judgement:
Appeal No. 579 of 1965.
Appeal from the judgment and decree dated April 20, 28, 1960 of the Bombay High Court (Now Gujarat High Court) in Appeal No. 172 of 1956 from Original Decree.
N.S. Bindra, M.S.K. Sastri and S.P. Nayar, for the appellant.
S.T. Desai, Y.S. Chitale and D.N. Misra.
for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
In January 1948 in view of the imminent constitutional changes in the Baroda State, it was considered likely that the services of the Diwan Sri Sudhalkar, the appellant and Sri Gaekwad, the three official members of the Executive Council of the State would be prematurely terminated.
The respondent was then 'drawing a salary of Rs. 2,000/ per month and was to retire on February 14, 1952 on reaching the superannuation age of 56 years.
On January 28, 1948 His Highness the Maharaja of Baroda enhanced the respondents salary to Rs. 2,500/ per month.
By separate orders the salaries of other official member 's also were enhanced.
By a Huzur order dated February 8, 1948 the Maharaja fixed the pension and other retirement benefits of the respondent and Sri Gaekwad.
The order was in these terms : "His Highness the Maharaja Saheb has been pleased to order that in the event of premature retirement of the Government Members, Messrs. D.V. Gaekwad and Chandrachud, they will get forthwith as compensation an amount equivalent to the total ,amount they would have received had they continued in service up to.
the date of retirement and a full pension of Rs. 500 per month from the date of the premature retirement.
Mr. D.V. Gaekwad 's salary is raised to Rs. 2,000/ from the date of his confirmation as Naib Dewan.
" On the same date the Maharaja by a separate order fixed the pension and retirement benefits of Sri Sudhalkar.
On May 18, 1948, the Maharaja directed the compulsory retirement of the respondent with effect from June 1, 1948.
Soon thereafter the respondent drew from the State Treasury Rs. 95,196/4/ on account of compensation allowance.
On June 1, 1948 he retired 758 from service.
On the same date Dr. Jivraj Mehta became the Diwan and President of the Executive Council in place of Sri Sudhalkar.
On the representations of Dr. Jivraj Mehta the Maharaja passed another Huzur order on July 22, 1948 modifying his previous orders and directing that the respondent and the other officials would draw pension only as and when they would reach the age of retirement and that the respondent would in addition draw the salary to which he might be eligible under the Account Rules.
In October 1948 there was correspondence touching the Huzur Orders between the Maharaja and Dr. Jivraj Mehta.
On April 22, 1949 the Executive Council of the State of Baroda headed by Dr. Jivraj Mehta purported to review and set ,aside the Huzur Orders with respect to payment of compensation to the retiring officials and directed that (1 ) the respondent would get 4 months ' privilege leave salary and as from April 1, 1949 the pension of Rs. 500/ per month sanctioned by the Maharaja, (2) the amount received by the respondent as compensation be forfeited to the State and returned by him to the Treasury; (3) Rs. 77,416/consequently due from him after taking into account his salary and pension up to March 31, 1949 be recovered from him under section 148 of the Baroda Land Revenue Code.
Pursuant .to thistle the respondent 's properties were attached on April 26, 1949.
The respondent was compelled to refund to the State Treasury Rs. 55,000/ on April 27, 1949 and Rs. 10,000/on April 29, 1949.
On March 14, 1952 the Collector of Baroda sent a notice to the respondent demanding payment of the balance of Rs. 12,416/ .
The respondent continued to draw pension at the rate of Rs. 500/per month from April 1, 1949.
On April 17, 1952 he gave notice of his intention to file the present suit under section 80 of the Code of Civil Procedure.
On June 23, 1952 he instituted the suit against the State of Bombay asking for a declaration that the Huzur order dated FebrUary 8, 1948 ,as modified by the Huzur order dated July 22, 1948 was valid and binding on the defendant, a declaration that the order of the Executive Council dated April 22, 1949 was invalid, an injunction restraining the defendant from recovering Rs. 12,416/ and a decree for Rs. 65,000/ and interest thereon totaling Rs. 77,300/ , future interest and costs.
On August 31, 1955, the Trial Court decreed the suit.
On appeal, the High Court held that the respondent was entitled to recover Rs. 65 '000/ 'only without interest and was liable to refund Rs. 17,250/ drawn on account of pension from April 1.
1949 up.
to February 14, 1952.
Consequently, the High Court reduced the money decree to Rs. 47,750/ give proportionate costs and confirmed the rest of the decree.
The present appeal has been filed by the State of Gujarat after obtaining a certificate from the High Court.
It is necessary at this stage to refer to the constitutional and political changes culminating in the merger of Baroda State in the 759 Province of Bombay.
The Maharaja of Baroda enjoyed internal.
sovereignty in the State under the suzerainty of the British crown.
In 1940 the Maharaja enacted the Government of Baroda Act 1940, (Act No. VI of 1940).
Section 3 provided that Baroda would continue to be governed by the Maharaja and that all rights, authority and jurisdiction appertaining to its government was exercisable by him except as provided in the Act or "as may be otherwise directed by His Highness.
" Section 4 preserved all the Maharaja 's powers, legislative, executive and judicial, in relation to the State and its government and his right and prerogative to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority.
Section 5 vested the executive ' authority of the State in an Executive Council consisting of the Dewan and other members chosen by the Maharaja and holding office during his pleasure subject to the other provisions of the Act and the directions given by the Maharaja.
Section 18(d) provided that no Bill affecting any order passed by the Maharaja in exercise of his prerogative could be moved in the Dhara Sabha without the previous sanction of the Maharaja.
Section 32(f) provided that pensions and gratuities sanctioned by the Maharaja would be expenditure charged on the revenues of the State.
On August 15, 1947 the Indian Independence Act, 1947 was passed and the paramountcy of the British crown lapsed.
On the same date the State of Baroda acceded to the Dominion of India.
Under the Instrument of Accession the Maharaja of Baroda ceded to the Dominion legislature the power to legislate for the State of Baroda with respect of defence, external affairs and communications.
The advent of independence in India gave momentum to the popular movement for transfer of power from the Maharaja to the people and for formation of a responsible government in the State.
On January 9, 1948 the Maharaja issued a proclamation directing the formation of a body elected on the basis of ,adult franchise frame a Constitution for the State subject to certain reservations and announcing his intention to appoint popular representatives, to the Executive Council.
By another proclamation dated August 25, 1948 the Maharaja announced that (1) the Constitution framing assembly would have full and unrestricted authority to frame a Constitution for the State in respect of all matters and subjects; (2) the entire executive authority of the State would immediately vest in the Executive Council, the Government of Baroda Act would stand amended ,accordingly and the words "or as may be ' otherwise directed by His Highness" occurring in section 3 and the whole of section 4 of the Act would be deemed to be omitted; On September 16, 1948 the Maharaja promulgated the Baroda State Executive Rules.
Rule 6 provided that "the Executive Council shall have the entire executive authority in regard to the administration of the State in ,all matters without any reservation.
" On March 21, 1949 the Maharaja executed the Baroda Merger Agreement whereby ' 760 he ceded to the Dominion Government full authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on May 1, 1949.
On May 1, 1949 the administration of the State was made over to the Dominion Government.
As from that date, all sovereign powers of the Maharaja of Baroda ceased and the Dominion Government acquired full and exclusive extra provincial jurisdiction for and in relation to the governance of the State of Baroda.
By a notification No. 101 P dated May 1, 1949 the Central Government in exercise of its powers under section 3(2) of the Extra Provincial Jurisdiction Act, 1947 delegated to the Provincial Government of Bombay its aforesaid extra provincial jurisdiction including the powers conferred by section 4 of that Act to make orders for the exercise of the jurisdiction.
By notification No. 4530/46F of the same date, the Government of Bombay in exercise of the powers conferred by section 4 of the Extra Provincial Jurisdiction Act, 1947 repealed the provisions of the 'Government of Baroda Act excepting sections 1, 2 and 36 to 45 with immediate effect.
On the same date the Government of Bombay promulgated the Administration of the Baroda State Order Paragraph 3 of the Order vested the executive authority of the State in a special commissioner, subject to the supervision and control of the Bombay Government.
Paragraph 4(i)(b) provided for the continuance of (a) of any law, or (b) of any notification, order, scheme, rule, form or bye law issued, made or prescribed under any law as were in force immediately before May 1, 1949 in the Baroda State.
On July 23, 1949 the Government of Bombay promulgated the Bombay State (Application of Laws) Order 1949.
Paragraph 3 of the Order provided for the extension and continuance of certain laws to the Baroda State.
Paragraph 5 repealed sections 1, 2, and 36 to 45 of the Government of Baroda Act and certain other enactments.
