judgement:
ON: Civil Appeal Nos.
543 to 570 of 1974.
From the Judgment and Order dated 22.1.1973 of the Kerala High Court in A.S. Nos. 487, 488, 489, 490, 491,492,493,495,497, 498, 499, 500, 501,502, 503,504, 505,506, 507, 509, 510, 511, 512, 5 13, 5 14, 5 15, 521 and 523 of 1969.
G.L. Sanghi and Ms. Lily Thomas for the Appellant.
A.S. Nambiar, K.R. Nambiar and T.T. Kunhikannan for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
This batch of 28 Appeals are against the common judgment and decrees of the Kerala High Court in A.S. No. 487 of 1969 etc.
dated January 22, 1973 and leave under article 136 was granted by this Court on March 14, 1974.
The High Court reversed the awards and decrees of land acquisition, Sub Court, Ernakulam and confirmed the separate awards of the Collector dated March 29, 1962.
The notifica tion under section 4(1) of the Kerala Land Acquisition 1089 for short "the Regulation" was published on October 31, 1961 and the declarations which are the relevant dates for deter mining the market value by operation of Section 22(1) was published on October 31, 1961 and February 22, 1962.
The land acquired was 190.37 acres 368 and 15.48 acres for Periyar Valley Irrigation Project and Phyto Chemicals Project both being public purposes.
The Collector determined the market value at Re.O.04 per cent for certain lands and Re.O. 12 per cent for certain other lands, Rs.30 per cent to the wet lands as against the claim of Rs.40 and 50 per cent and Compensation to the trees as timber value was given.
The total Compensation fixed was Rs.4.84 lakhs.
Dissatisfied therewith the appellant sought reference under section 18 thereof.
They also claimed sepa rate value as fruit bearing trees on potential value.
They also claimed charges for severence and injurious effects on the remaining land.
The Civil Court after adduction of evidence and on consideration thereof enhanced the market value to the lands @ Rs.40 50 as claimed in addition to a sum of Rs.30 to 38 per cent.
It awarded in all Rs.20.20 lakhs on all counts including severence and injurious ef fects and 15 per cent solatium and also 6 per cent interest on additional compensation from the date of taking posses sion till date of payment vide page 3 of short notes of the appellant.
On appeals by the State, by common judgment dated January 22, 1973, the High Court reversed the award of the Civil Court and confirmed that of the Land Acquisition Collector.
Mr Sanghi, learned Sr. counsel for the appellants with his usual vehemence contended that the High Court committed manifest error of law in reversing the awards and decrees of the Civil Court which had the advantage of seeing the de meanor of the witnesses and extensively considered the evi dence in particular the unimpeachable documents exhibit p.7, p.9 and p. 10.
The appellant, on account of the acquisition, had to incur huge expenditure to construct Kayallas, Pathways, culverts etc.
for protection of the rest of the Estate.
The amount expended was to prevent injurious effects to the Estate and is to be recompensated.
It is further contended that the potential value of the trees have to be taken into account in determining the market value.
The appellant also is entitled to compensation for severence due to submersion of the lands when the Periyar Canal passes through the rubber estate of the appellant.
Therefore, the appellant is entitled to the compensation in full measure with interest on solatium.
The High Court was unjustified in reversing the awards and the decrees of the Civil Court.
The first question, therefore, is whether the High Court is justified in reversing the awards and decrees of the Civil Court.
Admittedly 190.37 and 15.48 cents of land is part of the extensive Periyar Estate of 879.37 acres stretching over seven miles long on the banks of the Periyar River.
It had a road of 14 feet width by name 369 Alwaye Munnar Highway running through middle of the Estate.
The lands were acquired for submersion due to Periyar River Valley Irrigation Project and to establish Phyto Chemical Project.
Shri Sanghi, repeatedly reiterated that in deter mining the market value an element of some guesswork is involved.
But in determining the market value the Court has to eschew arbitrary fixation keeping in view the settled principles of law in evaluating market value in compulsory acquisition on the hypothesis of a willing vendor and a willing vendee.
Therefore, let us glance through the settled principles of law in this regard.
In Galapati Raju vs Revenue Divisional Officer, popularly known as Vijji 's case, the judicial committee of the Privy Council held that compensa tion for compulsory acquisition governed by Section 23(1) of the Land Acquisition Act, 1894 is the market value of the land at the date of the publication of the notification under sub sec.
(1) of the Section 4 of the Act "what a willing vendor might reasonably except to obtain from will ing purchaser".
The function of the Court in awarding com pensation under the Act is to ascertain the market value of the land at the date of notification under section 4(1) of the Act (in this case under section 6(1) of the Regulation) and the evaluation may be as pointed out by this Court in Special Land Acquisition Officer vs Adinarayana Setty, [1959] Suppl.
1 S.C.R. 404 at 412 (1) Opinion of experts; (2) The price paid within a reasonable time in bona fide transactions of purchase of the land acquired or the land adjacent to the acquired land and possessing similar advan tages; (3) Number of years of purchase of the actual or immediately perspective profits of the land acquired.
In that case while adopting the second method the High Court arrived at average price of four transactions excluding two sales and separate average was arrived fixed the market value of Rs. 13.80.
This Court calculating the average of six sale transactions fixed the market rate at Rs. 11.
In Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 2 12 this Court held that for determining compensation payable to the owner of the land, the market value is to be determined by reference to the price which may reasonably to obtain from willing purchasers but since it may not be possible to ascertain this with any amount of precision the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard.
While reiterating the three tests laid down in S.L.A. Officer 's case, it was further emphasised that these methods, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive at as nearly 370 as possible at an estimate of the market value.
In arriving at a reasonable correct market value it may be necessary to take even two or all these methods into account inasmuch as the exact evaluation is not always possible as no two lands may be the same either in respect of the situation or the extent or potentiality nor is it possible in all cases to have reliable material from which the valuation can be accurately determined.
This Court rejected the sale deeds of the lands situated farther away from the lands acquired and also disallowed 10 per cent additional compensation over market rate fixed.
In Dollor Co., Madras vs Collector of Madras, this Court held that "we may even say that the best evidence of the value of the property is the value of the sale in the very property to which the claimants are the party.
If the sale is of recent date and all that need normally be proved is that the sale was between a willing purchaser and willing seller, that there has not been any appreciable rise or falls since and that nothing has been done on the land during the interval to raise the value.
But if the sale was long ago, may be the court would examine more recent sales of comparable lands as throwing better light on current land value.
This Court further emphasised the fact that because the appellant therein himself pur chased the land which is 10 months prior to the date of notification under section 4, at a price of Rs.410 per ground, that would be the measure of prevailing market value.
The High Court enhanced the market value to Rs. 1800 per ground and on appeal was filed by the State.
Though the appellant still claimed higher value, this Court negatived further enhancement.
In Smt.
Kaushalya Devi Bogra & Ors.
vs The Land Acquisition Officer, Aurangabad & Anr., ; the transaction in respect of small properties do not offer proper guidelines and, therefore, the price fetched therein cannot be taken as real basis for determining compensation for large tracts of property.
This was also the view in Pridviraj vs State of Madhya Pradesh, ; and Padrna Uppal Etc.
vs State of Punjab & Ors.
, ; If they are relied upon reasonable reduction should be given.
Accordingly, this Court has fixed the market value in the light of the development of the land in the neighbour hood of the township etc.
In Chandra Bansi singh & Ors. etc.
vs State of Bihar & Ors. etc.
; , notification under section 4(1) was issued for acquiring 1034 acres of land for housing construction by the Housing Board.
This Court held that compensation should be paid as per the value of the land prevailing as on the date of the notification but not on the date of taking over possession.
371 5.
In Tahsildar, Land Acquisition, Visakhapatnam vs P. Narasingh Rao and Ors., a Division Bench of the Andhra Pradesh High Court to which one of us (K. Ramaswamy, J) was a member while reiterating the princi ples referred to above held that the object of determining the compensation with reference to comparable sales of the land adjacent to the land acquired is to find the fertility, quality, the probable price of the land under acquisition is ' likely to fetch and the actual price paid by the vendee to the vendor under those transactions as a prudent vendee and is not actuated with any other speculative features.
It is to ascertain these facts, the sale deeds are insisted to be produced.
The market value fixed must be reasonable and fair to the owner as well as to avoid undue burden to the exchequer.
Therefore, the transaction relating to the ac quired land of recent dates or in the neighbour hood lands that possessed of similar potentiality or fertility or other advantageous features are relevant pieces of evidence.
When the Courts are called upon to fix the market value of the land in compulsory acquisition.
the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands.
In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into.
These features would be estab lished by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc.
The original sale deed or certified copy thereof should be tendered as evidence.
The underlying principles to fix a fair market value with refer ence to comparable sales is to reduce the element of specu lation.
In a comparable sales the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages.
These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions.
The proof also would focus on the fact whether the transactions are genuine and bona fide transactions.
As held by this Court in Collector, Raigarh vs Hari Singh Thakur & Anr., ; that fictitious and unreal transactions of speculative nature brought into existence in quick succes sion should be rejected.
In that case it was found by major ity that these sale deeds are brought up sales.
In Adminis trator General of West Bengal vs Collector, Varanasi, ; that the price at which the property fetches would be by a willing seller to a willing purchaser but not too anxious a buyer, dealing at aim 's length.
The 372 prices fetched for similar lands with similar advantages and potentialities and the bona fide transactions of the sale at time of preliminary notification are the usual, and indeed the best, evidence of the market value.
