judgement:
ivil Appeal Nos.
1430 36(NM) of 1987.
From the Judgment and Order dated 23.4.1987 of the Custom Excise and Gold (Control) Appellate Tribunal, South Regional Tri 159 bunal, Madras in Appeal Nos. 174, to 176 and 240 to 243 of 1986 MAS in Order No. 247 of 1987.
Anil B. Divan, H.K. Dutt, section Ramasubramanium, Krishna Srinivasan and Ms. Midula Ray for the Appellant.
A.K. Ganguli, A. Subba Rao and P. Parmeshwaran for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
These appeals arise from a judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (South Regional Bench) at Madras.
The facts necessary for the disposal of these appeals are as follows.
The appellant is a manufacturer of motor vehicle parts falling under Item 34 A of the Central Excise Tariff and components for I.C. Engines falling under Item 68 of the said Tariff.
The period with which we are concerned in these appeals is the period from October 1, 1975 to July 21, 1984.
The marketing pattern of the appellant was that they sold goods in the wholesale to O.E. manufacturers, Transport Undertakings and Government Bodies.
The requirements of the replacement market were met by the appellant by sale in the wholesale to other persons who were designated by the appel lant as distributors/primary wholesale buyers on the basis of agreements with such distributors.
The amendment to section 4 of the (herein after referred to as "the Central Excises.
Act") came into force from October 1, 1975 and, as from that date, the Department took the view that sales by the appellant to its distributors would be considered as sales to related per sons.
The Department, therefore, directed the appellant to file price lists in in the form prescribed for sales to related persons.
The appellant filed the price lists in , and The price lists filed in related to sales to industrial buyers, Government Bodies and so on who were admittedly not related persons regarding the appellant.
These price lists were duly approved '.
It was regarding the price lists filed under that the Assistant Collector on the basis of the aforesaid view directed the appellant to file revised price lists showing a discount of 12 1/2% from the price at which the goods sup plied by the appellant were sold by their distributors to independent buyers.
The appellant complied with this direc tion under protest taking up the contention that the dis tributors were also a class of independent buyers.
This claim was rejected by the Assistant Collector, who took the view that the distributors 160 were related persons and hence the prices charged by these distributors to their purchasers should be taken as the assessable value.
This was contested by the appellant before the Collector (Appeals) who by his order dated July 27, 1984 took the view that the distributors were not related per sons, on the basis of the decision of this Court in the case of Union of India & Ors.
vs Bombay Tyres International Ltd., The appellant applied for a refund on the ground that the excise duty had been collected from the appellant on the footing that the distributors were related persons and that, in view of the finding that the distribu tors were not related persons, the excess amount should be refunded to it.
This contention was rejected by the Assist ant Collector and on the ground that except in respect of sales to wholesale distributors/primary wholesellers and O.E. manufacturers, the excise duty had been paid by the appellant voluntarily.
Against this decision, the appellant preferred an appeal to the Tribunal.
The Tribunal, however, confirmed the view of the Assistant Collector on the ground that the other modes of sale like depot transfers, retail sales, direct dealer sales, sales to transport undertakings and sales to Government bodies like transport undertakings had not figured as issues for determination before the excise authorities and the protest made by the appellant was only in respect of the assessable value regarding the said two categories of sales to wholesale distributors/ primary wholesellers and to O.E. manufacturers.
On the basis of these conclusions, the Tribunal dismissed the appeal of the appellant: The present appeals are directed against this decision of the Tribunal.
It was submitted by Mr. Divan, learned counsel for the appellant, that the decision of the Tribunal was erroneous and liable to be set aside as, for purposes of levy of excise duty on the sales in question only one price can be treated as the normal price and, as the distributors were held not to be related persons, it was the wholesale price at which the goods were sold by the appellant to the dis tributors which must be held to be the normal price.
It was pointed out by him that all the circumstances show that the payment of excise duty was made under protest and that the returns were originally filed only on the basis of the single normal price, namely, the price at which the goods were sold by the appellant to its distributors.
Learned counsel drew our attention to the provisions of section 4 of the Central Excises Act.
The relevant part of section 4 runs as follows: "4.
Valuation of excisable goods for purposes of charging of duty of excise (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference 161 to value, such value shall, subject to the other provisions of this section, be deemed to be "(a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the asses see to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale.
" We are not concerned with the proviso to this section for the purposes of this appeal.
Learned counsel submitted that the language of section 4(1) suggests that there can be only one normal price for sales to independent distributors.
Learned counsel for the appellant also drew our atten tion to the decision of this Court in Indian Oxygen Ltd. vs Collector of Central Excise, It has been observed by this Court in that judgment as follows (para 6 of the said report): "It is necessary to reiterate that value for assessable goods must be determined in term of section 4 of the Act.
The said section 4(1) provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section be deemed to be the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale.
" It may be noted that in the present case there was no contention that there was any consideration for the sale other than the price.
In India Cements Ltd. vs Collector of Central Excise, ; a Division Bench of this Court has taken the view that no particular form is prescribed for making up of protest.
In that case, the Court took the view that an ordinary reading of the letter sent by the appellant showed that the appellant was not accepting the liability without protest and in view of this, the letter must be held to be in the nature of a protest.
The Division Bench further held that in view of this, the question of limitation does not arise for refund of the duty (para 10 of the said report).
