judgement:
Appeal No. 1090 of 1967.
Appeal from the judgment and decree dated May 5, 1966 of the Gujarat High Court in S.C.A. No. 877 of 1962.
B. R. L. lyengar, N. J. Modi, P. C. Bhartari and K. N., Desai for the appellant.
N. Shroff, for respondent No. 1.
K. L. Hathiand section P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by several rate payers challenging the Validity of the assessment of property tax made by the respondent Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 (hereinafter referred to as the Act).
The appellant is the owner of an immovable property situate within the limits of the Corporation.
Until March 31, 1961, two kinds of taxes were being levied on buildings and lands situate within the Corporation 's municipal limits : (1) the general tax levied by the Corporation under the Act, and (2) the urban immovable property tax levied under the Bombay Finance Act, 1932 by the State Government, but collected on its behalf by the Corporation.
At the request of the Corporation made in 1960, an arrangement was arrived at between the Government and the Corporation where under the Government agreed not to levy the U.I.P. tax provided the Corporation increased the rate at which it was till then levying the property tax.
Accordingly, in January 1961 the Corporation passed a resolution in,creasing the rate of the property tax with effect from April 1, 1961 under the power reserved to it by section 127 of the Act.
In 94 5 pursuance of the said resolution and in accordance with the raised percentage of the general tax the Corporation served on the appellant, as also on the other rate payers, bills and demand notices.
In this appeal we are concerned with the bills and ,notices in respecter the assessment year 1962 63.
The appellant, as also certain other rate payers, challenged the said bills and notices in their said writ petitions mainly on the grounds (1) that the Corporation had no authority to amend the rates with the object of including the said U.I.P. tax in the general tax so far levied by the Government under a different statute and given up by it under the said arrangement; (2) that the said bills and notices were illegal as the assessment book kept by the Cor poration was not in accordance with the rules made under the Act and was not authenticated by the Commissioner as required thereunder; (3) that sections 99, 123 and 129(c) of the Act were unconstitutional in that they suffered from Other vice of excessive, delegation in so far as they did not fix the maximum rate at which the Corporation could levy the property tax, and (4) that the said sections were also violative of article 19(1) (f) and article 31 as the tax was confiscatory in character.
By its judgment dated May 5, 1966, the High Court first dis posed of fifty two out of the said seventy writ petitions rejecting the contentions raised therein.
There after the judgment under review separately disposed of the remaining 18 petitions, including that of the appellant, as, besides the points raised in the said 52 writ petitions, these 18 writ petitions raised some additional points.
The High Court in this judgment did not deal afresh the points already disposed of by it in the larger group of writ petitions and based its judgment in respect of them on its earlier judgment dated May 5, 1966.
In its judgment, dated the May 5, 1966, the High Court elaborately examined the scheme and the objects, of the Act and the rules and came to the following conclusions : (1) that the Corporation need not maintain separate assessment book for each of the wards and could legally maintain one assessment book covering all the wards; (2) that the authentication provided for by r. 19 of the said rules in Ch.
VIII to Sch.
A of the Act ,*as not mandatory; (3) that the liability to pay the tax arose when entry under r. 9(e) was made in the assessment book; and 9 46 (4)that section 129 (c) read with sections 99 and 127 did not suffer from the vice of excessive delegation as the legislature had provided in the Act both its policy and principles guiding the Corporation in levying the said tax.
The High Court also negatived the contention that section 129(c) by giving power to tax without laying down the maximum rate was violative of article 19(1) (f) and/or article 31 or article 14.
The High Court also rejected the additional contentions raised in the petitions left over from the earlier batch of 52 petitions and dismissed all of them.
The correctness of the views expressed by the High Court in this judgment, as also in its earlier judgment by the combined effect of which altogether 70 writ petitions were negatived, is challenged in this appeal.
We need not go into all the diverse contentions raised before the High Court as counsel for the appellant raised before us the following three questions only (1) that while making the, assessment the procedure contemplated by sections 127, 129(c) of the Act and rr. 9 to 20 of the Taxation Rules was not cornplied with inasmuch as no ward assessment books were maintained, and consequently, the entries therein were not authenticated as required by r. 19; (2) that section 129 suffers from the vice of excessive delegation of legislative powering as the Act fails to provide either the maximum rate leviable by the Corporation or the guidelines for levying the tax; (3) that in any view of the matter, in the circumstances in which the resolution raising the rate was passed, it did not impose the enhanced rate on the property of the appellant as the same was ,not, prior to April 1961 ' subjected to the U.I.P. tax.
Later, Mr. lyengar gave up, the third contention.
We are, there fore, left with his contentions (1) and (2) only for determination.
Broadly stated, the facts regarding the assessment book and its authentication are as follows : Each year the Commissioner either prepared or continued the assessment book required to be maintained by him under the Taxation Rules.
Each year he went through the procedure for authentication of the assessment book purporting to do so under r. 19 of the Taxation Rules.
After 9 4 7 the assessment book was authenticated, as aforesaid, and a certificate was issued by him that no valid objection had been received in respect of the rateable values entered in the assessment book as required by cl.
(e) of r. 9 of the said rules, the Corporation issued bills and demand notices requiring the owners or occupiers of the properties to pay the said tax.
The Act and the rules provide for objections to the rateable values entered in the assessment book under Cl.
(b) of r. 9, which objections would be heard and decided by the Commissioner.
There are provisions in the Act, such as sections 406, 4 1 0 and 41 1, for appeals to the Judge, Small Causes Court, both against the rateable value fixed under the Taxation Rules as also against the amount of tax demanded in the bills.
As aforesaid, the High Court dismissed the contention as to the constitutionality of section 129(c) basing its decision mainly on the authority of the Corporation of Calcutta vs Liberty Cinema,(1) wherein the validity of section 548(2) of the Calcutta Municipal Act, authorising the Corporation to levy a fee (held by this Court to be a tax) for every licence and permission at such rate as may be fixed from time to time by the Corporation '.
but which did not lay down the maximum rate, was challenged.
The High Court in particular relied on the observations in that decision (1) that fixation of the rate was not an esserxtial legislative function and could be delegated, and (2) that the provisions in the Act, which limited the power to levy taxes to the extent of the statutory needs of the Corporation, furnished sufficient control and guidance.
Reliance was also placed on the following observation relating to the absence of maximum rate "It is said that the delegation of power to fix rates of taxes authorised for meeting the needs of the delegate to be valid, must provide the maximum rate that can be fixed, or lay down rules indicating that maximum.
We are unable to see how the specification of the maximum rate supplies any guidance as to how the amount of the tax, which no doubt has to be below the maximum, is to be fixed.
Provision for such maximum only sets out a limit of the rate to be imposed and a limit is only a limit and not a guidance." Besides deriving support from this judgment, the High Court examined various provisions of the Act and reached the conclusion that under the Act, as under the Calcutta Act, the tax, which the Corporation could collect, would have to be for the purposes of the Act only and that fact, together with certain other controls embodied in the Act, furnished sufficient guidance preventing the vice of arbitrariness or excessive delegation.
(1) ; 948 Before the High Court, the contention also was that for each.
of the relevant years there was no valid assessment book on the basis of which the property tax could be levied.
The argument was that the Taxation Rules required the Commissioner to prepare ward assessment book for each of the wards and not one assessment book for the whole of the municipal limits, that being so, the assessment made on the properties was not in accordance with the rules prescribed for that purpose and was therefore in breach of article 265 of the Constitution and section 127(2) of the Act which lays down that the taxes shall be assessed and levied in accordance with the provisions of the Act and the rules.
The High Court, on a reading of the rules, found : (1) that r. 10 gave discretion to the, Commissioner to prepare either one assessment book or ward assessment books, and (2) that the rules used both the expressions, namely, 'assessment book ' and 'ward assessment books the latter expression being used only in rr. 13 (1), 15 f and 1 9 (1 ) and (2).
According to the High Court, the contention as to the validity of the assessment book and the construction of the rules suggested on behalf of the appellant were not correct.
The object of r. 9, according to the High Court, was to provide for the preparation and maintenance of the assessment book wherein would be entered the amount of property tax against each of the buildings and lands set out therein.