Other methods of valuation are resorted to if the evidence of sale of similar land is not available.
The prices fetched for smaller plots cannot form basis for valuation of large tracts of land as the two are not comparable properties.
Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc.
In Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr., ; this Court held that the land situated on the frontage have special advantage and the land situated in the interior undeveloped area will not have the value at par since the latter will have lower value than land situated near developed area.
Some guesswork is permissible in determining the value and on this basis this Court did not interfere with fixation of market value by the High Court.
In Mehta Ravindrarai Ajitrai vs State of Gujarat, ; this Court reiterated the ratio in West Bengal Administrator General 's case that the persons to prove the fair transaction are either the vendor and the vendee or the person conversant with the sale and they are to be examined.
The original sale deed or the certified copy of the sale deed are to be produced.
The same is the view in Dr. Hari Singh Thakur 's case.
This was also the view of the Andhra Pradesh High Court in Narasingh Rao 's case.
In Mantaben Manibhai vs Special Land Acquisition Officer, Baroda, AIR 1990 SC 103 to which one of us (L.M. Sharma, J) was a member, this Court held that when the quality of the lands are different (bagayat land and jiryat land).
Bagayat land is superior in quality and to what percentage of superiority was not established by the claim ants.
This Court held that addition of 25 per cent of the value of the Jiryat land was held to be proper valuation.
In Hindustan Oil Co. Ltd. vs Special Duty Collector (Land Acquisition), this Court held that cumulative effect of all the facts and circumstances should be taken into consideration in arriving at a reasonable and fair market value.
8. ' In the light of these principles, the further con tention that having rejected the documents produced by the State, the High Court 373 ought to have relied upon the documents produced by the appellant as comparable sale and would have confirmed the compensation awarded ' by the Civil Court does not impress us as well founded.
It is well settled law that the amount awarded by the Land Acquisition Collector form an offer and that it is for the claimants to adduce relevant and material evidence to establish that the acquired land are capable of fetching higher market value and the amount offered by the [,and AcqUisition Collector was inadequate and he proceeded on a wrong premise or principle.
In Ezra vs Secretary of State for India, I.L.R. it was held that the amount awarded by the Collector forms an offer.
It was reiterated by this Court in Raja Harish Chandra vs Dy.
Land Acquisition Officer, ; Khorshed Shapoor Chenai, etc.
vs Assistant Controller of Estate Duty, 15 and Dr. G.H. Grant vs State of Bihar, ; In Hari Singh 's case, A.P. Sen, J. held (and major ity did not disagree) at p. 191 C to E that: "In a reference under section 18 of the Act, the burden of prov ing that the amount of compensation awarded by the Collector is in adequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him .
It is equally well settled that where the claimant leads no evidence to show that the conclusions reached in the award were inadequate, or, that it offered unsatisfactory compen sation.
the award has to be confirmed.
" In that ease it was held that the evidence produced was untrustworthy.
Same is the view of Bombay High Court in Asstt.
Development Officer vs Tavaballi, at 361 D.B. and of A.P. High Court in Narsing Rao 's case and T.W. Higgins claimant vs Secretary of State, AIR 19 ; Naresh Chandra Bose vs State of West Bengal & Ors.
AIR 1955 Cal.
398 at 399; Smt.
Kusumgauri Ramray Munshi & Ors.
vs The Special Land Acquisition Officer, Ahmedabad, at 94, 95 and Maharao Shri Madansinhji vs State of Gujarat, AIR 1969 Gujarat 270.
It is also the duty of the State to adduce evidence in rebuttal.
This Court in Chaturbhuj Panda & Ors.
vs Collector, Raigarh, [1969] 1 SCR412 at 414 has rightly pointed out that: 374 "It is true that the witnesses examined on behalf of the appellants have not been effectively cross examined.
It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence.
The Judges are not computers.
In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life.
As Judges of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabili ties.
" In Narasingh Rao 's case. 1 have dealt with in paragraph 8 thus: "The object of the inquiry is to bring on record the price fetched or capable of fetching, the relative situation of the land acquired and the subject of the sale transac tion, their fertility, suitability, nature of the use to which they are put to.
income derive or other special dis tinctive features possessed of by the respective lands either single of some or all relevant to the facts in issue.
In this process the courts are not mere umpires but to take intelligent participation and to see whether the counsel on either side are directing towards this goal or the court itself to intervene in this regard." Therefore, it is the paramount duty of the courts of facts to subject the evi dence to close scrutiny, objectively assess the evidence tendered by the parties on proper consideration thereof in correct perspective to arrive at reasonable market value.
The attending facts and circumstances in each case would furnish guidance to arrive at the market value of the ac quired lands.
The neighbour hood lands possessed of similar potentialities or same advantageous features or any advanta geous special circumstances available in each case also are to be taken into account.
Thus, the object of the assessment of the evidence is to arrive at a fair and reasonable market value of the lands and in that process sometimes trench on the border of the guesswork but mechanical assessment has to be eschewed.
The Judges are to draw from their experience and the normal human conduct of parties in bonafide and genuine sale transactions is the guiding star in evaluating evidence.
Misplaced sympathies or undue emphasises solely on the claimants ' right to compensation would place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes.
In V.R. Katarki vs State of Karnataka & Ors.
, C.A. No. 4392/86 dated March 22, 1990 decided by Bench of this Court to which one of us (K. Ramaswamy, J.) is a member, the appellant apart from other charges, was imputed with miscon duct of fixing, in his capacity as Civil Judge at Bagalkot, "higher valuation than was legitimate of the 375 lands." After conducting enquiry he was dismissed from service and when he challenged it, the High Court upheld it on the judicial side.
On further appeal, since the appeals against higher valuation were pending in the High Court, without going into that question, while confirming the dismissal laid the rule thus: "We would like to make a special mention of the position that even if the assessment of valuation is modified or affirmed in an appeal as a part of the judicial process, the conduct of the judicial officer drawable from an overall picture of the matter would yet be available to be looked into.
In appropriate cases it may be opened to draw inferences even from judicial acts" of the misconduct.
The rule of conduct spurned by this Court squarely put the nail on the official act as a refuge to fix arbitrary and unreasonable market value and the person concerned shall not camaflouge the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land.
Equally it is salutory to note that the claimant has legal and legitimate right to a fair and reasonable compensation to the land he is deprived of by legal process.
The claimant has to be recompensated for rehabilitation or to purchase similar lands elsewhere.
In some cases for lack of comparable sales it may not be possible to adduce evidence of sale transactions of the neighbouring lands possessed of same or similar quality.
So insistence of adduction of precise or scientific evidence would cause disadvantage to the claimants in not getting the reasonable and proper market value prevailing on the date of notification under section 4( 1 ).
Therefore, it is the paramount duty of the Land Acquisition Judge authority to keep before him always the even scales to adopt pragmatic approach without indulging in "facts of imagination" and assess the market value which is reasonably capable to fetch reasonable market value.
What is fair and reasonable market value is always a question of fact depending on the nature of the evidence, circumstances and probabilities in each case.
The guiding star would be the conduct of a hypotheti cal willing vendor would offer the lands and a willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market condition as on the date of the notification under section 4(1) but not an anxious buyer dealing at arm 's length nor facade of sale or fictitious sales brought about in quick succession of otherwise to inflate the market value.
Let us consider the evidence on record from the above perspective and evaluate the circumstances on record.
Shri Sanghi repeatedly stressed that an element of guesswork is inescapable and exhibit P. 7, 8, 9 & 10 furnish the best materi al.
Though he relied on exhibit P. 1 to P. 3, in fairness, he did not press for consideration in our view quite 376 rightly as they are very small extents of 2 1/2; 4 and 3 cents respectively.
They are situated in residential and commercial areas.
So they cannot be relied on.
But he strongly relied on exhibit P. 7 dated March 9, 195 1.
The extent is Ac.
3 4 cents for Rs. 19,000.
It worked out at Rs.52.50 per cent.
The High Court held that the lands covered by exhibit P. 7 are situated by the side of irrigation channel and paddy cultivation was carried on.
Under those circumstances, the evidence of P.W. 6, the vendor was not accepted and in our opinion quite rightly and exhibit P. 7 was rightly not relied as lands in question are not irrigated lands whereas the lands under exhibit P. 7 are paddy lands cultivated by irrigation sources and is situated four miles away from the acquired lands.
Similarly exhibit P. 9 is dated April 4. 1957.
The extent is Ac.
1.38 cents for Rs.6,000.
PW. 5 is the vendor.
It worked out at Rs.43.50 per cent.
It is also four miles away from the acquired lands.
It is also not of any assistance to the appellant as this land also is a paddy land irrigated by irrigation sources.
It is undoubted that in exhibit P. Ii).
the judgment of the Sub Court.
Ernakulam in Land Acquisition Case No. 298 of 1963 etc.
relate to the land in the vicinity of Phyto Chemical Project and the Land Acquisition Court awarded (C) Rs.80 per cent for the paddy lands and Rs.43 per cent for dry land.
The ' High Court has pointed out that on the basis of the evidence adduced in that case.
namely, comparable sales, the determination of the market value is correct.
It was held that it cannot form the basis for determining the market value of the lands in this case.
We have been taken through the entire judgment under exhibit P. 10 and after carefully scanning the evidence, we are not persuaded to take a different view from that of the High Court.
Which has correctly appreciated the evi dence.
Accordingly exhibit P. 10 also would not form a base to fix the market value.
It is undoubtedly true that the High Court did not accept the evidence adduced by the State.