Paragraph 5(iii)(a) provided 'that the repeal would not affect any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof.
On July 27, 1949 the Governor General in exercise of his powers under section 290A of the Government of India Act, 1935 promulgated the States ' Merger (Governors Provinces) Order 1949.
Paragraph 3 of the Order provided that Baroda would be merged in the province of Bombay and administered in all respects as if it formed 'part of that Province.
Paragraph 4 provided for the continuance of laws then in force in the merged State.
Paragraph 7 (1 ) provided that all liabilities in respect of such loans, guarantees and other financial obligations of the Dominion Government as arose out of the governance of a merged State, would as from August 1, 1949 be liabilities of the absorbing Province, unless the loan, guarantee or other financial obligation was relatable to central purposes.
Paragraph 9 provided that any proceedings which if the order had not been passed 761 night lawfully have been brought in the merged State against the Dominion might in the case of any liability arising before August 1, 1949 be brought (a) against the Dominion if the proceedings could have been brought against the Dominion had the liability arisen after that date and (b) otherwise against the absorbing Province.
The questions arising for determination in this appeal are as follows : (1 ) Was the order of the Executive Council dated April 22, 1949 ultra vires its powers and invalid and not binding on the respondent; (2) Was the Government of Baroda liable to pay the sum of Rs. 65,000/ to the respondent; and (3) if so, has the liability devolved upon the State of Gujarat.
The Executive Council Rules made by the Maharaja of Baroda on September 16, 1948 vested in the Executive Council the entire executive authority in regard to the administration of the Baroda State in all matters without any reservation.
The Executive Council had very wide powers, but, in our opinion, they had no authority to override and rescind the Huzur orders passed by the Maharaja himself.
The prerogative and inherent powers of the Maharaja was not delegated to the Executive Council.
The Maharaja was still the sovereign ruler.
The members of the Executive Council were responsible to him and held office during his pleasure.
No appeal lay from his order to the Executive Council On the contrary under Rule 46 of the Privy Council Rules promulgated on December 18, 1947 an appeal lay to the Maharaja from an order passed by the Executive Council.
In view of section 18(d) of the Baroda Constitution Act 1940 even a legislative bill affecting an order passed by the Maharaja in the exercise of his prerogative rights could not be moved in the Dhara Sabha without his previous sanction.
Under section 32(f) pensions and gratuities sanctioned by the Maharaja were charged on the revenues of the State.
The Fluzur order was passed by the Maharaja on February 8, 1948 in the exercise of his prerogative and inherent powers.
The order was executed and the monies were paid under it to the respondent.
The Executive Council had no authority to revoke the Huzur order and to forfeit the monies.
We hold that the order of the Executive Council dated April 22, 1949 was ultra vires its powers and was illegal and not binding upon the respondent.
It is now conceded that the direction in the order dated April 22, 1949 for the recovery of monies under section 148 of the Baroda Land Revenue Code was illegal.
That section did not allow recovery of moneys payable under an order of the Executive 762 Council.
The attachment levied on the respondent 's properties was unlawful.
The recovery of Rs. 65,000/ from the respondent, under the invalid order of the Executive Council cannot be justified as an act of State.
The Courts below rightly found that the respondent was compelled to pay Rs. 65,000/ under coercion.
The result of the illegal recovery was that to the extent of Rs. 65,000/ the Ii, ability of the Baroda Government under the Huzur Order dated February 8, 1948 remained outstanding.
The main question arising in the appeal is whether the liability the Baroda Government under the Huzur order dated February 8, 1948 devolved upon the successor governments after the merger of the Baroda State on May 1, 1949.
The view which currently prevails in this Court is that in cases where the Government of India has acquired the territory of a sovereign Indian State either by conquest, treaty, cession or otherwise the privileges and rights obtained from the predecessor State cannot be enforced by action against the Government of India, see M/s. Dalmia Dadri Cement Co. vs The Commissioner of Income tax(1) (cession of Jind), pema Chibar vs Union of India(a) (conquest of Daman), nor can it be sued in the municipal courts for the debts 'and contractual liabilities of the predecessor, see jagannath Agarwala vs State of Orissa(3) (Cession of Mayrbhunj), Firm Bansidhar Premsukhdeo vs State of Rajasthan(4) (Bharatpur), unless it has chosen, to recognise the right, privilege, debt or liability by legislation, agreement, or otherwise.
The rule extends to the acts of the predecessor State after its accession to the Dominion of India on August 15, 1947 and before its complete merger in the Dominion.
In State of Gujarat vs Fiddali(5) the Ruler of Sant State issued a resolution or Tharao granting certain forest rights on March 12, 1948 after the accession of the State to the Dominion.
On June 10, 1948 he transferred the administration of the State to the Dominion under a merger ,agreement dated March 19, 1948.
The Court held that the Tharao was not binding upon the successor government.
It was said that the Rulers of the Indian States parted with their sovereignty in successive stages, firstly on accession, and finally on merger.
As a result of accession, the Dominion of India acquired power to legislate for the territories of the acceding state in respect of defence, external affairs, and communications.
Under section 5 of the Indian Independence Act the Dominion was as from August 15, 1947 a union comprising the acceding State.
But the acceding State continued to retain its separate existence and individual sovereignty until its complete merger in 'the Dominion.
(1) [1959] S.C.R. 729.
(2) ; (3) ; (4) ; (5) ; 763 The question then is whether the successor governments recognized the rights and liabilities under the Huzur order dated February 8, 1948.
The onus of proving the recognition is upon the respondent, see Valesinghji Joravarsingji vs Secretary of State for India(1).
The recognition "may be either express or may be implied from circumstances and evidence appearing from the mode of dealing with those rights of the new sovereign," see State Gularat vs Fiddali(2).
On behalf of the respondent it was argued that the Huzur Order dated February 8, 1948 was a law and as such was recognised and continued in force by the Government of India.
We axe unable to accept this contention.
A grant made by the Ruler of an Indian State is not a law, see State of Gujarat vs Fiddali(2), 461 (grant of forest rights), R.N. Pratap Singh Deo vs State of Orissa(a) (grant of khorposh allowance), Union of India vs Gwalior Rayon Silk Manufacturing (Weaving) Co.(4) (grant of exemption from taxation), State of Madhya Pradesh vs Lal Bhargavendra Singh(5) (grant of maintenance allowance), nor is an agreement executed by the Ruler a law, see Maharaja Shri Umaid Mills Ltd. vs Union of India(6).
Accordingly, it was held in State of Madhya Pradesh vs Col.
Ram Pal(7) that an order granting retirement pension in relaxation of the State Pension and Gratuity Rules was not a law.
The Huzur order dated February 8, 1948 did not lay down a rule conduct for the official members of the Executive Council generally.
It fixed the retirement benefits of the respondent and of Gaekwad and enhanced Gaekwad 's salary.
A separate order fixed the retirement benefits of Sudhalkar, the other official member.
The order concerning the respondent was an executive act and had none of the characteristics of law unlike other laws it was not published in the Adhya Patrika or the official gazette of Baroda State.
We hold that the order was not a law.
The next question is whether the Baroda merger agreement dated March 21, 1949 recognised the rights and liabilities under the Huzur Order dated February 8, 1948.
Now the Articles of the merger agreement may furnish valuable evidence of the affirmance of rights conferred by the predecessor State, see M/s. Dab mia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(s).
In the State of Madhya Pradesh vs Shyam Lal(9) a recognition of those rights was inferred from articles in merger agreements providing for the continuance of the laws of the merging State and for the taking over its assets and the liabilities by the new State.
In the present case article VIII of the merger agreement (1) (1924) L.R. 51 I.A. 357, 361.
(2) ; at p. 510.
(3) ; (4) ; (5) ; (6) [1963] Supp. 2 S.C.R. 515.
(7) ; (8) [1959] S C.R. 729 at p. 748.
(9) 764 dated March 21, 1951 provided : (1 ) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Baroda on conditions which will be less advantageous than those on which they were serving before the date on which the administration of Baroda is made over to the Government of India or the payment of reasonable compensation.
(2) The Government of India further guarantees the continuance of pensions and leave salaries sanctioned by His Highness the Maharaja to the members of the public services of the State who have retired or proceeded on leave preparatory to retirement, before the date on which the administration of Baroda is made over to the Government of India.
Clause (2) of article VIII applies to the respondent.
.He was member of the public services of the Baroda State, and he retired before the date of the merger.
It guarantees the continuance of the pension and ' leave salary sanctioned to him by the Maharaja.
Now what does the word "pension" in clause (2) of article VIII mean? Ordinarily the word "pension" means a periodical allowance of money granted by the Government in consideration or recognition of meritorious services.