162 It was submitted by learned counsel for the appellant that in the present case the letter of protest sent by the appellant, on a commonsense reading thereof, covered the entire payment of excise duty in those cases where the normal price was fixed on the footing that the distributors of the appellant were related persons and submitted that in view of this no question of limitation would arise in con sidering the application of the appellant for refund.
The learned counsel drew our attention to the decision of the Special Bench of the Tribunal in Collector of Central Ex cise, Madras vs Ashok Leyland Ltd., Madras, [1987] 29 E.L.T. 530 where on similar facts a Special Bench of the Tribunal had taken the view that even removals for captive use and retail sales had to be assessed at the normal price avail able at the time and place of removal from their main deal ers.
The contention of the Department in that case that the removals were not the subject matter of the original adjudi cation by the Assistant Collector and hence the assessments had become final, was rejected.
In our opinion, the submission on behalf of the appel lant is well founded.
In view of the fact that the distribu tors of the appellant were finally held not to be related persons regarding the appellant in cases where excise duty has been levied on the footing that the distributors of the appellant were related persons and hence, the price at which the goods were sold to them could not be regarded as the normal price and the excise duty collected in respect of the difference between the price at which the goods were sold by the appellant to its distributors and the price at which the said goods were sold by the distributors to independent buyers, calculated as aforestated, must be held to be excess levy.
The protests filed by the appellant clearly took up the contention that its distributors could not be regarded as related persons and hence the protests lodged by the appellant must be held to cover all cases where the price at which the appellant sold its goods to its distributors was not regarded as the normal price on the ground that the distributors were related persons.
It was submitted by Mr. Ganguly, learned counsel for the respondent, that the protest made by the appellant must be read as limited to the cases of sales by the appellant to its wholesale distributors/primary wholesellers and to O.E. manufacturers and that the other categories of sales like stock transfers, clearances to retail sellers and other wholesale sales to purchasers other than distributors must be held not to be covered by the protests.
He placed strong reliance on the observation of this Court in Assistant Collector of Central Excise & Ors.
vs Madras Rubber Factory Ltd. & Ors., 163 (S.C.) where it has been held (page 20 of the report) that the different prices can be normal prices for the purposes of the determination of the assessable value of an article.
In that case, however, it must be appreciated that the separate price lists in respect of supplies made to the Government and other departments were filed by the assessee, the Madras Rubber Factory, distinct and different from the price lists in relation to dealers and it was held that since different price lists for different classes of buyers are specifically recognised under proviso (i) of section 4(1) of the Central Excises Act, therefore, merely because the product is sold at a lower price to the Government and its department that does not enable the MRF to contend that the difference in price with reference to an ordinary dealer and the Government is a discount to the Government.
The difference in price is not a discount but constitutes a normal price for the Government as a class of buyers and no deduction on this Head is admissible.
It was, in these facts and circumstances, that the aforesaid conclusion was arrived at and it has no application to the case before us because it has not been shown to us that a distinct or different price list was filed regarding any particular category of buyers in respect of the sales in question.
Mr. Ganguly next drew our attention to Rule 233B of the Central Excises Rules, 1944 which lays down the procedure to be followed when duty is paid under protest.
The provisions of this rule, however, are of no relevance here because it has not been pointed out to us as to how the appellant has failed to observe this rule in any particular regard so that the provisions of clause 8 of the rule can come into effect.
This rule does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant assessee in this case must be deemed to have paid the duty without protest.
In the result, the appeal is allowed.
The order of the Tribunal is set aside and it is held that the assessee is entitled to refund where excise duty has been assessed and collected from the assessee at a higher rate on the footing that the wholesale distributors of the assessee were persons related to it, that is, in respect of the other categories of sales, namely, retail sales, sales to dealers, sales to State Transport Undertakings and export clearances.
Looking, however, to the facts and circumstances of the case, there will be no order as to costs of the appeals.
The orders for costs already made shall, however, stand.
N.V.K. Appeal al lowed.

summary:
The appellant was a manufacturer of motor vehicle parts failing under Item 34 A, and components for I.C. Engines failing under Item 68, of the Central Excise Tariff.
The marketing pattern of the appellant was that they sold goods in the wholesale to O.E. manufacturers, Transport Undertakings and Government Bodies, and the requirements of the replacement market were met by sale in the wholesale to other persons who were met by sale in the wholesale to other persons who were designated by them as distributors/ primary wholesale buyers on the basis of agreements with such dis tributors.
The Department took the view that sales by the appellant to its distributors would be considered as sales to 'related persons ' on account of the amendment to sec.
4 of the Cen tral Excises and Salt Act, 1944, which came into force from October 1 1975, and directed the filing of revised price lists showing a discount of 12 1/2% from the price at which the goods supplied by the appellant were sold by its dis tributors to independent buyers.
The appellant complied with this direction under protest taking up the contention that the distributors were also a class of independent buyers, which was however rejected by the Assistant Collector.
On appeal the Collector (Appeals) took the view that distributors were not related persons relying on this Court 's decision in Union of India vs Bombay Tyres Interna tional Ltd., [19831 The appellant then claimed refund of the excess amount of excise duty paid.
This was rejected by the Assistant Collector on the ground that except in respect of sales to wholesale distributors/primary wholesellers and O.E. manu facturers, the excise duty had been paid by the appellant voluntarily.
The Customs, Excise and Gold (Control) Appellate Tribu nal dismissed the Appellant 's appeal.