It was rejected both by the Civil Court as well as by the High Court.
The Sub Judge appears to be too anxious to award whatever is asked for on mechanical appreciation without subjecting the evidence to legal and critical scrutiny and analysis.
The appellate Court after rejecting the evidence may have to find whether there are any circumstantial or other material evidence on record to fix reasonable market value.
We are relieved to undertake that exercise in view of fair stand taken by the Learned Advocate General.
Kerala, who appeared in the High Court.
It is clear from the judg ment that the Learned Advocate General while arguing the case had stated across the bar.
obviously on instructions or in fairness from record, that the market value can be fixed at Rs. 18 per cent.
This is.
therefore.
a concession made by the Learned Advocate General on behalf of the State.
The High Court, therefore, was not justified in not 377 taking into account this submission of the Advocate General.
It is undoubted that the High Court having rejected the evidence of the claimants has to confirm the offer made by the Collector in the award provided if there is no other evidence on record.
But in view of the concession made by the Learned Advocate General, we are of the definite view that the claimants are entitled to the market value Rs. 18 per cent to the lands other than those to which the Collec tor awarded @ Rs.30 per cent as the reference court shall not reduce the market value to less than awarded by the Collector as enjoined under the statute.
As a limb of the argument Shri Sanghi has placed reliance on the concession made by the government pleader in the Trial Court that exhibit P. 9 would form the basis for determination of the market value which worked out @ Rs.43.50 per cent.
We are unable to accept the submission of the learned counsel.
Any concession made by the government pleader in the Trial Court cannot bind the Government as it is obviously, always, unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer.
Otherwise it would place tindue and needless heavy burden on the public exchequer.
But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsi bility.
In those circumstances we have no hesitation to accept the statement of Learned Advocate General and hold that the market value of the lands would be fixed at Rs. 18 per cent.
From the very nature of compulsory acquisition 15 per cent solatium as additional compensation was statutorily fixed.
Therefore, determination of additional market value is unwarranted.
It is next contended that the claimants are entitled to the severence charges and injurious effects on the re maining lands of the claimant.
From the evidence it is clear that the Commissioner who collected the evidence in this regard has admitted in the crossexamination that the appel lant did not expend any money in erecting boundary walls, bridges, projects etc.
It is an admitted fact that though from the date of the acquisition till date of evidence more than six years have passed by, the appellant has not pro duced any material or account books of the Estate to estab lish that they have expended any money in this regard.
It is also admitted by both the engineers examined on behalf of the State and also appellant 's witnesses that the road passing through the lands is being used by the appellant to carry his goods i.e. his forest produce etc.
Though during rainy season that too for a short period at some places the water get stagnated on the 378 roads at lower levels but that stand no impediment for the carriage of the goods as admitted by the witnesses.
This phenomena was prevalent even before acquisition.
In these circumstances we entirely agree with the High Court in its finding that the appellant has not established that they have expended any money for erection of retaining walls.
culverts.
bridges etc.
There is no damage.
due to acquisi tion of the land of the appellant and.
therefore.
the award of severence charges is unwarranted.
Both the counsel have taken us through the material evidence of PW. 7, 8 & 9.
C.P.W. 1 and C.P.W. 2 examined on behalf of the State.
We have once again carefully scanned the evidence and we are satisfied that the High Court has thoroughly considered the evidence of all the witnesses and reports of the Commission ers.
The High Court is well justified in arriving at the finding that the appellant has not expended any money for either constructing any boundary walls.
culverts.
bridges or roads etc.
The value of the land of the appellant has not been injuriously effected due to acquisition.
No damage due to severence was caused.
Under these circumstances the appellant is not entitled to compensation in this regard.
When we have pointed out that the appellant is not entitled separately to the value of the land and the trees as poten tial value as fruit bearing one.
The counsel agreed.
on instructions, that they would confine to fix market value of the lands.
The only question then remains is whether the appel lant is entitled to payment of interest on solatium.
The High Court relied on Union of India vs Shri Ram Mehar & Anr., ; and rejected the claim for interest.
Section 25(3) of the Regulation reads thus: "If the sum in the opinion of the court, the Division Peishkar ought to have awarded as compensation is in excess of the sum which the Division Peishkar did not award as compensation, the award of the court may direct that the government shall pay interest on such excess @ Rs.6 per centum per annum from the date on which the Division Peish kar took possession of the land to the date of payment of such excess in Court " A reading thereof does postulate that in the opinion of the Court the Land Acquisition Officer ought to have awarded compensation in excess as found by the court.
then the court may direct that the government shall pay interest @ 6 per centum per annum on the excess amount so found as compensation.
The payment should be from the date, the land was taken possession by the Division Peishkar till the date of the payment of the excess amount into court.
379 The question, therefore, is whether "interest" is an inte gral part of the word "compensation" under sub section (3) of Section 25 of the Regulation.
In Shri Ram Mehar 's case, the question came up for consideration was whether the words "interest on market value" in Section 4(3) of the Land Acquisition (Amendment and Validation Act, 1967) would include payment of interest on solatium.
Additional 15 per cent solatium undersection (2) of Section 23 certainly forms part of compensation as under section 23 the market value of the land would include solatium.
But market value and compensation are distinct expressions and have been used as such in the Land Acquisi tion Act.
The key to the meaning of the word "compensation" is to be found in Section 23(1) which consists of market value and solatium on the market value which is stated to be compensation.
Therefore, this Court held that the term market value has acquired a definite connotation in judicial decision.
If the word market value and compensation were intended by the legislature to have the same meaning, it is difficult to comprehend why the word compensation in sections 28(a) and 34 and nor market value was used.
So market value cannot be equated to compensation.
The market value is, therefore, only one of the components in the determination of the amount of compensation, if the legislature has used the word "market value" in Section 4(3) of the Amending Act, it must be held that it was done deliberately and what was intended was that interest should be payable on the market value of the land and not on the amount of compensation.
Otherwise, there is no reason why the Parliament should not have employed the word compensation in the aforesaid provi sion of the amended Act.
Webster Comparative Dictionary at p. 267, the word compensation defined (I) the act of compen sating or (2) that which compensates payment.
In Stroud 's Judicial Dictionary, Fourth Edition, Volume I at p. 523 compensation defined (Defence Act 1842 (c. 94), section 19) includes not only the value of the land taken but also damage for severence or injuriously effecting other lands belonging to the owner of the land taken, al though the Act contained no such clause as Land Clauses Consolidation Act, 1845.
The word compensation is used to recompensate or reparation to the loss caused to the owner of the land.
Therefore, we have no hesitation to hold that Section 25(3) contemplates payment of interests on solatium to recompensate the owner of the land for loss of user of the land from the date of taking possession till date of payment into court.
The word compensation has been advisedly used by the legislature.
Accordingly we hold that the appel 380 lant is entitled to interest on solatium.
We allow the appeals to the extent indicated above.
The market value is fixed at Rs. 18 per cent and confirm the market value at Rs.30 per cent for wet lands awarded by the Collector.
Solatium at Rs. 15 per cent and interest at 6 per cent on the excess market value determined under the judg ment including solatium from the date of taking possession till the date of payment.
In other respects the judgment of the High Court is confirmed and in the circumstances, the parties are directed to bear their own costs throughout.
P.S.S. Appeals allowed.

summary:
The respondent State had acquired a large extent of land out of the appellant 's estate under the Kerala Land Acquisi tion Regulation, 1089 for river valley irrigation project and to establish an industrial project.
The notification under Section 4(1) of the Regulation was published on Octo ber 31, 1961.
This was followed by the declaration under Section 6(1) published on February 22, 1962.
The Collector by his awards dated March 29, 1962 deter mined the market value under Section 22(1) of the Regulation at Re.O.04 per cent for certain lands, Re.O.12 per cent for certain other lands, and Rs.30 per cent for the wet lands as against the claim of Rs.40 and 50 per cent.
Compensation for the trees at timber value was also given.
The total compen sation fixed was Rs.4.84 lakhs.
Dissatisfied therewith the appellant sought reference under Section 18 of the Regulation.
They also claimed sepa rate value for fruit bearing trees on potential value and charges for severence and injurious effects on the remaining lands.
In support of the claim they relied on exhibit P. 7 dated March 9, 1951 and exhibit P. 9 dated April 4, 1957 which worked out at Rs.52.50 and Rs.43.50 per cent respectively, and the acquisition forming subject matter of exhibit P. 10 pertaining to the land in the vicinity of the industrial project award ed at the rate of Rs.80 per cent for paddy lands and Rs.43 for dry land.
The Government pleader stated before the civil court that exhibit P. 9 could form the basis for determining the market value.
The court enhanced the market value @ Rs.40 50 per cent as claimed in addition to a sum of Rs.30 to 38 per cent.
It awarded in all Rs.20.20 lakhs on all counts includ ing severence and injurious effects, 15 per cent solatium and also 6 per cent interest on additional compensation from the date of taking possession till date of payment.
363 The High Court found that the lands covered by exhibit P. 7 and exhibit P. 9 were paddy lands cultivated by irrigation sources and situated about four miles away from the acquired lands which were not irrigated and therefore held that these could not form the basis for determining market value.
Similarly, it found exhibit P. 10 could not form a base to fix the market value.
The High Court did not accept the evidence adduced by the State, which was rejected by the civil court as well.
The statement made by the State Advocate General across the bar that the market value could be fixed at Rs. 18 per cent was also not taken into account.
Consequently, it reversed the awards and decrees of the civil court.