The rule provided that the Commissioner shall first make entries under cls.
(a) to (d) of the rule.
An entryunder cl.
(e), as its language plainly shows, is to be made after :(1) the rates of property tax are fixed, (2) the period fixed forreceipt of complaints against the rateable values has expired, and (3) after such complaints, if any, are disposed of by the Commissioner.
An entry under cl.
(e) having to be made only after the events in (1), (2) and (3) above stated have happened, r. 9 takes in, by using the expression "as herein after provided", the public notice provided by rr. 13 and 15.
According to the High Court, the liability to pay the property tax arises as soon as entry under cl.
(e) of r. 9 is made in the assessment book in the manner therein provided and is not dependent on authentication and certification provided in r. 19 in respect of ward assessment books.
Authentication and certification in such ward assessment books provides a rule of evidence in the sense that the entries therein become conclusive evidence as regards the amount of tax therein set out against each property and is not an event on the happening of which the liability to pay arises.
Such liability arises as soon as entry under cl.
(e) of r 9 is made.
The High Court distinguished its earlier decision in the Municipal Corporation of the City of Ahmedabad vs Zaveri Keshavtal(1) by pointing out that that decision was under the Bombay (1) 6 Guj.
L.R.701.
949 Municipal Boroughs Acts, 1925 which had a scheme and pro visions different from the present Act and the rules thereunder made.
That decision had laid down that the liability of the rate payer would arise only after authentication of the assessmentbook.
For distinguishing that decision the High Court, firstly, relied on r. 30 of the Taxation Rules which provides that property tax shall accrue clue on the 1st of April of each official year, and secondly, on the ground that the Boroughs Act and the rules thereunder did not have a rule corresponding to r. 9(e) which, when read with r. 30, shows that the liability to pay the amount of tax arises on entry under cl.
(e) of that rule being made.
According to the High Court, r. 19, )which provides for authentication applies only to ward assessment books and not to a single asscssment book, that such authentication has nothing to do with the accrual of liability and is a mere rule of evidence which is not available to the Corporation where the Commissioner does not prepare ward assessment books and keeps only one assessment book.
The High Court in this connection observed "If a single assessment book is prepared, then the amount of tax entered in the assessment book will not be the conclusive evidence.
In an appeal, it would be open to a rate payer to challenge the amount on any legal ground, possibly including the challenge to the rateable value of the property in respect of the fact that had not been done before by him.
" On this interpretation, the High Court dismissed the entire batch of the said 70 writ petitions including that of the appellant.
Though the earlier judgment is not under review in this appeal, we have set out its conclusions as the judgment under review followed the earlier judgment, delivered by the same learned Judges and rejected the conclusions raised by the appellant.
In effect, therefore, both the judgments are under challenge to the extent that they decided questions raised in this appeal.
127(1) lays down that "for the purposes of this Act" the taxes which the Corporation has compulsorily to levy are property taxes and a tax on vehicles, boats and animals.
The second subsection authorises the Corporation to levy the taxes set out therein in addition to the aforesaid two taxes.
129 deals with property taxes.
(c) there of provides that property taxes shall comprise inter alia of a general tax of not less than 12% of the rateable value of buildings and lands.
We may note that the Gujarat State Legislature, by Act 8 of 1968, has recently amended cl.
(c) by inserting therein the maximum rate of 30%, so that the question as to the absence of maximum rate is relevant only 950 for the assessment years prior to the amendment.
The Legislature itself has framed elaborate rules contained in Sch.
A to the Act of which the Taxation Rules in Ch.
VIII thereof are part and which under section 453 form part of the Act.
Besides the said rules, sections 454 and 455 authorise the Corporation to add to, amend, alter ,or rescind those rules subject to their being not inconsistent with the provisions of the Act, sanction of the State Government and to the condition of their being made after previous publication.
The other relevant provisions of the Act are sections 63 to 66 which lay down the obligatory functions which the Corporation must perform and certain discretionary functions which it can perform.
The argument was that thought section 127 ( 1 ) lays down that property taxes can be levied by the Corporation only for the purposes ,of the Act, that is to say, for and in respect of the functions which the Corporation must and can carry out, the Act being silent as to the maximum rate upto which the Corporation can levy, it gives unbridled and arbitrary power to levy the property tax as much and to any extent it may desire.
Mr. Iyengar pointed out that amongst the discretionary functions which the Corporation can undertake under section 66 there are such things as swimming pools, public parks, gardens, recreation grounds, construction of dwellings, for municipal officers and servants, libraries, museums etc.
for undertaking which the Corporation can spend huge, amounts and impose extravagant and burdensome rate of tax.
According to the argument, there are no guidelines or controls in the Act which can place any limits to the spending by the Corporation on such discretionary objects, and therefore, the rate payers are exposed to being taxed in an arbitrary and uncontrolled fashion.
The question.
thus is whether the Act contains any policy or ' guidelines or control over the taxing power of the Corporation without which the delegation of power to tax would be excessive, arbitrary and violative of article 14.
The Act, as its preamble and the long title show, was passed for establishment of municipal corporations in the city of Ahemedabad and Poona and certain other cities for ensuring better municipal government.
It was apparently modelled after the Bombay Municipal Corporation Act, 1888.
The Act does not lay down any maximum rate in section 127 probably because its operation was not confined to any particular city in which the municipal corporation would be set up.
The Legislature, while passing it, could not envisage in which particular cities such corporations would be set up.
Nor could it envisage what their financial needs would be; nor which of the discretionary functions, under section 66, such ,corporations would feel they must undertake.
Such needs being variable and incapable of uniform specification, the Legislature might have felt if inexpedient to restrict the fiscal powers of the corporations to be established in furture.
951 The point for consideration is whether the absence of a pro vision laying down the maximum rate is by itself sufficient to render the delegation of the power excessive.
As already stated, section 127(1) expressly provides that taxes can be levied only for the purposes of the Act.
They cannot thus be raised for any function 'other than the one provided by the Act.
82 requires all monies received by the Corporation under the Act to be credited to the Municipal Fund held by the Corporation in trust for the purposes of the Act.
By reason of section 86, no payment can be made out of the Municipal Fund unless it is covered by the current budget grant.
Furthermore, section 88 lays down that the moneys credited in the Municipal Fund shall be applied in payment of sums, charges and costs necessary for carrying the Act into effect, or payment directed or sanctioned by or under the Act.
89 restricts expenditure by the Corporation within the city except when provided by the Act or by a resolution by not less than.
half the total number of councillors.
Under section 95, the Commissioner is required annually to lay before the Standing Committee estimates of income and expenditure, and under section 96.
the Standing Com mittee has to prepare budget estimate 'A ' "having regard to all the requirements of this Act.
" The budget estimate then has to be laid before and passed by the Corporation.
Similar provisions are made in sections 97 and 98 for budget estimate 'B ' prepared by the Transport Manager.
It is after all this has been, done that the Corporation under section 99 determines, on or before the 20th of February of each year, the rates at which property taxes under section 127(1), but sub ject to the limitations and conditions laid down in Ch.
XI, are to be levied for the next ensuing official year, Under section 100, the Corporation, either sends back the budget esti mates 'A or 'B ' for further consideration, or adopts them with such alterations as it deems expedient.
The conditions and limitations subject to which the Corporation can fix, under section 99, the rates at which the property taxes are to be levied are those provided in section 127(3) and (4), i.e., they can be assessed and levied in accordance with the provisions of the Act and the rules.
These provisions clearly show that the ultimate control, both for raising the taxes and incurring expenditure, lies with the councillors chosen by and responsible to the people.
As aforesaid, the assessment and levy of the property taxes have to be in conformity with the Act and the rules.
These rules contain inter alia Taxation Rules, which are part of the Act.
Sec. 454, no doubt, empowers the Corporation to amend, alter and add to these rules, but such power is made under section 455 subject to the sanction of the State Government.
Under section 4 56, the State Government can at any time require the Corporation to make rules under section 454 in respect of any purpose of matter specified in section 457, which includes item "(7) Municipal Taxes. (a) The assess 95 2 ment and recovery of municipal taxes".
