judgement:
: Civil Appeal No. 509(N)of 1975.
From the Judgment and Order dated 25.7.1973 of the Madhya Pradesh High Court in First Appeal No. 118 of 1966.
A.K. Ganguli and C.N. Sreekumar for the Appellant.
R.B. Misra and S.K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by M.M. PUNCHHI, J.
This appeal by special leave is against a judgment and decree in reversal passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur.
One has straightaway to come to grips with some basic facts of the case alongside the historic backdrop influenc ing their course.
The property in dispute is a medium sized house bearing No. 494/1, Partap Sagar Ward, known as Gulab Rai Wala House, in the city of Chhatarpur.
In the plaint filed by the District Collector, Chattarpur, dated May 5, 1962, it was valued at Rs.40,000 and its rental value barely as Rs.114.77 NP.
In British days, the State of Chattarpur, like other such States, was an independent State, under the paramountcy of the British Crown.
The British Crown was the suzerain power as acknowledged by the Indian States which owed a modified allegiance to it, but none to the Government of India.
On India having obtained independence the suzer ainty of the British Crown over the Indian States lapsed simultaneously because of section 7 of the Indian Independ ency Act, 1947.
It is a matter of history that immediately thereafter all but three of the Indian States acceded to the Dominion by executing Instrument of Accession.
Chattarpur was one such State.
The new Dominion of India was empowered to accept such like accessions by a suitable amendment in the Government of India Act, 1935.
The sovereignty of the acceding States was expressly recognised and safeguarded.
The identical Instrument of Accession, which each Ruler 45 signed, was in the exercise of his sovereignty in and over his State and clause 8 provided: "Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or, save as provided by or under this Instrument, the exercise of any powers, au thority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State." To put it differently, the effect of the accession was to retain full autonomy and sovereignty to the Rulers in their respective States except on three subjects, namely, Defence, External Affairs and Communications.
These alone were trans ferred to the Central Government of the new Domimon.
On March 13, 1948, thirty five States in Bundelkhand and Baghelkhand regions agreed to unite themselves into one State which was to be called the United State of Vindhya Pradesh.
Chattarpur being one such State in Bundelkhand area was a party thereto.
The signing thirty five Rulers had brought about the new State into being purely as a domestic arrangement between themselves and not as a treaty with the Dominion of India.
Obviously there was surrender of a frac tion of the sovereignty of each Ruler to the newly created State but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947 relating to Defence, External Affairs and Communica tions.
Despite the readjustment, the sum total of the sover ignties which had resided in each before the covenant then resided in the whole and its component parts; none of it was lost to the Dominion of India.
The articles of the covenant, so far as they are rele vant for our purposes, are articles VI and XI, which are reproduced hereafter: "ARTICLE VI (1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 1st May, 1948, make over the Administration of his State to the Raj Pramukh; (a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern 46 ment of the Covenanting State shall vest in the United State and shall hereafter be exerciable only as provided by this Government or by the Constitution to be framed thereunder: (b) all duties and obligations of the Ruler pertaining or incidental to the Government of Covenanting State shall devolve on the United State and shall be discharged by it; (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State.
XXX XXX XXX XXX ARTICLE XI (1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State Properties) belonging to him on the date of his making over the Adminis tration of the State to the Raj Pramukh.
(2) He shall furnish to the Raj Pramukh before the 1st May, 1948 an inventory of all the immovable properties, securities and cash balances held by him as such private property.
(3) If any dispute arises as to whether any item of property is the private property of the Ruler or State Property, it shall be referred to a Judicial Officer to be nominated by the Government of India, and the decision of that person shall be final and binding on all parties con cerned." Despite the distinction drawn in Article XI, there was in reality no distinction between State property and the property privately owned by a Ruler, since the Ruler was the owner of all the property in the State.
For the purposes of arrangement of finance, however, such a distinction was practically being observed by all Rulers.
The apparent effect of the covenant was that all the property in the State vested in the United State of Vindhya Pradesh except private property which was to remain with the Rulers.
As is evident, the Ruler was required 47 under Article XI to furnish to the Raj Pramukh before May 1, 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property.
Conceivably, on a dispute arising as to whether any item of property was or was not the private property of the Ruler and hence state property, it was required to be referred to a Judicial Officer to be nominated by the Government of India and the decision of that officer was to be final and binding on all parties concerned.
Despite the stern language of Article XI, requiring a Ruler to furnish the list of his private properties by May 1, 1948, the covenant did not contain any clause or article providing penal consequences which would or were likely to follow in the event of a Ruler not furnishing the list of private properties before that date.
Nothing is available in the covenant and none was pointed out to us that if a Ruler failed to furnish an inventory of his private properties before May 1, 1948, he was debarred from furnishing it at a later stage and that failure of his part had the effect of divesting him of title to his private properties.
The House in dispute was built by the then Ruler Mahara ja Sir Vishvanath Singh Ju Deo to accommodate Gulab Rai, his Private Secretary and that is how it acquired its name as Gulab Rai Wala house.
The parties were at variance about the subsequent user of the house whether it was for State pur poses or private purposes of the Ruler.
The factual undenied positioin is that the Ruler of Chattarpur on July 5, 1948 (vide Exhibit D 13 5) submitted a list to the Raj Pramukh of the United State of Vindhya Pradesh of his private proper ties, and in the said list the house in dispute, namely, Gulab Rai Wala house, was shown as the private property of the Ruler (by the then Maharaja Shri Bhawani Singh Ju Deo).
In the following month, on August 25, 1948, the said Mahara ja Shri Bhawani Singh Ju Deo made a gift of the house in dispute in favour of his father in law Dewan Shanker Partap Singh (now deceased and represented by his legal representa tives appellants).
His gift has become the subject matter of dispute in the suit, out of which this appeal has arisen, for grounds to be taken note of later at an appropriate stage.
By means of another agreement dated December 26, 1949, between the Governor General of India and the Rulers of the States forming the United State of Vindhya Pradesh, the covenant entered into on March 13, 1948, was abrogated.
The articles of this agreement, in so far as they are relevant for our purposes, read as under: 48 "ARTICLE I As from the first day of January, 1950, the Covenant entered into in March, 1948 by the Ruler of certain States in Bun delkhand and Baghelkhand for the formation of the United State of Vindhya Pradesh (hereinafter referred to as "the Covenant") shall stand abrogated.
ARTICLE II As from the aforesaid day, the United State of Vindhya Pradesh shall cease to exist and all the property, assets and liabilities of that State, as well as its right duties and obligations shall be those of the Government of India.
ARTICLE III The Ruler of each of the States specified in the Schedule to this agreement (hereinafter referred to as the Covenanting States ') hereby cedes to the Government of India, with effect from the aforesaid day, full and exclusive authority, jurisdiction and powers for, and in relation to, the gover nance of that State; and thereafter the Government of India shall be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.
XXX XX XX X XX ARTICLE VII (1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private proper ties (as distinct from State Properties) belonging to him on the date of his making over the Administration of the State to the Raj Pramukh in pursuance of the Covenant. (2) If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to a judicial officer to be nominated by the Government of India, and the decision of that officer shall be final and binding on all parties concerned. ' ' 49 This Agreement of the year 1949 paved the way for the Cen tral Government appointing a Chief Commissioner as Head of the Administration of Vindhya Pradesh, followed by the Parliament making it a Part 'C ' State in the year 195 1, followed by the creation of the State of Madhya Pradesh in the year 1956 under the States Reorganisation Act.
And such position continues till date.
As is prominent, under the covenant of March 13, 1948, and as repeated in the agreement of December 26, 1949, any dispute arising, whether any item of property was the pri vate property of the Ruler or State property, was to be referred to a Judicial Officer to be nominated by the Gov ernment of India and the decision of that officer was to be final and binding on all parties concerned.