In these appeals by special leave it was contended for the appellant that having rejected the documents produced by the State the High Court ought to have relied upon the documents produced by the appellant as comparable sales and consumed the compensation awarded by the civil court, that exhibit P. 7, 9 and 10 furnished the best material, that the Government pleader had conceded before the trial court that exhibit P. 9 could form the basis for determining the market value, that they had incurred huge expenditure on civil works for protection of the rest of the estate from injuri ous effects for which they should be recompensated, that the potential value of the trees had to be taken into account in determining the market value, that they were entitled to compensation for severence due to submersion of the lands and that they were also entitled to payment of interest on solatium.
Allowing the appeals partly, the Court, HELD: 1.1 When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the ac quired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands possessed of similar potentiality or fertility or other advantageous features made within a reasonable time of the date of noti fication in bona fide transactions on the hypothesis of a willing seller and a willing purchaser but not too anxious a buyer, dealing at arms length nor facade of sale or ficti tious and unreal transactions of speculative nature brought into existence in quick succession or otherwise to inflate the market value.
This, however, does not preclude the Court from taking any other special circumstances into considera tion, the requirement being always to arrive at as nearly as possible an estimate of the market value judged by an objec tive standard.
[181C 182D] 364 Gajapati Raju vs Revenue Divisional Officer, ; Special Land Acquisition Officer vs Adinarayana Setty, [1959] Suppl.
1 S.C.R. 404; Tribeni Devi & Ors.
vs Collector of Ranchi; , ; Dollor Co. Madras vs Collector of Madras, ; Chandra Bansi Singh & Ors. etc vs State of Bihar & Ors. etc.; , ; Tahsildar, Land Acquisition Visakhapatnam vs P. Narasingh Rao & Ors., ; Collector, Raigarh vs Hari Singh Thakur & Anr., ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Mehta Ravindrarai Ajitrai vs State of Gujarat, ; and Hindustan Oil Co. Ltd. vs Special Duty Collector (Land Acquisition), [1990] 1 S.C.R. 59, referred to. 1.2 The prices fetched for smaller plots cannot form basis for valuation of large tracts of land as the two are not comparable properties.
Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc.
Similar ly, the land situated on the frontage have special advantage and the land situated in the interior undeveloped area will not have the value at par since the latter will have lower value then the former.
So is the case with orchard land and agricultural land, the former being superior in quality as compared to the latter.
If such sales are relied upon rea sonable reduction should be given.
[182B C] Smt.
Kaushalva Devi Bogra & Ors.
vs The Land Acqui sition Officer, Aurangabad & Anr., ; ; Pridviraj vs State of Madhya Pradesh, ; ; Padma Uppal etc.
vs State of Punjab & Ors., [1977] 1 S.C.R. 329; Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr., ; and Mantaben Manibhai vs Special Land Acquisition Officer, Baroda, A.I.R. , referred to.
1.3 In some cases for lack of comparable sales it may not be possible to adduce evidence of sale of the neighbour ing lands possessed of same or similar quality.
So, insist ence on abduction of precise or scientific evidence would cause disadvantage to claimants in not getting the reasona ble and proper market value.
The courts of facts should, therefore, keep before them always the even scales to adopt pragmatic approach without indulging in facts of imagination and assess the market value which is capable to fetch rea sonable compensation.
They may in that process sometimes trench on the border of the guess work but mechanical as sessment should be eschewed.
Misplaced sympathies or undue emphasis solely on the claimants ' right to compensation would 365 place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes.
[185D G; 184F G] 1.4 In the instant case, the High Court found that exhibit P. 7 and P. 9 relied on by the civil court were not applica ble as the lands covered by them were paddy fields cultivat ed by irrigation sources and situated four miles away from the acquired unirrigated lands.
Similarly, it also found that exhibit P. 10 could not be relied on.
The High Court, therefore, could not be said to be unjustified in reversing the awards and decrees of the civil court.
[186B D] 2.
The amount awarded by the Land Acquisition Collector forms an offer.
It is for the claimants to adduce relevant and material evidence to establish that the acquired lands were capable of fetching higher market value and the amount offered by the Land Acquisition Collector was inadequate and he proceeded on a wrong premise or principle.
It is also the duty of the State to adduce evidence in rebuttal.
[183B, G] Ezra vs Secretary of State for India, I.L.R. ; Raja Harish Chandra vs Dy.
Land Acquisition Officer, ; Khorshed Shapoor Chenai, etc.
vs As sistant Controller of Estate Duty; , ; Dr. G.H. Grant vs State of Bihar, ; ; Asstt.
Development Officer vs Tayaballi, AIR ; Tah sildar, Land Acquisition, Visakhapatnam vs P. Narasingh Rao Secretary of State, AIR 1919 Cal.
1008; Naresh Chandra Bose vs State of West Bengal & Ors., AIR 1955 Cal. 398; Smt.
Kusumgauri Ramray Munshi & Ors.
vs The Special Land Acquisi tion Officer, Ahmedabad, ; Maharao Shri Madansinhji vs State of Gujarat, AIR 1969 Gujarat 270 and Chaturbhuj Panda & Ors.
vs Collector, Raigarh, ; , referred to.
2.2 In the instant case the evidence produced by the appellant was found untrustworthy by the High Court.
It also did not accept the evidence adduced by the State.
[186E F] 3.1 The Appellate Court after rejecting the evidence may have to find whether there are any circumstantial or other material evidence on record to fix reasonable market value.
The State Advocate General having stated across the bar in the High Court that the market value can be fixed at Rs.18 per cent, a concession made by him with all responsibility on behalf of the State, the High Court was not justified in 366 not taking into account this submission.
[186G I87B] 3.2 Any concession made by the Government pleader in the trial court cannot bind the Government as it is always unsafe to rely on the wrong or erroneous or wanton conces sion made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer.
Otherwise it would place undue and needless heavy burden on the public exchequer.
[187C] 3.3 The claimants are, therefore, entitled to the market value @ Rs.18 per cent to the lands other than those to which the Collector awarded @ Rs.30 per cent, as the refer ence court shall not reduce the market value to less than that awarded by the Collector as enjoined under the statute.
From the very nature of compulsory acquisition, 15 per cent solatium as additional compensation was statutorily fixed.
Therefore, determination of additional market value is unwarranted.
[187E] 3.4 Section 25(3) of the Regulation contemplates payment of interest on solatium to recompensate the owner of the land for loss of user of the land from the date of taking possession tilldate of payment into court.
The claimants are, therefore, entitled to interest on solatium.
It is fixed at 6 per cent on the excess market value determined under the judgment including solatium from the date of taking possession till the date of payment.
In other re spects judgment of the High Court is confirmed.
[189G 190B] Union of India vs Shri Ram Mehar & Anr., [1973] 2 S.C.R. 720, referred to. 4.
The Commissioner who collected the evidence in re spect of the injurious effects on the remaining lands of the claimants admitted in the cross examination that the appel lant did not expend any money on civil works.
Though from the date of the acquisition till the date of evidence more than six years had passed by the appellant had not produced any material or account books of the estate to establish that they have expended any money in this regard.
Both the engineers examined on behalf of the State and also appel lant 's witnesses admitted that the road passing through the lands was being used by the appellant to carry its forest produce etc.
Though during rainy season that too for a short period, at some places the water gets stagnated on the roads at lower levels but that stand no impediment for the car riage of the goods.
This phenomena was prevalent even before acquisition.
The value of the land of the appellant had not been injuriously effected due to acquisition.
No 367 damage due to severence was caused.
Under these circum stances, the appellant was not entitled to compensation in this regard.
[187F 188D] 5.
The Sub Judge appears to be too anxious to award whatever is asked for on mechanical appreciation without subjecting the evidence to legal and critical scrutiny and analysis.
In such a case, even if the assessment of valua tion is modified or affirmed in an appeal as apart of the judicial process, the conduct of the judicial officer, drawable from an overall picture of the matter would yet be available to be looked into.
In appropriate cases it may be opened to draw inferences even from judicial acts of the misconduct.
The person concerned shall not, therefore, camouflage the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land.
V.R. Katarki vs State of Karnataka & Ors., Civil Appeal No. 4392 of 1986 decided on March 22, 1990, referred to.


judgement:
vil Appeal No. 1934 of 1972.
From the Judgment and Order dated 9.12.
1971 of the Punjab and Haryana High Court in regular Second Appeal No. 1286 of 1969.
V.C. Mahajan, K.R. Nagaraja (NP) and R.S. Hegde for the Appellant.
419 Uma Dutta, E.C. Agarwala, Ms. Sheil Sethi and Susheel Kumar for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This first defendant 's appeal by special leave is from the Judgment and Decree of the High Court of Punjab and Haryana in R.S.A. No. 1286 of 1969 dated 9.12.
Respondents 4 to 6 Balwant Singh, Jagir Singh and Teja Singh, sons of Kehar Singh sold land measuring 38 Kanals 3 Marlas, being 3/5th share of 63 Kanals 11 Marlas of ances tral land situated at village Maherna Kalan, Tehsil and District Ludhiana, as per sale deed dated June 4, 1964 in favour of the appellant (first defendant) for Rs. 14,000 as the vendors left their village Maherna Kalan and had not been cultivating the same and it was not yielding any prof it.
The sale deed contained a recital that the vendors sold the land with a view to purchase land in another village.
On November 6, 1965 the vendors actually purchased 80 Kanals of Nehri land for Rs. 11,000.
The parties are admittedly Jat Sikhs governed by Punjab Customs.
