section 8 empowers the State Government to acquire such excess lands by publishing in the official gazette a notification to the effect that such lands are required for public purpose, and such publication shall be conclusive evidence of the notice of acquisition to the person or persons holding such lands.
Acquisition of excess lands prescribed by section 8 is followed by the vesting of the said 728 lands in the State under section 9.
On publication of the notification under section 8 all such excess lands shall stand transferred to the State Government from the date of the publication of the said notification free from encumbrances by their original owner or owners.
Under section 11 the Collector is authorised to take possession of the said lands.
Section 12 prescribes the principles of compensation.
and provides the manner in which the said compensation should be apportioned between the owner and the tenant; and s.13 provides for the manner of payment of such compensation.
Under section 14 ad interim payment of compensation can be made as specified.
These are the relevant provisions in Chapter 11 which deals with ceiling on existing holding and acquisition of excess land.
Chapter III deals with the disposal of excess land.
Under section 16(l) if there is any cultivating tenant in occupation of the land acquired from an owner then he shall have the option of taking settlement of such land within a prescribed period on the following conditions, namely, (a) that the area of land so settled together with any other lands held by him or any member of his family either as tenant or as owner shall not exceed in the aggregate the limit fixed under section 4, and (b) that he shall pay to the State Government in one or more equal annual installments not exceeding five an amount fixed by it but not exceeding the compensation payable by the State Government for acquisition thereof, provided that he shall have the right to adjust any amount which he is entitled to receive as compensation under the provisions of the Act against an equal amount which he is liable to pay under el.
Section 16(2) provides that on payment of full amount under sub section (1) above the land shall be settled with a tenant with the status of a landholder.
Under section 18 it is provided that if a tenant in occupation of any land acquired under section 8 does not take settlement of such land he shall acquire no right, title and interest in the land and shall be liable to be ejected.
Chapter IV deals with excess land under annual lease and provides for its taking over.
Chapter V puts a ceiling on future 729 acquisition, and chapter VI provides for ceiling for resumption of land from tenants for personal cultivation by the landlord.
Chapter VII provides for the establishment of a Land Reform Board, and lays down its functions,while chapter VII contains miscellaneous provisions.
That briefly is the scheme of the Act.
The question which arises for our decision is whether this Act is protected under article 31A of the Constitution.
This Article has been construed by this Court on several occasions in dealing with legislative measures of agrarian reforms.
The object of such reforms generally is to abolish the intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State.
Article 31A(l)(a) provides that, notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14, article 19 or article 31, provided that, where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
We have already seen that the assent of the President has been obtained both for the Act as it was originally passed and for the amending Act which subsequently modified some of the provisions of the original Act, and so the requirement prescribed by the proviso to article 31A(l)(a) is satisfied.
That raises the question as to whether the rights of the appellants which are undoubtedly taken away or abridged constitute rights in relation to an "estate" as defined by article 31A(2)(b).
We have already seen the definitions of land, landholder, landlord and tenant prescribed by section 3(f),(g),(h) and (o).
It is common ground that the lands sought to be acquired fall within an "estate" as defined by article 31 A(2).
Do the rights vesting in the appellants amount 92 730 to rights in relation to an "estate"? For deciding this question it would be necessary to consider the provisions of the existing law relating to tenure in force in Assam at the relevant time.
The existing law relating to land tenure is to be found in the provisions of the a Assam Land and Revenue Regulation, 1886 (Regulation I of 1886).
Section 3(g) of the said Regulation provides that a 'landholder ' means any person deemed to have acquired the status of a landholder under section 8.
No hen we turn to section 8 we find that it provides the manner in which the status of a landholder can be acquired; and section 9 provides for the rights of such landholders.
Under section 9 a landholder shall have a, permanent, heritable and transferable right of use and occupancy in is land subject to the payment of revenue, taxes, cesses and rates from time to time legally assessed or imposed in respect of the land.
The remaining two clauses of this section need not be considered.
It would be noticed that the expression "rights in relation to an estate" is of a very wide amplitude and as such the context requires that it must receive a very liberal interpretation.