The word "pension" in the , section 60(1)(g) of the Code of Civil Procedure,1908 and section 6(g) of the implies periodical payments of money by Government to the pensioner, see Nawab Bahadur of Murshidabad vs Karnani Industrial Bank Ltd.(1) Pension, gratuity and provident fund are three distinct types of retirement benefits.
But the word "pension" (pensionem, payment) in its widest etymological sense can be construed as including all payments of every kind and description to a retiring government servant, see Secretary of State vs Khemchand jeychand(2).
The term "pension" is frequently, particularly in recent years, used in the broad sense of retirement allowance or adjusted compensation for services rendered, see Corpus Juris Secundum, Vol. 67, page 331; Vol. 70, page 425.
It has received the wider connotation in the definition sections of many modern statutes.
To give a few illustrations, the word "pension" includes "any payment of a lump sum in respect of a person 's employment", see Fatal Accidents Act, 1959 (7 & 8 Eliz, 2c.
65) section 2(2), "a superannuation allowance", see Midwives Act, 1936 (26 Geo.
5 & 1 Edw.
40) section 2(6), a "gratuity" and a return of contributions to a pension fund with or without interest thereon or any other addition thereto, see Transport Act, 1947, (10 & 11 Geo.
49) section 125(1), Gas Act, 1948 (11 & 12 Geo. 6c.
67) section 74(1).
(1) L.R. (1931) 58 I.A. 215, 219 20.
(2) I.L.R. , 436.
765 Now clause (1 ) of article VIII of the merger agreement guarantees payment of reasonable compensation to officials whose services are dispensed with by the new Government.
Clause 2 guarantees the continuance of pensions and leave salaries sanctioned by the Maharaja to officers who had retired before the date of the merger.
Considering that the object of article VIII is to guarantee payment of retirement benefits to retired public servants of the merged State, we are not inclined to give the word "pensions" a narrow interpretation.
In our opinion, the word "pensions" in clause 2 of article VIII includes the lump sum payable to the respondent as compensation under the Huzur order dated February 8, 1948 as modified by the Huzur order dated July 22, 1948.
In substance, the Huzur order directed that the respondent would get his full salary as his pension from the date of his premature retirement up to the completion of his superannuation age and allowed him to draw immediately the entire allowance for the period in one lump sum.
The allowance so payable to the respondent, a retiring government servant, in recognition of his past services is "pension" within the meaning of cl. 2 of article VIII of the merger agreement.
Article VIII of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948.
We have also noticed that the successor governments continued the old laws of the Baroda State until they were repealed or altered.
The successor governments resisted the respondent 's claim on the ground that the order of forfeiture passed by the Executive Council on April 22, 1949 was lawful.
There was no question of their disclaiming liability under the Huzur order of February 8, 1948 in case it was found that the order of the Executive Council dated April 22, 1949 was invalid.
In the 'circumstances, we hold that the successor governments recognized and took over the liability under the Huzur order dated February 8, 1958.
If so, it is not disputed that the liability has now devolved on the State of Gujarat.
It follows that the Courts below rightly decreed the suit.
This conclusion is sufficient to dispose of the appeal and we express no opinion whether the liability was also recognized by paragraph 4(i)(b) of the Administration of Baroda State Order, paragraph 5(iii)(a) of the Baroda State (Application of Laws) Order, 1949 or paragraph 7 (1 ) of the States ' Merger (Governors ' Provinces) Order, 1949.
In the result, the appeal is dismissed.
There will be no order as to costs in this Court.
R.K.P.S. Appeal dismissed.

summary:
On August 15, 1947 upon the passing of the Indian Independence Act, 1947 when paramountcy of the British crown lapsed, the erstwhile State of Baroda acceded to India.
By a. proclamation on August 25, 1948 the Maharaja of Baroda announced inter alia that the entire 'executive authority of the State would immediately vest in his Executive Council.
On March 21, 1949 he executed the Baroda Merger Agreement whereby the full powers in relation to the governance of the State were transferred to the Indian Government from May 1, 1949.
These powers were then delegated to the Provincial Government of Bombay.
The respondent was an official member of the Maharaja 's Executive Council of the State of Baroda.
In January.
1948 when it was considered likely that in view of the imminent constitutional changes m the State the members of the old Executive Council might be prematurely retired, the Maharaja enhanced the respondents salary, and by 'a Huzur order dated February 8, 1948, he fixed the pension and other retirement benefits of the respondent and another member of the Executive Council.
It was provided that in the event of their premature retirement, they would get 'as compensation an amount equivalent to what they would have received if they continued in service upto the date of retirement and a full pension of Rs. 500.00 per month from the date of the premature retirement.
On May 18, 1948, the Maharaja directed compulsory retirement of the respondent with effect from June 1, 1948 and he therefore drew Rs. 95,196.00 on account of his compensation.
At the instance of a new Executive Council the Maharaja passed another Huzur order on July 22, 1948 modifying his previous orders and directing that the respondent 'and the other officials would draw pension only when they reached the age of retirement and would in addition draw the salary to which they were eligible under the Account Rules.
On April 22, 1949, the new Executive Council purported to review and set aside the Huzur orders with respect to payment of compensation to the retired officials and directed, inter alia, that a sum of Rs. 77,416.00 out of the compensation received by the respondent be recovered.
from him under section 148 of the Baroda Land Revenue code.
He was compelled to refund Rs. 65,000.00 and a balance of Rs. 12,416.00 was demanded from him by the Collector of Baroda.
The respondent filed a suit against the State of Bombay asking inter alia for a declaration that the Huzur order dated February 8, 1948 as modified by the Huzur Order dated July 22, 1948 was binding on the defendants and that the order of the Executive Council of April 22, 1949 was invalid.
The Trial 756 Court decreed the suit and the High Court, in appeal, substantially upheld the respondent 's case but reduced the amount of the decree.
Apart from the validity of the Executive Council 's order of April 22, 1949, the other questions arising for determination in the 'appeal to this Court were whether the Government of Baroda was liable to pay the sum of Rs. 65,000 to the respondent; and if so, whether the liability devolved upon the appellant State of Gujarat.
HELD: Dismissing the appeal: (i) The Huzur order of February 8, 1948 was passed by the Maharaja in the exercise of his prerogative and inherent powers.
The Executive Council had no authority to revoke that order and until the Maharaja passed the entire executive authority to the Council on August 25, 1948, he was still the sovereign ruler.
The order of the Executive Council dated April 22, 1949 was therefore ultra vires and not binding upon the respondent.
[761 G] (ii) The direction in the order of April 22, 1949 for the recovery of monies under section 148 of the Baroda Land Revenue Code was illegal.
That section did not allow recovery of moneys payable under an order of the Executive Council.
The result of the illegal recovery of Rs. 65,000 from the respondent was that to the extent of that amount, the liability of the Baroda Government under the Huzur order dated February 8, 1948 remained outstanding.
[762 A] (iii) Clause (1) of Article VIII of the Baroda Merger Agreement guaranteed payment of reasonable compensation to officials whose services were dispensed with by the new Government.
Clause (2,) guaranteed the continuance of pension and leave salaries sanctioned by the Maharaja to officers who had retired before the date of the merger.
Article VIH thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order of February 8, 1948.
Furthermore, the successor Governments continued the old laws of the Baroda State until they were repealed or altered.
The appellant resisted the respondent 's claim on the.
basis only of the order of April 22, 1949 but as this was invalid, it must be held that the successor Governments recognised and took over liability under the Huzur order of February 8, 1948, which liability had since devolved on the appellant State of Gujarat.
Considering that the object of Article VIII was.
to guarantee payment of retirement benefits to retired public servants of the merged State, the word "pensionS" could not be given any narrow interpretation and would include the lump sum payable to the respondent as compensation under the Huzur order dated February 8, 1948 as modified by the Huzur order dated July 22, 1948.
[765 A D] M/s. Dalmia Dadri Cement Co. vs The Commissioner of Income Tax.
[1959] S.C.R. 729; Pema Chibar vs Union of India, ; ; Jagannath Agarwala vs State of Orissa, ; ; Firm Bansidhar Premsukhdeo vs State of Rajasthan; , ; State of Gujarat vs Fiddali, ; ; Vajesinghji Joravarsingji vs Secretary of State for India, [1924] L.R. 51 I.A. 357, 361; R.N. Pratap Singh Deo vs State of Orissa, ; ; Union of India vs Gwalior Rayon Silk Manufacturing (Weaving) Co., ; ; State of Madhya Pradesh vs Lal Bhargavendra Singh, [1966] 2 S.C.R. 56 Maharaja Shri Umaid Mills Ltd. vs Union of India, [1963] Supp. 2, S.C.R. 757 515; State of Madhya Pradesh vs Col.