158 In the appeal to this Court it was contended on behalf of the appellant that the language of section 4(1) of the Central Excises Act, indicates that there could be only one normal price for sales to independent distributors, and that as the letter of protest sent by the appellant covered the entire payment of excise duty in those cases where the normal price was fixed on the footing that the distributors of the appellant were related persons, no question of limi tation would arise in considering the application of the appellant for refund.
On behalf of the respondent, it was contended that the protest made by the appellant must be read as limited to the cases of sales by the appellant to the wholesale distribu tors/primary wholesellers and to O.E. manufacturers and that the other categories of sales must be held not to be covered by the protest.
Allowing the appeal, this Court, HELD: (1) In view of the fact that the distributor of the appellant were finally held not to be related persons, the excise duty collected in respect of the difference between the price at which the goods were sold by the appel lant to the distributors and the price to which the said goods were sold by the distributors to independent buyers calculated as aforesaid, must be held to be excess duty.
[162D E] Indian Oxygen Ltd. vs Collector of Central Excise, , Collector of Central Excise, Madras vs Ashok Leyland Ltd., Madras, referred to.
(2) The protests flied by the appellant clearly took up the contention that its distributors could not be regarded as related persons and hence the protests lodged by the appellant must be held to cover all cases where the price at which the appellant sold its goods to its distributors was not regarded as the normal price on the ground that the distributors were related persons.
[162E F] Indian Cements Ltd. vs Collector of Central Excise, ; referred to.
(3) Rule 233B of the Excise Rules does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant assessee in this case must he deemed to have paid the duty without protest.
[ 163E F]


judgement:
ivil Appeal Nos.
992997 of 1990.
From the Judgment and Order dated 30.8.
1988 of the Allahabad High Court in W.P. Nos.
12572 of 1984.
6512/85, 12574/84, 17966/180.
12152,84 and 12159 of 1984.
K.K. Venugopal, S.N. Misra, Rajinder Sachhar, Soli J. Sorabjee, V.M. Tarkunde, S.S. Ray, O.P. Rana, Govind Muk hoti, P.C. Kapur, B.P. Sahu, P.N. Misra, Krishna Pd., B.P. Singh, A.K. Goel.
J.M. Khanna, Ms. Shafali Khanna, section Mar kandeya, Ashok Sharma, G.S. Gift Rao, Mrs. C. Markandeya, W.A. Nomani, G. Seshagiri, S.K. Mehta, Aman Vachher, Atul Nanda, N.D. Tyagi, Raju Ramachandran, D. Pillai, Raja Ram Agarwal, Sanjay Parekh, S.N. Mira and A.K. Goel for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
We have heard counsel for the par ties at considerable length but piece meal spread over a number of days.
Special Leave granted 205 Five cooperative societies with membership of Government servants mostly of ' the lower strata filed six separate writ petitions before the Allahabad High Court challenging the Notification under section 4(1) and section 17(1) of the Land Acquisition Act (1 of 1894) on several grounds.
The principal contentions before the High Court were two fold: (1) the cooperative societies consisting Of the low paid Government servants having acquired the land for the purpose of providing residential accommodation to their members, the Ghaziabad Development Authority constituted by the State of Uttar Pradesh for the same purpose should not have been permitted to acquire the said land to their prejudice; and (2) there was no justification for depriving the petitioners of their right to representation under section 5A of the Acquisition Act in the facts and circumstances of the case.
The High Court by a common judgment dated 30th August, 1988, dismissed the writ petitions by negativing the several contentions raised on behalf of the petitioners.
It may be pointed out that on behalf of the Neelam Sahakari Awas Samiti Ltd. two writ petitions were filed while each of the other four societies had filed one writ petition.
That is how six Special Leave Petitions were filed before this Court and have now been converted into appeals on grant of leave.
Ghaziabad, within the State of Uttar Pradesh, virtually bordering Delhi is located at a distance of 28 kilometers from the New Delhi Railway Station in the trans Jamuna area.
It has of late become, apart from being a Railway junction,.
an industrial area as also an agglomeration sufficiently developed to call it a township.
A Master Plan has been drawn up for the area and some portions have been developed while the lands of the five cooperative societies have not yet been improved on account of the pendency of this group of cases.
In course of the hearing of these appeals we were satis fied about the genuineness of the grievance advanced on behalf of the members through their respective cooperative societies and took the view that the members of the coopera tive societies should not be denied residential accommoda tion for which they had taken effective steps before the acquisition for the Development authority was notified.
We took into consideration the total number of members as also the number of eligible members; the total area which the members had acquired and entrusted to the cooperative socie ties for construction; the capacity of the members to pay for the construction now charged by the Development authori ty; the need of planned development of the area.
; and all other relevant facts and circumstances placed by all the parties before 206 us and formed the opinion that it would be sufficient to meet the requirement of members of these societies if each one of them was provided with a plot limited to an area of 80 square yards.
Total members entitled to allotment are 1739.
Whether it should be individual plots or double storeyed construction should be permitted was seriously debated before us but we have come to the ultimate conclusion that instead of single storey construction double storey constructions would be convenient and economical.
The interest of the members represented by their respective cooperative societies and the nature of the housing complex contemplated by the Devel opment authority have to be kept in view and the ultimate decision, keeping the interest of both, has to be taken.
Counsel for the Development authority had canvassed before us that instead of confining construction of flats to two storeys, the normal pattern of five or six storeys could be adopted.
High rise construction for the poor section of the society would not be convenient in old age many would have movement problem; many of the necessities for living would be difficult to secure.