It appears, however, that a letter dated January 22, 1950 (copy whereof was Exhibit P 9) was sent by Shri N.M. Buch, Secretary in the Ministry of States, New Delhi, to the Ruler suggesting that a Conference was held between him and the Ruler at Naugong from 16th to 18th September, 1949, and some deci sions were taken with regard to the private properties of the Ruler and the list of such property as finally emerging was Exhibit P 10 attached with the letter Exhibit P 9.
Item No. 22 in that list, being Gulab Rai Wala house, was shown to be State property as per decision taken in the said Conference.
From these documents, the High Court when re solving the claims of the State and the donee has taken the view that originally the property in dispute was claimed by the ruler as his private property but on agreement it was decided that it be State property, and further the legal effect thereof was that with effect from May 1, 1948, the date of agreement of merger, the property in dispute stood vested in the new Union.
The second factor which weighed with the High Court to conclude in the aforesaid manner was that listing of properties, whether State or private, was open to objection and could be settled by a Judicial Officer to be nominated by the Government of India, as per the articles aforereferred to, and a raiseable dispute could otherwise be settled amicably mutually, Mr. Buch 's letter being indicative of that.
On that basis, the gift deed dated August 25, 1948, was held by the High Court to be ineffec tive, the said property having already vested in the State with effect from a prior date on May 1, 1948.
And since after that date, the Ruler was incompetent to effect a valid gift deed in favour of anyone, the State 's claim of posses sion and mesne profits was held irresistable.
Undeniably, the Dewan Shanker Partap Singh was in pos session of the house in dispute when the suit was instituted by the State of Madhya Pradesh on May 5, 1962.
The suit was filed almost 14 years of 50 the gift in his favour.
The gift was challenged as null and void and ineffective for the reasons: (i) the gift deed was written on an ordinary paper; (ii) was unregistered, (iii) was not signed by any witness, (iv) did not bear the seal of the Maharaja, (v) prior to the date of the gift the power of the Maharaja was transferred to Vindhya Pradesh Government and the said house was not his private property, and (vi) the house in dispute was already declared to be the property of the Vindhya Pradesh Government as per terms of the cove nant between the ex Ruler of Chattarpur and the Government of India, and the Civil Court was not competent to question the legality of the conditions of the said covenant.
On that basis, possession of the house was claimed from the donee Dewan Shanker Partap Singh as also arrears of rent from August 25, 1949 onwards at the rate of Rs.114.77 NP, totall ing Rs.18,866, before the trial court.
The suit was contested by the defendant Shanker Partap Singh contending that (i) the gift of August 25, 1948, was not void and inoperative and that there was no legal re quirement to use a particular kind of paper for executing a gift deed; (ii) non registration thereof had no legal effect as the executant had admitted execution of the document, (iii) the Transfer of Property act was not applicable at the relevant time, (iv) the deed was signed by the Ruler and the absence of seal was of no consequence, (v) the property was the private property of the Maharaja, and (vi) finally the Ruler had every right to make such gift.
Besides, a number of other pleas were raised, which are unnecessary to be dealt with for the present purposes.
Similarly, the pleas in the replication, countering the pleas in the written state ment, also need not require any attention for the present purposes, for the way in which we propose to deal with this appeal.
The trial Court framed a number of issues which attract ed voluminous evidence to be led by the parties.
The Mahara ja of Chhatarpur was examined as defendant 's witness and owned making of the gift in favour of his father in law.
He admitted, however, that Shri Buch had met him in connection with the covenant, but he denied that he had received any letter Exhibit P 9 from Shri Buch or the lists Exhibits P 10 to P 12 regarding his private and State properties, were a part thereof.
His evidence was suggestive of there being no agreement between him and Shri Buch to change the list of properties.
The trial Court 's clear findings were that the property in dispute was not that of the Maharaja but that of the defendant, as it had been gifted to hun by the Maharaja on August 25, 1948, and that the house was mistakenly shown later as 'State property '.
In that view of the matter, the trial 51 Court dismissed the suit.
The appeal of the State of Madhya Pradesh was, however, allowed by the High Court on the view taken that the property in dispute had vested in the United States of Vindhya Pradesh on May 1, 1948, and that thereaf ter no valid gift could be made by the Ruler in favour of the defendant.
The High Court further held that whatever rights and powers the Ruler had as a sovereign ceased to exist after May 1, 1948, and the said date was fixed not later than May 1, 1948, and the gift deed made thereafter on August 25, 1948, could not give the defendant a valid title to the property on that basis.
With regard to damages, the High Court took the view that the rate of Rs.56 per mensem as at one time demanded initially by the State should be the basis for assessment of damages.
In that view of the matter, the suit of the State of Madhya Pradesh Government was decreed for possession, but reducing the damages to Rs.16,735.35 paise.
And this has given rise to the present appeal.
History of the covenant entered into by the Rulers and the final integration finds recognition in Virendra Singh and others vs State of Uttar Pradesh, ; The significant passage as available at page 4 19 of the report, is worthy of reproduction here: "After this, on 13th March, 1948, thirty five States in Bundelkhand and Baghelkhand (including Charkhari and Sarila) agreed to unite themselves into one State which was to be called the United State of Vindhya Pradesh.
In pursuance of this agreement each of the thirty five Rulers signed a covenant on 18th March, 1948, which brought the new State into being.
It is important to note that this was a purely domestic arrangement between themselves and not a treaty with the Dominion of India.
Each Ruler necessarily surren dered a fraction of his sovereignty to the whole but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947, namely, Defence, External Affairs and Communications.
Despite the readjustment, the sum total of the sovereignties which had resided in each before the covenant now resided in the whole and its camponentparts: none of it was lost to the Dominion of India." (Emphasis supplied) Only a fraction of sovereignty to the whole was surrendered by the Ruler not his total sovereignty.
Though it was expected by Article XI of the covenant of the Ruler to submit a list of his private properties 52 before May 1, 1948, his individual sovereign power did not stand taken away after May 1, 1948.
He was still sovereign, as is our view, to submit the list beyond that date and there was no penal clause in the covenant to penalise him for belated observance or to treat belated observance non est.
It is the admitted case that factually the Ruler of Chattarpur had in his list of July 10, 1948, shown the property in dispute to be his private property and this was followed by a gift of it in writing on August 25, 1948, in favour of his father in law.
It is in the assertion of his sovereign power that he gave his list on July 5, 1948 (Exhibit D 13 5) and it is in assertion of the same sover eign power as also individual that he made the gift of the house in dispute to his father in law.
Support for such view is available in Virendra Singh 's case (supra) from the following passage occurring at page 429 of the report; " . .
The Rulers of Charkhari and Sarila retained at the moment of final cession, whatever measure of sovereignty they had when paramountcy lapsed, less the portion given to the Indian Dominion by their Instruments of Accession in 1947; they lost none of it during the interlude when they toyed with the experiment of integration.
There was then redistribution of some of its aspects but the whole of whatever they possessed before the integration returned to each when the United State of Vindhya Pradesh was brought to an end and ceased to exist.
Thereafter each acceded to the Dominion of India in his own right." (Emphasis supplied).
It is thus plain that the Ruler of Chhatarpur lost none.
of his sovereignty by integrating his State with other States except to the extent in which it was arranged or redistributed on some of its aspects.
It is in exercise of that sovereign power that the Ruler, in the manner indicated above, had set apart the property in dispute as one of his private properties, in the list submitted on July 5, 1948.
It is nobody 's case that he could not submit such a list on July 5, 1948.
Further, in exercise of his sovereign as also individual right over his private property, that he trans ferred the house in dispute to his father in law on August 25, 1948.
In these circumstances, the suggested Conference which took place later in September, 1949 between him and Shri N.M. Buch, Secretary in the Ministry of States, New Delhi, evident from letter Exhibit P 9 dated January 22, 1950, and the lists Exhibits P 10 to P 12, appended there with, is not of much significance.
In the first place, the Ruler denied when appearing as a witness in the trial as having received any such letter or the lists appended there with, sug 53 gestive of the fact that he had reconverted the donated property to be a State property.
