judgement:
cellaneous Petition No, 641 of 1954, 72 562 Application for review of the Judgment of this Court in Civil Appeal No. 152 of 1954.
N. C. Chatterjee (G. C. Mathur, with him) for the petitioner.
Veda Vyas (section K. Kapoor and Naunit Lal, with him) for the respondent.
October 18.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an application for review of the judgment of this Court in Civil Appeal No. 52 of 1954.
That was an appeal against an order of the Election Tribunal, Himachal Pradesh (Simla), dismissing a petition to set aside the election of the respondent to the Legislative Assembly, Himachal Pradesh, from the Rohru Constituency.
Two points were raised at the hearing of the appeal before us: One was that the respondent was disqualified for election to the Assembly under section 17 of Act No. XLIX of 1951, read with section 7(d) of Act No. XLIII of 195 1, by reason of the fact that he was interested in contracts for the supply of Ayurvedic Medicines to the Himachal Pradesh Government, and the other, that he had appointed Government servants as polling agents, and had thereby contravened section 123(8) of Act No. XLIII of 1951.
On the first question, we held that, on a true construction of section 17, what would be a disqualification for election to either House of Parliament under article 102 would, under that section, be disqualification for election to the Legislatures of States, and that the disqualification under section 7 (d) of Act No. XLIII of 1951 would accordingly be a disqualification under section 17 of Act No. XLIX of 195 1.
A further contention was then raised on behalf of the respondent that even if section 7(d) were to be imported into section 17, that would not disqualify him, because under that section, the disqualification must be to being elected to either House of Parliament, and that under sections 7 and 9 of Act No. XLIII of 1951, a contract to operate as a disqualification to the election to either House of Parliament must be, with the Central Government, whereas 563 the contracts of the respondent were with the Government of Himachal Pradesh.
The answer of the petitioner to this contention was that under article 239 the administration of States was vested in the President acting through the Chief Commissioner or the Lieutenant Governor, and that the contracts of the respondent with the Chief Commissioner, Himachal Pradesh, must be held to be contracts with the Central Government.
We, however, disagreed with this con tention, and held that article 239 had not the effect of merging States with the Central Government, and converting contracts with the States into those with the Central Government.
In this application, Mr. Chatterjee appearing for the petitioner invites our attention to the definition of " Central Government " in section 3(8)(b)(ii) of the .
It is as follows: "Central Governmnet" shall in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include in relation to the administration of a Part C State, the Chief Commissioner or Lieutenant Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be." He argues that by force of this definition, contracts with the Chief Commissioner of Himachal Pradesh must be treated as contracts with the Central Government, and that in consequence, the respondent was disqualified for election under section 17 of Act No. XLIX of 1951, read along with section 7(d) of Act No. XLIII of 1951.
As against this, Mr. Veda Vyas for the respondent relies on the definition of " State " in section 3(60)(b) of the , which runs as follows: " State Government " as respects anything done or to be done after the commencement of the Constitution, shall mean, in a Part A State, the Governor, in a Part B State the Rajpramukh, and in a Part C State the Central Government.
" 564 His contention is that there being in the Constitution a fundamental distinction between the Government of the Union and Government of the States, section 3(8) of the should be so construed as not to destroy that distinction, and that having regard to the definition of " State " in section 3(60), it must be held that to the extent the Central Government administers States under article 239, its character is that of the State Governments.
We are unable to agree that section 3(8) has the effect of putting an end to the status of States as independent units, distinct from the Union Government under the Constitution.
It merely recognies that those States are centrally administered through the President under article 239, and enacts that the expression " Central Government " should include the Chief Commissioner administering a Part C State under the authority given to him under article 239.
Section 3(8) does not affect the status of Part C States as distinct entities having their own Legislature and judiciary, as provided in articles 239 and 240.
Its true scope will be clear if, adapting it, we substitute for the words " Central Government" in section 9 of Act No. XLIII of 195 1, the words " the Chief commissioner acting within the scope of the authority given to him under article 239.
" A contract with the Chief Commissioner would, therefore, under section 9 read with section 3(8) of the , be a contract with the Central Government, and would operate as a disqualification for election to either House of Parliament under sections 7(d) and 9 of Act No. XLIII of 1951, 'and it would be a disqualification under section 17 of Act No. XLIX of 1951, for election to the Legislative Assembly of the State.