Thus considered there can be no doubt that the rights of the appellants which have been extinguished undoubtedly constitute "rights in relation to an estate" as defined by article 31A (2) (b).
Indeed this position is not seriously disputed by Mr. Chatterjee who fairly conceded that having regard to the decisions of this Court in Thakur Raghubir Singh vs The State of Ajmer (Now Rajasthan) (1), Sri Ram Ram Narain Medhi vs The State of Bombay( ') and Atma Ram vs The State of Punjab (3 ) he would not be able to contend that the view taken by the High Court is erroneous.
Faced with this difficulty Mr. Chatterjee attempted to argue that the Act is a colorable piece of legislation and should be struck down as such.
His argument is that though ostensibly it purports to be a measure of agrarian reform its principal object and indeed its pith and substance is to acquire the property covered by its provisions and make profit by disposing of the (1) [1959] Supp. 1 S.C.R. 478.
(2) [1959] Supp. 1 S.C.R. 489.
(3) [1959] Supp. 1 S.C.R. 748. 731 same in the manner provided by Chapter III.
Mr. Chatterjee seemed to suggest that the Legislature should not have made it necessary for the tenants to exercise an option for taking settlement under section 16 because the exercise of the said option involves the liability to pay the prescribed amount though in five installments, and that, according to Mr. Chatterjee indicates that the State wanted to make profit out of the bargain.
Mr. Chatterjee 's grievance is against the provisions of section 18 also under which a tenant who does not opt for settlement is liable to be evicted.
We are not impressed by this argument.
The doctrine of colorable legislation really postulates that legislation attempts to do indirectly what it cannot do directly.
In other words, though the letter of the law is within the limits of the powers of the Legislature, in substance the law has transgressed those powers and by doing so it has taken the precaution of concealing its real purpose under the cover of apparently legitimate and reasonable provisions (Vide: K. G. Gajapati Narayan Deo vs The State of Orissa) This position is not and can not be disputed.
Is Mr. Chatterjee, however, right when he contends that the pith and substance of the Act and indeed its main object is to acquire property and dispose of it at a profit? That is the question which calls for our decision.
In our opinion the answer to this question must obviously be against the appellants.
The whole object of the Act which is writ large in all its provisions is to abolish the intermediaries and leave the lands either with the tiller or the cultivator.
With that object ceiling has been prescribed by section 4, provisions have been made for the acquisition of excess.
lands, and disposal of excess lands in favour of the tenants have been provided for.
It is significant that in settling the lands upon the tenants it is expressly provided that the payment which the tenant may have to make and that too in one or more easy installments not exceeding five will never exceed the compensation payable by the State Government for acquisition (1) ; 732 thereof.
This provision clearly negatives the assumption made by Mr. Chatterjee that any profit is intended to be made in the matter of disposal of excess lands.
The State is paying compensation to the persons dispossessed under the principles prescribed by section 12; amongst the persons entitled to such compensation tenants are included, and when the State proceeds to settle lands on tenants it expects them to pay a fair amount of price for the land and puts a ceiling on this price that it shall never exceed the amount of compensation payable in respect of the Paid land.
In our opinion this provision is very fair and reasonable and it would be idle to attack it as a piece of colorable legislation.
We have already seen that the settlement of land on the tenants would make them landholders and that is the basic idea of the Act.
If a tenant does not agree to take settlement it cannot be helped and so the land would then have to be taken from him and given over to somebody else who would be prepared to take settlement.
It is thus clear that the object of putting ceiling on existing holding is to take over excess lands and settle them on actual cultivators Or tenants and that is the essential feature of agrarian reform undertaken by several States in the country.
The Act conforms to the pattern usually followed in that behalf and the attack against its validity on the around that it is a colorable piece of legislation must therefore fail.
In the result we hold that there is no substance in the two appeals.
They are accordingly dismissed with costs one set of hearing.
Appeals dismissed.

summary:
These appeals arose out of.
two petitions filed in the High Court under article 226 of the Constitution challenging the constitutional validity of the Assam Fixation of Ceiling on Land Holding Act, 1957.