Thus, although the Ac does not prescribe the maximum rate at which the property taxe can be raised, the ultimate control for raising them is with the councillors responsible to the people.
It is difficult, therefore, to sustain the plea that the power to levy the property tax is so un bridled as to make it possible for the corporation to levy it in arbitrary manner or extent.
In all statutes dealing with local administration municipa I authorities have inevitably to be delegated the power of taxation,.
Such power is a necessary adjunct to a system of local self govemment.
Whether such delegation is excessive and amounts to abdication of an essential legislative function has to be considered from the scheme, the objects, and the provisions of the statute in question.
In The Western India Theatres Ltd. vs Municipal Corporation of the City of Poona(1) this Court spelt out the policy in the expression "for the purposes of this Act", an expression also used in section 127.
In Pandit Banarsi Das Bhanot vs Madhya Pradesh(2), delegation of power to the executive to determine the details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like, was held not to be unconstitutional on the principle that so long as the legislature retains or has the power of withdrawing or altering the power to tax delegated to a subordinate authority such delegation would be held neither an abdication nor excessive.
In Liberty Cinema case ( 3 ) the majority view was that the power to fix the rate of a tax was not of the essence of the legislative power and that such a power could be delegated even to a non legislative body.
But the decision laid down that when such a power is delegated, the legislature must provide guidance for such fixation.
The majority held that where rates have not been specified in the statute, the power to fix the rates as might be necessary to meet the needs of the delegate itself affords guidance.
The minority view differed from the majority view, in that, according to it, the power to fix the rate of tax was an essential legislative function.
But, even according to that view, such a power can be delegated provided the delegate is afforded guidance by the legislative laying down the policy and principles in the Act, It, however, disagreed with the majority view that the raising of tax 'co extensive with the needs of the delegate in implementing the purposes of the Act can afford such guidance.
The Liberty Cinema case(3) came for consideration in Devi Das vs Punjab (4) where Subba Rao, C.J., speaking for the Court, said : (1)[1959] Sup, 2 S.C.R.71.
(2) [1959] S.C.R.427.
(3) [1965]2 S.C.R. 477.
(4 ; 953 "If this decision [Liberty Cinema case(1) is an authority for the position that the Legislature can delegate its power to a statutory authority to levy taxes and fix rates in regard thereto, it is equally an authority for the position that the said statute to be valid must give a guidance to the said authority for fixing the said rates.
" Though he did not agree as a general principle that guidance can always be spelt out from the limitation to fix the rate by the extent of needs of and the expenses required by the delegate to discharge its statutory functions, the Court did not disapprove Liberty Cinema case(1) but confined the principle laid down there to the provisions of the Calcutta Municipal Act in which the majority had found the requisite guidelines.
No such guidance was available in the Sales Tax statute before the Bench deciding Devi Das 's case(2).
The position which emerged from the decisions so far, therefore, was that the power to fix rates can be delegated if the statute doing so contains a policy or principles furnishing gunance to the delegate in exercising such power.
In the Municipal Corporation of Delhi vs Birla MilIS(3), the question as to the limits of delegation of taxing power once more arose.
The Delhi Municipal Corporation Act, 1957, like the present Act, entrusted to the Delhi Corporation two kinds of functions, compulsory and optional.
In relation to the former, the Act specified the maximum rate of tax the Corporation could raise, but not so in the case of tax relating to or for implementing the optional functions.
The controversy was whether the Act contained provisions furnishing guidance to the Corporation in the exercise of the power to tax.
After an analysis of the provisions of the Act, Wanchoo, C.J., pointed out the following factors which furnished ' sufficient guidance preventing the delegation becoming invalid : (1) that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the councillors have every four years to turn to for being elected; (2) that the limits of taxation were to be found in the.
purposes of the Act for the implementation of which alone taxes could be raised and though this factor was not conclusive, it was nonetheless relevant and must be taken into account with other relevant factors; (3) that the impugned section 1 150 itself contained a provision which required that the maximum rate fixed by the.
Corporation should have the approval of the Government; (1) [196512 S.C.R. 477, (2) ; (3) 1968(3) S.C.R.251.
954 (4) that the Act contained provisions which required adoption of budget estimates by the Corporation annually; and (5) that there was a check by the courts of law where the poower of taxation is used unreasonably or in non compliance or breach of the provisions and objects of the Act.
Referring to Devi Das case(1), he pointed out that (1) that did not disapprove Liberty Cinema case (2 ) was concerned case with a sales tax statute and not with a statute dealing with bodies with limited purposes, such as local self governing bodies.
At page 268 of the reports he observed.
: "There is in our opinion a clear distinction between delegation of fixing the rate of tax like sales tax to the State Government and delegation of fixing rates of certain taxes for purposes of local taxation.
The needs of ,the State are unlimited.
The result of making delegation of a tax like sales tax to the, State Government means a power to fix the tax without any limit even if the needs and purposes of the State are to be taken into account.
" Thus, the majority view in this decision, which is binding on us, shows that the mere fact that an Act delegating taxing power refrains from providing a maximum rate does not by itself render the delegation invalid.
From the provisions of the present Act, cited earlier, it will be seen that though factor (3) of the factors relied on by Wanchoo, C.J., is absent in section 127, the rest are present.
It is impossible to say that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest of the factors which exist in the Act loose their efficacy and cease to be guidelines.
Furthermore, if the Corporation were to misuse the flexibility of the power given to it in fixing the rates, the State legislature can at any moment withdraw that flexibility by fixing the maximum Emit up to which the Corporation can tax.
Indeed, the State Legislature has now done so by section 4 of Gujarat Act, 8 of 1968.
In view of the decisions cited above it is not possible for us to agree with counsel 's contention that the Act confers on the Corporation such arbitrary and uncontrolled power as to ren der such conferment an excessive delegation.
That brings us to the contention regarding the validity of the assessment book maintained by the Commissioner for the assessment year in question.
(1) ; (2) ; 955 Rules 9 to 21 of the Taxation Rules are headed "Assessment Book".
A comparison of these rules with sections 156 to 168 of the Bombay Municipal Corporation Act, 1888 at once shows that they are, with the exception of r. 10, taken almost verbatim from those sections.
Rule 9 requires the Commissioner to keep a book to be called the "Assessment Book" in which the following matters have to be entered, viz., (a) a list of buildings and lands, (b) the rateable value of each of them, (c) the names of persons primarily liable for the payment of the property taxes, if any, leviable on each such building or land, (d) the reasons for non liability, if any of them is not liable to be assessed to the general tax, and (e) "when the rates of the property taxes to be levid for the year have been duly fixed by the Corporation and the period fixed by public notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed, of in ' accordance with the provisions hereinafter contained, the amount at which each building or land entered in such portion of the assessrnent book is assessed to each of the property taxes, if any, liable thereon.
" The rule contain other clauses, but we are not at present concerned with them.
Rule 10(1) provides that the assessment book may, if the Commissioner thinks fit, be made in separate books called "ward assessment books", one for each of the wards into which the city is for the time being divided for purposes of the elections.
(2) of the rule says that the ward assessment books and the respective parts, if any, shall collectively constitute the assessment ,book.
Rule 10 differs from section 157 of the Bombay Municipal Corporation Act, in that, whereas it gives an option to the Commissioner either to maintain one assessment book.
for the entire city or separate ward assessment books, section 157 gives no such option and provides only for ward assessment books which collectively constitute, as in r. 10(2), "the assessment book".
The Legislature, thus, deliberately made a departure from section 157 by leaving it to the discretion of the Commissioner either to maintain one book or several books wardwise.
Such a departure was presumably made because the Act 956 was to apply not to one city only, as did the 'Bombay Act of 1888, but to an unknown number of cities where municipal corporation might in future be set up, each having different conditions from the, other and not being certain whether one assessment book or separate ward assessment books would be suitable for each of them.
Rules 11 and 12 deal with treatment of properties let to two or m ore persons in separate occupancies and the procedure where the name of the person primarily liable for property taxes cannot be ascertained.