Respondents 1 to 3 filed a declaratory suit on August 3, 1966 in the Court of Sub Judge, Ludhiana seeking a declara tion that the sale of the suit land would not affect their reversionary rights after the death of respondents 4 to 6 as they were governed by the custom in the matter of alienation inasmuch as the suit land was ancestral in the hands of the alienors qua the plaintiffs (respondents 1 to 3) and that the sale was effected without consideration and without legal necessity; and respondents 4 to 6 (defendants 2 to 4) were restrained from alienating under the custom.
The appellant averred, inter alia, that the sale was for consideration and legal necessity as it was an act of good management on the part of the alienors; that respondents 4 to 6 who were not sonless and were men of good character and sober habits; that migrating from their village they had settled elsewhere as they were neither cultivating the suit land nor were in a position to manage and cultivate the same; and that the alienors had actually purchased 80 Kanals of better quality Nehri land which showed that the sale was an act of good management on the part of the vendors.
It was also contended that the land in suit was not ancestral qua the plaintiffs nor was it governed by customs and that the plaintiffs had no locus standi.
420 The respondents 4 to 6 being defendants 2 to 4 admitted the claims of the plaintiffs.
The respondent No. 5 who was the brother of respondent No. 2, was impleaded as proforma defendant having the same interest as the plaintiffs.
The Trial Court, inter alia held that the parties in respect of the sale of the suit land were governed by custom whereunder ancestral land could not be alienated except for legal necessity or as an act of good management; that the suit land was ancestral qua the plaintiffs (respondents 1 to 3) and defendants 2 to 4 (respondents 4 to 6); that the sale was effected for consideration of Rs. 14,000 as stipulated in the sale deed; and that the sale was an act of prudent management on the part of the vendors and as such unimpeach able.
The suit having been dismissed and the first appeal therefrom having failed, the respondents 1 to 3 preferred R.S.A. No. 1286 of 1969 in the High Court of Punjab and Haryana wherein they sought to adduce additional and further evidence of a sale deed dated June 3, 1969 alleged to have been executed by respondents 4 to 6 in respect of the suit land.
The High Court allowed the R.S.A. and set aside the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management.
The suit was accordingly decreed.
The certificate to file Letters Patent Appeal having been refused, the appellant obtained special leave.
Mr. V.C. Mahajan, the learned counsel for the appellant, submits that whether the sale was or was not an act of good management having been a question of fact, the Trial Court and the first appellate court having arrived at a concurrent finding that it was an act of good management and as such unimpeachable, this concurrent finding could not have been set aside by the High Court in second appeal; that the sale deed dated June 3, 1969 which was never accepted and proved according to law was irrelevant for impeaching the sale and the High Court erred in law in taking it into consideration while determining whether the sale was an act of good man agement.
Mr. Uma Dutta, learned counsel for the respondents, submits, inter alia, that the sale of the suit land measur ing 38 Kanals 3 Marlas being on June 4, 1964 and the subse quent purchase of 80 Kanals for Rs. 11,000 being on November 8, 1965 and that land also having subsequently been sold on June 3, 1969 for Rs.35,000 and there being no evidence to show that the suit land was less fertile or that the vendors 421 had settled at village Pather, the High Court was correct in holding that the impugned sale was not an act of good man agement.
The only question to be decided in this appeal, there fore, is whether the High Court was correct in setting aside the concurrent finding that the impugned sale was an act of good management and not restricted by custom.
It is common ground that the parties are governed by the local custom which restricts alienation.
About the custom W.H. Rattigan in his 'A Digest of Customary Law in the Punjab ' (14th Ed.) in Chapter IV at page 283 said: "Thus, while the unhampered exclusive use of property in a man 's possession, whether ancestral or acquired, for his lifetime, with a free disposal of the income, is not denied, freedom of alienation, whether by gift or bequest, is in regard to ancestral immovable property, subject in most cases to certain restrictions." A 'late Senior Judge of the Chief Court ' in a leading case (Nos.
107 P.R. 1887, page 247) expressed generally that: respect of ancestral immovable properly in the hands of any individual.
there exists some sort of residuary interest in all the descendants of the first owner.
or body of owners, however, remote and contingent may be the proba bility of some among such descendants ever having the enjoy ment of the property.
In short, the owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest and who would take the property if the owner died without disposing of it.
The limitations within which per sons having or claiming to have such a residuary interest may prevent an owner in possession from defeating their expectations will be found to vary according to local cir cumstances, which may either weaken or rebut the presumption that the owner has not an unrestricted power of disposition.
" 422 Sir Meredyth Plowden in Gujar vs Sham Das, 107P.R. 1887 also said: "In respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants ever having the enjoyment of the property.
The owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest, and who would take the property if the owner died without disposing of it.
" In the critical words of Chief Justice Sir Shadi Lal in Gujar vs Sham Das (supra) the issues before the Court were whether in a case, where the power of a sonless Jat proprie tor to alienate ancestral land without necessity was in dispute, it was the duty of the alienee to prove a custom authorizing a transfer of the ancestral land in favour of stranger, and on whom lay the onus of proving that a sonless proprietor has powers to dispose of ancestral land without necessity; and the rest were mere deductions.
In para 59 at page 291 of the Digest Rattigan states the restrictions on alienation of ancestral immovable property thus: "Ancestral immovable property is ordinarily inalienable (especially amongst 'Jats ' residing in the central districts of the Punjab), except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals.
"Provided" that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence (No. 36 P.R. 1895; No. 55 P.R. 1903, F.B.)" In other words, the custom is that the ancestral immova ble property is ordinarily inalienable especially amongst Jats residing in the Central Districts of Punjab, except for necessity and the other permis 423 sible reasons.
An alientation as a bona fide act of good management has been treated as one of necessity and hence, valid.
At page 388 of the Digest we find the gloss: "In the case of a male proprietor, in the management of agricultural affairs a very strict economy and a very excel lent management must not be insisted upon.
Ordinary bona fide management is all that can be demanded (No. 70 P.R. 1894; No. 20 P.W.R. 1911; No. 40 P.W.R. 1911, and No. 25 P.R. 1911); 1922, 69 Ind. Case 521 (exchange of land).
Where although no immediate necessity for a sale is established, if the sale has been held to be an act of good management, it is binding on the reversioners.
" The above statement has been commented upon as being a bit wide, and the suggested statement is that 'such a sale must be upheld '.
In Mohammad Chiragh and Ors.
vs Fatta & Ors.
, A.I.R. 1934 Lahore 452 where although no immediate necessity for sale was established, but there was a recital in the sale deed that the vendors intended to purchase other land with the proceeds of the sale, and a representation of that kind was made to the vendees which might have been believed by them in good faith, the High Court did not see any good grounds for interference with the findings of the learned District Judge that the sale was an act of good management which, it was observed; "was essentially a find ing of fact.
" In Abdul Rafi Khan vs P. Lakshmi Chand & Ors., A.I.R. 1934 Lahore 998 where the members of the family, finding their position in the village precarious due to deteriorating relations between it and the tenants in the village sold their Land one by one as they found it diffi cult to manage them or recover rent and the vendors moved to another place where they purchased certain land, it was held that the sale of the land was an act of good management and the vendee was not expected to see to the application of the money by the vendors to the purposes mentioned in the sale deed.
Similarly in Dial Singh vs Surain Singh, A.I.R. 1937 Lahore 493, the question was whether a sale of ancestral land was for necessity.
On April 3, 1934 Bhagwan Singh sold ancestral land for Rs. 1,500 the entire consideration being paid to him before the Sub Registrar.
The object of the sale was the purchase of land in Bikaner and Gwalior States and actually since the sale Bhagwan Singh spent 424 about Rs. 160 in buying about 100 bighas of land in Gwalior.
The lower courts concurrently found that the sale was for.
necessity.
Before the District Judge it was urged that the money had not been actually spent on the purpose for which it was raised.
But the learned District Judge held that this was admitted to be correct, that all that the alienee had to do was to see that the money was required for a legitimate purpose.
The sole question, therefore, was whether the sale in order to buy land in Gwalior and Bikaner was an act of good management, which would be regarded as one of necessi ty.
The Division Bench held that no sufficient reason had been shown for dissenting from the concurrent finding of the courts below that the sale of land by Bhagwan Singh in the presence of his elder son was for necessary.
In Gajjan Singh & Ors.
vs Anna Singh, [1968] P.L.R. Vol.
70 195 it was held that no person could be tied down to the village where he had ancestral land unless it was shown that he was leaving the village or disposing of the land in the village on some false pretext.
Where relations of a proprie tor with his brother were strained and he sold the land to purchase land in some other village, the alienation was held to be an act of good management and that once a true repre sentation was made by the vendor, the vendees were not to see the application of the money and they need not prove that the money in fact was utilised for a necessary purpose.
It was further held that the land purchased with the sale proceeds of the ancestral land did not cease to be ancestral and it remained ancestral land.
In the instant case the vendee proved the ingredients of good management and the concurrent finding of the Trial Court and the first Appellate Court was that the impugned sale was an act of good management, and it was essentially a finding of fact.
Applying the law as enunciated in the above decisions we do not find any infirmity therein.
The submis sions of the learned counsel for the respondents that in view of the subsequent sale of the land would go to show that it was speculative sale would be wholly irrelevant.
There was evidence to show that even prior to the sale the vendors were not cultivating and as such not deriving any profit from the land.