The High Court in dismissing the petitions held that the impugned Act was protected by Art, 31A of the Constitution.
The Act was a measure of agrarian reform and imposed limits on land to be held by persons in order to bring about its equitable distribution.
The Act as originally passed as also its subsequent amendment received the assent of the President and this satisfied the requirement of the proviso to article 31A(1)(a) of the Constitution.
The question, therefore, was whether the rights of the appellants which were taken away or abridged by the impugned Act were "rights" in relation to an estate within the meaning of article 31A(2)(b) of the Constitution.
Held, that the expression " 'rights ', in relation to an estate" in article 31A(2)(b) of the Constitution is of a very wide amplitude and construed liberally, as it must be, and considered in the light of the provisions of sections 3(g) and 9 of the Assam Land and Revenue Regulation, 1886, the existing law relating to tenures, and the relevant definitions contained in the impugned Act, there could be no doubt that the rights of the petitioners, which the impugned Act extinguished, fell within the expression.
Thakur Raghubir Singh vs The State of Ajmer, [1959] Supp. 1 S.C.R. 478, Sri Ram Reim Narain Medhi vs The State of Bombay, [1959] Supp. 1 S.C.R. 489 and Atma Ram vs The State of Punjab, [1959] Supp. 1 S.C.R. 748, referred to.
A colourable legislation is one in which the Legislature transgresses the lawful limits of its legislative powers ,and "conceals its real purpose under the cover of apparently legitimate and reasonable provisions and thus seeks to do indirectly what it cannot do directly.
K. G. Gajapathi Narayan Deo vs The State of [1954] S.C.R. 1, referred to.
725 It was not correct to say that the impugned Act was a colourable legislation whose concealed purpose was to make profit by disposing of land in the manner provided by Ch.
III or that by pith and substance it was a profit making measure or that sections 16 and 18 of the Act were devices to that end.
This is broadly contradicted by the whole object of the Act which is a measure of agrarian reform, writ large on all its provisions and clearly negatived by section 4 Of the Act which provides that in no case can the payment made by the tenant in getting the settlement exceed the amount of compensation payable by the Government in acquiring the land.


judgement:
Appeal No. 86 of 1957.
Appeal from the judgment and decree dated April 13, 1955, of the Madras High Court in A. section No. 673 of 1950.
M. C. Setalvad, Attorney General for India, M. section K. Sastri, section Gopalaratnam and section Narasimhan, for T. K. Sundara Raman, for the appellant.
A. V. Viswanatha Sastri and R. Gopalakrishnan, for the respondents.
February 24.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal on a certificate granted by the Madras High Court.
The facts lie in a narrow compass and may be briefly stated.
One Viswanatha Iyer, who died in 1927 had a number of properties.
He had no male issue but left two daughters surviving him who were minors at the time of his death.
He had a brother Seetharama Iyer who died in 1934.
The appellant is the third son of Seetharama.
He was treated as a foster son (abhimanputra) by Viswanatha and was also minor at the time of his death.
Viswanatha made a will on October 4, 1927.
By this will he appointed his brother Seetharama a guardian of his minor daughters as well as of his foster son.
He left the management of his properties to his brother and provided that as soon as his minor daughters attained majority Seetharama should give to them per head one veli of nanja land and one veli of punja land in vattam No. 149 in village Nagampadi 976 and further provided that the said Seetharama should deliver possession of the remaining properties to Balakrishnan, immediately after he attained majority.
It was also provided in the will that Seetharama should pay to the minor daughters the income from the properties devised to them after the death of the testator.
It appears that after the death of the testator, Seetharama remained in possession of the entire properties and thereafter on his death Balakrishnan came to be in possession of them.
It appears that after the two daughters were married and became major, Balakrishnan paid them certain monies as due to them out of the income of the properties in May, 1942.
Thereafter he used to pay 224 kalam of paddy and Rs. 175/in cash towards their properties after deducting the kist each year.
In 1949 the two daughters claimed possession of their lands and their claim was that they were entitled in law having regard to the provisions of the will to select their respective one veli of anja land and one veli of punja land from out of the land in vattam 149.