In the second place, but for the said letter, purportedly issued at a time when the State of Chhatarpur had otherwise ceded to the Central Government vide agreement dated January 1, 1950, there was no direct evidence forth coming for such conference.
In the third place, even if such Conference had taken place in September 1949, as suggested, the minutes thereof cannot be treated as amounting to a divestiture of the gift made in favour of the father in law.
Fourthly, the Ruler had no sovereign power towards administering his State which had become part of the integrated United State in terms of Article VI of the covenant, and during the integration he could not exercise such a sovereign power, so as to take away the property of a private person and treat it as State property because the property in dispute having once vested in the defendant appellants could not be divested in the manner suggested.
And lastly, there was no raiseable ques tion or issue which the Ruler could, while sitting with Shri Buch, decide amicably without the aid of the Judicial Offi cer nominated by the Government entering upon such dispute, because before integration he owned his State and its properties and there could legitimately not arise a dispute as to which was his private property or State property and thus its settlement by a mutual consent did not arise.
Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the Ruler lost his sovereign right to ear mark the property in dispute as his private property after May 1, 1948, or that the said property vested in the State with effect from that date or that the letter Exhibit P 9 of Shri N.M. Buch and the lists attached thereto, had the effect of divesting the appellants of the title to the property in dispute in favour of the State with effect from that date.
In that strain, factual position having not been denied, the validity of the gift dated August 25, 1948, cannot be ques tioned on the grounds enumerated in the plaint, due to exercise of sovereign power of the Ruler in the grant there of at that point of time.
Once that is held the claim for damages too caves in.
We hold it accordingly.
For the view above taken, we allow this appeal, set aside the judgment and decree of the High Court and dismiss the suit of the State of Madhya Pradesh with costs.
R.N.J. Appeal al lowed.

summary:
The question is whether the property in dispute was the private property owned by the Ruler or State property? On August 25, 1948 the then Maharaja of erstwhile Chhatarpur State made a gift of the house in dispute in favour of his father in law Dewan Shankar Partap Singh, now deceased and represented by his legal representative appellant.
This gift became the subject matter of dispute in the suit filed by the State of Madhya Pradesh in 1962.
The Trial Court 's clear findings were that the property in dispute was not that of the Maharaja as it had been gifted away by him to the de fendant and was mistakenly shown later as 'State Property '.
The High Court allowed the appeal of the State of Madhya Pradesh on the view taken by it that the property in dispute had vested in the United State of Vindhya Pradesh on May 1, 1948 and thereafter no valid gift could be made by the Ruler in favour of the defendant; and whatever rights and power the Ruler had as a sovereign ceased to exist after May 1, 1948 and the gift made thereafter could not give the defend ant a valid title to the property.
Allowing the appeal, this Court, HELD: The Ruler of Chhatarpur lost none of his sover eignty by integrating his State with other States except to the extent in which it was arranged or re distributed on some of its aspects.
It is in exercise of that sovereign power that the Ruler, had set apart the property in dispute as one of his private properties in the list submitted on July 5, 1948.
[52F] The High Court committed an error that the Ruler had lost his sovereign right to earmark the property in dispute as his private property after May 1, 1948 or that the said property vested in the State with effect from that date or that the letter Exhibit P 9 of Shri N.M. Buch 44 and the lists attached thereto had the effect of divesting the appellants of the title to the property in dispute in favour of the State with effect from that date.
[53E] Virendra Singh & Ors.
vs State of Uttar Pradesh, [1955] I SCR 415, referred to.


judgement:
ivil Appeal No. 735 of 1975.
From the Judgment and Order dated 21.6.1974 of the Bombay High Court in Spl.
Civil Appln.
No. 15 of 1971.
U.U. Lalit and A.G. Ratnaparkhi for the Appellants.
M.S. Gupta for the Respondent.
68 The Judgment of the Court was delivered by SAWANT, J.
These proceedings arise under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Act).
The appellant Hiraji Tolaji was admittedly a protected lessee or tenant of the agricultural land being Survey No. 30 of Village Madha, Taluqa Chikhali District Buldana.
The land measures approxi mately 25 acres and 31 gunthas.
The respondent who is men tally disabled became the landlady of the land in question in quite queer circumstances which to say the least are indefensible in law.
Her father, one Mr. Brijlal Bansilal owned as many as 568 acres of land of which the suit lands are a part.
The lands admittedly are ancestral.
He effected first partition of his entire holding of lands on January 31, 1949 between himself on the one hand and his wife and a minor son on the other.
On December 16, 1950, he effected a second partition of the very same lands between himself on the one hand and his wife and his son on the other.
Again on June 29, 1959 he effected a third partition of the said lands between himself on the one hand and his wife and his two minor daughters including the respondent on the other.
There is further no dispute that it is in this third parti tion that the suit lands were given to the share of the respondent and the respondent became the alleged landlady w.e.f.
the date of the said partition.
It appears that sometime in 1962, the respondent through her guardian, namely her father Brij Lal initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default in payment of rent for three years, namely 1959 60, 1960 61 and 196 1 62.
By his decision of April 30, 1963 the Tehsildar dismissed 'the application holding that the respondent was not a landlady since the partitions in question were illegal.
The Deputy Collector in appeal confirmed the said decision by his Order dated November 26, 1963.
The respondent 's revision before the Maharashtra Revenue Tribunal also failed when the Tribu nal rejected it by its decision of April 29, 1965.
In the Writ Petition filed before the High Court under Article 227 of the Constitution against the said decision of the three authorities below, the High Court by its Order dated October 4, 1966 remanded the matter to the Tehsildar for investiga tion into the validity of the partition.
Then started the second round of litigation.
On remand, the Tehsildar by his decision of March 16, 1968 held that the partition effected on June 29, 1959 (which was the only material partition so far as the respondent was con cerned) was bogus.
Hence the notice of demand and therefore the proceedings for recovery of possession pursuant thereto, were bad in law.
69 It appears that thereafter in a different proceeding the Maharashtra Revenue Tribunal on June 25, 1968 had held 'that the said partition was binding.
It is after this decision of the Tribunal as stated earlier in an altogether different proceeding, that the matter came up for hearing in appeal filed by the respondent before the Deputy Collector, against the decision of the Tehsildar given on March 2, 1968.
The Deputy Collector, therefore, followed the said decision of the Revenue Tribunal, and by his decision of April 16, 1969 held that the partition being valid, the respondent was the landlady of the suit land and, therefore, notice given by her, terminating the tenancy on the ground of default of rent and the proceedings filed for recovery of the suit land, were proper.
He also held that the appellant was in arrears of rent for three years as contended by the respond ent and, therefore, allowed the said application for evic tion of the appellant from the suit land.
Against the said decision, the appellant preferred a revision before the Revenue Tribunal and the Tribunal by its decision of September 15, 1970 confirmed the findings of the Deputy Collector.
Aggrieved by the decision, the appellant preferred a Writ Petition before the High Court under Article 227 of the Constitution, and the High Court by its impugned decision of June 21, 1974 dismissed the petition.
Hence this appeal.
Before the High Court, two obvious illegalities committed by the lower authorities were highlighted on behalf of the appellant.
The first illegality was that the property being admittedly ancestral, Brijlal could not have effected partition of the property between himself on the one hand and his wife and his daughter on the other.
In all the three partitions effected on July 31, 1949, December 16, 1950 and June 29, 1959, wife was one of the parties to the partitions.
In the third partition made on June 29, 1959 besides his wife, the other parties to the partition were two minor daughters.
Secondly, the same property is shown to have been partitioned by Brij Lal on three occasions.
Admit tedly, the partition of June 29, 1959 is between Brij Lal on the one hand and his wife and two minor daughters including the respondent on the other.
This partition was obviously contrary to the provisions of Hindu Law.