We have, therefore, decided that the construction must be confined to two storeys only and the members of their respective societies shall make their own adjustment of the ground floor and 1st floor allotments.
About 20 acres of land would be necessary if the double storey construction with an area of 80 square yards is adopted.
Society wise particulars are provided below: section No. Name of cooperative Total members Area society entitled to in acres allotment 1.
Sarkari Karamchari Evam 230 2.54 Mitregan Sahakari Awas Samiti Ltd. 2.
Kendriya Karamchari Evam 523 5.77 Mitregan Sahakari Awas Samiti Ltd. 3.
Ghaziabad Shiromani 298 3.29 Sahakari Awas Samiti Ltd. 4.
Neelain Sahakari Awas 245 2.70 Samiti Ltd. 207 5.
Asha Pushpa Vihar Sahakari 443 4.87 Awas Samiti Ltd. 1739 19.17 Members entitled 1739 Total area 19.17 acres (rounded to 20 acres) This area of 20 acres is inclusive of land for laying of the roads and other requirements contemplated under the development scheme.
For convenience and adjustment we are of the view that two more acres of land be made available to the five cooperative societies to be shared by amicable adjustment by them.
Thus from the acquisition Notification 22 acres of land shall stand deleted and shall be released in accordance with the extent indicated for each of the five cooperative societies.
The identification of the land to be so released shall be made within four weeks from the date of pronouncement of the order by mutual arrangement.
We direct that when the land shall be so identified, the order of release from acquisition by appropriate description of the land shall be made; sketch maps showing the identified land shall also be signed by parties to avoid future litigation and made over to each of the societies.
We commend that all the five cooperative societies may form themselves into a federation for the purpose of ensur ing appropriate development of the area and sharing either in common or by division the 2.83 acres of extra land which is directed to be released from acquisition.
It has been agreed that development charges for sewer age, electricity, road connections and the like shall be provided by the Development authority @ Rs. 100 per square yards and internal development shall be done by the socie ties themselves.
In raising the construction, the bye laws and regulations of the Development authority shall be strictly followed.
We hope and trust that the Development authority shall extend its cooperation in every manner to the societies to effectuate the directions made by us.
We look forward to the fulfillment of the dreams of each of the members of the society in the matter of having a residential accommodation.
208 As soon as the lands are identified and sketch maps are delivered as directed above the interim orders made by this Court shall stand dissolved.
The appeals are disposed of without any order for costs.
P.S.S. Appeals allowed.

dataset_name: IN-Abs

summary:
The appellant cooperative societies consisting of 1739 low paid Government servants had acquired certain land in Ghaziabad for the purpose of providing residential accommo dation to their members.
Subsequently, the said land was notified for acquisition under sections 4(1) and 7(1) of the Land Acquisition Act for the Ghaziabad Development Authori ty.
Representations made by the appellants under section 5A of the Act were rejected.
In the writ petitions, filed under Article 226 of the Constitution, it was contended for the appellant societies that the Development Authority constituted by the State for the same purpose should not have been permitted to acquire the said land to their prejudice, and that there was no justification for depriving them of their right to represen tation under section 5A of the Act.
The High Court dismissed the writ petitions.
Allowing the appeals by special leave, the Court, HELD: 1.
The members of the appellant societies should not be denied residential accommodation for which they had taken effective steps before the acquisition for the Ghazia bad Development Authority was notified.
[205G] 2.1 Keeping in view the number of eligible members, the total area which they had acquired and entrusted to the societies for construction, the capacity of the members to pay for the construction now charged by the Development Authority, the need for planned development of the area and all other relevant facts, it would be sufficient if each one of them was provided with an area of 80 sq. yards.
[205G H; 206A] 204 2.2 High rise construction for the poor sections of the society would not be convenient.
If the double storey con struction with an area of 80 sq.
yards is adopted about 20 acres of land, inclusive of land for laying of the roads and other requirements contemplated under the development scheme, would be necessary.
For convenience and adjustment two more acres of land shall be made available to the socie ties to be shared by amicable adjustment by them.
Thus, from the acquisition notification 22 acres of land shall stand deleted and shall be released inaccordance with the extent indicated for each of the societies.
The identification of the land to be so released shall be made within four weeks from the date of pronouncement of the order by mutual ar rangements.
The order of release bearing appropriate de scription to follow and sketch maps to be signed by the parties.
[206D; 207C E] 3.
The development charges for sewerage, electricity, road connections and the like shall be provided to the Development Authority at the rate of Rs.100 per sq. yard and internal development shall be done by the societies them selves.
In raising the construction, the bye laws and regu lations of the Development Authority shall be strictly followed, (207G)


judgement:
Appeals Nos. 5 and 6 of 1955.
Appeals from the judgment and decree dated September 15, 1952, of the Madras High Court in Second Appeals Nos.
2256 of 1947and 2545 of 1948, 2 arising.
out of the judgment and decree dated September 19, 1946, of the Court of Subordinate Judge of Kozhikode in Appeal Suit Nos. 336 and 180 of 1946, against the judgment and decree dated October 9, 1945, and June 29, 1946, respectively of the Court of Districts Munsif, Chowghat, in O. section Nos. 131 and 158 of 1945.
B. K. B. Naidu, for the appellants.
V. Karunakara Menon and M. R. Krishna Pillai, for the respondents.
October 1.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
The point for determination in these two appeals is whether one Kesavan Kaimal who was one of three executants of a will dated February 10, 1906, became entitled under that will to the properties, which are the subject matter of these appeals.