The appellant did not accept this right of selection and contended that the daughters were entitled to their lands taking into account lands of good and bad quality.
Consequently, the daughters filed this suit in July, 1949, and claimed in Schedules and D of the plaint certain properties out of vattam 149 on the ground of selection made by them.
The suit was resisted by the appellant who was prepared for a partition of land according to quality but was not prepared, to accept the right of selection claimed by the daughters.
It was further contended on his behalf that in any case on the construction of the will it was for Seetharama to give such land as he chose to the daughters and not for the daughters to make the selection.
The trial court upheld the contention of the daughters and decreed the suit.
There was then an appeal to the High Court which was dismissed.
The appellant then applied for leave to appeal and was granted 'a certificate; and that is how the matter has come tip before us.
977 Two questions arise.
for decision in the present appeal.
The first is whether the legatees have a right to make a selection in a case of this kind.
The second is whether on a construction of the will the right of selection was in Seetharams or in the legatees.
The High Court has held that the English rule of benevolent construction that a legatee has a, right to choose in such circumstances applies to India also and has further held that on the construction of the will in this case the right to choose was in the legatees and not in Seetharama.
The learned Attorney General on behalf of the appellant contends that the English rule of construction which gives the right of selection to a devise was evolved to avoid uncertainty and make the subject of gift reducible to certainty.
He also refers to a. 89 of the , No. XXXIX of 1925, which lays down that " a will or bequest not expressive of any definite intention is void for uncertainty " and urges that in view of this specific provision in the Succession Act it was not necessary to import the artificial rule of construction evolved in England to avoid uncertainty.
Now the provision of section 89 applies only to those cases where a will is so indefinite that it is not possible to give any definite intention to it at all.
The illustration to that section shows that it applies only where it is impossible to ascertain the intention of the testator from the words used in the will.
For example, where the will uses the words " I bequeath money, wheat, oil or the like, without saying how much ", it is obviously impossible to ascertain the intention of the testator as to the quantity bequeathed and therefore such a will would be void for uncertainty.
But there may be wills which use words which are not so uncertain that a definite intention cannot be ascribed to the testator under those words.
It is to meet such cases that the English rule of selection by legatees was evolved.
There are three possibilities which may &rise in cases where a will is not so uncertain as not to be capable of ascribing a definite intention to the testator.
In the first case the testator himself may indicate what 978 he intends to bequeath and that indication is sufficient identify the property bequeathed.
In such cases to there is no difficulty, for the testator has himself made the selection and the selection must be given effect to.
The second case may be where the testator himself does not make a selection but nominates a, third person who may select the object of his bounty meant for the legatee.
In such a case also there can be no difficulty and the person so nominated will make the selection.
The third case is where the testator has not indicated the selection himself and has not nominated a, third person to make the selection; but still the gift is not so uncertain as to be void.
It is in such cases that English Courts have evolved the benevolent rule that the testator intended to give the selection to the legatee and once the selection is made by the legatee the will takes effect.
This case has been exemplified in Jarman on Wills, 8th edition, Vol.
I, p. 477.
The first example is where a, man devised two sores out of four sores that lay together and it was held that this was a good devise and the devise would elect.
In another case a testator devised a message and ten acres of land surrounding it, part of a larger number of acres, the choice of such ten acres was held to be in the devise (see Hobson vs Blackburn(1).
The principle in these oases was evolved in Peck vs Halsey (2).
In that case the testatrix had bequeathed some of her best linen to her grandchildren.
It was held that the legacy was void for uncertainty and the Master of the Rolls said that" if it were such or so much of my best linen as they should choose, or as my executors should choose for them, this would be good, and by the choice of the legatees or executors is reducible to a certainty.
" In Tapley vs Eagleton (3), the testator devised " two houses in King Street " to the legatee.
He however had three houses in King Street and the question &rose whether the devise was bad for uncertainty.
Jessel, M. R. held that the words meant " two of my (1) ; ; , (2) (1726) 2 P. Wms. 387 ; (3) (1979) 12 Chz D 683.