The distance of time between the impugned sale on June 4, 1964 and the purchase of 80 Kanals of land in the other village on November 6, 1965 was not such as to disprove that the sale was an act of good manage ment and as such was for necessity.
The Trial Court clearly found that the vendors left for and settled at the new village where they purchased 30 Kanals of land.
The averment that the purchased land was subsequently sold on June 425 3, 1969 at Rs.35,000 besides having not been proved in accordance with law, was wholly irrelevant for the purpose of discharging the onus of the appellant vendee.
The High Court was, therefore, in error in setting aside the concur rent finding of fact in the facts and circumstances of the case, in Second Appeal.
In the result, this appeal is allowed, the impugned Order of the High Court is set aside and Decree of the lower courts in the suit restored.
The parties being near rela tions, we leave them to bear their ' own costs.
Y. Lal Appeal allowed.

dataset_name: IN-Abs

summary:
Respondent Nos. 4 to 6 sold their 3/5th share of the ancestral land to the appellant for Rs.14,000, as the ven dors left their village and wanted to settle elsewhere where they purchased 80 kanals of Nehri land.
Respondents Nos. 1 to 3 filed a declaratory suit in the court of Sub Judge, Ludhiana seeking a declaration that the sale of the suit land would not affect their reversionary rights after the death of respondents 4 to 6.
They pleaded that the land was ancestral and according to the custom governing the parties, it could not be alienated; they also asserted that the land was sold without any consideration and legal necessity.
The appellant defendant No. 1, contended that the sale was an act of good management on the part of the alienors, and that the same was not without consideration/the vendors having decided to settle elsewhere.
The trial court held that the sale was an act of prudent management and was not without consideration.
As regards the custom it held that the parties were governed by custom, whereunder ancestral land could not be alienated except for legal necessity or as an act of good management.
The suit was accordingly dismissed and the first appeal preferred against that decision failed.
Respondents 1 to 3 thereafter preferred Regular Second Appeal before the High Court.
The High Court allowed the appeal, set aside the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management.
The suit was accordingly decreed.
Hence this appeal by the appellant defendant No. 1 by special leave.
418 Before this Court the appellant contended that the sale was or was not an act of good management having been a question of fact, the trial court as also the first appel late court having arrived at a concurrent finding that it was an act of good management, the High Court should not have interfered with that finding.
On the other hand the respondents contended that the sale was not an act of good management.
Allowing the appeal, this Court, HELD: The custom is that the ancestral immovable proper ty is ordinarily inalienable specially amongst Jats residing in the Central Districts of Punjab, except for necessity and the other permissible reasons.
All alienation as a bona fide act of good management has been treated as one of necessity and hence valid.
[233B] In the instant case, the vendee proved the ingredients of good management and the concurrent finding of the Trial Court and the first appellate court was that the impugned sale was an act of good management, and it was essentially a finding of fact.
[234F] The High Court was, therefore, in error in setting aside the concurrent finding of fact in the facts and circum stances of the case in Second Appeal.
Gujar vs Sham Das, 107 P.R. 1887; Mohammad Chiragh and Ors.
vs Fatta & Ors., AIR 1934 Lahore 452; Abdul Rafi Khan vs
P. Lakshmi Chand and Ors., AIR 1934 Lahore 998; Dial Singh vs Surain Singh, AIR 1937 Lahore 493; Gujjan Singh and Ors.
vs Atma Singh, 1968 PLR Vol.
70 195.


judgement:
vil Appeal No. 453 (NL) of 1984.
From the Judgment and Order dated 19.5.
1983 of the Allahabad High Court in C.M .W.P.
No. 8798 of 1980.
K. Ramamurthi and R.D. Upadhyay for the Appellant.
Anil Kumar Gupta for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the appellant 's writ petition challenging an award of the Industrial Tribunal.
The appellant was working as an Assistant Cashier in the Rampur Zila Sahkari Bank Ltd., when a reference of an industrial dispute was made under section 4 A of the U .P.
Indus trial Disputes Act, 1947 (hereinafter referred to as the U.P. Act).
The provisions of the U .P.
Act relevant to the present case are similar to those of the Central Act, that is, the .
Section 4 K of the U.P. Act, like the corresponding section 10 of the Central Act, empowers the State Government to refer industrial disputes to Labour Courts or Tribunals.
During the pendency of the reference the appellant was put under suspension and served with a charge sheet in February 1976, which was followed by a domestic inquiry leading to the dismissal of 413 the appellant from service on 16.8.
The U.P. Act in sections 6 E and 6 F incorporates provisions similar to those in ss 33 and 33 A of the Central Act.
The appellant filed a complaint under section 6 F of the U.P. Act before the Industrial Tribunal, and the same was treated as a dispute referred to it and was finally disposed of by the Award which was im pugned before the High Court.
The Tribunal, in the first instance, examined the case of the appellant on the question whether principles of natural justice had been followed in the domestic inquiry, and after hearing the parties.
decided the issue by its order dated 23.2.
1979 in favour of the workman.
Proceeding further the Tribunal asked the management to justify the order of punishment on merits.
Accordingly, the parties led their evidence and the Tribunal recorded a finding that the charges levelled were established by the materials on the record and the workman, therefore, was not entitled to any relief.
As stated earlier, the appellant challenged the award before the Allahabad High Court by filing a writ petition.
By a well discussed judgment, which is now under challenge before us, the High Court dismissed the writ application.
Mr. Ramamurthi, the learned counsel appearing in support of the appeal, has raised before us the following two points: (i) After recording its conclusion that the domestic inquiry was vitiated on account of violation of principles of natu ral justice, the Tribunal was under the duty of announcing its award in favour of the appellant; and since there was no application filed on behalf of the employer for permission to justify the punishment by leading evidence, the Tribunal exceeded its jurisdiction in asking the management to do so.
(ii) In any event, the appellant was entitled to his salary for the period 16.8.1976 (that is, the date of his dismiss al) to 20.7.
the date of the Award of the Tribunal.
Mr. Ramamurthi contended that after the conclusion reached by the Tribunal that the domestic inquiry held by the employer was illegal.
question of justification of the impugned punishment by fresh 414 materials could arise only if the management had applied to the court for permission to justify the punishment and, in the absence of such a prayer, the Tribunal did not have the power to call upon the employer to do so.
In order to pro ceed further with the Reference for the above purpose, it was essential to have a pleading in this regard, along with an express prayer by the employer, and the Tribunal was not entitled to adopt an advisory role by informing the employer of its rights, namely, the right to adduce additional evi dence to substantiate the charges.
The learned counsel heavily relied on the decision of this Court in Shankar Chakravarti vs Britannia Biscuit Co., ; , which was governed by the Central Act.
As rightly urged on behalf of the appellant, a relevant decision under the Central Act must be held to apply to a case under the U.P. Act since the provisions of the two Acts are in pari mate ria.
However, the case cited is not an authority for the point urged by the learned counsel and he, therefore, cannot take any aid therefrom.
In the aforementioned case the Tribunal came to the conclusion that the inquiry was conducted in violation of the principles of natural justice and was, therefore, viti ated, and the award was pronounced rejecting the application of the management under section 33(2)(b) for approval of the action terminating the service of the employee.
The employer challenged the award in a writ case before the Calcutta High Court on the ground that the Tribunal was under a duty to call upon the management to lead evidence in support of the correctness on merits of the order of punishment, which was not done.
It was not a case of a prayer having been made by the employer which was rejected.
This aspect has been spe cifically mentioned in the judgment and it was further observed that before the learned single Judge who heard the writ case no plea was raised about any denial of opportunity to the respondent Company "to lead evidence in proof of charges after the domestic inquiry was found to be defec tive".
The writ petition was dismissed by the learned single Judge and the employer Company preferred a Letters Patent Appeal which was allowed by a Division Bench observing that after holding that the domestic inquiry was defective, it was incumbent upon the Tribunal to give an opportunity to the employer to lead evidence to prove the charges and as this was not done, the award was vitiated in law.
This Court, in appeal, disagreed with the Division Bench of the High Court and reversed the judgment.
It was held that if an opportunity is sought by the employer to adduce additional evidence to substantiate the charges of misconduct, the Tribunal or the Labour Court, as the case may be, should grant the 415 opportunity.
"But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.
" It was pointed out that there was neither a plead ing in which any claim for adducing additional evidence was made "nor any request was made before the Industrial Tribu nal till the proceedings were adjourned for making the Award and till the Award was made".
The judgment relied upon does not support the proposition formulated before us that in absence of a prayer the Tribunal is debarred from reminding the employer of his right to adduce additional evidence to substantiate the charges.
We do not find any valid ground for accepting the stand of the appellant taken before us.
The entire argument of the learned counsel is rounded on the decision of this Court in Chakravarti 's case which is clear ly distinguishable.
As has been stated earlier, in that case the Court was not called upon to consider the point as urged before us and the judgment repeatedly made it clear that what was under consideration was whether a duty has been cast in law on the Labour Court or the Tribunal to afford an opportunity to the employer in absence of a request and the question was answered in negative leading to the conclusion that: ". if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings. " 8.
Analysing the situation, it appears that by asking the respondent to justify the punishment by adducing addi tional evidence.
the Tribunal merely reminded the employer of his rights and the employer promptly availed of the opportunity.
We do not find any illegality in the course adopted which could vitiate the Award.
The first point is.
therefore rejected.
The second ground urged in support of the appeal appears to be well founded.
The learned counsel is right in relying on the observations in Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha; , at p. 215, that if the order of punishment passed by the manage ment is declared illegal and the punishment is upheld subse quently by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employ er.