The will is a short one, and is as follows: " Will executed on 28th Makaram 1081 M. E., corresponding to 10th February, 1906, jointly by Kunhan Kaimal, son of Karayamvattath Katbayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of Theyi Amma and Theyi Amma, daughter of Nani Amma of Etathiruthi amsom and Etamuttan desom in Ponnani Taluk.
We have hereby settled and agreed that all the movable and immovable properties acquired jointly and separately by us till now, and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control and dealt with by us as we please till our death and that subsequent to our death, Kalliani Amma 's children, Kali and Kunhu Kutty, Thona Amma 's children, Parukutty, Kunhunni, Kochu Govindan and Ramar, and the children of the deceased Narayani Amma, namely, Kunhunniri, Kuttiparu and Lakshmikutty and their children and the children who may be born to them as also the children who may be born of them, shall as our heirs and legal representatives, hold the said properties in their 3 possession and enjoy them hereditarily in equal shares amongst themselves.
Except after our death, the aforesaid persons shall not lay claim to any of the properties belonging to us.
It is settled that in the event of our effecting any transfers or alienations of the said properties.
either jointly or severally till our death, the aforesaid ' persons shall have the right and freedom only in respect of the remaining items of properties to the exclusion of those items of properties included in the above transactions.
It is hereby further settled and agreed that subsequent to our death, save our legal representatives aforesaid and such of those as may be born hereafter, no other persons shall have the right to claim to or right of entry upon the entire properties moveable and immoveable found belonging to us.
And we have signed herein in the presence of the undersigned witnesses (signed) Kunhan Kaimal.
( " " ) Kesavan Kaimal.
(" " ) Theyi Amma.
" of the three testators, Theyi Amma died first the exact date of her death does not appear and is not very material and Kunhan Kaimal died thereafter sometime in 1930.
It is the case of Kesavan Kaimal that in the events which had happened, he had become entitled by survivorship to all the properties disposed of by the will, including those of Kunhan Kaimal, and on this footing he conveyed on October 14,1938, seven items of properties, of which three belonged to Kunhan Kaimal, to one Sankarankutti Kaimal and on October 16, 1944, another three items of properties which belonged to Kunhan Kaimal, to Kalyani and Vijayan.
These transfers led to the two litigations; which have culminated in the present appeals.
The legatees under the will dated February 10, 1906, instituted O. section No. 131 of 1945 in the Court of the District Munsif, Chowghat, then in the Province of Madras, for recovery of possession of three items of properties which had belonged to Kunhan Kaimal 4 after redeeming a mortgage for Rs. 100 created over those properties on February 3, 1901.
The plaintiffs claimed that on the death of Kunhan Kaimal in 1930 they had become entitled to those properties as legatees under the will.
Defendants 1 to 3 represented the mortgagees.
Defendant 6 was Kesavan Kaimal, and defendants 4 and 5 were brought on record as persons claiming to be entitled to the suit properties under a deed of transfer by defendant 6, dated October 16, 1944.
Defendants 4 to 6 contested the suit, and pleaded that on a proper construction of the will, the properties of Kunhan Kaimal survived to Kesavan Kaimal on the death of the former in 1930, and that the plaintiffs got no title to them.
This contention was overruled by the District Munsif, and the suit was decreed.
There were two appeals against this decree, A. section No. 179 of 1946 and A. section No. 180 of 1946 in the Court of the Subordinate Judge, Calicut, the former by defendants 4 and 5 and the latter, by defendant 6.
The Subordinate Judge agreed with the construction put on the will by the District Munsif, and dismissed the appeals.
Against that decree, defendant 6 preferred section A. No. 2256 of 1947 in the High Court of Madras.
Basing himself on the deed of transfer dated October 14, 1938, Sankarankutti Kaimal instituted O. section No. 158 of 1945 in the Court of the District Munsif, Chowghat, for recovery of possession of three items of properties, of which one belonged to Kunhan Kaimal absolutely and the other two ' to him and others as co owners.
In the plaint, he alleged that there was an oral lease of the properties to the first defendant and to one Kali Amma, whose legal representatives were defendants 2 and 3, that the defendants were in arrears in the payment of rent, and were disputing his title to the properties, and that he was therefore entitled to eject them.
Defendant 4 is Kesavan Kaimal, the vendor of the plaintiff.
The contesting defendants who were the same as the plaintiffs in O.S. No. 131 of 1945 pleaded that under the will they became entitled to all the properties of Kunhan Faimal, that the oral lease was untrue, and that the 5 suit was barred by limitation.
The District Munsif found all the contentions in favour of defendants 1 to 3 and dismissed the suit.
, Against this decree, there was an appeal, A. section No. 336 of 1946, in the Court of the Subordinate Judge of Ottapalam, and that was dismissed, the Subordinate Judge agreeing with the District Munsif on all the issues.
Against his decree, the plaintiff preferred section A. No. 2545 of 1948 in the High Court of Madras.
Both the second appeals came up for hearing before Raghava Rao J. who held that on its true construction the will operated to vest, in the three testators all the properties covered by it in joint ownership, that, in consequence, on the death successively of Theyi Amma and Kunhan Kaimal, their interest survived to Kesavan Kaimal, and that the transfers made by him on October 14, 1938, and October 16, 1944, were valid.
In the result, both the second appeals were allowed, the suit for redemption, O. section No 131 of 1945, was dismissed, and the suit in ejectment, O. section No. 158 of 1945, was decreed.