Ram Pal, ; ; M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax ; Nawab Bahadur of Murshidabad vs Karnani Industrial Bank Ltd., L.R. [1931] 58 I.A. 215, 219 20 and Secretary of State vs Khemchand Jeychand, I.L.R. , 436; referred to.


judgement:
Appeal No. 25 1966.
Appeal by special leave from the judgment and decree dated ' January 2, 1963 of the Orissa High Court in Second Appeal No. 365 of 1960.
V.D. Misra, for the appellant.
N.C. Chatterjee and Sukumar Ghose, for the respondents Nos. 1 to 3 and 5 to 12.
564 The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Orissa High Court in a second appeal whereby the High Court affirmed the decree and order passed by the First Additional Sub Judge, Cuttack, with modifications.
The High Court held that "the restrictive order of the lower appellate court directing the plaintiffs to take out processions with a 'low sound music except drumbeating, is not justified" and directed the deletion of this portion from the order of the lower appellate court.
In order to appreciate the points raised before us it is necessary to give a few facts and the findings of the court below.
The plaintiffs, respondents before us and hereinafter referred to as the plaintiffs, brought this suit against the defendants, appellants before us and hereinafter referred to as the defendants, praying for a declaration that the Hindu villagers of the two villages had the right to take out religious and non religious processions with appropriate music along the District Board and village roads and other public highways of the locality including those by the side of the defendants ' mosques without any interruption wherever the plaintiffs ' community chose to take out without restriction and that the defendants, viz., the Mohamedan villagers of villages Alkund and Nuagaon, be permanently restrained from interfering with the plaintiffs ' lawful procession as aforesaid in any manner.
The case of the plaintiffs, in brief, was that the villages Nuagaon and Alkund were contiguous villages and they had a common social, cultural and religious life, and they were entitled to take out religious and non religious processions with appropriate music.
It was alleged that the Muslim villagers of the locality had two mosques, one in each village, abutting the highway.
It was further alleged that till the Kartick Purnima day of 1952 the plaintiffs had taken out their religious and social processions with ' appropriate music without any interruption before the mosques in question; that the plaintiffs were prevented from exercising their lawful rights by orders of the Magistracy at the instance of the defendants; that the defendants held out threats to attack the plaintiffs ' peaceful processions and accordingly it was necessary to clear the cloud created by the Magistracy and the conduct of the defendants.
We may mention that the District Magistrate and the State Government were not made parties to this suit. ' The defendants ' main plea was that the right claimed by the plaintiffs could only be exercised as not to cause any interference with the exercise of the rights of the defendants.
It was alleged that the Muslim community of the two mauzas also had inherent, natural and fundamental rights to offer their prayers in complete calmness without any interference whatsoever and they were entitled to oppose music being played near about the mosque in 565 order to maintain the calmness inasmuch as the music or Sankirtan really disturbed the calmness which was absolutely necessary for concentration of mind in prayer.
The defendants also.
relied on a compromise alleged to have been arrived at between the two communities in 1931.
It was alleged that in pursuance of the compromise two pillars had been put up by the defendants on both sides of the mosques to indicate to the music players of the processionists where to stop the music, and the pillars bore the following engraved inscriptions: "Baja bajaiba nishdha" The following issues, among others, were framed by the Trial Judge: (5) Is the right of the plaintiff villagers to take religious and non religious processions with appropriate music by the side of the mosques of Nuagaon and Alkund likely to infringe the rights of the defendant moslem villagers to offer their prayer in calmness ? (6) Are the plaintiffs entitled to.
enforce their fight in wanton disregard of the fundamental rights of the defendants ? (7) Are the plaintiff villagers estopped to re agitate their lost fundamental right to play music in front of the mosques ? (8) Are the plaintiffs bound by the compromise entered into between the properly represented leaders of both the communities.
dated 2 3 31 and had the compromise been acted upon ? The Trial Court held that the rights of the plaintiffs to take out the processions with the accompaniment of music was not absolute and the plaintiffs could only exercise the same on all occasions except near the mosques at the time of congregational prayer of the defendant community according to Islamic religion and subject to other lawful orders or directions given by the Magistrate or Police for preventing breach of peace or regulating traffic.
The Court further held that a compromise was effected in 1931 and the Hindu community had been acting according to the terms of the compromise so as not to disturb the religious sentiments of the Muslim community by playing music before their mosques while going in processions.
The Court accordingly held that the plaintiffs were estopped from re agitating the matter which they had agreed not to do.
The Court accordingly decreed the suit and gave the following declaration: "That the plaintiffs have a right to take out both religious and non religious processions with the 566 accompaniment of proper music for the occasion on the highways of Alkund and Nuagaon villages subject to the undermentioned restrictions (a) that they do not play music between the space of brick pillars situated on both sides of Alkund mosque and between the space indicated by two stones on either side of the Nuagaon mosques so as not to disturb the defendants or their community in their offering their prayers and (2) that the right also subject to any lawful order or direction by the Magistrate or the Police for preventing breaches of public peace or obstructing the highway and such other orders under any other statutory provisions for regulating traffic.
The parties will bear their own costs.
" On appeal by the plaintiffs, the First Additional Sub Judge also held that the compromise was binding on the plaintiffs.
He further held that it was manifest from the inscription on the two pillars (Baja bajaiba nishdha) that the leaders of the Hindu community agreed to stop only drum beating near the said two mosques.
In view of this conclusion he gave the following modified declaration: "That the plaintiffs both in their individual capacities and as members of the Hindu Community have a fight to take out religious and social processions accompanied by music in a low sound except drum beating along public roads while passing the two brick pillars situated on either side of Alkund mosque and the two stones fixed on either side of Nuagaon Mosque, subject to any orders or directions issued by the magistrate or police for preventing breaches of public peace or obstructions of the thoroughfares or for other matters mentioned in section 144 Criminal P.C. or under other statutory provisions or for regulation of traffic, provided that the exercise of such right does not amount to a nuisance recognised by law.
" The defendants appealed to the High Court and the plaintiffs filed a cross appeal.
R.K. Das, J., held that no restriction order of the lower appellate court directing the plaintiffs to take out processions with appropriate music and that the restrictive could be imposed on the right of the plaintiffs ' community to take out procession with "low sound music except drum beating" was not justified and was liable to be set aside.
He, however, maintained the rest of the declaration given by the First Additional Sub Judge.
The High Court further held that the compromise did not create an estoppel against the plaintiffs.
He observed that "there is nothing on record to show that the signatories to the said compromise had any authority whatsoever to bind the com 567 munity as a whole.
It is well settled that a few self constituted leaders or even leaders chosen by the officials do not legally represent the entire community which includes minors also and without proof of valid authority such leaders cannot bind the other members of the community.
The question whether any valid authority was given or not is a question of fact in each case." The learned counsel for the defendants contends that (1 ) the High Court had no jurisdiction to set aside the finding that the compromise was effected in a representative capacity; (2) that Babu Ram Singh vs Subhan Mochi(1) lays down good law and should have been followed by the High Court; and (3) that both the Hindus and the Muslims have fundamental rights and in case of conflict reasonable restrictions on playing of music before the mosques should be imposed by this Court.
In our opinion the High Court was right in coming to the conclusion that the compromise was not binding on the Hindu community.
The learned Additional Sub Judge had misdirected himself in law in coming to the contrary conclusion.
The compromise was not arrived at in a suit fought in a representative capacity but was filed in a proceeding under section 107, Criminal Procedure Code.
The signatories declared inter alia that "neither we, the Musalmans nor we the Hindus can at any time in future create any disturbance towards.
each other 's religion and will deal with each other amongst ourselves .
There is no apprehension of breach of peace as we the Hindus and the Musalmans have amicably settled the matter nor will there occur any breach of peace in future.
So we both parties having settled the matter amicably hereby submit this petition and pray that the case be disposed of in terms of this compromise petition.
" It is signed by a number of persons but there is no indication that they represented the two communities.
It may be that these persons, who signed the compromise, were important persons in the communities and it may be that both the communities should act according to the compromise effected by the so called important persons.
But in law it does not debar the parties from asserting their legal rights in a civil court.
We need not decide what the compromise means, and particularly whether the words inscribed on the pillars were part of the compromise effected by the leaders.
The facts in Babu Ram Singh vs Subhan Mochi(1), which was.
relied on by the learned counsel for the defendants, were different.
There the Court was satisfied from a consideration of the circumstances that the agreement was binding on the parties.
The Court observed: (1) A.I.R. 1932 All.
568 "It is manifest that the parties did summon the leaders of the various communities and that they were summoned as representatives of their various communities .