Rule 12, it Will be noticed, mentions only the assessment book and not ward assessment books.
Rule 13 provides that when entries required by cls.
(a), (b), (c) and (d) of rule 9 have been completed "in any ward assessment book , the.
Commissioner shall give public notice thereof and of the place where the ward assessment book, or a copy of it, may be inspected.
" Rule 14 provides for inspection and taking extracts by an owner or occupier of premises entered ' in "the assessment book" from any portion of "tie said book" which relates to the said pre mises.
Rule 15 requires the Commissioner "at the time and in the manner prescribed in r. 13" to give notice of a day not being less than 15 days from the publication of such notice, on or before which complaints against the amount of any rateable value entered "in the ward assessment book" will be received in his office.
Cl. ,(2) of that rule requires the Commissioner to give a special written notice to the owner or occupier of premises which have for the first time been entered "in the assessment book ' as liable to property taxes or in which the rateable value of any premises has been increased.
Rule 16 provides for the manner of filing complaints referred to in r. 1 5 against the rateable value "entered in the assessment book", and r. 17 provides that complaints received under r. 16 shall be registered in a book kept for that purpose as also for notice to each complainant of the, time and place when and whereat his complaint would be investigated.
, Rule 18 provides for the hearing of the complaint if and cl.
(3) thereof lays down that when a complaint is disposed of, its result shall be noted in the said book of complaints and the necessary amendment shall be made in accordance with such result "in the assessment book".
Rule 19, which has been the subject matter of controversy both in the High Court and before us, provides that when "all such complaints, if any, have been disposed of and the entries required by cl.
(e) of r. 9 have been completed in the ward assessment book, the said book shall be authenticated by the Commissioner, who shall certify, under his signature, that except in the cases, if any, in which amendments have been made as shown therein, no valid objection has been made to the rateable values entered in the said book".
(2) provides that "the said ward assessment book sub 95 7 ject to such alterations as may thereafter be made therein under the provisions of r. 20 shall be accepted as conclusive evidence of the amount of each property tax leviable on each building and land in the ward in the official year to which the book relates.
" Rule 20 empowers the Commissioner to amend the assessment book even after it has been authenticated in certain cases and subject to the conditions set out therein.
Lastly , r. 21 provides that it is not necessary to prepare a new assessment book every official year and permits the Commissioner to adopt the entries in the last preceding year 's book as the entries for each new year.
This, he can do, for.
four successive years.
From the scheme of rules 9 to 21, it is clear that the Commissioner first enters in the assessment book prescribed by r. 9 the particulars set out in cls.
(a) to (d) of at rule.
Having done this, he proceeds to enter in the assessment book the amount at which each building or land is assessed.
He can do this under cl.
(e) naturally after (i) the rates of property taxes are fixed by the Corporation, (ii) the period fixed by public notice under r. 13 and for the receipt of complaints under 15 against rateable values entered under cl.
(b) has expired, and (iii) after such complaints, if any, have been disposed of.
On a plain meaning of the language in r. 10 the Commissioner has the option to maintain either one assessment book or ward assessment books separately for each ward.
But even if he were to do so, such ward assessment books would collectively constitute "the assessment book".
As earlier stated, giving of such an option under r. 10 was a clear departure by the Legislature from section 157 of the Bombay Act, 1888.
Since these rules have been taken almost verbatim from that Act, the departure has to be regarded as deliberate.
and for the reason that the Legislature could not foresee at the time of enacting the Act as to the cities in which municipal corporations would be set up and the conditions prevailing at such time in those cities.
The difficulty, however, arises because rr. 13, 15 and 19, which provide for a notice for inspection, for filing complaints against rateable Values entered under el.
(b) of r. 9 and for authentication and certification, use the expression "ward assessment book".
It is from this fact that the contention was raised that, though r. IO is couched in permissive language, it must be construed as mandatory requiring the Commissioner to maintain ward assessment books.
Therefore, the Commissioner having maintained only one assessment book for the whole city, it is not a valid book on the basis of which the levy of the property tax can be sustained.
The argument was that the right of inspection, the right of taking extracts, the right to file complaints and the duty to give 958 public.
notice under rr. 13 and 15 and a special notice under cl.
(2) of r. 15, as also the duty to authenticate and certify under r. 1 9, are all matters vital to both the rate payers, as also.
the Corporation, and that it was in respect of these vital matters that rr.
13, 15 and 19 speak of ward assessment books.
Therefore, if the Legislature, which framed these rules, had contemplated one assessment book instead of separate assessment books for each of the wards, the language of these rules would not have been what it is.
The Language of these rules, therefore, show that r. 10 must be construed to mean that the Commissioner has to maintain ward assessment books and it is when such books are maintained that the Corporation can validly levy the tax on the basis of such books.
Confronted with this difficulty, the High Court construed the rules to mean that r. 10 was discretionary and not mandatory but that rr. 13, 15 and 19 apply only when ward assessment books are kept, and that when they are read together, they show that the scheme was that where ward assessment books are prepared the Legislature intended to invest each of such books with a finality and did not intend that the question as to rateable value or the amount of tax should remain hanging fire until all the ward assessment books were prepared.
As regards r. 19, the High Court held that "if a single assessment book is prepared, then the amount of tax entered in the assessment book will not be conclusive evidence".
Such a conclusion means that r. 19, as also rr. 13 and 15 would apply only to ward assessment books, and therefore, there would be no authentication and certification where one assessment book is kept and entries in such a single assessment book would not be conclusive evidence as regards the quantum of tax entred in it under cl.
(e) of r. 9.
But once it is held that r. IO is discretionary and the Commissioner can maintain one assessment book or several ward assessment books, as the High Court has done, it is hardly possible that the legislature which gave such an option could have intended that r. 19 should apply only to ward assessment books and not where one assessment book is kept and deprive the Corporation of the benefit of entries in it being treated as conclusive evidence.
, It is true that a genuine difficulty arises in construing these rules as a result of the use of the expression "ward assessment book" in rr. 13, 15 and 19, and the use of the expression "a ssessment book in the rest of the rules.
At the same time acceptance of the appellant 's contention or the in terpretation by the High Court would create difficulties.
The contention that r. 10 should be construed as mandatory ignores (1) the permissive language of the rule, and 9 59 (2)the deliberate departure made by the Legislature from section 157 of the Bombay Corporation Act.
If it intended that assessmentbooks for each ward should be kept, there was no necessity for it to depart from the language of section 157 of that Act.
The fact that it made such a departure is a sure indication that it did not.
Unless compelled by the context and the content of the other rules, there would be no justification not to give to r. 10 the plain meaning of its language, particularly in view of the fact that the Act is intended to apply not to one but to an indefinite number of cities, each differing in conditions from the other, a factor which, as aforesaid, led the Legislature to make a departure from the said section 157.
But a far more serious difficulty would arise if the conclusion reached by the High Court were to be accepted.
If r. 19 were to be interpreted as applying to ward assetsment books, and not where one assessment book is kept, rr. 13 and 15 must also on the same reasoning be construed in the same way.
The Legislature could not have intended that the entry under cl.
(e) of r. 9, as regards the quantum of property tax leviable on each building and land, would become conclusive evidence only where ward assessmentbooks are kept and not where one assessment book is kept.
(e) of r. 9 requires the Commissioner to enter in the assessment book the amount at which each building is assessed to each of the property taxes.
The object of authen0cation under r. 19 is to make such entry conclusive evidence of the amount being leviable on each such building and land for the particular official year.
It is the amount of tax entered under cl.
(e) of r. 9 to which is given the attribute of conclusive evidence, so that the Corporation can thenceforth proceed to issue bills for those amounts and serve demand notices.
The rate payers cannot object to such bills and notices on the ground that the amounts therein set out are not correct by reason of some error or such similar reason.
Rule 19 confers conclusiveness only to that extent and not to the rateable value or the tax fixed or charged, as both are subject to an appeal under s.406.
Rule 19, therefore, was intended to enable the Corporation to proceed to make demands so soon as entries are made as provided by cl.
(e) of r. 9 and the Commission has given thereafter his authentication that there exists no valid objection to the rateable value entered under the said cl.