Hence the respond ent in any case could not have become a landlady of the suit land because it is in this third partition of June 29, 1959 that the said land is alleged to have gone to the share of the respondent.
The High Court dismissed this contention with regard to the patent illegality by giving a spacious reason that the question 70 referred to the Tehsildar in its earlier remand order, namely the validity or otherwise of the partition, was investigated by the three authorities and that they had given a finding upholding the partition.
The High Court further held that what was produced before the courts below was a family settlement and since the said family settlement created a right in favour of the respondent she should be held to have become the owner of the suit land.
Unfortunate ly, the High Court lost sight of the fact that the family settlement which is accepted by the Courts in lieu of parti tion, is a settlement which gives share to the parties as per their legal entitlement and not a settlement which is made or purported to have been made to circumvent the law.
A partition of the property can only be among the parties who have a preexisting right to the property.
Under the Hindu Law, a female, major or minor has no share in the ancestral property.
A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparcenary property after the property is partitioned.
There cannot, therefore, be a partition and hence a family settlement with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter.
Since this obvi ous illegality was ignored by the High Court, it will have to be held that the High Court 's decision was patently wrong.
The respondent, therefore, never became the landlady of the land and it was Brij Lal who continued to be the landlord of the same.
Hence the notice given by the respond ent and the proceedings for eviction adopted by her are misconceived.
Her application for possession of the land has, therefore, to be dismissed, 5.
The second obvious illegality which was brought to the notice of the High Court was that even assuming that the partition deed of June 29, 1959 was a valid document, the same has to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of Section 38(7) of the Act.
Under Section 46 of the Act, a protected tenant becomes the owner of the land on and from April 1, 1961.
Under section 38(1), however, a landlord is given a right to evict a tenant if he wants the land for bona fide personal cultivation.
The right to adopt the proceedings for possession of the land has to be exer cised on or before March 31, 1961.
The condition precedent to such application, however, is that the landlord should have given a notice to the tenant, for the purpose, on or before November 15,1961.
Under Section 38(2), the time to apply for possession is extended in the case of the landlord who is a minor, widow or a person subject to any physical or mental disability.
We are concerned in the present case with a person who is mentally disabled, since the respondent is alleged 71 to be a mentally disabled person.
Further the proviso to sub section (2) of Section 38 also makes it clear that where such person is a member of a joint family, the time given to the landlord to terminate the tenancy is not extended if atleast one member of the joint family is outside the cate gories of the disabled persons.
Such disabled person, fur ther, has to be the owner of the land on March 31,1961. 6.
The sum total of these provisions is that the appel lant in the present case would become the owner of the suit land on and from 1st April, 1961 if the respondent did not intervene as the landlady of the suit land before that date.
Admittedly, the respondent is alleged to have become the landlady by virtue of the partition effected on June 29, 1959.
Section 38(7) of the Act, however, states as follows: "Nothing in this section shall confer on a tenure holder who has acquired any land by transfer or partition after the 1st day of August 1953 a right to terminate the tenancy of a tenant who is a protected lessee and whose right as such protected lessee had come into existence before such trans fer or partition.
" It may be mentioned here that in some copies of the Act published by the Government Press, instead of the 1st day of August 1953, the date printed is 1st day of August 1963.
That is admittedly wrong.
We perused the Bombay Tenancy and Agricultural Lands (Vidarbha Region) (Amendment) Act 1963.
By that Amending Act, all that was done was to add the words "or partition" after the word "transfer" in Section 38(7).
No amendment was made of the date the transfer effected after which would not result in conferring title to the land.
In fact, the Amending Act also states that the amend ment was effected pursuant to the decision of the Full Bench of the Bombay High Court reported in 1969 Maharashtra Law Journal page 933 where the Court had taken the view that the "transfer" contemplated by the unamended provision of Sec tion 38(7) did not include transfer by partition.
It had, therefore, become necessary to include in the "transfer" also transfer by partition and, hence, the Amending Act was enacted only for the purpose of adding the words "or parti tion" after the words "by transfer" and "before such trans fer" in that Section.
The position that obtains under Section 38(7) after the Amending Act 1963 is, therefore, that any transfer of land effected after 1st August 1953 whether by way of parti tion or otherwise, has no effect of conferring on the trans feree a right to terminate the tenancy 72 of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition.
This amendment is admittedly retro spective in operation.
Even assuming, therefore, that the partition of June 29, 1959 was a valid one, it did not give a right to the respondent to terminate the tenancy of the appellant who was admittedly a protected lessee prior to August 1, 1953 and was on the land as such tenant on April 1, 1961.
The result therefore is that firstly, the respondent had not become the landlady of the suit land since the share given to her in the partition was prima facie illegal and contrary to the provisions of law.
Secondly, assuming that the partition was valid, the respondent had no right to terminate the tenancy of the appellant on any ground whatso ever.
The appellant was a tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961.
Hence he became a statutory owner under Section 46 on and from April 1, 1961.
Any proceedings for evicting him on the ground that he was a tenant and, therefore, had fallen in arrears of rent could not have, therefore, been adopted in 1962.
It is unfortunate that the High Court lost sight of the ' said patent legal position and brushed aside the con tention in that behalf on the ground that the question involved was a question of law and fact.
We are unable to see what questions of fact were necessary to investigate for the disposal ot the said question.
It was a pure question of law arising out of the admitted facts on record.
Hence we allow the appeal, set aside the decision of the High Court and hold that the appellant had become a statutory owner of the suit land on and from April 1, 1961.
He was, therefore, not liable to be evicted at the hands of the respondent and the proceedings adopted by her were illegal and stand dismissed.
The respondent will pay the costs throughout.
R.S.S. Appeal al lowed.

dataset_name: IN-Abs

summary:
The appellant was a protected lessee or tenant of the agricultural land in dispute, under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
The respond ent became the landlady of the land on June 29, 1959 when her father effected a partition of his ancestral lands between himself, on the one hand, and his wife and his two minor daughters, including the respondent, on the other.
This was the third partition effected by the respondent 's father, who had earlier also twice partitioned the same lands.
Sometime in 1962, the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default.
The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal.
The Deputy Collector in appeal confirmed this decision, and the Maha rashtra Revenue Tribunal rejected the respondent 's revision.
In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below, the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition.
On remand, the Tehsildar held that the partition effected on June 29, 1959 was bogus.
Thereafter, in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing.
Therefore, in the appeal against the decision of the Tehsildar, the Deputy Collector following the said decision of the Revenue Tribunal, held the partition valid and al lowed the respondent 's application for eviction.
The Revenue Tribunal, in revision, confirmed this order of the Deputy Collector.
67 The appellant preferred a writ petition before the High Court.
It was, inter alia, contended before the High Court that: (1) the partition was contrary to the provisions of Hindu Law; and (2)even assuming that the partition deed of June 29, 1959 was a valid document, the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 38(7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement.
Allowing the appeal, this Court, HELD: (1) A partition of the property can only be among the parties who have a pre existing right to the property.
Under the Hindu Law, a female, major or minor has no share in the ancestral property.
A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparce nary property after the property is partitioned.
There cannot, therefore, be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter.
[70C D] (2) The position that obtain under section 38(7) after the Amending Act of 1963, is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise, has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition.
This amendment is admittedly retrospective in operation.
[71G H; 72A] (3) The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961.
Hence he became a statutory owner under section 46 of the Act on and from April 1, 1961.
Any proceedings for evicting him on the ground that he was a tenant and, there fore, had fallen in arrears of rent could not have, there fore, been adopted in 1962.
[72C D]


judgement:
vil Appeal Nos.
1052 53 of 1990.
90 From the Judgment and Order dated 4,7.1986 of the Orissa High Court in OJC.
1007 and 1008 of 1983.
A.K. Panda for the Appellants.
Kundan Lal Jagga and K.K. Gupta for the Respondents.
The following Order of the Court was delivered: ORDER Special leave granted.
Agruments heard.