We find it quite impossible to believe in the circumstances of the case that the other Mahomedans of Rasra were not fully aware of the meeting to which their leaders had been summoned, and their subsequent conduct in the ensuing years shows that during those years, at any rate, they accepted the representative capacity of the leaders who had signed the agreement.
It is manifest that for at least three years no single Mahomedan made any endeavor to repudiate the authority of those leaders .
That it is right and proper to infer the representative character of the signatories to the agreement from the surrounding circumstances is amply supported by a reference to section 187, Contract Act.
" We are not called upon to decide whether that case was rightly decided or not as the facts in that case were quite different.
As we have said, this was a proceeding under section 107 against particular parties and we are unable to appreciate how any party in a proceeding under section 107, Criminal Procedure Code, could represent the whole community to which he belongs.
The law on the subject of rights of persons to take out religious processions was settled by the Privy Council in Manzur Hasan vs Muhammad Zaman(1).
The learned counsel has not challenged that decision, but appeals to us to.
incorporate more reasonable restrictions so as to fully preserve the rights of the appellants defendants to say their prayers in peace in the mosques.
In our opinion there is no reason why we should not follow the decision of the Privy Council in Manzur Hasan vs Muhammad Zaman (1), and the form of declaration given therein.
The declaration given by the Privy Council paid due regard to the rights of both communities.
We accordingly substitute the following declaration: "That the plaintiffs have a right to take out both religious and non religious processions with the accompaniment of music on the highways of Alkund and Nuagaon villages (1) subject to the order of the local authorities regulating the traffic and (2) subject to.
the Magistrate 's directions under any law for the time being in force and the rights of the public.
" The appeal accordingly fails and is dismissed.
There will be no order as to costs.
V.P.S. Appeal dismissed.
(1) [1924] 52 I.A. 61.

dataset_name: IN-Abs

summary:
The respondents, who were Hindus filed a suit against the appellants who were Muslims, for a declaration that the Hindu residents of their villages had the right to take out religious and non religious processions.
with appropriate music along the roads and public highways in the: villages, including those by the side of two mosques in the villages.
The appellants contended that in 1931, in proceedings under section 107, Criminal Procedure Code, there was a compromise between the Hindus and the Muslims of the two villages, whereby it was agreed that Hindus would not play music between two land marks near the mosques, and that such a restriction was necessary to enable them to say their prayers in the. mosques.
The trial court held the respondents were bound by the compromise.
The first appellate court also held that the respondents were bound by the compromise, but that the respondents could take the processions between the landmarks with 'music in a low sound except drumbeating.
Both parties appealed to the High Court.
The High Court held, that the respondents were not bound by the compromise, that no restriction could be imposed on the right of the respondents ' community (Hindus) to take out processions with appropriate music, and that the restrictive order of the first appellate court that only low sound music could be played should be set aside.
In appeal to this Court.
HELD: (1) As the compromise was not arrived at in a suit fought.
in a respresentative capacity, it did not debar the parties from asserting, their legal rights in a civil court.
[567 D] Babu Ram Singh vs Subban Mochi, A.I.R. 1929 All. 519, explained.
(2) The respondents have the right to take out both religious and ' non religious processions with accompaniment of music on the roads and highways subject only to (a) an.y order of the local authorities regulating the traffic; (b) any directions of the Magistrate under any law fOE the time being in force; and (c) the rights of the public.
[568 G] Manzur Hasan vs Muhammad Zaman, (1924) 52 I.A.61, applied.


judgement:
iminal Appeal No. 46 of 1967.
Appeal from the judgment and order dated November 1, 1966 of the Kerala High Court in Criminal Revision Petition No. 191 of 1966.
Lily Thomas, for the appellant.
W.S. Barlingay and Ganpat Rai, for respondent No. 1.
A.G. Pudissery, for respondent No. 2.
693 The Judgment of the Court was delivered by Shah, J.
Rathi daughter of M.C. Verghese was married to T.J. Ponnan.
On July 18, 1964, July 25, 1964 and July30, 1964, Ponnan wrote from Bombay letters to Rathi who was then residing with her parents at Trivandrum which it is claimed contained defamatory imputations concerning Verghese.
Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Ponnan charging him with offence of defamation Ponnan submitted an application raising two preliminary contentions (1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and (2) that uttering of a libel by a husband to his wife was not "publication" under the law of India and hence cannot support a charge for defamation, and prayed for fan order of discharge, and applied that he may be discharged.
The District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another ' person does not amount in law to publication, Since the husband and wife are one in the eye of the law.
In so holding, he relied upon the judgment in Wennhak vs Morgan and Wife(1).
He also held that the communication was privileged, and no evidence could be given in court in relation to that communication.
He accordingly ordered that Ponnan be discharged under section 253 (2) Code of Criminal Procedure.
In a revision application filed by Verghese before the Court of Session, the order was set aside and further enquiry into the complaint was directed.
In the view of the learned Sessions Judge the doctrine of the common law of England that a communication by one spouse to another of a matter defamatory of another person does not amount to publication has no application in India, and section 122 of the Indian Evidence Act does not prohibit proof in the Court by the complainant of the letters written by Ponnan to his wife.
The case was then carried to the High Court of Kerala in revision.
The High Court set aside the order of the Court of Session and restored the order of the District Magistrate.
The High Court held that from the averments made in paragraphs 9 to 11 of the complaint it was clear that the writing of defamatory matter by Ponnan to his wife Rathi was not in law publication, and that "if the letters written by Ponnan to his wife cannot be proved in court either by herself directly or through her father, in whose hands she had voluntarily placed them, the imputations therein fell outside the court 's cognizance and no charge under section 500 Indian Penal Code could be deemed to be made out".
Against (1)[1888] 120.Q.B.D. 635.
694 the order passed by the High Court discharging Ponnan, this appeal is preferred with certificate granted by the High Court.
It was assumed throughout these proceedings that the letters are defamatory of the complainant.
Under the Indian penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.
To constitute the offence of defamation there must therefore be making or publication of an imputation concerning any person and the making or publication must be with intent to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.
Unless there is publication there can be no offence of defamation committed.
In England the rule appears to be well settled that except in certain well defined matters.
the husband and wife ,are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication.
In Wennhak 's case(1) Manisty, J., observed: " . the maxim and principle acted on for centuries is still in existence viz., that as regards this Case, husband and wife 'are in point of law one person." The learned Judge examined the foundation of the rule and stated that it was, after, all, a question of public policy or, social policy.
But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence.
In Queen Empress vs Butch(2) it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law.
If the wife, removing the husband 's property from his house, does so with dishonest intention, she is guilty of theft.
In Abdul Khadar vs Taib Begum(5) the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India.
It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and (1) (2) I.L.R. (3) A.T.R. 695 the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
In Tiruvengadda Mudali vs Tripurasundari Ammal(1) a Full Bench of the Madras High Court observed that the exceptions to section 499 I.P. Code must be regarded as exhaustive as to the cases which they purport to cover ,and recourse cannot be had to the English common law to 'add new grounds of exception to those contained in the statute.
A person making libelous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception ,and the illustration to section 499 the statements are privileged only when they are made in good faith.
There is therefore authority for the proposition that in determining the criminality of an act under the Indian Penal Code the courts will not extend the scope of special exceptions by resorting to the rule peculiar to EngLish common law that the husband and wife are regarded as one.
But we do not deem it necessary to record any final opinion on this question because, in our judgment.
this enquiry has to be made when the complaint is tried before the Magistrate.
Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi Ponnan, however, says that the letters addressed by him to his wife are not except with his consent admissible in evidence by virtue of section 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife and she is prohibited by law from disclosing those letters.
no offence of defamation could be made out.
So stated the proposition is in our judgment, not sustainable.
Section 122 of the Indian Evidence Act falls in Ch.
IX which deals with evidence of witnesses in proceeding before the court.
That section provides: "No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall be permitted to disclose any such communication.
unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
" The section consists of two branches (1) that a married person shall not be compelled to disclose any communication made to him during marriage by his spouse; and (2) that the married person shall not except in two special classes of proceedings be permitted to disclose by giving evidence in court the communication, (1) I.L.R. 696 unless the person who made it, or his representative in interest, consents thereto.
A prima facie case was set up in the complaint by Verghese.
That complaint has not been tried and we do not see how, without recording any evidence, the learned District Magistrate could pass any order discharging Ponnan.
Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife.
If Rathi appears in the witness box to give evidence 'about the communications made to her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Ponnan consents.
That does not, however, mean that no other evidence which is not barred under section 122 of the Evidence Act or other provisions of the Act can be given.