Since the object of r. 19 is to make the entry as to the amount of tax conclusive evidence so as to enable the Commissioner to issue the bills, the Legislature could not have intended to apply the rule only when ward assessment books are kept and not when one assessmentbook is maintained especially when in r. 10 it has deliberately given discretion to the Commissioner to maintain either one assessment book or several ward assessment books.
We are in agreement with the High Court that the liability to pay the tax arises under r. 30 and r. 9(e) and is not dependent on 17 LI10OSupCI/71 9 60 authentication, which, as aforesaid, is intended for a limited purpose.
But that does not mean that the provision as to authentication applies only when ward assessment books are kept, or that r. 19 does not apply where one assessment book is prepared.
If r. 19 were to be so construed, rr. 13 and 15 also would have on the same reasoning to be likewise construed.
That would mean that the notice to enable the rate pay to take inspection under r. 13 and the notice under r. 15 fixing the date on or before which complaints against rateable value can be made, would have to be given only where ward assessment books are kept and not where one assessment book is kept.
It goes without saying that the right to inspect provided under r. 13 and the right to file a complaint under r. 15 are vital matters.
That being so, it is hardly conceivable that the Legislature intended these rules to apply only where the Commissioner keeps ward assessment books.
Since, for the reasons given earlier, r. 10 has to be construed as permissive and not mandatory, and the construction adopted by the High Court in regard to rr.
1 3, 15 and 19 is bound to create anomalies pointed out above, the conclusion we must reach is that it was through inadvertence that the old language used in sections 157 to 168 of the Bombay Corporation Act was allowed to be retained without carrying out the change of language necessitated as a result of r. 10 giving discretion to the Commissioner either to maintain one book or several books wardwise.
The result, therefore, is that the assessment book in question must be held to be valid and no objection as to the validity of the bills and demand notices can be raised on the ground that only one assessment book and not wardwise books are kept.
The appellant, thus, does not succeed on either of the two contentions raised on his behalf.
The appeal fails 'and is dismissed with costs.
G.C. Appeal dismissed.

summary:
The appellant was owner of immovable property situate within the limits of the municipal corporation, Ahmedabad City.
Under the power reserved to it by section 127 of the Act the Corporation served on the appellant as also on the other rate payers, bills and demand notices for payment ,of property tax in respect of the assessment year 1962 63.
These were challenged by the appellant and also certain other rate payers in writ petitions before the High Court.
The High Court inter alia held (i) that section 129 of the Act did not suffer from the vice of excessive delegation by reason ,of the fact that no maximum rate of tax was laid down; (ii) that it was permissible under r. 10 to maintain only one assessment book and the levy could not be held invalid on the ground that ward wise assessment books as contemplated by rr. 13, 15 and 19 were not maintained.
In appeal to this Court by certificate, HELD : The High Court rightly held that the charging sections of the Act were not without guidelines.
The assessment and levy of the property taxes have to be in conformity with the Act and the rules.
These rules contain inter alia Taxation Rules which are part of the Act.
Section 454, no doubt, empowers the corporation to amend, alter and add to those rules but such power is made under section 455 subject to sanction of the State Government.
Under section 456 the State Government can at any time require the Corporation to make rules under section 454 in respect of any purpose or matter specified in section 457 which includes item "Municipal Taxes The assessment and recovery of Municipal Taxes.
" Although the Act did not during the relevant period prescribe the maximum rate at which the property taxes could be raised, the ultimate control for raising them was with the councillors responsible to the people, It was difficult therefore to sustain the plea that the power to levy the property tax was so unbridled as to make it possible for the Corporation to levy it in an arbitrary manner or extent.
[951 G 852 B] The proposition that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest of the factors which exist in the Act lose their efficacy and cease to be guidelines cannot be accepted.
Further, if the Corporation has the flexibility of power given to it in fixing the rates, the State Legislature can at any moment withdraw that flexibility by fixing the maximum limit up to which the Corporation can tax.
Indeed the State Legislature had done so by section 4 of the Gujarat Act, 8 of 1968.
In view of the decisions of this Court it is not possible to agree with the contention that the Act conferred on the Corporation such arbitrary and uncontrolled power as to render such conferment an excessive delegation.
[954 F G] 943 Corporation of Calcutta vs Liberty Cinema, [1965] 2 S.C.R. 477, Municipal Corporation of the City of Ahmedanwd vs Zaveri Keshavia, , Western India Theatres Ltd. vs Municipal Corporation of the City Poona, [1959] Supp. 2 S.C.R. 71, Pandit Banarsi Das Bhanot vs Madhya Pradesh, ; and Devi Das vs Punjab ; referred to.
Municipal Corporation of Delhi vs Birla Mills, ; followed.
(2) The tax levied on the basis of one assessment book was not invalid, Rule 10 differs from section 157 of the Bombay Municipal Corporation Act, 1888, in that, whereas, it gives an option to the Commissioner either to maintain one assessment book for the entire city or separate assessment books, Sec. 157 gave no such option and provided only for ward assessment book which collectively constituted, as in r. 10(2), "the assessment book '.
The legislature deliberately made a departure from section 157 by leaving it to the discretion of the Commissioner either to maintain one book or several books ward wise.
Such a departure was presumably made because the Act was to apply not to one city only, as did the Bombay Act of 1888, but to an unknown number of cities where Municipal Corporations might in future be set up, each having different conditions from the other and not being certain whether one assessment book or separate ward assessment books would be suitable for each of them.
[955 G; 956 A] The contention that r. 10 should be, construed as mandatory ignores (1) the permissive language of the rule and (2) the deliberate departure made by the legislature from section 1 57 of the Bombay Corporation Act, 1888.
If it intended that assessment books for each ward shoud be kept, there was no necessity for it to depart from the language of section 157 of that Act.
The fact that it made such departure is a sure indication that it did not.
Unless compelled by the context and content of the other rules, there would be no justification not to give to r. 10 the plain meaning of its language, particularly in view of the fact that the Act intended to apply not to one but to an indefinite number of cities, each differing in conditions from the other a factor which, as aforesaid, led the legislature to make a departure from the said section 157.
[958 H 959 B] Certain anomalies would arise from the High Court 's interpretation that rr. 13, 15 and 19 would not apply in the case of one assessment book.
Rule 19 was intended to enable the Corporation to proceed to makedemands so soon as entries were made as provided by cl.
(e) of r. 9 and the Commissioner had given thereafter his authentication that there existed no valid objection to the ratable values entered under the said cl.
Since the object of r. 19 was to make the entry as to the amount of tax conclusive evidence so as to enable the Commissioner to issue the bills, the legislature could not have intended to apply the rule only when ward assessment books were kept and not when, one assessment book was maintained, especially when in r. 10 it had deliberately given discretion to the Commissioner to maintain either one assessment book or several ward assessment books.
Further if r. 19 were to be so construed, rr. 13, and 15 also would have on the same reasoning to be likewise construed.
That would mean that the notice to enable the rate payers to take inspection under r. 13 and the notice under r. 15 fixing the date on or before which complaints against 'ratable value can be made, would have to be given only where ward assessment books are kept and not where one L1100 SupCI/71 944 assessment book is kept.
it goes without saying that the right to inspect provided under r. 13 and the right to file a complaint under r. 15 are vital matters.
That being so it is hardly conceivable that the legislature intended these rules to apply only where the Commissioner kept ward assessment books.
Since r. 10 has to be construed as permissive and not mandatory, and the construction adopted by the High Court in regard to rr.
13, 15 and 19 is bound to create anomalies, the conclusion must be that it was through inadvertence that the old language used in sections 157 to 168 of the Bombay Corporation Act was allowed to be retained without carrying out the change.
of language necessitated as a result of r. 10 giving discretion to the Commissioner either to maintain one book or several books ward wise.
In the result the assessment book in question must be held to be valid and no objection as to the validity of the bills and demand notices can be raised on the ground that only one assessment book and not warding books were kept.
[959 C 960 E]


judgement:
Appeal No. 219 of 1967.