Against this judgment, the present appeals have been brought on a certificate granted by this court under article 136.
The sole point for determination in these appeals is whether under the will all the three testators became joint owners of all the properties on which it operated.
After hearing the question fully argued, we have come to the conclusion that that is not the effect of the will, and that the judgment of the High Court contra cannot be supported.
There were three executants of the will.
Each of them possessed properties, which were his or her self acquisitions.
They also owned some properties which they had jointly acquired, but their title to such properties was as tenants in common and not as joint tenants.
Each of them would have been entitled to execute a will of his or her properties, and if that had been done, the legatees named therein would undoubtedly have been entitled to those pro perties.
In the present case, the legatees who were intended to take were the same persons, and it was for that reason that the three testators instead of each executing a separate will jointly executed it.
It ist 6 nevertheless, a will by which each testator bequeathed properties belonging to him or to her, and therefore on the death of each testator, the legatees mentioned in the will would be entitled to the properties of the testator, who dies.
The contention of the respondents which has found favour with the High Court is that the will must be construed as a transfer by the several testators of all their individual properties to themselves jointly as joint tenants.
That would really be a transfer inter Vivos and not a will.
The word "will" is widely known and used, and it has a well understood significance as meaning a disposition which is to take effect on the death of a person.
The executants of the will could not have therefore intended that it should operate inter ViVOs.
Moreover, if the document was intended to take effect as a present disposition, it should have to be stamped under the provisions of the Stamp Act, but the will is an unstamped document.
Coming to the recitals in the will, there are no words by which the executants thereof divest themselves of their individual ownership and vest it in themselves jointly.
It is said that that could be implied from the words " all the movable and immovable properties acquired jointly and separately by us till now, and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control ".
We are unable to read any such implication in those words.
It is difficult to imagine how properties which were to be acquired in future could form the subject matter of a disposition in praesenti.
On the other band, the true purpose of this clause would seem to be to emphasise that the execution of the will does not affect the rights of the testators over their properties, and that is an indication the it is to operate as a will.
The matter appears to us to be concluded beyond all doubt by the terms of clause 3, which provides that the testators could alienate the properties jointly or severally.
If the properties were intended to be impressed with the character of joint property, an alienation by any 7 one of them singly would be incompetent.
In coming to the conclusion to which he did, the learned Judge in the Court below was very largely influenced by the fact that the will dealt with, not only the separate properties of the testators but also of their joint properties, and that there was one disposition as regards all of them.
But this reasoning is based on a misconception of the recitals in the will.
The will does not refer to any joint properties of the testators but to properties jointly acquired by them which is very different.
They would hold these properties as tenants in common, and their share therein would devolve as their separate properties.
It was further argued for the respondents that it could not have been the intention of Theyi Amma, one of the testators, to benefit the legatees under the will in preference to her own son, Kesavan Kaimal, and that, therefore, it must be held that she intended that her son who was the youngest of the testators should take all the properties.
But if Kesavan Kaimal could himself agree to bequeath his properties to those legatees, we see nothing unnatural in his mother also agreeing to bequeath her properties to them they being the heirs of the testators under the Marumakkat tayam Law.
Learned counsel for the respondents sought to rely on the subsequent conduct of the parties as showing that they understood the will as conferring a joint estate on the testators.
It was said that it was in that belief that Kesavan Kaimal was dealing with the properties of the other testators as his own, after their death.
It was also said that the conduct of the other members of the tarwad, including the plaintiffs, showed that they shared that belief.
And this was sought to be made out by reference to the proceedings in E. A. No. 320 of 1938 in section C. No. 480 of 1933.
The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in section C. No. 480 of 1933, and in execution of that decree, he brought some of the tarwad properties to sale, purchased them himself and got into possession.
The members of the tarwad then filed an application, E. A. No. 320 of 1938, under 0. 21, r. 100, for redelivery of the 8 properties to them on the ground that the decree and the sale proceedings were not binding on them, and that was dismissed.
In the order dismissing the application, the District Munsif observed that under the will dated February 10, 1906, Kesavan Kaimal had the power to transfer the properties.
This order was relied on in these proceedings as operating as res judicata in favour of the respondents; but that contention was negatived by the Courts below, and has not been repeated before us.
But these proceedings are now sought to be relied on as showing that the members of the tarwad did not dispute the title of Kesavan Kaimal to the properties which were dealt with by the will.
As against this, the appellant referred us to a partition deed dated May 16, 1915, and a mortgage deed dated March 4, 1926, to both of which Kesavan Kaimal was a party, in which be and other members of the family had understood the will in question as meaning that the testators held the properties covered by the will in separate ' and exclusive ownership.
Whatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning.
In our view, the terms of the will are clear, and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible.
We are accordingly of opinion that the will dated February 10, 1906, is what it purports to be a will, and nothing else.
It does not confer any rights inter se on the testators; it only vests the title to the properties disposed of by it in the legatees on the death of the testators.
In this view, the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and is, in effect, three wills combined in one.
A joint will, though unusual, is not unknown to law.
In Halsbury 's Laws of England, Hailsham 's Edition, Vol. 34, p. 17, para.
12, the law is thus stated: 9 " A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property.
It is not, however, recognised in English law as a single will.
It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills ".
There is a similar statement of the law in Jarman on Wills, 8th Ed., p. 41.
The following observations of Farewell J. in Duddell in re.