In a recent judgment of the House of Lords Rumping vs Director of Public Prosecutions(1), Rumping the mate of a Dutch ship was tried for murder committed on board the ship.
Part of the evidence for the prosecution ,admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession.
Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England.
After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police.
The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness.
It was held that the letter was admissible in evidence.
Lord Reid, Lord Morris of Borth Y Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy.
Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act.
1898, (of which the terms are similar to section 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings.
The question whether the complainant in this case is an agent of the wife because he has received the letters from the wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed.
The complainant claims that he has been defamed by the writing of the letters.
The letters are in his possession and are available for being tendered in evidence.
We see no reason why inquiry into that complaint should, on the (1) 697 preliminary contentions raised, be prohibited.
If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of section 122 of the Indian Evidence Act.
Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial 'and cannot be made the subject matter of an enquiry at this stage.
One more question which was raised by counsel for the appellant may be briefly referred to.
It was urged ' that since the matter reached this Court, Rathi has obtained a decree for nullity of marriage 'against Ponnan on the ground of his impotency, and whatever bar existed during the subsistence of the marriage cannot now operate to render Rathi an incompetent witness.
But the argument is plainly contrary to the terms of section 122.
If the marriage was subsisting at the time when the communications were made, the bar prescribed 'by section 122 will operate.
In Moss vs Moss(1), it was held that in criminal cases, subject to certain common law and statutory exceptions, a spouse is incompetent to give evidence against the other, and that incompetence continues after a decree absolute for divorce or a decree of nullity (where the marriage annulled was merely voidable) in respect of matters arising during coverture.
Counsel for the appellant however urged that the rule enunciated in Moss 's case(1) has no application in India because under sections 18 & 19 of the Divorce Act no distinction is made between marriage void and voidable.
By section 18 a husband or a wife may present a petition for nullity of marriage:to the appropriate court and the court has under section 19 power to make the decree on the following grounds: "(1) that the respondent was impotent at the time of the marriage 'and at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3 ) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife or either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage (1.) 698 on the ground that the consent of either party was obtained by force or fraud.
" Marriage with the respondent who was impotent at the time of the marriage or at the time of the institution of the suit is not ab initio void: it is voidable.
As stated in Latey on Divorce, 14th Edn., at p. 194, article 353: "Where impotence is proved the ceremony of marriage is void only on the decree absolute of nullity, but then it is void ab initio to ,all intents and purposes '.
Such a marriage is valid for all purposes, unless a decree of nullity is pronounced during the life time of the parties.
" When the letters were written by Ponnan to Rathi, they were husband and wife.
The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court.
We are, therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside.
The proceed Lugs will be remanded for trial to the District Magistrate according to law.
V.P.S. Appeal allowed.

summary:
The first respondent wrote letters to his wife who is the daughter c the appellant.
The letters contained defamatory imputations concerning the appellant.
The letters were handed over to the appellant and he filed a complaint for defamation against the first respondent.
The Magistrate held that a communication between spouses of a matter de (amatory of another did not amount to publication and that no evidence could be given of it under section 122 of the Evidence Act, 1872, against the first respondent, and discharged him.
The Court of Session set aside the order but the High Court restored it.
While the appeal against the order of discharge was pending in this Court a decree of nullity of marriage was passed against the first respondent on the ground of his impotency.
HELD: If the appellant sought to support his case only upon the evidence of the wife of the first respondent, 8. 122 of the Evidence Act would be a bar.
Further a marriage with a person important at the time of marriage and at the time of institution of proceedings for nullity is under the Indian Divorce Act not ab initio void; it is valid till the decree of nullity is pronounced.
Therefore, if the defamation case were to proceed and 'the wife ' should appear as a witness to give evidence about the communication made to her by her husband (the first respondent), the communication could not be deposed to unless the first respondent consented because, if the marriage was subsisting at the time when the communication was made the bar prescribed by section 122 would operate.
But the letters were in appellant 's possession and were available for being tendered in evidence, and he could prove the letters in any other manner.
Therefore, the accused (first respondent) should not have been discharged.
[696 H; 697 A C; 698 A B] Rumping vs Director of Public Prosecutions, applied.


judgement:
Appeal No. 1036 of 1966.
Appeal by special leave from the judgment and order dated March 15, 1965 of the Allahabad High Court in First Appeal No. 268 of 1963.
C.B. Agarwala and K.P. Gupta, for the appellant.
R. K. Garg, D.K. Agarwal and M.V. Goswami, for the respondent.
795 The Judgment of the Court was delivered by Sikri, J.
This is an appeal by special leave, and while granting it this Court confined it only to the point arising under section 97 of the U.P. Municipalities Act, 1916 hereinafter referred to as the Act The facts relevant to the point are as follows: The Municipal Board, Saharanpur, respondent before us and hereinafter referred to as the plaintiff brought a suit for the recovery of Rs. 12,044/ 19 and future interest upto the date of realisation from B.C. Mohindra, appellant before us and hereinafter referred to as the defendant.
In brief, the case of the plaintiff was that there was an auction on March 29, 1960, of the theka for collecting tahbazari dues of the mandi in Mazahir Gang alias Ganj Jadid, Saharanpur, for one year from April 1, 1950 to March 31, 1951, subject to the conditions of sale entered in the amended sale proclamation.
The defendant bid Rs. 40,000/ subject to the confirmation by the Board.
The Board did not confirm the auction sale, and on April 8, 1960, the tahbazari was re auctioned.
The defendant bid Rs. 53,025/ .
At ,the time of the auction sale a meeting of the Board was also held in which the auction aforesaid was confirmed under Resolution No. 26 dated April 8, 1950, in the presence of the defendant, and only the condition relating to the payment of auction money was amended to provide for payment in four installments.
The defendant had to deposit 1/4th of the bid on April 8, 1950.
He failed to deposit this instalment on April 8, 1950, but on April 10, 1950, he deposited the instalment and took charge of the mandi aforesaid and began to collect tahbazari dues.
The defendant was asked to execute and complete an agreement in favour of the plaintiff according to the conditions and the rules but he continued to put off the matter.
As the defendant failed to deposit the amount of the second instalment and execute the agreement, the plaintiff cancelled the theka of the defendant and began to collect tahbazari dues through its own staff and re auctioned the theka on July 3, 1950.
After taking into account the money received from the re auction on July 3, 1950, and the money deposited by the defendant, according to the plaintiff there was a shortage of Rs. 12,044/ 19.
The defendant did not dispute the fact that an auction was held and that he made the last bid of Rs. 53,025/ which was accepted.
He also admitted that he had deposited Rs. 13,256/4/ .
But he ,alleged that the plaintiff had committed various breaches of the contract in contravention of the rules, contract and the bye laws as a result of which the defendant Suffered a loss of Rs. 9,685/ .
796 The Trial Court flamed various issues arising out of the pleadings but no issue was raised regarding non compliance with section 97 of the Act.
It appears that an argument was raised before the Trial Court regarding section 97.
The Trial Court observed: "On the basis of this decision (A.W.R. 1951 page 560), it was urged on behalf of the defendant that it was necessary in the present case that a written contract should have been obtained by the plaintiff under section 97 of the Municipalities Act . .
In a public auction, the various bidders give their bids which may be called offers and the moment the auctioneer knocks the hammer down at a particular bid, that bid is to be taken as accepted between the parties.
It is the knock of the hammer which concludes the contract.
The list of bidders is the only evidence of the contract showing that out of various offers, the highest bid was accepted.
In this particular case, the list of bidders bears the signature of the defendant and of the Chairman of the plaintiff Board, thus reducing the contract into writing vide exhibit 17.
The contract in this case is, therefore, a written contract evidenced from paper exhibit 17 .
According to the provision of section 97 of the Municipalities Act, such a contract should have been only in writing and this condition was fulfilled by drawing up the list of bidders and obtaining the signature of the highest bidder in whose favour the auction was concluded on such a list." The Trial Court decreed the suit.
The defendant appealed to the High Court, and the High Court (Srivastava and Jagdish Sahai, J J) by its order dated October 5, 1961, remanded the case on two issues: (1) Whether the agreement relied upon by the plaintiff was in accordance with sections 96 and 97 of the U.P. Municipalities Act of 1916 ? If not, what is the effect ? (2) Whether section 65 of the Indian Contract Act applied ? If so, what compensation, if any, could be recovered by the plaintiff from the defendant on account of any advantage the latter may have received under the agreement ? While passing the order of remand the High Court observed: "While hearing arguments in this appeal we discovered that a very important point was apparently missed 797 both by the parties and by the learned Civil Judge.
We feel that the case cannot be properly decided without having findings of learned Civil Judge on that point.