Appeal from the judgment and decree dated December 16, 1965 of the Andhra Pradesh High Court in C.C C. Appeal No. 24 of 1969.
M. C. Chagla, R. Y. Pillai and N. Nettar, for the appellants.
C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No. 1 (A).
V. A. Seyid Muhammad and section P. Nayar, for respondent No. 3.
7 3 7 The Judgment of the Court was delivered by Ray, J.
This is an appeal by certificate against the judge ment dated 15 December, 1965 of the Andhra Pradesh High Court dismissing the appellants ' suit and setting aside, the decree in favour of the appellant passed by the Additional Chief Judge, City Civil Court, Hyderabad on 18 October, 1958.
Shah Abdul Rahim a resident of the pity of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghouse Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum.
Shah Abdul Rahim had large movable and immovable properties. 'Me sons and the daughters entered into two agreements in the month of July, 1908 and appointed arbitrators to partition the Matrooka properties of Syed Shah Abdul Rahim.
On 1 August, 1908 the arbitrators made an Award partitioning, the properties.
On 13 August, 190 8 there was a decree in the Darul Khaza Court, Hyderabad confirming the Award of 1 August, 1908.
The appellant filed the suit out of which the appeal arises on 24 July, 1941 for setting aside the decree dated 13 August, 1908 confirming the award and for partitioning certain Matrooka properties.
In 1942, the suit was dismissed.
An. appeal was preferred to the High Court of Hyderabad.
During the pendency of the appeal Abdul Hai died in 1950 and his legal representatives were brought on the record of the suit in the month of February, 1952.
The appeal filed in the year 1943 was disposed of by the High Court of Andhra Pradesh in April 1957 remanding the case to the City Civil Court, Hyderabad.
On 18 October, 1958 the Additional Chief Judge, City Civil Court, Hyderabad decreed the suit in favour of the appellant and cancelled the decree of the Darul Khaza Court dated 13 August, 1908.
On appeal the Andhra Pradesh High Court on 15 December, 1965 set aside the decree passed by the Additional Chief Judge.
The undisputed facts are these When Abdul Rahim died in 1905 Abdul Hai the eldest son was major.
The appellant was a minor.
There were two references to arbitration .
Before the arbitrators the appellant a minor was represented by his brother Ghulam Nooruddin as the guardian.
The parties to the arbitration agreements were Abdul Hai, Ghulam Nooruddin, Abdul Razak the appellant represented by his guardian Nooruddin, Qamarunnissa Begum and Badiunnisa Begum.
It will appear from the award that before the arbitrators there was no dispute ,between the parties and the arbitrators did not think it necessary to frame any issues.
Before the arbitrators the plaintiffs marked 738 with the letter 'F ' a plan showing properties attached to the Khankah and Dargah and those properties were market as Exhibits B 1 to B 10 and the plaintiffs relinquished their title to properties marked Exhibits B 1 to B 10 and further stated "neither at present nor in future will they have any share and right in the said property".
As to properties marked B 1 to B 10 the parties stated ,before the arbitrators that Abdul Hai was the Sajjada Nashin of the Dargah and was in possession of, the Dargah and khankah properties.
The award was made a rule of court within a short time upon a plaint filed by Nooruddin, Abdul Razak, the appellant represented by Nooruddin as the guardian and the two sisters Qamarunnisa Begum and Badiunnisa Begum.
The defendant was Abdul Hai.
The facts recited in the decree are these.
Syed Shah Nooruddin a pious person of Hyderabad had his Khankah situated at Nampalli.
The Dargah of the said pious man was also situated in the same locality.
After Syed Shah Nooruddin 's death his son in law, Abdur Rahim became the Sajjada of the Khankah and the Dargah Shariff.
The Sajjada had control over all the expenses ,of the Dargah and Khankah and the entire property attached to the Dargah and Khankah remained in possession of the Sajjadana,sheen and all the expenses of the Dargah and Khankah were met from the income.
After the death of Abdur Rahim, Abdul Hai became the Sajjadanasheen and was having control over the Dargah and Khankah.
Abdur Rahim left three adult sons and one minor son and also two adult daughters.
Apart from the property attached to the Dargah and Khankah Abdur Rahim left personal Matrooka properties.
There might have been a dispute between the parties regarding the partition of these properties.
But the parties settled the dispute by mutual consent and by agreement referred the matter to arbitration for the settlement of the dispute. 'The arbitrators made an award.
The decree recited that the properties marked with the letter 'F ' in the plan annexed to the award were Khankah and Dargah Shariff properties in the possession of the defendant Abdul Hai for meeting the expenses of the Khankah and no one has any right or claim over the property 'at present ' or 'in future.
The decree concluded by stating that the bargah and Khankah properties were not liable to partition and none ,of the plaintiffs "shall have any right or claim regarding the same".
The appellant impeached the award and the decree upon the award inter alia on the grounds that the award was void by reason of lack of lawful guardian on behalf of the appellant to protect ,and represent the rights and interests of the minor in the arbitration proceedings and in the proceedings resulting in the decree upon the award.
The appellant also claimed that the award and 739 the decree should be avoided because the properties marked Exhibits B 1 to B 10 were not Dargah and Khankah properties in fact and were treated in the award and the decree to be Dargah and Khankah on the wrongful representation of Abdul Hai.
The, appellant in the year 1938 discovered for the first time the true and correct facts that the same were not Khankah and Dargah properties and therefore claimed the same as divisible upon partition amongst the heirs of Abdul Rahim.
The trial Court held that the award and the decree thereon were obtained by fraud and the decree was to be set aside.
The reasoning given by the trial Court was that it was established one the evidence that Abdul Hai was in full possession and enjoyment of the whole of the property of Abdul Rahim including the property marked as Exhibits B 1 to B 10.
In the letter dated 13, August, 1938 Exhibit P 8 Abdul Hai denied that the property was waqf property belonging to the Dargah and asserted that it was.
owned and possessed by him and relinquished by his relatives.
The letter was held by the trial Court to indicate that Abdul Hai knew that the property was the property of his father which be inherited along with his brothers and sisters and in spite of such knowledge and belief he caused it to be represnted before the arbitrators that the property belonged to the Dargali and that the same was in his possession as Sajjadanasheen.
The trial Court further held that the appellant came to know the real state of affairs from the letter of, Abdul Hai dated 13 August, 1938 and therefore the suit was not barred by limitation.
The trial Court therefore passed a decree for cancellation of the decree passed upon the award and passed a preliminary decree for partition of ' the Matrooka properties including the properties marked as.
Exhibits B 1 to B 10 in the award.
In the High Court four questions were considered.
First, whether apart from the appellant any other party was a minor at the time of the arbitration agreement and whether there was a dispute which could be referred to arbitration.
Second, whether there was proof that at the time of the arbitration agreement and the award Abdul Hai made a fraudulent and false representation to his brothers and sisters and made Them believe that the properties belonging to the Sajjadanasheen were the properties of Dargah and Khankah which were not partible and by representation and fraud prevented the partition of those properties.
Third, whether the appellant had knowledge that Abdul Hai had claimed the properties as the ancestral properties of the Sajjadanasheen earlier than the time when the appellant said he had knowledge and whether the suit was barred by limitation.
Fourth, what would be the effect of the filing of the written statement by the defendant 740 No. 6 in the year 1958 and the omission of defendant No. 7 to Me any written statement to obtain partition of the properties in the event of the decree and the award being set aside The High Court held that the appellant was a minor but the ,other parties were not minors.
The High Court Held that the reference to the arbitration and the a ward thereon were void The High Court held that the decree of the Darul Khaza Court upon the award was not a nullity and the present suit should have been filed within three years of the appellant obtaining majority.
The High Court also held that the decree of the Darul Khaza Court was not obtained by fraud. 'Me High Court held that Abdul Hai ,asserted in the year 1927 that the Dargah and the Khankah properties were his personal properties and from that date Abdul Hai asserted his title adverse to the appellant and the other plaintiffs and the appellant and the other plaintiffs knew in 1927 of the adverse claim of Abdul Hai.
Therefore, the suit was barred by limitation.
The minority of the appellant is a fact found both by the trial ,Court and the High Court.