These two appeals on special leave arise out of the common judgment of the High Court of Orissa made in O.J.C. Nos.
1007 and 1008 of 1983 decided on July 4, 1986 whereby the High Court set aside and quashed the impugned orders made by the Special Officer, Land Reforms, Central Division, Cuttack in O.L.R. Revision No. 131 of 1982 as well as O.L.R. No. 142 of 1982.
The matrix of the case in O.J.C. No. 1007 of 1983 is that on July 30, 1977, the respondent No. 2, Paramanand Sethi filed case No. 85 of 1977 under section 22 of the Orissa Land Reforms Act, against S/Shri B. Mohapatra, Pra fulla Kumar Pati and Gadadhar Pati (Respondent Nos. 1, 3 and 4) for restoration of lands sold to respondent Nos. 1, 3 and 4 on the ground that respondent No. 2 was a member of the Scheduled Caste (Dhoba Community) and the sales in question were hit by the provisions contained in section 22 of the Orissa Land Reforms Act, 1960.
The respondent No. 2 filed a caste certificate of the Additional Tehasildar, Betanoti wherein the respondent No. 2 was shown as belonging to 'Dhoba ' by caste which is recognised as a Scheduled Caste.
He also filed the record of rights in the name of Arjun Sethi, father of respondent No. 2 which showed the caste of Arjun Sethi as 'Dhoba '.
The respondent No. 5, Smt.
Nilamani Sethi, wife of Late Bhanu Sethi also filed O.L.R. Misc.
Case No. 21 of 1979 under Section 22 of the Orissa Land Reforms Act stating inter alia that the sale made by her in favour of respondent No. 1 who admittedly belonged to Brahmin Caste is void as the said sale was made without the permission of the Revenue Officer as mandatorily required under the provisions of the aid Act.
She produced the Caste certificate issued by tile Tehasildar, Betanoti which showed that she belonged to 'Dhoba ' caste 91 which is recognised as a scheduled caste.
She further filed two caste certificates issued by the two M.L.As.
which certified that she belonged to a scheduled caste, (Dhoba).
The Revenue Officer, vide his order dated March 19, 1979 rejected the case No. 85 of 1977 filed by the respondent No. Paramanand Sethi.
The respondent No. 2 filed O.L.R. Appeal No. of 1979 in the court of Additional District Magistrate, Mayutbhanj and the same was allowed vide judgment and order dated December 1980.
The Additional District Magistrate while allowing the appeal observed as follows: "It is a known fact that there is no community called 'Raj aka ' community which is different from Dhoba community.
Rajaka is only a literary word for the common term Dhoba.
While mentioning his caste as 'Rajaka ' the appellant has not ceased to be a 'Dhoba '.
The certificate given by the Addl.
Tehasildar, Betanoti and the entry in the R.O.R. confirm the assertion of the petitioner that he is a Dhoba by caste.
In the circumstances, the petitioner must be held to be a S.C, person and for that matter, his brothers and mother are also the members of a S,C, According to Section 22 of the Orissa Land Reforms Act previous permission from the Revenue Offi cer should have been obtained by them before transferring their lands to the respondents.
Since this statutory re quirement has not been met, the transfers are illegal.
The suit land must, therefore, be restored to the transferors.
" Against the said judgment and order, the respondent No. 1 filed O.L.R. Revision No. 131 of 1982 before the Special Officer, Land Reforms, Central Division, Cuttack, The said Revision Case was dismissed vide judgment and order dated March 4, 1983 on the finding that there were records of competent authorities like Addl.
Tehasildar, Betanoti and the record of rights showing that the caste of Paramanand Sethi is 'Dhoba '.
it has been further observed that: "As per the Oriya Bhasakosha the definition of 'Dhoba ' is 'Rajaka Washerman '.
Hence, there is no conflict regarding what is the meaning of 'Rajaka '.
It is merely a synonym of the word 'Dhoba '.
The Sanskrit lot 'Dhoba ' is 'Rajaka '.
Just because the word 'Rajaka ' does not find mention in the Presidential Order does not exclude it from the purview 92 of such an order. 'Dhobas ' are Scheduled Castes and 'Rajaka ' is a synonym of 'Dhoba '.
Now, that the High Court has so eloquently laid down the law in this regard, there is no reason to deny protection to the weaker sections on a mere technicality. 'This denial would be contrary to the spirit of the Orissa Land Reforms Act, itself." O.L.R. Misc.
Case No. 21 of 1979 filed by the respondent No. 5, Smt.
Nilamani Sethi was allowed vide order dated March 10, 1980 by the Revenue Officer directing the restora tion of the suit lands to respondent No. 5 under Section 23 of the Orissa Land Reforms Act.
The respondent No. 1 filed O.L.R. Appeal No. 42 of 1980 in the Court of Additional District Magistrate, Mayurbhanj. 'The said appeal was dis missed vide judgment and order dated February 21, 1981 holding that the transferor had amply proved that she was Dhoba which is a Scheduled Caste by producing documentary evidence.
She, therefore, does not cease to be a Dhoba even if she has described herself in the various deeds as Rajaka.
Since the transfer of the suit lands had been made to the respondent No. 1, Prafulla Kumar Pati who is a brahmin by caste without obtaining prior written permission of the Revenue Officer as required under Section 22 of the Orissa Land Reforms Act, the transactions had been rightly declared as void by the Revenue Officer. 'The suit lands must there fore, be restored to the possession of the respondent No. 5.
Against this order, respondent No. 1 filed O.L.R. Revi sion No. 142 of 1982 before the Special Officer, Land Re forms, Central Division, Cuttack and the same was dismissed vide judgment and order dated February 2, 1983.
The respondent No. 1 thereafter filed two writ petitions called O.J.C. Nos. 1007 and 1008 of 1983 against the judg ments and orders dated March 4, 1983 and February 2, 1983 respectively passed by the Special Officer, Land Reforms, Central Division, Cuttack.
Both these writ petitions were heard and disposed of by a common judgment impugned in these two appeals on special leave whereby the High Court, Orissa set aside and quashed the judgments and orders passed by the Special Officer, I.and Reforms, Central Division, Cuttack and allowed the writ petitions observing inter alia that: "Considering the cases in hand in the light of the above discussions, I have no hesitation to come to the conclusion that the Revenue Authorities have committed a serious 93 error of law in coming to the conclusion that 'Rajaka ' caste was included within the notified caste/community of 'Dhoba ' as their nature of work was similar.
Although it is unneces sary to make any further discussion, I must point out that even on a reference to the Bhashakosha it could not be categorically said that 'Rajaka ' was a caste which could not be said to be a class of washerman as the Bhashakosha itself gives other meanings of this word.
" Against this judgment and order, the instant appeals on special leave have been filed.
Before proceeding to decide the question whether the respondent Nos. 2 and 5, the trans ferors belonged to the scheduled caste Dhoba Community as mentioned in item No. 26 of the List of Scheduled Castes in the Scheduled Caste Order, 1950 in the State of Orissa, it is relevant to refer to the provisions of Section 22 and Section 23 of the Orissa Land ,Reforms Act, 1960 (Orissa Act 16 of 1960): Section 22: Restriction on alienation of land by Scheduled 'Tribes.
(1) Any transfer of a holding or part thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of (a) a person belonging to a Scheduled Tribe; or (b) a person not belonging to a Scheduled 'Tribe when such transfer is made with the previous permission in writing of the Revenue Officer: Provided that in case of a transfer by sale the Revenue Officer shall not grant such permission unless he is satis fied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof.
(2) The State Government may having regard to the law and custom applicable to any area prior to the date of commence ment of this Act by notification direct that the restric tions provided in sub section (1) shall not apply to lands situ ated in such area or belonging to any particular tribe throughout the State or in any part of it.
94 (3) Except with the written permission of the Revenue Offi cer, no such holding shall be sold in execution of a decree to any person not belonging to a Scheduled Tribe.