Roundway V. Roundway (1) are apposite: ". in my judgment it is plain on the authorities that there may be a joint will in the sense that if two people make a bargain to make a joint will, effect may be given to that document.
On the death of the first of those two persons the will is admitted to probate as a disposition of the property that be possesses.
On the death of the second person, assuming that no fresh will has been made, the will is admitted to probate as the disposition of the second person 's property. .
It was also argued for the respondents that the will might be construed as a mutual will, but that, in our opinion, is an impossible contention to urge on the recitals of the document.
A will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other.
But where the legatees are distinct from the testators, there can be no question of a mutual will.
It cannot be argued that there is, in the present case, a bequest by the testators to themselves.
There is nothing in the will to support such a contention, which would be inconsistent with the position taken by the respon dents that there was a settlement of the properties inter vivos converting separate properties into joint properties.
In this view, on the death of Kunhan Kaimal his properties vested in the legatees under the will dated February 10, 1906, and therefore neither Kesavan Kaimal nor his transferees under the deeds could lay any claim to them.
(1) , 592.
2 10 In the result, the appeals are allowed, the decrees passed by the High Court are set aside, and those of the Courts below are restored, with costs throughout.
Appeals allowed.

summary:
A will executed jointly :by three persons contained, inter alia, the following recitals: " We have hereby settled and agreed that all the moveable and immoveable properties acquired jointly and separately by us till now, and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining, shall be held by us in our possession and under our control and dealt with by us as we please till our death.
" There were bequests in favour of certain persons and the will provided that in the event of the executants effecting any transfers or alienations of the said properties, either, jointly or severally till their death, the aforesaid persons shall have the right only in respect of the remaining items of the properties.
Two of the testators having died the third claimed that he had become entitled by surviorship to all the properties disposed of by the document on the footing that it was in effect a transfer of all their individual properties to themselves jointly as joint tenants.
Held, that the document was a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and was, in effect three wills combined in one.
The properties were held by the testators at, tenants in common and the legatees mentioned in the will would become entitled to the properties of the testator who dies.


judgement:
ivil Appeal No. 652 of 1982.
From the Judgment and Order dated 22.8.1980 of the Patna High Court in Second Appeal No. 125 of 1977 (R).
Ashok K. Sen and D.P. Mukherjee for the Appellants.
N.H. Hingorani, Ms. Kapila Hingorani and R.P. Wadhwani for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This civil appeal by special leave is brought by the defendants against the judgment of the Patna High Court, Ranchi Bench, in Second Appeal No. 125 of 1977 dismissing in limine their appeal against the judgment of the learned District Judge in Title Appeal No. 2/5 of 1977 whereby the decree for eviction granted by the learned Munsiff in Title Suit No. 3 of 1975 was in part affirmed.
The plaintiffs (respondents) instituted the suit against the defendants (appellants) for eviction under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the ground that the defendants were in arrears of rent for the months of February 1974 and May 1974 to August 1974.
The defendants contested the suit on various grounds.
Their main defence was that they were not in ar rears of rent as alleged by the plaintiffs.
Decreeing the suit, the learned Munsiff found that rent for the months of February 1974 and May 1974 to August 1974 had not been paid by the defendants.
This decree was affirmed by the learned District Judge in part, that is, in respect of the alleged arrears for the months of May 154 and June 1974, and not for any other period.
The finding of the First Appellate Court was affirmed by the High Court by dismissing the defendants ' appeal in limine.
The question which arises for consideration is whether the courts below were justified in coming to the conclusion, which they did, and whether the impugned judgment of the High Court is liable to be interfered with in the present appeal brought by special leave under Article 136 of the Constitution.
Whether or not rent for the two months in question had been duly paid by the defendants is a question of fact, and with a finding of such fact, this Court does not ordinarily interfere in proceedings under Article 136 of the Constitu tion, particularly when all the courts below reached the same conclusion.
But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then this Court will in the exercise of its discretion intervene to prevent miscarriage of justice.
The suit was instituted by the widow of Rameswarlal Sultania.
The plaint was verified by Rameswarlal Sultania 's nephew on behalf of the plaintiffs, and he deposed as PW 4.
Neither the first plaintiff, the widow nor the other two plaintiffs, her children testified in support of the plaint allegations.
The nephew, PW 4 frankly admitted in the box that he had no personal knowledge of the facts alleged in the plaint.
He did not know if the defendants were in arrears of rent or whether his aunt, the first plaintiffs or anybody else had demanded rent from the defendants.
None of the witnesses on the side of the plaintiffs had any personal knowledge of the facts alleged by the plaintiffs in regard to the arrears of rent.
PW 4 is, amongst the plaintiff 's witnesses, the only person who speaks to this fact, but admittedly speaks without any claim of personal knowledge.
In the circumstances, there is no reliable oral evidence on the side of the plaintiffs to support the plaint allegation regarding the arrears of rent.
Nor is there any documentary evidence in support of their case.
On the other hand, the defendants categorically stated that they had paid the rent for the two months in question to the first plaintiff.
At that time her husband was alive, but he was in no condition, on account of poor health, to give a receipt for the rents paid.
The defendants, in view of their personal relationship with him, did not insist upon a receipt.
155 DW 8 is one of the defendants.
He categorically stated that for the months of May and June 1974 he paid the rent in June 1974 by handing over the amount to the first plain tiff 's daughter when she went to his shop to collect the rent.
Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff.
His evidence on the point is in the follow ing words: "It is incorrect to say that I have not paid the rent for May June 1974.