It is an admitted fact that the appellant 's guardian was his brother Nooruddin at the time of the arbitration proceedings and at the time of the decree on the award.
The brother is not a lawful guardian under the Mohammedan Law.
The legal guardians are the father, the executor appointed by the fathers will, the fathers father and the executor appointed by the will of the father 's father.
No other relation is entitled to the guardianship of the property of a minor as of right.
Neither the mother nor the brother is a lawful guardian though the father ,or the paternal grand father of the minor may appoint the mother, brother or any other person as executor or executrix.
In default ,of legal guardians a duty of appointing guardian for the protection and preservation of the minor 's property is of the court on proper application.
It was held by this Court in Mohd. Amin & Ors.
vs Vakil Ahmed & Ors.(1) relying on the dictum in Imambandi vs Mutsaddi(2) that where disputes arose relating to succession to the estate of a deceased Mohammedan between his three sons, one of whom was a minor, and other relations, and a deed of settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties, the eldest son acting as guardian for and on behalf of the minor son the deed was not binding on the minor son as his brother was not his legal guardian and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.
It is clear on the authority of this decision that the arbitration agreement and the award and the decree (1) ; (2) 45 T.A. 73 741 are all void in the present case by reason of lack of legal guardian of the appellant.
There is intrinsic evidence in the award, that the parties effected a settlement.
Counsel on behalf of the respondent relied on a copy of an application in the Court of the Darul Khaza in the proceedings for passing the decree upon the, award in support of the contention that the court appointed Nooruddin as the guardian of the appellant.
It is stated in the application that the defendant No. 3 (sic) meaning thereby plaintiff No. 3 the present appellant is a minor and Nooruddin is the real brother and the appellant is under the guardianship of Nooruddin.
The application was for permission to Me the suit.
There is no order for appointment of a guardian.
Further, the Court in appointing the guardian of property of a minor is guided by circumstances for the welfare of the minor.
There is no justification to hold that Nooruddin was either "the legal guardian or a guardian appointed by the Court.
The decree which was passed on the award appears on an examination of the pleadings and the decree itself that the parties proceeded to have the decree on the basis of the award without any contest as and by way of mutual settlement.
It will, appear from the decree that it was admitted by the parties that Abdul Hai was in possession of the Dargah and Khankah and that Abdul Hai alone was the Sajjadanasheen of the Khankah.
The relinquishment of property by Nooruddin on behalf of the minor is not binding on the minor.
There was no legal sanction 'behild such compromise in the arbitration and in the proceedings result ing in a decree upon the award.
There was no legal guardian.
The rights and interests of the minor were also not protected particularly when there was conflict of interest between the minor and Abdul Hai.
The arbitration agreement, the award and the decree of the Daral Khaza Court on the award are therefore void.
The High Court held that the appellants suit was barred by limitation by reason of knowledge of the appellant that Abdul Hai was in adverse possession since the year 1927 or 1928.
In regard to the properties which the appellant claimed in the suit as liable to partition, it is established that all parties proceeded on the basis that Exhibits B 1 to B 10 in the award were not Matrooka pro perties but Dargah and Khankah properties.
If, in fact, they are not Dargah and Khankah properties but Matrooka properties, these should be available to co owners for partition unless there are legal impediments.
The estate of a deceased Mohamedan devolves on his heirs at the moment of his ' death.
The heirs succeed to the estate as tenants in common in specific shares.
Where the heirs continue to hold the estate as tenants in common without 742 dividing it and on of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule 1 to the Limitation Act, 1908 would be the relevant Article.
Counsel on behalf of the respondent submitted that there were two impediments to the appellant 's claim for partition of the properties.
One was that the decree passed by the Court of Darul Khaza upon the award was not obtained by fraud and could not be set aside by reason of limitation.
The other was that the appellant came to know in the year 1927 that Abdul Hai adversely claimed properties as his own and therefore the appellant 's claim was barred by limitation.
The High Court held that the appellant was aware of the attachment of the personal and the Dargah and Khankah properties by the Government of the Nizam in the year 1927 as also release in the same year of the properties attached.
The High Court had that when parties had knowledge of the attachment of the properties it could not be postulated that they would have no knowledge of the contentions of Abdul Hai as to release of the Dargah and Khankah properties on the ground that those were not Dargah and Khankah but personal properties of Abdul Hai.
Knowledge of release of properties would not amount to ouster of the appellant from the property or of abandonment of rights.
The evidence of the appellant was that in 1350 Fasli corres ponding to the year 1941 the appellant came to know that a letter had been written by Abdul Hai to the Ecclesiastical Department of the Government of the Nizam in the year 1938 to the effect that the properties shown as Dargah and Khankah in the award F. and the decree were not Dargah and Khankar properties.
The appellant also came to know from the same letter that all the properties including those stated to be Dargah and Khankah properties in the award were attached by the Government of Nizam in the year 1927 and after enquiry by the Government of the Nizam all the properties were :released in the year 1927.
The appellant further came to know from that letter that Abdul Hai claimed the properties as his own.
Thereupon the appellant demanded from Abdul Hai partition of the property as Matrooka.
Abdul Hai asked the appellant to consult lawyer.
On the evidence it would be utterly wrong to speculate that the appellant knew of the contentions advanced in 1927 by Abdul Hai for the release of the properties by stating that they were not Dargah and Khankah properties.
There was no sub section at the.
743 time of the examination of the appellant that he was aware in,.
1927 of the contentions of Abdul Hai.
The High Court relied on Exhibit A 38 a letter dated 19 October, 1927 written by the,, appellant to Abdul Hai to impute knowledge of the attachment.
and release of the properties.
The appellant was never confronted with at letter.
it was never suggested to the appellant that the letter could be construed as attributing to the appellant the knowledge of any adverse claim made by Abdul Hai with" regard to the properties.
In that letter the appellant stated that.
be was indebted to the elder brother Abdul Hai for his kindness.
The appellant also stated that the expenditure incurred in connection with the litigation would be divided into four parts and the amount incurred on behalf of the appellant could be recovered from his account.
This letter dated 19 October, 1927 does not at all have the effect of establishing that the appellant had knowledge of any adverse claim of the appellant.
The appellant was never shown the letter to explain what litigation he referred to.
No inference can be drawn against the appellant without giving him an opportunity to have his say in that matter.
It is unfortunate that Abdul Hai died during the pendency of the suit and before the, trial.
Not only his oral evidence but also the correspondence that Abdul Hai had with the Government of the Nizam in the year 1927 did not find way into the record of the suit.
It would be totally misreading the appellant 's letter of the, year 1927 as impressing the appellant with the knowledge of ' ouster by Abdul Hai of the appellant from the properties forming the subject matter of the suit.
There are two letter of great importance.
One is dated 13 August, 1938 and marked Exhibit P 8 written by Abdul Hai to, the Director of Endowment, Government of Hyderabad and the other is dated 7 September, 1938 written by the Ecclesiastical Department of the Government of Hyderabad to the Secretary of the Endowments, Ecclesiastical Department of the Government of ' Hyderabad.
The letter of Abdul Hai was written in answer to an application made about that time to the Government of the Nizam by One Sheikh Abdur Rahim a tenant against whom Abdul Hai bad filed a suit for recovery of rent.
Abdur Rahim made an allegation that the properties in respect of which Abdur Hai filed a suit were Dargah and Khankah properties.
The complaint of Abdur Rahim was however dismissed and the matter was not allowed to be reopened on the strength of the orders of the Government recited by Abdul Hai in, his letter.
In answer Abdul Hai recorded these facts.
The Nizaim in the month of April, 1927 appointed the Secretary of the Ecclesiastical Department and the Commissioner of Police to enquire and report as to which of the properties were attached to the Dargah and which were per 744 sonal private properties.
Another Commission was appointed by the Nizam to enquire into the proper use of the endowed properties.
The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah.
All properties of the parties which had been attached by the Nizam were released by letter dated 3 January, 1928 excepting the two villages.
Abdul,Hai by letter dated 16 January, 1928 to the Government of the Nizam stated that the properties marked Exhibits B 1 to B 10 in the award and the decree of the Court of Darul Khaza did not belong to the Dargah and Khankah.