(4) Notwithstanding anything contained in any other law for the time being in force where any document required to be registered under the provisions of Cl.
(a) to Cl.
(e) of sub section (1) of section 17 of the (16 of 1908) purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe in favour of a person not belonging to a Scheduled Tribe, no register ing officer appointed under that Act shall register any such document, unless such document is accompanied by the written permission of the Revenue Officer for such transfer.
(5) The provisions contained in sub Ss. 1 to 4 shall apply, mutatis mutandis, to the transfer of a holding or part thereof of a raiyat belonging to the Scheduled Castes.
(6) Nothing in this section shall apply (a) to any sale in execution of a money decree passed, or to any transfer by way of mortgage executed, in favour of any scheduled bank or in favour of any bank to which the Orissa Co operative Societies Act, 1962 (Orissa Act 33 of 1962) applies; and (b) to any transfer by a member of a Scheduled Tribe within a Scheduled Area.
Section 23: Effect of transfer in contravention of section 22.
(1) In the case of any transfer in contravention of the provi sions of sub section (1) of section 22 the Revenue Officer on his own information or on the application of any person interest in the land may issue notice in the prescribed manner calling upon the transferor and transferee to show cause why the transfer should not be declared invalid.
Section 22 clearly enjoins that a person belonging to Scheduled Tribe can not make a valid transfer of his lands in favour of a person not belonging to the Scheduled Tribe without obtaining the previous 95 permission in writing of the Revenue Officer to such trans fer.
Subsection 5 of the said section further provides that the provisions contained in sub section 1 to 4 shall apply, mutatis mutandis to the transfer of a holding or part there of a raiyat belonging to the Scheduled Castes.
Section 23 B of the said Act further provides that if the validity of the transfer of any holding or part thereof is in question, the burden of proof that the transfer was valid shall, notwith standing anything contained in any other law for the time being in force, lie on the transferee.
In this case, the transfers made by the respondent Nos. 2 and 5 in favour of respondent No. 1, Prafulla Kumar Pati who admittedly belongs to Brahmin caste are hit by the provisions of Section 22 of the said Act in as much as the previous permission in writing of the Revenue Officer had not been obtained to the alleged transfers.
It has been submitted on behalf of the respondent Nos. 2 and 5 that they belong to Dhoba (Dhobi) community which is one of the Sched uled Caste in the State of Orissa under the Scheduled Caste Order, 1950.
It has been further contended that the father of the respondent No. 2 has been recorded as belonging to Dhoba community in the finally published record of rights which has been annexed as Annexure 'B ' to these appeals.
It has also been submitted on behalf of the respondent Nos. 2 and 5 that the caste certificates granted by the Tehsildar, Betanoti as well as by the two local M.L.As.
clearly estab lished that the respondent Nos. 2 and 5 belong to Dhoba community and as such they are Scheduled Castes.
Much argu ment has been advanced on the mentioning of the caste of these two respondents as 'Rajaka ' in the alleged deeds on the ground that the caste 'Rajaka ' as mentioned in the sale deeds did not find place in the List and instead the Caste 'Dhoba ' appears in Item 26 of the List of Scheduled Castes in the State of Orissa under the Constitution of Scheduled Caste Order, 1950 as made under Article 341 of the Constitu tion of India.
It has been urged in this connection that the Caste 'Rajaka ' as mentioned in the deeds can not be taken to be synonym of caste 'Dhoba ' and no evidence can be adduced to that effect to prove that 'Rajaka ' included within the notified caste, commentary of 'Dhoba ' as held by the High Court.
We are unable to accept this contention advanced on behalf of the respondent Nos. 1, 3 and 4 on the ground that the caste of the respondent No. 2 and 5 was mentioned in the caste certificates granted by the Tehsildar, Betanoti as 'Dhoba '.
Moreover, in the finally published record of rights the caste of the father of respondent No. 2 had been record ed also as 'Dhoba ' which undoubtedly is a Scheduled 96 Caste under the Scheduled Castes Order, 1950 issued under the provisions of Article 341 of the Constitution of India.
It is also pertinent to mention that 'Rajaka ' is the literal synonym for the word 'Dhoba ' and according to the Puma Chandra Oriya Bhasakosha which is a recognised authority, the definition of 'Dhoba ' is Rajaka washerman.
As such, the submission that the caste 'Rajaka ' is different from caste 'Dhoba ' is not at all sustainable.
It is pertinent to refer in this connection to the observations of the Supreme Court in B. Basavalingappa vs D. Munichinnappa, ; at 320 wherein it has been observed that: "Ordinarily therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order.
But that in our opinion does not conclude the matter in the peculiar circumstances of the present case.
The difficulty in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re organisation of 1956 there was no caste known as Bhovi at all.
The Order refers to a scheduled caste known as Bhovi at the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste.
It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956.
But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to courts to find out which caste was meant by Bhovi is to take evidence in that behalf.
" In the instant case, referring to this decision even though the respondent Nos. 2 and 5 i.e. the transferors mentioned in the deeds of transfer their caste as 'Rajaka ', there is no such caste mentioned in the Constitution of Scheduled Caste Order, 1950.
In such circumstances, relying on the aforesaid observation of this Court, it is necessary and also incumbent on the Court to consider as to what caste the respondent Nos. 2 and 5 belong to.
Moreover, considering the record of 97 rights as well as the various certificates issued by the revenue authorities and the local M.L.As.
referred to here inbefore wherein the transferors have been described as belonging to 'Dhoba ' community, the irresistible conclusion that follows is that the respondents transferors belong to 'Dhoba ' caste which is one of the Scheduled Caste in the State of Orissa.
In the premises aforesaid the judgment and order of the High Court referred to in O.J.C. Nos. 1007 and 1008 of 1983 are liable to be set aside.
We, therefore, set aside the same and affirm the order of the Special Officer, Land Reforms, Central Division, Cuttack passed in O.L.R. Revision No. 131 of 1982 and O.L.R. No. 142 of 1982.
The respondent Nos. 1, 3 and 4 are directed to restore the lands in ques tion to the possession of the respondent Nos. 2 and 5 forth with.
The appeals are allowed without any order as to costs.
T.N.A. Appeals allowed.

summary:
Respondent No. 2, a scheduled caste, filed a case for restoration of lands sold to respondent Nos. 1, 3 and 4, non scheduled castes, on the ground that the sale was in viola tion of section 22 of the Orissa Land Reforms Act, 1960 as the requisite permission of the Revenue Officer was not obtained.
In the sale deed the transferor Respondent was described as 'Rajaka ' while in the caste certificate he was mentioned as ' Dhoba '.
The Revenue Officer rejected the ease.
Respondent No. 2 filed an appeal which was allowed by the Additional District Magistrate.
Against the order of Additional District Magistrate a revision was preferred by respondent No. 1 which was dismissed by the Special Officer, Land Reforms by holding that merely because the word 'Raja ka ' does not find mention in the Scheduled Caste Order, 1950 does not exclude it from the purview of such an order.
In the connected appeal respondent No. 5 filed a case for restoration of land sold to respondent No. 1 which was allowed by the Revenue Officer.
The appeal filed by respond ent No. 1 was dismissed by the Additional District Magis trate.
A Revision preferred by Respondent No. 1 was also dismissed by the Special Officer Land Reforms.
Respondent No. 1 filed writ petitions in the High Court which quashed the orders made by the Special Officer, hold ing that the Revenue Authorities committed a serious error of law in holding that 89 'Rajaka ' caste was included within the notified caste/commu nity of Dhoba '.
In these appeals it was contended on behalf of transfer ee respondents that the Caste 'Rajaka ' mentioned in the sale deeds cannot be taken to be synonym of caste 'Dhoba ' men tioned in Item 26 of the List in Scheduled Castes Order, 1950.
Allowing the appeals, this Court, HELD: 1.