In June, the daughter of Rameshwar Babu had come to demand Rs.200 towards the rent for May June 1974 and I had given the (Illegible) at that time.
I had demanded the receipt,_ but he was unwell and as such did not give it". "Rameshwar Babu was not living in his senses in June, 74.
His brain was not in proper condition.
In June, 74 I gave Rs.200 to his wife (plaintiff), after taking the same to his house.
Even subsequently my brother had gone to pay the rent to the plaintiff, Gita Devi for two three times.
" This evidence is supported by DW 7.
He is the Accountant of the first defendant firm of which defendants Nos. 2 and 3 who are brothers are partners.
Referring to these partners, and a neighbour by name Nandi (DW 6), this is what he says: "In June 74, the defendants, Bibhuti and Prahalad Chandra Dutta had given Rs.200 two hundred rupees to the daughter of Rameshwar Babu.
Nandi Babu, Bibhuti Babu and I were (present) in the shop, at that time.
This money was paid towards the rent of the house".
Nandi (DW 6) also speaks on this point: "The defendants always used to pay the rent in my presence . .
In June, 1974, they had given Rs.200 as rent to the younger daughter of Ramesh Babu in my presence.
I told (them) that as she was a small girl, they should also accompany her.
Then Bibhuti Bhusan Dutta reached the girl.
" The evidence of these three defence witnesses is that the rent for the months of May and June.
1974 had been duly paid in June 1974 in 156 the sum of Rs.200 by the second defendant (DW 8) to the landlord, Rameswarlal Sultania by handing over the amount to his minor daughter who went to the defendants ' shop to collect the same and by accompanying her to her house to see to the safe delivery of the same to the first plaintiff, her mother who obviously received it on behalf of her husband, the landlord.
The evidence seems to be clear on the point and we see no contradiction in this.
The courts below did not appreciate that this much evidence was staring in the face, and there was total ab sence of evidence on the point on the side of the plantiffs to contradict the defence evidence.
The plaint allegation regarding arrears was not spoken to on the plaintiffs ' side by any person having personal knowledge.
The plaintiffs made no attempt to let in any reliable evidence on the point.
The evidence of PW 4 who admittedly had no personal knowledge on the point is no evidence at all.
On the other hand, the evidence of DW 8, supported by the evidence of his Account ant (DW 7) and his neighbour (DW 6) is categoric and clear.
The learned District Judge disbelieved this evidence on the assumption that DW 6 contradicted himself when he stated that the amount was paid to the daughter and also to her monther.
In his written statement he stated that the amount had been paid to the landlord, Rameswarlal Sultania.
In the light of what we have stated above, we see no contradiction in these statements.
The amount was, in our view, rightly stated to have been paid to Rameswarlal Sulta nia when it was handed over to the daughter to be paid over to her monther, viz., the first plaintiff who was reasonably understood to have received it for and on behalf of her husband.
If the statement is true, there is no contradiction in it and it is categoric and clear.
We see no reason to suspect that it is not true for there is no evidence on the side of the plantiffs to the contrary.
As stated earlier, there is no evidence at all on the side of the plaintiffs that rents were in arrears.
In the absence of any reason to disbelieve the clear and categoric testimony of the defence witnesses on the point, we see no reason to suspect that the rents remained in arrears.
In the circumstances, we are of the view that the courts came to the conclusion, as they did, without any evidence whatsoever to support it and contrary to the available evidence let in by the defence.
Their conclusion was, therefore, perverse, irrational and totally unjustified.
For this reason, we set aside the impugned decree and judgment of the courts below.
The appeal is allowed with costs.
P.S.S. Appeal allowed.

summary:
The appellant defendants fell in arrears of rent for the months of February and May to August 1974 for the demised premises.
The respondent plaintiffs sought their eviction under section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the grounds of default.
Decreeing the suit, the trial court found that rent for the said five months had not been paid.
The decree was affirmed by the appellate court in part, that is, in respect of May and June, 1974.
That finding was affirmed by the High Court.
Allowing the appeal by special leave, the Court, HELD: The Supreme Court does not ordinarily interfere in proceedings under Article 136 of the Constitution particu larly when all the courts below had reached the same conclu sion.
But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then the Court will in the exercise of its discretion intervene to prevent miscarriage of justice.
[154C D] In the instant case, there was no reliable oral evidence on the side of the plaintiffs to support the allegation that rents were in arrears.
Nor was there any documentary evi dence in support of their case.
Neither the first plaintiff, the widow nor the other two plaintiffs, her children, testi fied in support of the allegation PW 4, who verified the plaint on behalf of the plaintiffs admittedly had no person al knowledge that the defendants were in arrears of rent or whether the first plaintiff or anybody else had demanded rent from the defendants.
[156F G] On the other hand, DW 8, one of the defendants, stated that for the months of May and June 1974 he had paid the rent in June 1974 by 153 handing over the amount to the first plaintiff 's daughter when she went to his shop tO collect the rent.
Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff.
This evidence has been supported by DW 7.
He was the Ac countant of the first defendant firm.
DW 6 also spoke of the fact that in June 1974 the defendants had given Rs.200 as rent to the younger daughter of the plaintiff.
These state ments of defence witnesses were categoric and clear.
There was no contradiction in term for there was no evidence on the side of the plaintiffs to the contrary.
The conclusion arrived at by the courts below that rents remained in ar rears was, therefore, perverse and totally unjustified.
[155A B, E; 156D, F, G]