The point involves two questions.
" We are in agreement with the contention of the learned counsel for the plaintiff that there was no justification in remanding the case.
The Trial Court had dealt with the question of section 97 of the Act and this apparently escaped the notice of the High Court.
Be that as it may, the Trial Court, in a very careful and reasoned order, dated August 24, 1962, held that on the facts sections 96 and 97 of the Act had been fully complied with.
The High Court (Jagdish Sahai and Broom, JJ.), came to the conclusion that section 97 of the Act did not apply to the facts of the case.
The High Court observed: "The suit, therefore, is one for the failure to execute the contract deed and to pay the amounts which have become due from him by way of damages.
Section 97 of the Act deals with contracts which have been executed.
It is for this reason that we have come to the conclusion that the provisions of Section 97 of the Act are not attracted to the present case.
" Section 97 of the Act reads as follows: "Execution of Contracts (1) Every contract made by or on behalf of a Board whereof the value of the amount exceeds Rs. 250/ shall be in writing; Provided that unless the Contract has been duly executed in writing, no work including collection of materials in connection with the said Contract shall be commenced or undertaken.
(2) Every such contract shall be signed (a) by the President or a Vice President and by the Executive Officer or a Secretary, or (b) by any person or persons empowered under subsection (2) or (3) of the previous section to sanction the contract if further and in like manner empowered in this behalf by the Board.
" It seems to us that on the facts of the case it is clearly proved that there was a contract in writing within the meaning of proviso to section 97(1) and the provisions of sub.
section
We agree with the conclusion of the Trial Court in this respect.
The list of bids, exhibit 17, at the auction sale held on April 8, 1950, is signed by the defendant, the Chairman and the Executive Officer.
This auction was held before the Board and Resolution No. 26 4Sup.
CI/69 18 798 dated April 8, 1950, was passed on that day, which reads as follows: "Auction of the tehbazari contract of Mandi Mazabar Gunj for the year 1950 51 (Boards Reso.
No. 431 dated 30 3 50).
Auction held before the Board.
Terms of auction, were announced.
During the auction, at the request of the bidders, the Board unanimously, passed the following amendment in the terms of auction : "One fourth of the auction money will be deposited at the fall of hammer and the remaining amount in three equal instalments at the interval of two months each 1st instalment today 8 4 50 2nd instalment on 8 6 50 3rd instalment on 8 8 50 4th instalment on 8 10 50" Auction sanction to the highest bidder Shri B.C. Mohindra for Rs. 53,025/ w.e.f.
9 4 50 to 31 3 51.
Chairman Finance Committee to please deliver the possession and to decide the disputes, if any.
" The original proceedings book was produced before the Trial Court and it was proved by Ram Swarup, clerk.
He proved that after the entire proceedings were over, it was signed before him by Shri Madho Prasad, Executive Officer of the Municipal Board, and Shri Jamshed Ali Khan, the Chairman.
In our opinion the list of bids and the Resolution No. 26 dated April 8, , constituted a contract in writing within the meaning of section 97 of the Act.
It was held by this Court in Union of India vs Rallia Ram(1) that for the purposes of section 175(3) of the Government of India Act, 1935, a valid contract could be spelt out of correspondence.
It seems to us that similarly it is not necessary for the purpose of complying with section 97 of the Act that the contract should be contained in one document signed by both the parties.
In view of our conclusion it is not necessary to consider what would have been the rights of the plaintiff if.
there had been no such contract in writing.
In the result the appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) ; , 173.

summary:
At an auction held on April 8, 1950 of the theka for collecting Tahbazari dues of a Mandi, the appellant 's bid was accepted.
At the time of auction a meeting of the respondent Board was also held in which the auction was confirmed by resolution and the usual conditions relating to the payment of auction money were amended to provide for payment in four installments.
The appellant was asked to execute and complete an agreement in favour of the respondent according to the conditions and rules, but he 'failed to do so.
In view of this and the fact that he failed to pay the second installment, the respondent Board cancelled the appellant 's theka and reauctioned it.
After taking into account the money received from the reduction and the instalment paid by the defendant, the Board sued the appellant for the recovery of the balance and future interest.
One question considered by the Trial Court was whether the provisions of section 97 of the U.P. Municipalities Act, 1916, which required certain contracts made by or on behalf of the Board be in writing, had been complied with.
The Trial Court found that there was a list of bidders at the auction held on 8th April, 1950 which bore the signature of the appellant and of the Chairman of the respondent Board; it therefore considered that the contract was a written contract and decreed the suit.
In appeal the High Court remanded the case as it took the view that the question of the applicability of and compliance with section 97 of the Act had not been dealt with.
On appeal to this Court, HELD: On the facts, it was clearly proved that there was a contract in writing within the meaning of the proviso to section 97(1) and the provisions of sub.
section (2).
The signed list of bidders and the resolution of the Board passed at the time of the auction constituted a contract in writing within the meaning of section 97 of the Act.
There was therefore no justification in the High Court remanding the case.
[797 H; 798 F G] Union of India vs Ralla Ram, ; , 173, referred to.


judgement:
Appeal No. 25 of 1952.
Appeals from the Judgment and Order dated the 10th day of January, 1952, of the High Court of Judicature of Travancore Cochin at Ernakulam (Kunhiraman C.J. and Subra mania Iyer J.) in Original Petitions Nos. 4, 23and 24 of 1951 respectively.
T.N. Subramania Iyer, Advocate General of Travancore Cochin, (T.R. Balakrishna lyer and M.R. Krishna Pillai, with him) for the State of Travancore Cochin.
N.C. Chatterjee (C.R. Pattabhirarnan, with him) for the respondent in Civil Appeal No. 25 of 1952.
C. R. Pattabhiraman for the respondent in Civil Appeal No. 28 of 1952.
N.C. Chatterjee '(Thomas Vellappally, with him) for the respondent in Civil Appeal No. 29 of 1952.
M. C. Setalvad, Attorney General for India, and C.K. Daphtary, Solicitor General of India (G.N. Joshi, with them) for the Union of India.
October 16.
The Judgment of the Court was delivered by PATANJALI SASTRI C.J.
These are connected appeals from the judgment and order of the High Court of Travancore Cochin quashing the assessments under the United State of Travancore and Cochin Sales Tax Act (No. 11 of 1125 M.E.) (hereinafter referred to as "the Act") on the respond ents on the turnover of the sales of the commodities (coif products in C.A. 25, lemon grass oil in C.A. 28 and tea in C.A. 29) in which they respectively deal.
The dealings followed more or less the same pattern in all the cases and consisted of export sales of the respec tive commodities to foreign buyers on c.i.f. or f.o.b. terms as the case may be.
The respondents in each case claimed exemption from assessment in respect of the sales effected by them on the ground, inter alia, that such sales took place "in the 'course of the export of the goods out of the territory of India" within the meaning of article 1115 286(1) (b) of the Constitution.
The Sales Tax Authorities rejected the contention as, in their view, the sales were completed before the goods were shipped and could not, therefore, be considered to have taken place in the course of the export.
Thereupon the respondents by separate petitions applied to the High Court of the United State of Travancore and Cochin (hereinafter referred to as the State) under article 226 of the Constitution for issue of writs of certiorari and prohibition quashing the assessments made On them and pro hibiting such assessment in future.
The applications were heard, along with nine other applications for similar re liefs by dealers in cashew nuts, by a Division Bench (Kunhi raman C.J. and Subramania Iyer J.) who upheld the claim of exemption and quashed the assessment orders in respect of the transactions subsequent to the commencement of the Constitution.
From that decision the State has preferred appeals in all the cases on a certificate granted by the High Court under article 132 (1) of the Constitution.
As the appeals involved important questions of law which may have a bearing on the sales tax legislation of the various States in India, this Court directed notice of these proceedings to the Attorney General for India and the Advo cates General of those States, and they have intervened and participated in the debate at the hearing of these appeals.
When the argument had proceeded for some time, it was discovered that the material facts relating to the course of dealings in cashew nuts, which were more complex in charac ter, had not been clearly ascertained and consequently the relative appeals were remitted to the High Court for find ings on certain points agreed upon by the parties.
These three appeals were, however, fully heard as they were found to admit of disposal on the materials on record.
Article 286(1), on which the respondents found their claim to exemption, runs thus: 1116 No law of a State shall impose, or authorise the imposi tion of, a tax on the sale or purchase of goods where such sale or purchase takes place.
(a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
Explanation.
For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consump tion in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
On the scope and meaning of clause (b), the learned Judges expressed their view as follows : "The words 'in the course of ' make the scope of this clause very wide.
It is not restricted to the point of time at which goods are imported into or exported from India.