The appellant is, therefore entitled to his salary from 16.8.
1976 to 20.7.
1980 and the entire amount should be paid by the respondent Bank within a 416 period of three months from today. ' If the amount is not paid or offered to the appellant as directed, the respondent Bank will be liable to pay interest thereon at the rate of 12% per annum for the future period commencing on the date of expiry of three months from today till the same is rea lised.
The appeal is allowed in part as indicated above.
The parties shall bear their own costs.
P.S.S. Appeal partly allowed.

summary:
The appellant, an employee of the respondent Sahkari Bank was put under suspension and served with a chargesheet during the pendency of the reference under section 4K of the U.P.
It was followed by a domestic inquiry leading to his dismissal.
Thereupon he filed a complaint under section 6 F of the Act before the Industrial Tribunal and the same was treated as a dispute referred to it.
The Tribunal found that principles of natural justice had not been followed in the domestic inquiry.
However, proceeding further it asked the management to justify the order of punishment on merits.
The parties led their evi dence and the Tribunal recorded a finding that charges levelled were established.
The High Court dismissed the writ petition challenging the award.
In the appeal by special leave, it was contended for the appellant that after the conclusion reached by the Tribunal that the domestic inquiry held by the employer was illegal, question of justification of the punishment by fresh materi als could arise only if the management had applied for permission to justify the punishment and, in the absence of such a prayer the Tribunal did not have the power to call upon the employer to do so, and that in any event the appel lant was entitled to his salary from the date of his dis missal to the date of the award.
Allowing the appeal in part, the Court, HELD: 1.
By asking the respondent to justify the punish ment by adducing additional evidence the Tribunal merely reminded the employer of his rights.
There was no illegality in the course adopted which could vitiate the award.
[225F] 412 Shankar Chakravarti vs Britannia Biscuit Co., [1979] 3SCR 1165, distinguished.
If the order of punishment passed by the management is declared illegal and the punishment is upheld subsequent ly by a labour tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer.
[225H] In the instant case, the Tribunal had initially found that the domestic inquiry was vitiated on account of viola tion of principles of natural justice.
The appellant was, therefore, entitled to his salary from the date of his dismissal, to the date of the award.
[225D & H] Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; , applied.


judgement:
ivil Appeal No. 229 of 1976.
From the Judgment and Order dated 6.9.1974 of the Kerala High Court in A.S. No. 76 of 1974.
section Padmanabhan, K. Prasonthi and N. Sudha Karan for the Appellant.
Ms. Shyamla Pappu, G. Vishwanathan lyer, V.B. Saharya and Mrs. Sarla Chandra for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is against the judgment and decree dated 6.9.
1974 passed by the High Court of Kerala in A.S. No. 76 of 1974 whereby the High Court reduced the decree of the trial court to one fourth disal lowing the remaining three fourth on the ground that the same was barred by limitation.
The plaintiff appellant hereinbefore us ventures to have the decree of the trial court restored.
Since defendant respondent No. 2, Santu Mohammed Rawther is to meet the established liability, there is an effort on his behalf, though quite belated, to seek leave to cross object to the partial decree of the suit.
The facts giving rise thereto were indeed diverse and varied which got involved in four suits disposed by the trial court by a common judgment, in the first instance, in April, 1967.
Four appeals, were filed by the aggrieved parties before the High Court out of which three were dis posed of by a common judgment on 11 9 1972.
The fourth appeal arising from O.S. No. 141 of 1965 was allowed grant ing permission to the plaintiff appellant herein to amend the plaint so as to base his money suit on the basis of two promissory notes with the aid of acknowledgments contained in some documents.
The trial court in pursuance of the order of remand granted a decree against the defendants for a sum of Rs.56,769.80, with interest thereon at 6 1/4 per cent from 11 11 1964 till 31 7 1955 and thereafter at 6 per cent per annum till payment, with proportionate costs against the estate of 436 Vellappa Rawther in the hands of defendants 2 to 10; and another personal decree for a certain sum against the first defendant respondent which presently is not in dispute.
The High Court on appeal preferred by defendant respondents No. 2 and 4 10 in Original Suit No. 141 of 1965 (the only one surviving) modified the decree reducing it to the one fourth of the decreed sum and focussed the liability on defendant respondent No. 2 absolving others of the remaining liability on the bar of limitation.
Such view was taken on the facts established that the liability to discharge debts of Vellap pa Rawther deceased incurred by means of two promissory notes dated 23 11 1960 and 5 1 1961 for Rs.25,000 and Rs.50,000 respectively, after the death of Vellappa Rawther on 26 6 1962, was individually on his heirs proportionate to the extent of their share in the estate devolving on them and since the debt had become time barred, acknowledgment of the same by defendant respondent No. 2 as well as partial payment of the debt by him rendered him alone liable to meet liability to the extent of one fourth related to the share of the estate which as a Muslim heir he received from the deceased.
In this appeal it is claimed on behalf of the plaintiff appellant that the acknowledgment and partial payment afore referred to saved limitation against all and thus the entire debt could be recovered from defendant respondent No. 2, he being in possession of the estate lying joint, and thus the High Court was in error in upsetting the decree of the trial court.
It has been urged on behalf of the appellant that the integrity of the two debts of Rs.25,000 and Rs.50,000 creat ed by two promissory notes Exhibits B 14 and B 15 could not be broken on the footing that the liability to discharge those debts stood devolved on the heirs of the deceased debtor, proportionate to their shares known to Mahomedan Law.
It has also been urged on behalf of the appellant that the acknowledgment of liability made by defendant respondent No. 2 would under section 18 of the Limitation Act save limitation not only against him but as against other heirs as well, since he is supposed to have acted as a representa tive, agent or partner on their behalf.
Further, it has been urged on behalf of the appellant that part payment made by defendant respondent No. 2 would save limitation under section 19 of the Limitation Act against the other co heirs of the deceased Mahomedan debtor.
The view taken by a learned Single Judge of the Andhra Pradesh High Court in Mohd. Abdul Qadeer vs Azarnatullah Khan and 8 Others, [1974] 1 Andhra Weekly Reporter 98 has been pressed into service to contend that though under the Mahomedan Law each heir is liable for the debts of the deceased to the extent only of a share of the debts, proportionate to his share of the es tate, but so far as the cre 437 ditor is concerned, the identity and integrity of the debt remains unimpaired by the death of the original promisor, and no several debts emerge in place of one debt.
However, in all fairness it was in the next breath pointed out to us that another Single Judge of the same High Court in Vasantarn Sambasiva Rao vs Sri Krishna Cement and Concrete Works, Tenali, [1977] Andhra Law Times Reports at 528 doubted the view in Mohd. Abdul Qadeer 's case (supra) on the basis of a division bench case of that Court taking the view that section 19 of the Limitation Act emphasised not the identity or integrity of the debt, but the due authori sation by one of the debtors or the other to make part payment towards debt due from them, and further that the concept of identity and integrity of the debt due from several heirs was foreign to sections 19 and 20.
Before we proceed any further it would be apposite to clearly recapitulate and re state the principles of Mahome dan Law on the subject.
A five judge bench of this Court in N.K. Mohammad Sulaiman vs N.C. Mohammad Ismail and Others, at page 940 culled out certain well settled and well accepted principles.
Some of these are as under: "The estate of a muslim dying intestate devolves under the Islamic Law upon his heirs at the moment of his death i.e., the estates vests immediately in each heir in proportion to the share ordained by the personal law and the interest of each heir is separate and distinct.
Each heir is under the personal law liable to satisfy the debts of the deceased only to the extent of the share of the debt proportionate to his share in the estate.
" It is plain from the afore quotation that the debt of the deceased gets divided in shares by operation of Muslim Personnal Law amongst the heirs proportionate to their shares in the estate.
The theory of sanctity of the integri ty of the debt is apparently foreign in the case of a de ceased muslim leaving debt and some estate both being divis ible amongst his heirs.
A.A.A. Fyzee in his Outlines of Muhammadan Law (4th Edition) at page 385 quotes Mulla to say: "Proceeding logically, the first principle to be borne in 438 mind is that each heir is liable for the debts of the de ceased in proportion to the share he receives of the inheri tance.
For instance, a Muslim dies leaving three heirs, who divide the estate amongst themselves in accordance with their rights.
A creditor of the deceased sues two of the heirs and not the third; the two heirs sued will each be liable to pay a part of the debt proportionate to his own share of the inheritance, and they will not be made to pay the whole of the debt, either jointly or severally (h).
" In Principles of Mahomedan Law by Mulla, 17th Edition, sections 43 and 46 provide: "43.
Extent of liability of heirs for debts Each heir is liable for the debts of the deceased to the extent only of a share of the debts proportionate to his share of the estate (d).
Suit by creditor against heirs If there be no executor or administrator, the creditor may proceed against the heirs of the deceased, and where the estate of the deceased has not been distributed between the heirs, he is entitled to execute the decree against the property as a whole without regard to the extent of the liability of the heirs inter se (h).
" The question whether the ownership of a Muhammadan intestate devolves immediately on his heirs, and such devo lution is not contingent upon, and suspended till, payment of such debts was answered authoritatively almost a century ago by a Full Bench of the Allahabad High Court in Jafri Begam vs Amir Muhammad Khan, [1885] Vol.
7 ILR Allahabad Series in the negative.
Rather it was authoritatively set tled (see page 843 of the Report) that Muhammadan heirs are independent owners of their specific shares, and if they take their shares subject to the charge of the debts of the deceased, their liability is in proportion to the extent of their shares.