Though the respondent Nos. 2 and 5 i.e. the transferors mentioned in the deeds of transfer their caste as 'Rajaka ' there is no such caste mentioned in the Consti tution (Scheduled Castes) Order, 1950.
In such circum stances, it is necessary and also incumbent on the Court to consider as to what caste they belong to.
[96B] B. Basavalingappa vs D. Munichinnappa, [1965] 1 S.C.R. 316, followed.
2. 'Rajaka ' is the literal synonym for the word 'Dhoba ' and according to the Purna Chandra Oriya Bhasakosh a which is a recognised authority, the definition of 'Dhoba ' is Rajaka washerman.
Therefore the submission that the caste 'Rajaka ' is different from caste 'Dhoba ' is not at all sustainable.
[96A] 3.
In the record of rights as well as the various cer tificates issued by the revenue authorities and the local M.L.As the transferors have been described as belonging to 'Dhoba ' community.
The irresistible conclusion that follows is that the respondent transferors belong to 'Dhoba ' caste which is one of the Scheduled Caste in the State of Orissa.
[96H, 97A] 3.1 Therefore the transfers made by respondent Nos. 2 and 5 in favour of respondent No. 1, who admittedly belongs to Brahmin caste, are hit by the provisions of Section 22 of the Orissa Land Reforms Act, 1960 in as much as the previous permission in writing of the Revenue Officer had not been obtained to the alleged transfers.
[95C] [The transferee respondents directed to restore the lands in question to the possession of the transferor respondents forthwith.] [97C]


judgement:
ivil Appeal No. 140 of 1990.
From the Judgment and Order dated 8.2.89 of the Madras High Court in L.P.A. No. 131 of 1987.
A.K. Sen, N.D.B. Raju, K. Rajeshwaran and N, Ganapathy for the Appellants.
K.R. Choudhary and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave is granted.
This appeal is from a decision of the Madras High Court which denied the appellants claim for setting aside a judi cial sale.
The facts giving rise to the appeal, as found by the Courts, may be summarised as follows.
Arumugham respondent 1 obtained money decree on the basis of a promissory note from the Subordinate Judge, Salem, in O.S. No. 388/1968.
Sethuramalingam the judgment debtor appealed to the High Court but could not get the decree stayed.
He could not furnish security for the decre tal amount which was a condition for stay.
The decree was put into execution notwithstanding the pendency of the appeal.
In February 1973, his two items of properties; (i) three houses and (ii) 10.93 acres of land were brought to court sale.
They were purchased by Kuppa Goundar, respondent No. 2 for Rs.7550 and Rs.15,050 respectively.
In October 1975, the High Court allowed the appeal on merits.
The promissory note which was the basis of the suit was disbe lieved and rejected.
The trial court judgment was set aside and the plaintiff was non suited.
Thereupon the judgment debtor moved the executing court for setting aside the sale.
He has alleged inter alia, that the sale 81 was vitiated by material irregularities and properties were deliberately sold for under value.
The sale was collusive between decree holder and the auction purchaser.
The latter was sambandhi of the former and just a name lender.
It was also his contention that since the decree has been reversed, the sale should be nullified and restitution should be ordered.
The Court rejected all the contentions relating to material irregularities for want of satisfactory evidence.
The Court also held that subsequent reversal of the decree could not be depended upon since the sale has been confirmed in favour of the auction purchaser who was a stranger to the litigation.
The judgment debtor appealed to the High Court and succeeded at first instance, before learned single Judge.
The learned Judge found in effect that (a) the sale was vitiated by material irregularities resulting in fetch ing a low price to properties; (b) the decree holder and auction purchaser are close relatives and the sale seems to be collusive; and (c) after the Court sale they seemed to have entered into an agreement for selling the second item of properties for Rs.96,000.
With these conclusions the sale was set aside.
But on appeal, the Division Bench of the High Court has expressed contrary views on all those points and reversed the decision of learned single Judge. 'the judgment debtor died during the pendency of the appeal before the High Court.
His legal representatives have now appealed.
Mr. A.K. Sen, learned counsel for the appellants raised a number of questions.
The important and central issue, however, relates to the underlying jurisdiction of the Court to set aside the confirmed sale upon subsequent reversal or modification of the decree.
The question is whether the auction purchaser 's interest should be protected as against the judgment debtor who has since succeeded in getting rid off the decree against him.
There are two authorities of this Court bearing on the question: (i) Janak Raj vs Gurdial Singh and Anr., ; and (ii) Sardar Govindrao Mahadik and Anr.
vs Devi Sahai & Ors.
, ; In Janak Raj case, the appellant was a stranger to the suit in which there was an ex parte money decree.
In the execution of the decree, the immovable property of the judgment debtor was brought to sale in which the appellant became the high est bidder.
The judgment debtor filed an application for setting aside the ex parte decree and the court allowed it before confirming the sale.
Thereupon the judgment debtor objected to the confirmation of sale on the ground that the auctionpurchaser was in conspiracy and collusion with the decree holder and as such not entitled to have the sale confirmed.
The execution court, 82 however, overruled the objection and confirmed the sale, Mitter, J., agreed with that view and observed (at 79): "The result is that the purchaser 's title relates back to the date of sale and not the confirmation of sale.
There is no provision in the Code of Civil Procedure of 1908 either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale.
It does not seem ever to have been doubted that once the sale is confirmed the judgmentdebtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. 'The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirma tion of sale.
There does not seems to be any valid reason for making a distinction between the two cases.
It is certainly hard on the defendant judgment debtor to have to lose his property on the basis of a sale held in execution of a decree which is "not ultimately upheld.
Once however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation.
The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execu tion of a decree.
It also lays down how and in what manner such sales may be set aside.
Ordinarily, if no application for setting aside a sale is made under any of the provisions of rr. 89 to 91 of O. XXI, or when any application under any of these rules is made and disallowed, the court has no choice in the matter of confirming the sale and the sale must be made absolute.
If it was the intention of the Legis lature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provi sion to that effect either in O. XXI or in Part II of the Code of Civil Procedure of 1908 which contains sections 36 to 74 (inclusive) . . " Finally, the learned judge rounded off the judgment thus (at 86): " . .
The policy of the Legislature seems to be that 83 unless a stranger auction purchaser is protected against the viccissitudes of the fortunes of the suit, sales in execu tion would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified.
The Code of Civil Procedure of 1908 makes ample provision for the pro tection of the interest of the judgment debtor who feels that the decree ought not to have been passed against him. ' ' In Sardar Govindrao Mahadik, D.A. Desai, J., while referring to the principle in Janak Raj case said (at 224): "Ordinarily, if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside.
This proceeds on the footing that the equity in favour of the stranger should be protected and the situa tion is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execu tion of the decree during the pendency of the appeal.
" The learned Judge further said: "But what happens if the auction purchaser is the decree holder himself? In our opinion, the situation would materi ally alter and this decree holder auction purchaser should not be entitled to any protection.
At any rate, when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending.
He is aware of the fact that the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside.
He cannot force the pace by exe cuting the decree taking advantage of the economic disabili ty of a judgment debtor in a money decree and made the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war.
Therefore, where the auction purchaser is none other than 84 the decree holder who by pointing out that there is no bidder at the auction, for a nominal sum purchases the property, to wit, in this case for a final decree for Rs.500, Motilal purchased the property for Rs.300, atrocious situation, and yet by a technicality he wants to protect himself.
To such an auction purchaser who is not a stranger and who is none other than the decree holder, the court should not lend its assistance." In Janak Raj case, a stranger auction purchaser was protected against vicissitudes of fortunes of the litiga tion.
In S.G. Mahadik case such protection was not afforded to auction purchaser who happens to be the decree holder himself.
The reason seems to be that the decree holder is not a stranger to the suit.
Indeed, he is not since he is eonomine party to the appeal against the decree which he seeks to execute.
He is aware of the fact that due to eco nomic hardship the judgment debtor was unable to have the decree stayed.
He however, does not wait for final outcome of the litigation which he has initiated.