The series of transactions which necessarily precede export or import of goods will come within the purview of this clause.
Therefore, while in the course of that series of transactions, the sale has taken place, such a sale is exempted from the levy of sales tax.
The sale may have taken place within the boundaries of the State.
Even then sales tax cannot be levied if the sale had taken place while the goods were in the course of import into India or in the course of export out of India.
We are stressing this point because both parties in what we may describe as the cashew nut cases entered into a lengthy discussion as to the exact point of time when the sale became completed and as to the exact place where the goods were when the sale became a completed transaction.
" On this interpretation, local purchases "made for the purpose of export" were held by the learned Judges to be "integral parts of the process of exporting".
In support of this construction the learned Judges referred 1117 to the debates in the Constituent Assembly on clause 264 A of the draft Constitution which corresponded to article 286 and quoted from the speech of one of the members who unsuc cessfully moved an amendment defining export as meaning the last transaction and import as meaning the first transac tion.
In view of the wide construction thus placed upon clause (b) of article 286 (1), the arguments before us ranged over a large field, and as many as four different views as to its scope and meaning were pressed upon us for our acceptance : (1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and pur chases which occasion the export or import as the case may be, and extends to no other transactions however directly or immediately connected, in intention or purpose, with such sales or purchases, and wheresoever the property in the goods may pass to the buyer.
This is the view put forward on behalf of the State of Madras.
The Advocate General thought that a State could not impose sales tax though title passed within State limits while the goods were still under trans port on the high seas and no question of exemption could therefore arise.
He said, however, that no such ease had actually arisen.
(2) In addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer, if any, so directly and proximately connected with the export sale or import purchase as to form part of the same transaction.
This view was sponsored ' by the Attorney General who was also inclined to think, as advised at the moment, that sales or purchases made while the goods were on the high seas would be exempt, but he would prefer not to go into the wider question, because, whatever view was taken, sales such as those involved in the present cases must, in any event, be exempt.
(3) The exemption covers only those sales and purchases under which the property in the goods 1118 concerned is transferred from the seller to the buyer during the course of the transit, that is, after the goods begin to move and before they reach their foreign destination.
This view is supported by the State of Bombay and certain other States.
(4) The view which found favour with the learned Judges of the High Court in the passage already extracted.
It will be seen that the construction first mentioned is the narrowest and the last mentioned the widest.
We are clearly of opinion that the sales here in ques tion, which occasioned the export in each case, fall within the scope of the exemption under article 286(1)(b).
Such sales must of necessity be put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export.
A sale by export thus involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
Assuming without deciding that the property in 'the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities, the sales must, never theless, be regarded as having taken place in the course of the export and are, therefore, exempt under article 286(1)(b).
That clause, indeed, assumes that the sale had taken place within the limits of the State and exempts it if it took place in the course of the export of the goods concerned.
In the foregoing discussion we have assumed that the word "sale" used in the Constitution has the same 1119 meaning as in the law relating to the sale of goods, but it has been suggested in the course of the argument that it imports a wider concept than the passing of title from the seller to the buyer which under that law is determined by highly technical rules based upon the presumed intention of the parties and liable to be displaced by their expressed intention.
We leave the point open as it is unnecessary for the purpose of these appeals to pronounce any opinion upon it.
It was said that, on the construction we have indicated above, a "sale in the course of export" would become practi cally synonymous with "export", and would reduce clause (b) to a mere redundancy, because article 246 (1), read with entry 83 of List I of the Seventh Schedule, vests legisla tive power with respect to "duties of customs including export duties" exclusively in Parliament, and that would be sufficient to preclude State taxation of such transactions.
We see no force in this suggestion.
It might well be argued, in the absence of a provision like clause (b) prohibiting in terms the levy of tax on the sale or purchase of goods where such sales and purchases are effected through the machinery of export and import, that both the powers of taxation, though exclusively vested in the Union and the States re spectively, could be exercised in respect of the same sale by export or purchase by import, the sales tax and the export duty being regarded as essentially of a different character.
A similar argument induced the Federal Court to hold in Province of Madras vs Boddu Paidanna and Sons(1) that both central excise duty and provincial sales tax could be validly imposed on the first sale of groundnut oil and cake by the manufacturer or producer as "the two taxes are economically two separate and distinct imposts".
Lest similar reasoning should lead to the imposition of such cumulative burden on the export import trade of this country which is of great importance to the nation 's economy, the Constituent Assembly may well have thought it necessary to exempt (1) 1120 in terms sales by export and purchases by import from sales tax by inserting article 286 (1) (b) in the Constitution.
We are not much impressed with the contention that no sale or purchase can be said to take place "in the course of" export or import unless the property in the goods is transferred to the buyer during their actual movement, as for instance, where the shipping documents are indorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped, or where such documents are cleared on payment, or on acceptance, by the Indian buyer 'before the arrival of the goods within the State.
This view, which lays undue stress on the etymology of the word "course" and formulates a mechanical test for the application of clause(b), places, in our opinion, too narrow a construction upon that clause, in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods, and would, if accepted, rob the exemption of much of its useful ness.
We accordingly hold that whatever else may or may not fall within article 286 (1) (b), sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals.
Our attention was called, in the course of the debate, to various American decisions which hold that the power "to regulate" inter State commerce vested exclusively in the Congress by article 1 section 8(3) of the American Constitu tion (the Commerce clause) excludes by implication the States ' power of taxation only when the goods enter "the export.
stream", and until then such goods form part of "the general mass of property in the State" subject, as such, to its jurisdiction to tax, and that this principle was also applicable to cases arising under article 1 section 9(5) and section 10(2) (the Import Export clause), [see e.g., Empresa Siderurgica vs Merced Co.(1)].
These clauses (1) ; 1121 are widely different in language, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the ex panding American commerce and industry, and we are of opin ion that not much help can be derived from them in the solution oil the problems arising under article 286 of the Indian Constitution.
It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted.
That this form of ex trinsic aid to the interpretation of statutes is not admis sible has been generally accepted in England, and the same rule has been observed in the construction of Indian stat utes see Administrator General of Bengal vs Prem Nath Mallick(1).
The reason behind the rule was explained by one of us in Gopalan 's case(2) thus : "A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill.
Nor is it reasonable to assume that the minds of all those legislators were in accord," or, as it is more tersely put in an American case "Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other United States vs Trans Missouri Freight Association(3). ' ' This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning.
It would seem that the rule is adopted in Canada and Australia see Craies on Statute Law, 5th Ed., p. 122.
(1) (895) 22 I.A. Io7,118.
(2)[1950] S.C.R.88.
(3) 169 U.S.290,318.
144 1122 In the result, agreeing with the conclusion of the High Court, though on different grounds, we dismiss the appeals with costs.
Appeals dismissed.
Agent for the respondent in C.A. No. 25 of 52: M.S.K. Sastri.
Agent for the respondent in C.A. No. 28 of 52: Sardar Bahadur.
Agent for the respondent in C.A. No. 29 of 52: V.P.K. Nambiyar.
Agent for the Interveners (Union of India, State of Bombay, State of Madras, State of Hyderabad, State of Punjab, State of MysOre, and State of Orissa): P.A. Mehta.
Agent for the State of Uttar Pradesh: C.P. Lal.

summary:
Whatever else may or may not fall within article 286 (1) (b) of the Constitution, sales and purchases which themselves occasion the export or the import of the goods as the case may be, out of or into, the territory of India come within the exemption.
The view that no sale or purchase can be said to take place in the course of export or import unless the property in the goods is transferred to the buyer during their actual move ment, as instance, where the shipping documents ,are in dorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment, or on acceptance, by the Indian buyer before the arrival of the goods within the State, puts too narrow a construction upon article 286 (1)(b) and is not correct.
A sale by export involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated and the sale and 'the result ant export form parts of a single transaction.
Of these two integrated activities which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
Even in cases where the property in the goods passed to the foreign buyers and the sales were thus completed, within the State before the goods commenced their journey from the State, the sales must be regarded as having taken place in the course of the export and therefore exempt under article 286 (1) (b).
The Commerce clause (article 1, section 8 (3)) and the Import Export clauses [article I, sections9 (5) and 10 (2)] of the American Constitution are widely different in lan guage, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting from time to time, their operation and applica tion in the context of the expanding American commerce and industry and much help cannot be derived from them in the solution of the problems arising under article 286 of the Indian Constitution.
Speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used 'as aids for interpreting the Constitution.
Administrator General of Bengal vs Prem Nath Mullick [22 I.A. 107 at 118], A.K. Gopalan vs The State [(1950) S.C.R. 88], United States vs Trans Missouri Freight Association at 318] referred to.
143 1114