These observations in Jafri Begam 's case (supra) are prime roots of the theory as to the divisibility of the debt in the hands of heirs of a Muslim intestate.
So it would be right to treat it settled that muslim heirs are independent owners of their specific shares simultaneously in the estate and debts of the deceased, their liability fixed under the Personal Law proportionate to the extent of their shares.
In this state 439 of law it would be unnecessary to refer to other decisions of various High Courts touching the subject.
So we proceed on the footing that as many heirs, as are defending this cause, there are debts in that number.
Now it is time to advert to Exhibits B7 and B51.
Exhibit B7 is a letter by defendant respondent No. 2 to the plain tiff appellant stating that he will pay off all the amounts due to the plaintiff and to everyone else within two months.
The trial court construed this to be an acknowledgment of the debt.
The High Court agreed with that finding that the document contained an acknowledgment in writing.
Practically nothing was said against this finding before the High Court.
Then we have Exhibit B51 which is styled as a consent deed, executed by defendant respondent No. 2 authorising the first defendant respondent to dispose of two motor cars for a sum of Rs. 13,000 and discharge the liabilities of his deceased father arising out of the two promissory notes Exhibit B 14 and B 15 aforesaid.
The trial court found that Exhibit B51 created an agency in favour of defendant respondent No.1 within the meaning of section 19 of the Limitation Act.
The High Court agreed with the view of the trial court and came to the conclusion that the deed Exhibit B51 contained an acknowledgment and the two endorsements made on the respec tive promissory notes Exhibit B 14 and B 15 coupled by a payments of sums towards the debt by the duly authorised agent of defendant respondent No. 2 could well be regarded as payments attracting extension of limitation under section 19 of the Limitation Act.
Having recorded that finding the High Court directed itself to the question whether payments thus made would extend limitation as against the other heirs also and held in the negative.
The conclusion is that ac knowledgment Exhibit B7 and endorsements on Exhibits B 14 and B 15 on the authority of Exhibit B51 were held to have extended the period of limitation only against defendant re spondent No. 2.
Though we have been addressed to take a contrary view on reinterpretation of these documents but, having heard learned counsel in that behalf we are inclined to agree with the High Court and leave the matter undis turbed denying ourselves treading in the field of facts.
Sub section (1) of section 18 of the Limitation Act (corresponding section 19 of the repealed Act IX of 1908) provides as follows: "Where, before the expiration of the prescribed period of a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or 440 right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
" Sub section (2) of section 20 (corresponding to section 21 of the repealed Act IX of 1908) says that nothing in the said sections (being sections 18 and 19) renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed by, or of a payment made by, or by the agent of, any other or others of them.
The heirs of a muslim dying intestate on whom falls the liability to discharge the debt, proportionate to their respective shares in the estate devolved, can hardly be classified as joint contractors, partners, executors or mortgagees.
As held above they are by themselves independent debtors; the debt having been split by operation of law.
Inter se they have no jural relationship as co debtors or joint debtors so as to fail within the shadow of contrac tors, partners, executors or mortgagees or in a class akin to them.
They succeed to the estate as tenants in common in specific shares.
Even a signed written acknowledgment by the principal or through his agent would bind the principal and not anyone else standing in jural relationship with the principal in accordance with section 20(2).
The Muslim heirs inter se have no such relationship.
In this view of the matter, we take the view that the High Court was right in confining the acknowledgment of the debts only to respondent No. 2 and not extending the acknowledgment to the other co heirs for their independent position.
Section 19 of the Limitation Act, (corresponding to section 20 of the repealed Act IX of 1908).
so far as is relevant for our purpose, provides that where payment on account of debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made.
In the context, if the debt is one and indivisible, payment by one will interrupt limitation against all the debtors unless they come within the exception laid down in section 20(2) which has been taken note of earlier.
And if the debt is susceptible of division and though seemingly one consists really of several distinct debts each one of which is pay 441 able by one of the obligors separately and not by the rest, section 20 keeps alive his part of the debt which has got to be discharged by the person who has made payment of inter est.
It cannot affect separate shares of the other debtors unless on the principal of agency, express or implied, the payment can be said to be a payment on their behalf also.
See in this connection Abheswari Dasva and Another vs Babu rali Shaikh and Others, AIR 1937 Cal. 191.
The payment made on account of debt by defendant respondent No. 2 as an independent debtor, and not as an agent, express or implied, on behalf of other co heirs could hardly, in the facts established, here be said to be a payment on behalf of all so as to extend period of limitation as against all.
We are thus of the considered view that the High Court was right in confining the extension of limitation on payment of a part of debt only against defendant respondent No. 2, proportion ate to his share of the estate devolved on him which was one fourth.
We are further of the view that the High Court was right in holding the suit against other co heirs to be barred by limitation relating to their shares of the debt.
Lastly it was urged by learned counsel for the appellant that even though the debts of the deceased be taken to be divisible and devolving separately on the heirs in propor tion to their shares, the plaintiff still could proceed to recover the entire debt from defendant respondent No. 2 since he was still continuing in possession of the estate and had not parted with it by means of partition to the other co heirs.
This argument cannot sustain for a moment in view of the clear statement of law made by the Allahabad High Court in Jafri Begam 's case (supra) at pages 841 42.
Such a question has been driven therein to the realm of procedural law and held to be not part of substantive law constituting any rule of inheritance.
The property of the co heirs supposedly in possession of defendant respondent No. 2 cannot be touched directly in his hand unless the co heirs being parties to the suit are held liable to pay their share of the debt; the debt being recoverable.
But here it involves a factual aspect on which there is not enough material on the record or the matter having been examined by the court below.
We decline to take up this issue at this stage.
For the reasons aforesaid we find no merit in this appeal and dismiss it.
We equally find no merit in the belated cross objection of defendant respondent No. 2, leave of which was sought during the course of the hearing of the appeal.
We decline to entertain the request.
There shall be no order as to costs.
R.S.S. Appeal dismissed.

summary:
One Vellappa Rawther, deceased, had incurred debt by means of two promissory notes for Rs.25,000 and Rs.50,000.
In the suits filed on the basis of the promissory notes, the Trial Court granted a decree against the estate of Vellappa Rawther in the hands of defendants 2 to 10.
The High Court on appeal modified the decree reducing it to one fourth of the decreed sum and focussed the liability on defendant Respondent No. 2 absolving others of the re maining liability on the bar of limitation.
Such view was taken as the facts established that the liability to dis charge debts of Vellappa Rawther after his death was indi vidually on his heirs proportionate to the extent of their share in the estate devolving on them, and since the debt had become time barred, acknowledgment of the same by de fendant respondent No. 2 as well as partial payment of the debt by him rendered him alone liable to meet liability to the extent of one fourth related to the share of the estate which as a Muslim heir he received from the deceased.
Before this Court, it was claimed on behalf of the appellant that under sections 18 and 19 of the Limitation Act the acknowledgment and partial payment saved limitation against all and thus the entire debt could be recovered from defendant respondent No. 2, he being in possession of the estate lying joint.
Dismissing the appeal, this Court, HELD: (1) The debt of the deceased gets divided in shares by operation of Muslim Personal Law amongst the heirs proportionate to their shares in the estate.
The theory of sanctity of the integrity of the 434 debt is apparently foreign in the case of a deceased muslim leaving debt and some estate both being divisible amongst his heirs.
[247G] Mohd.
Abdul Qadeer vs Azamatullah Khan and 8 Others, [1974] 1 Andhra Weekly Reporter 98; Vasantam Sambasiva Rao vs Sri Krishna Cement and Concrete Works, Tenali 1977 Andhra Law Times Reports at 528; N.K. Mohammad Sulaiman vs
N.C. Mohammad Ismail and Others, at 940, re ferred to.
(2) It would be right to treat it settled that muslim heirs are independent owners of their specific shares simul taneously in the estate and debts of the deceased, their liability fixed under the personal law proportionate to the extent of their shares.
[248H] Jafri Begum vs Amir Muhammad Khan, [1885] Vol.
7 ILR Allahabad series, referred to.
(3) The heirs of a muslim are by themselves independent debtors; the debt having been split by operation of law.
Inter se, they have no jural relationship as co debtors or joint debtors so as to fall within the shadow of contrac tors, partners, executors or mortgagees or in a class akin to them.
They succeed to the estate as tenants in common in specific shares.
[250D] (4) Even a signed written acknowledgment by the princi pal or through his agent would bind the principal and not anyone else standing in jural relationship with the princi pal in accordance with section 20(2) of the Limitation Act.
The Muslim heirs inter se have no such relationship.
[250E] (5) If the debt is one and indivisible, payment by one will interrupt limitation against all the debtors unless they come within the exception laid down in section 20(2).
And if the debt is susceptible of division and though seem ingly one consists really of several distinct debts each one of which is payable by one of the obligors separately and not by the rest, section 20 keeps alive his part of the debt which has got to be discharged by the person who has made payment of interest.
It cannot affect separate shares of the other debtors unless on the principal of agency, express or implied, the payment can be said to be a payment on their behalf also.
[250H; 251A] Abheswari Dasya and Another vs Baburali Shaikh and Others, AIR 1937 Cal. 191, referred to.
435 (6) The property of the co heirs supposedly in posses sion of defendant respondent No. 2 cannot be touched direct ly in his hand unless the co heirs being parties to the suit are held liable to pay their share of the debt; the debt being recoverable.
[251F]