979 houses in King Street " and that two of the houses oat of three passed to the legatee who was entitled to elect which two he would take.
Reliance in this case was placed on an earlier case Duckmanton vs Duckmanton (1).
There the testator had two closes of land in Ridgway Field.
He devised one to one son and another to another son without indicating which was to go to which son.
It was held that the devise was good and the case was one for election, the first devisee having the first choice.
The same view was taken in Knapton vs Hindle(2), which was a more difficult case inasmuch as the devise was of one house each to the nephews and nieces of the testatrix without names being mentioned, The court however held following the analogy of Roman law that under the will there was a choice to the nephews and nieces and that in case of disagreement among them, the choice was to be determined by lots.
It is urged that this is an artificial rule of construction and there is no reason to apply it to India.
The rule was evolved by English Courts in order that where the testator 's intention to make a gift was clear and there was only some uncertainty (but not such complete uncertainty as could not be resolved at all) that may be avoided by giving a choice to the legatee.
The rule seems to be a common sense rule to give effect to the intentions of a testator which clearly show that he intended to bequeath something which could be made definite by choice.
We do not see why such a rule of common sense to give effect to wills which are not quite uncertain and which can be made certain should be called an artificial rule.
We also do not see why in appropriate cases this rule of common sense should not be extended to India.
We have already said that it is only when the uncertainty is so great that there is no way of resolving it and finding out the intention of the testator that section 89 comes into play.
But where the uncertainty is of a less degree and the intention of the testator to gift certain property is clear, though there may be some difficulty because there is more property of that kind than actually bequeathed, that (1) (1860) 5 N. 219; ; , (2) [1941] ch.
125 980 the benevolent rule should be applied to carry out the intention of the testator which is otherwise clear.
The matter has come up for consideration in two cases in the Madras High Court.
In the first case, Narayanaswami Gramani vs Periathambi Granmni (1), the testator owned land measuring one kani and three quarters.
He made a will by which he devised one kani thereof to the plaintiff in that suit.
The plaintiff filed a suit to recover one kani selected by him out of the land in quest ion; and the point to be decided was whether the plaintiff was entitled to select and thus make the bequest which the testator wanted to give him certain.
It was not urged in that case that the gift was altogether void for uncertainty, for the intention of the testator to give one kani out of one kani and three quarters of land was clear and certain and difficulty only was as to which part of one kani and three quarters should go to the legatee.
The High Court held in that case as follows: "In a case like the present the devisee has clearly the right to choose.
It has been lon g settled that if a man devises two acres out of four acres that lie together, this is a good devise and the devisee shall select.
(Jarman on Wills, 5th Edition, page 331).
" The matter came up again in Bharadwaja Mudaliar vs Kolandavelu Mudaliar (2).
In that case the will gave to the legatee " six acres of good irrigated nanja lands in the village of Pudur ".
The testator had 19.40 acres of land answering to the description.
The legatee died without having made the selection.
His heir brought a suit and wanted to select.
It was held that the bequest was not void for uncertainty and that the heir would be entitled to six acres on partition but was not entitled to selection.
Wallis C.J. remarked that "in England such a bequest would have been held void for uncertainty but for the benevolent rule of construction that the testator is intended to have left the choice to the legatee." He also pointed out that the accepted view in England was that the will could not be read as intending that (1) Mad. 460.
(2) (1915) 29 M.L.J. 717.
981 heirs of a legatee should be allowed to make the election in the event of the legatee dying without having made it.
He therefore distinguished the earlier case of Narayanasami Gramani (1) on that ground and then went on to remark about the English rules as follows: "These are, however, somewhat artificial rules to apply to the will of a Hindu agriculturist who was no doubt familiar with the ordinary process of partitioning lands by the Court in a partition suit and I think it much more likely that his intention was that in the absence of agreement the lands in question should be partitioned by the court than that the legatee should be left to make a selection for himself. " As pointed out by the High Court in the present case these observations of Wallis C.J. were Unnecessary in the case before him, as he was dealing with a case where the legatee had died without making the selection.