Abdul Hai further pointed out that the Nizam by a firman dated 11 November, 1927 had issued orders ,saying that according to the opinion of the Council the Govern ment 's supervision should be lifted from the 'maash ' referring thereby to the properties which had been attached by the Nizam and the same should be given over into the possession of Abdul 'Hai.
The other letter dated 5 January, 1939 from the Government ,of the Nizam stated that only two villages were held to be Dargah and the Government of the Nizam had made thorough enquiries and held that there was no other Dargah and Khankah properties and the question could not be re opened.
It is established in evidence that the properties which wore ,described as.
Dargah and Khankah properties before the arbitrators and the decree of the Darul Khaza Court are not Dargah and Khankah properties.
Abdul Hai obtained an adjudication and an order of the Government of the Nizam in the year 1927 that only two villages of Debser and Sangvi belonged to the Dargah and the rest were not Dargah and Khankah properties.
The appellant knew that there was litigation about the year 1927 about the properties.
It is not in evidence as to what that litigation was or which properties were concerned there with because the letter was not shown to the appellant.
Even if it be assumed that all parties treated the properties marked Exhibits B 1 to B 10 as Dargah properties upto the year 1927 and thereafter there was an adjudication on the representation of Abdul Hai that the properties were not Dargah and Khankah the parties would be entitled to tile same.
The only way in which the parties could lose their rights to the property would be on the finding that there was adverse possession or ouster.
The decree of the Darul Khaza Court will not be an obstacle to the claim of the appellant for partition, of the properties, because the properties are admittedly not Dargah and Khankah properties but Matrooka properties.
The arbitration proceedings were void by reason of lack of legal guardian of the appellant to enter into 745 a compromise.
The decree of the Darul Khaza Court is also invalid and not binding on the appellant for the same reason.
If all parties proceeded upon a basis that these were Dargah and Khankah properties and that basis is wiped out by the Government of the Nizam the, parties to their position as heirs to the Matrooka property.
The award and the decree by reason of evidence of facts discovered since the judgement and the decree of the Darul Khaza Court cannot be allowed to stand because the effect of the discovery of the facts is to make it "reasonably probable that the action will succeed.
In Birth vs Birch(1) the Court of Appeal held that a judgment will be set aside on the ground of fraud if evidence of facts discovered since the judgment raise a reasonable probability of the success of the action.
The principle can be stated in the words of Westbury, L.C. in Rolfe vs Gregory(2) "when the remedy is given on the ground of fraud, it is governed by this important principle, that the right of the party `defrauded is not affected by lapse of time, or generally speaking by anything done or omitted to be done so long as he, remains, without any fault of his own, in ignorance of the fraud that has been committed .
This decision was referred to by the Calcutta High Court in Biman Chandra Datta vs Promotha Nath Ghose(3) where the dictum of Westbury, L.C. was restated by holding that where a plaintiff had been kept from knowledge, by the defendant, of the circumstances constituting the fraud, the plaintiff could rely upon section 18 of the Limitation Act to escape from the bar of limitation.
In the present case, it is apparent that until the year 1927 the appellant and the other parties were clearly kept out of the knowledge of the true character of the properties.
Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or ouster or adverse possession of Abdul Hai.
The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers.
Possession by one co owner is not by itself adverse to other co owners.
On the contrary, possession by one co owner is presumed to be the possession of all the co owners unless it is established that the possession of the co owner is in denial of title of co owners and the possession is in hostility to co owners by exclusion of them.
In the present there is no case to evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title.
There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
(1) 1902 Probate Division 131 (2) [18 64] ; (3) I.L.R. 746 Section 18 of the Limitation Act, 1908 provides that when a person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limited for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person affected thereby.
In Rahim boy vs Turner(1) Lord Hobliouse said "When a man has committed a fraud and has got property thereby it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit".
Therefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge,of his right to sue or of the title whereon it is founded.
In the present case, he have with reasonable diligence discovered it.
There was active properties were Matrooka and not Dargah and Khankah.
When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters.
The existence of the right of the appellant was kept concealed by Abdul Hai.
The appellant was not aware of the right nor could lie have with reasonable diligence discovered it.
There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact.
It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties.
It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by mis leadin the parties and obtaining by consent an award and a decree thereon without any contest.
The cause of action for partition of properties is said to be a perpetually recurring one" See Monsharam Chak ravarty & Ors.
vs Gonesh Chandra Chakravarty & Ors.
In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.
The share,,, of heirs under Mohamedan Law are definite and known before actual partition.
Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law.
(1) 20 I.A.1 (2) 17 C.W.N.521 747 In the present case the suit is for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be lie opened by reason of fraud in the earlier proceedings.
In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B 1 to B 10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award.
The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah.
It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was.
The other parties did not have any opportunity of knowing the same.
Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby mislead all the parties.
Again, when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927.
Abdul Hai did not inform the same to any of the parties.
The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating these to be Dargah and Khankah.
When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition.
On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside".
That is the statement of law in Halsbury 's Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790.
For these reasons we accept the appeal and set aside the judgment of the High Court and restore the judgment and decree of the trial court.
The appellant will be entitled to costs of this Court.
The parties will pay and bear their own costs in the High Court.
G.C Appeal allowed.

dataset_name: IN-Abs

summary:
Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad.
He had four sons and two daughters.
After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah.
The matter of the partition of Matrooka properties was referred to arbitrators.
The appellant who was Abdur Rahim 's youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin.
The properties Exhibits B 1 to B 10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai 's brothers and sisters.
The arbitrators gave their award on August 1, 1908 partitioning the properties.
On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award.
The properties B 1 to B 10 thereafter remained in the possession of Abdul Hai.
In 1927 Abdul Hai got an adjudication from the Nizam 's Government that the Dargah and Khankah properties consisted only of two villages and that properties B 1 to B 10 were not Dargah and Khankah properties.
In 1938 Abdul Hai wrote a letter to the Nizam 's government again asserting that properties B 1 to B 10 were his personal properties.
The appellant filed a suit on 24th July 1941 for setting aside the decree dated.
August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B 1 to B 10.
He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian.
He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties.
The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation.
The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation.
in ' appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court.
The appellant 's brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court.
The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected.
The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void.
[740 D, 741 E F] Mohd. Amin & Ors.
vs Vakil Ahmed & Ors, ; and Imambandi vs Mutsaddi, 45 I.A. 73, referred to. ' (ii) The estate ' of a deceased Mohammedan devolves on his heirs at the moment of his death.
The heirs succeed to the estate as tenants in common in specific shares.
When the heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and article 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article.
[741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one '.
In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.
In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings.
[746 G 747 B] Monsharam Chakravarty & Ors.
vs Gonesh Chandra Chakravarty & Ors., , referred to.
(iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties.
If all parties proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property.
The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it "reason ably probable that the action will succeed".
[744 H 745 B] 1100Sup CI/72 73 6 Birch vs Birch, [1902] Probate Division 131, referred to.
(v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon section 18 of the Limitation Act to escape from the bar of limitation.
When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters.
The existence of the right of the appellant was kept concealed by Abdul Hai.
The appellant was not aware of the right nor could he have with reasonable diligence discovered it.
There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact.
It was only in 1941 that the appellant came to know of the Matrooka character of the properties.
[745 E, 746 E] Rolfe vs Gregory, ; , Boman Chandra Datta vs Promotha Nath Ghose, L.L.R. and Rahimboy vs Turner, 20 I.A. 1. referred to.
(vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside".
[747 E F] Halsbury 's Laws of England, Third Edition, Vol. 22, para 1669 at p. 790.
referred to.
(vii) The plea of adverse possession must also fail.
It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties.
Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai.
Possession by one co owner is not by itself adverse to other co owners.
On the contrary possession by one co owner is presumed to be the possession of all the co owners unless it is established that the possession of the co owner is in denial of title of co oweners and the possession is in hostility to co owners by exclusion of them.
In the present case there was no evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title.
There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
[745 F H]