He exploits the helpless situation of the judgment debtor and hastens the execution of the decree.
The Court, therefore, should not lend its assistance to him to retain the property purchased if the decree is subsequently reversed. 'There is thus a distinction maintained between the decree holder who purchases the property in execution of his own decree which is afterwards modified or reversed, and an auction purchaser who is not party to the decree.
Where the purchaser is the decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser.
The latter remains unaf fected and does not lose title to the property by subsequent reversal or modification of the decree. 'The Courts have held that he could retain the property since he is a bona fide purchaser. 'This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed.
He is thus distin guished from an eonomine party to the litigation. 'There cannot be any dispute on this proposition and it is indeed based on a fair and proper classification. 'The innocent purchaser whether in voluntary transfer or judicial sale by or in execution of a decree or order would not be penalised.
The property bona fide purchased ignorant of the litigation should be protected. 'The judicial sales in particular would not be robbed off all their sanctity.
It is a sound rule based on legal and equitable considerations.
But it is 85 difficult to appreciate why such protection should be ex tended to a purchaser who knows about the pending litigation relating to the decree.
If a person ventures to purchase the property being fully aware of the controversy between the decree holder and judgment debtor, it is difficult to regard him as a bona fide purchaser.
The true question in each case, therefore, is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution.
If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree. 'The Court by all means should protect his purchase.
But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser.
In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution.
No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for. 'The Patna High Court in Chhota Nagpur Banking Associa tion vs C.T.M. Smith & Anr., [1943] Patna 325 expressed a similar view.
Fazl Ali, CJ., as he then was, said (at 327) that where there is clear and cogent evidence that a strang er purchaser was fully aware of the merits of the controver sy in regard to the property purchased by him and was also aware that the validity of the decree was under challenge, there is no room for presumption that he was a bona fide purchaser.
Reference may also be made to the decision of the Sind Judicial Commissioner 's Court in Jamnomal Gurdinornal vs Gopaldas and Anr., AIR 1924 Sind 101 where similar com ment was made. 'The Madras High Court in R. Raghavachari v.M.A.Pakkiri Mahorned Rowther and Ors., AIR 19 has however, taken a contrary view.
It was held that restitution under Section 144 CPC cannot be demanded as against a bona fide purchaser who was not a party to the decree. 'The High Court also remarked that the reversal of the decree by the appel late Court or the knowledge of the purchaser about the pendency of the appeal makes no material difference to the operation of that rule.
This proposition, we are, however, unable to accept.
In our opinion, the person who purchases the property in court auction with the knowledge of the pending appeal against the decree cannot resist restitution.
His knowledge about the pending litigation would make all 86 the difference in the case.
He may be a stranger to the suit, but he must be held to have taken calculated risk in purchasing the property.
Indeed, he is evidently a specula tive purchaser and in that respect he is in no better posi tion than the decree holder purchaser.
The need to protect him against restitution therefore, seems to be unjustified.
Similarly the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also protected to retain the property if the decree is subsequently reversed.
There is one other aspect which is more important than what we have discussed hitherto.
It was emphasized by Lord Cairns in Rodger vs The Comptoir D ' Escompte De Paris, [1869 71] LR 3 P.C. 465 at 475: ". that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression "the act of the Court", is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use the expres sion, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.
" This is also the principle underlying Section 144 of the Code of Civil Procedure.
It is the duty of all the Courts as observed by the Privy Council "as aggregate of those tribu nals" to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court.
The above passage was quoted in the majority judgment of this Court in A.R. Antulay vs
R.S. Nayak and Ors.
, ; at 672.
Mukherjee, J., as he then was, after referring to the said observation of Lord Cairns, said (at 672): "No man should suffer because of the mistake of the Court.
No man should suffer a wrong by technical procedure of irregularities.
Rules or procedures are the handmaids of justice and not the mistress of the justice.
Ex debito justitiae, we must do justice to him.
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.
" 87 It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. 'he laws of procedure should be so construed as to render justice wherever reasonably possi ble.
It is in our opinion, not unreasonable to demand resti tution from a person who has purchased the property in court auction being aware of the pending appeal against the de cree.
We have carefully considered the evidence in the case.
The judgment debtor who has been examined in the case has stated that the auction purchaser is a sambandhi of the decree holder. 'the decree holder 's daughter has been given in marriage to the son of auction purchaser.
That evidence remains unchallenged.
The evidence further indicates that after the purchase both of them have entered into an agree ment with a third party for sale of the second item of properties for Rs.96,000 and a case seems to be pending on the basis of that agreement.
The evidence also discloses that the auction purchaser had no money of his own to pur chase the property.
These circumstances are sufficient to hold that the auction purchaser was not a bona fide purchas er.
The auction sale in his favour must, therefore, fall for restitution. 'he Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree.
In the result the appeal is allowed, the judgment of the Division Bench of the High Court is reversed and that of learned single Judge is restored.
The appellants, however, must pay the costs of this appeal to the auction purchaser which we quantify at Rs.5,000.
R.S.S. Appeal allowed.

summary:
Respondent No. 1 obtained a money decree against the original appellant, who has been substituted by legal heirs, on the basis of a promissory note.
The appellant appealed to the High Court but could not get the decree stayed because he was unable to furnish security for the decretal amount.
The decree was put into execution notwithstanding the pend ency of the appeal, and two items of appellant 's properties were purchased by respondent No. 2 at the court sale.
Later, the High Court allowed the appellant 's appeal on merits and set aside the decree.
Thereupon, the appellant moved the executing court for setting aside the court sale inter alia on the ground that (1) the sale was vitiated by material irregularities and properties were deliberately sold for under value; (2) the sale was collusive between decree holder and the auction purchaser; the latter, being the sambandhi of the former, was just a name lender; and (3) since the decree had been reversed, the sale should be nullified and restitution should be ordered.
The executing court rejected these con tentions and held that subsequent reversal of the decree could not be depended upon since the sale had been confirmed in favour of the auction purchaser who was a stranger to the litigation.
The learned Single Judge of the High Court, however, allowed the appellant 's appeal and held inter alia that (a) the sale was vitiated by material irregularities resulting in fetching a low price; and (b) the decree holder and auction purchaser were close relatives and the sale seemed to be collusive.
But on appeal, the Division Bench reversed the decision of the learned Single Judge.
Allowing the appeal, this Court, HELD: (1) A distinction is maintained between the decree holder who purchases the property in execution of his own decree which is 79 afterwards modified or reversed, and an auction purchaser who is not party to the decree.
[84E] (2) Where the purchaser is a decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser.
The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree, and could retain the property since he is a bona fide purchaser.
This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed.
He is thus distinguished from an eonomine party to the litigation.
[84E F] Janak Raj vs Gurdial Singh, ; and Sardar Govindrao Mahadik vs Devi Sahai, ; , referred to.
(3) The true question in each case is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution.
If it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser.
Indeed, 'he is evidently a speculative purchaser and in that respect he is in no better position than the decree holder purchas er.
[85B C] Chhota Nagpur Banking Association vs C.T.M. Smith, [1943] Patna 325 and Jamnomal Gurdinomal vs Gopaldas, AIR 1924 Sind 101, referred to.
R. Raghavachari vs M.A. Pekkiri Mahomed Rowther, AIR 1917 Mad 250, overruled.
(4) Similarly, the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also be protected to retain the property if the decree is subse quently reversed.
[86B] (5) The Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishment and penal ties.
The laws of procedure should be so construed as to render justice wherever reasonably possible.
[87A B] Rodger vs The Comptoir De Paris, [1869 71] LR 3 PC.
465 at 475 80 and A.R. Antulay vs R.S. Nayak, ; , referred to.
(6) The evidence on record is sufficient to hold that the auction purchaser was not a bona fide purchaser.
The auction sale in his favour must, therefore, fall for resti tution.
The Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree.
[87D E]