We think that the further English rule that the legatee 's heir cannot make the selection is also based on common sense, for the testator never had the legatee 's heirs in his mind when he made the bequest his intention could only be in a case where selection was necessary that the legatee should make the selection.
It seems to us therefore that where it is not possible to say on the construction of a will that the testator himself indicated the selection or appointed a third person to make the selection but still intended to make a gift which could be made certain by selection made by the legatee, the English rule of construction that in such cases the testator intended the legatee to select should be applied in India also and the decision in Narayanasami Gramani 's case (1) is correct.
The fact that there are ways of partition available to agriculturists in India would make no difference to the application of the rule, for we take it that there are ways of partition available to parties in England also.
The application of this rule would avoid unnecessary litigation also, for once it is known that in such cases the selection is with the legatee the difficulty arising out of such wills could be easily resolved without recourse to courts.
For this reason (1) Mad. 460.
982 also we think that this rule of benevolent construction of wills of this description should be applied to India also.
In this connection we may refer to two other cases to which the learned Attorney General drew our attention.
The first is Asten vs Asten (1).
That was a case where the gift failed for uncertainty.
The testator had made bequests to his several sons of certain houses.
In each case the house was described as "all that newly built house, being No. Sudeley Place, Cotsfield Road.
" There were four newly built houses in Sudeley Place belonging to the testator and the description of all the houses was the same.
In those circumstances it was held that the will was void for uncertainty, for there was no way by which the will could be made certain.
The intention of the testator was clearly to select the house himself to be given to each son and therefore there could be no question of the legatees making the selection in the order in which they were named in the will.
This case does not in any way detract from the benevolent rule of construction evolved in English law.
Romer J. himself pointed out that he was prepared to hold that where a testator save one of similar properties to each of several legatees without saying anything more, he intended prima facie to give the right of selection to the legatees according to the priority of the bequests.
But he pointed out that " it is, of course, essential that the will should not show that the testator was bequeathing any particular one of the properties to the legatee who desires to select, for the selection by the testator is incompatible with the view that he intended the legatee to select.
" That was a case where on the construction of the will it was held that the testator himself intended to select but the selection failed, because of the uncertainty in the will.
The second case is Bishop vs Holt (2).
In that case the testatrix by her will gave her 140 shares in the Crown Brewery Company to the legatee for her life with remainder in trust for her children.
She held 40 fully paid up shares and 240 partly paid up shares in (1) (1894] (2) 983.
the Brewery.
A question arose as to from where these 140 shares were to come.
It was held that they were to come out of the 240 partly paid up shares on the ground that the testatrix 's intention was clear, for she only held 40 fully paid up shares and it could not have been intended that 140 shares should have come partly from the fully paid up shares and partly from partly paid up shares.
The decision in that case was that the testatrix 's own selection could be spelt out of the will and once that was so no question of any selection by the legatee &rose.
This case therefore does not in any way weaken the rule of benevolent construction by which the legatee is entitled in certain circumstances to make a selection.
These two cases therefore have no application to the facts of the present case and do not detract from the rule of benevolent construction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make the selection.
This brings us to the second point, namely, whether the testator on the construction of this will intended his daughters to select.
The main argument on behalf of the appellant in this connection is that on a fair and reasonable construction of the will the testator intended his brother Seetharama to select for the daughters and that as his brother had died without making the selection, the lands devised to the daughters must now be partitioned in the ordinary course.
It is not disputed that if the intention of the testator was not to give the selection to his brother, the case would clearly be of the third kind indicated by us above and the daughters would have the right to select.
We have already pointed out that by this will the testator appointed Seetharama as the guardian of his minor daughters as well as of his foster son, namely, the appellant.
Then he said as follows: "He (Seetharama) shall as soon as the minors attain majority give to the female children per head immediately they attain majority one veli of nanja land and one veli of punja land in the said vattam No. 149 out of the aforesaid properties and he shall 984 deliver possession of the remaining properties to my son immediately after, he attains majority.
" The argument is that these words show that it was Seetharama who was to make the selection and give the devised land to the two daughters and stress is laid on the words "he shall give to the female children." These words are contrasted with the words " he shall deliver possession of the remaining properties to my son." Now it is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the two daughters.
Can it be said merely because in one case the words used are " he shall give to the female children " and in the ' other case the words are "he shall deliver possession to my son" that by the use of the former words the testator was giving the right of selection to Seetharama ? As we read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who was the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major.
We do not think that the testator meant something different in the case of the daughters because he used the words " he shall give to the female children " in contrast with the words " he shall deliver possession. . " used in the case, of the appellant.
In the context the words in our opinion mean the same.
Therefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them.
We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there anything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad quality of the land.
If that were the intention of the testator he should have given them a share in the 985 vattam (No. 149) and not a, specific area of land of both nanja and Punja lands.
Or be could have made this position clear, even if he wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in computing the area to be given to the daughters.
There are no words in the will from which it can be inferred that Seetharama was nominated by the testator to make the selection ; nor are there any words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality.
The case, therefore, squarely comes in the third class of cases mentioned above by us, i.e., the testator had indicated with sufficient clarity what he wanted his daughters to get.
The difficulty has arisen because vattam No. 149 has 21.38 acres of nanja land and 16.99 acres of punja land while each daughter is given 6.66 acres each of nanja and punja lands.
The gift cannot be said to be void for uncertainty within the meaning of section 89, for it can be made certain by the selection of the daughters and is not so uncertain that it is impossible to make it certain.
The vattam is indicated from which the land is to come, the area of nanja and punja lands to be taken by each daughter is fixed.
But the area of two kinds of land in the vattam is more than that given to the daughters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vattam.
In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.

summary:
One Viswanatha Iyer who had two minor daughters but no male issue treated his brother Seetharama Iyer 's son, the appel lant, as a foster son and before his death made a will by which he left the management of his properties to his brother and provided that as soon as his minor daughters attained majority Seetharama should give them each one Veli of nanja land and one Veli of punja land in vattam No. 149 in village Nagampadi and should give possession of the remaining property to the appellant on his attaining majority.
The daughters after attaining majority claimed possession of their land alleging that they were entitled under the will to select their respective one Veli of nanja land and one Veli of punja land out of the land in Vattam 149.
A suit filed by the daughters on that allegation was decreed by the trial court and the decree was affirmed by the High Court holding that the English rule of benevolent construction that a legatee has a right to choose in such circumstances applied to India and that on the construction of the will in this case the right to choose was in the legatees and not in Seetharama.
Held, that section 89 of the , which lays down that "a will or bequest not expressive of any definite intention is void for uncertainty", applies only to those cases where a will is so indefinite that it is not possible to give any definite intention to it at all; but there may be wills which use words which are not so uncertain that a definite intention cannot be ascribed to the testator under those words and it is to meet such cases that the English rule of selection by legatees was evolved.
This rule of benevolent construction which is based on common sense and by which wills not quite uncertain can be made certain cannot be called an artificial rule and there is no reason why it should not be extended to India in appropriate cases.
Narayanasami Gramani vs Periathambi Gramani, (1895) I.L.R. , approved.
Bharadwaja Mudaliar vs Kolandavelu Mudaliar, (1915) 29 M.L.J. 717, discussed.
Hobson vs Blackburn, ; ; , Peck vs Halsey, ; (1726) 2 P. Wms. 387; , Tapley vs Eagleton, , Duckmanton vs Duckmanton ; (1860) 5 H. & N. 220; and Knapton vs Hindle, , referred to.
975 Asten vs Asten, and Bishop vs Holt, , held inapplicable.
The gift in the present case was not void for uncertainty within the meaning of section 89 of the Succession Act for it could be made certain by the selection of the daughters.
The testator had clearly indicated what he intended his daughters to get but the difficulty arose because the area of the vattam was more than what was given to the daughters; it must be held in the circumstances of the case that the testator intended that each daughter would select the land devised out of the vattam.
There were no words in the will from which it could be inferred that Seetharama was nominated by the testator to make the selection.