It is argued for the respondent that this construction would lead to this anomaly that whereas in the States in Part A or Part B a contract with the State would operate as disqualification only for election to the State Legislatures, such a contract would in States operate as a disqualification to be chosen, both to the State Legislature and to either House of Parliament.
That anomaly is undoubtedly 565 there.
But the contrary conclusion also involves the anomaly already pointed out, that in States a contract with the State Government is not a disqualification for election even to the State Legislature, as it is in Parts A and B States.
Whatever the anomaly, in our view, the proper course is to give effect to the plain language of the statute.
We must accordingly hold that in view of section 3(8) of the , a contract with the Chief Commissioner in a State is a contract with the Central Government, and that would be a disqualification for election to the Legislative Assembly under section 17 of Act No. XLIX of 1951 read with section 7(8) of Act No. XLIII of 1951.
This conclusion, however, can result in no advantage to the petitioner, as the further finding of the Election Tribunal is that no contracts of the respondent with the Himachal Pradesh Government were proved to have been subsisting at the material period.
That finding is, for the reasons already given, not open to attack in this appeal, and is sufficient answer to the objection that the respondent was disqualified under section 17.
The second point that was argued before us in appeal was that the respondent had appointed certain Government servants to act as polling agents, and had thereby committed a major corrupt practice under section 123(8) of Act No. XLIII of 1951.
In rejecting this contention we observed that, "as an abstract proposition of law, the mere appointment of a Government servant as a polling agent in itself and without more" is not an infringement of section 123(8).
The correctness of this conclusion is now challenged by Mr. Chatterjee.
His contention is that having regard to the nature of the duties of a polling agent as laid down by the Rules and furtfier elucidated by the instructions contained in the Election Manual issued by the Government, the polling agent must be held to be interested in the candidate for whom he acts as polling agent, and that his employment would therefore be hit by section 123(8).
Examining closely the duties of a polling agent under the Rules and under the Election Manual, they 566 can be grouped under three categories.
The first category relates to the period of time antecedent to the recording of votes.
The duties of the polling agent at this stage are to see that the ballot boxes are, to start with, empty, that the names of the candidates and their symbols are correctly set out thereon, that the slits in the boxes are in an open position, that the knobs of the slits are properly secured, and that the boxes are properly bolted and sealed.
These are duties which are cast on the presiding officer and the polling officers as well, and as these are matters to be attended to before any recording or votes begins, it is difficult to see how they can be said to assist in the furtherance of the election prospects of any one candidate more than of any other.
The second stage is when the polling is actually in progress.
The duty of the polling agent at this stage is to identify the voters.
Rule 27 provides that when there is a doubt as to the identity of a voter, the presiding officer may interrogate the voter and that be should do so, if so required by a polling agent.
Under rule 30, it is open to the polling agent to challenge any voter on the ground that he is not the person whose name is entered in the voters ' list, and when such objection is taken, it is the duty of the presiding officer to hold an enquiry and pass an order.
The object of these Rules is to prevent personation, and that is a matter in which the duty is cast equally on the presiding officer.
Rule 24 provides that, "The presiding officer may employ at the polling station such persons as he thinks fit to assist him or any polling officer in identifying the electors.
The work of the polling agent under rules 27 and 30 is of the same character, and it cannot in itself be said to further the election prospects of any particular candidate.
The third stage is reached after the polling is over '.
Then the boxes are to be examined with.
a view to find out whether the slits are open and the seals intact, the object of these provisions being to ensure that the ballot boxes had not been tampered with during the time of actual polling.
Then the unused ballot papers, the tendered ballot papers and other material documents are required to be put in separate 567 packages, and the polling agents have the right to seal all of them.
It cannot be said that in carrying out these duties the polling agent advances the election prospects of the candidate, as they admittedly relate to a stage after the completion of the polling.
Indeed, the work of the polling agent both in the first stage and in the last stage is similar in character, and neither can be said to contravene section 123(8).
As regards the second stage, as already stated in our judgment, the duty of polling agent is merely to identify a voter, and that could not by itself and without more be said to further the election prospects of the candidate.
Reliance was placed by Mr. Chatterjee on the following passage in Parker 's Election Agent and Returning Officer, Fifth Edition, at page 20: "The polling agents appointed for the same candidate to attend the several polling stations at any election, are engaged on the same duty and in the same interest, and it is generally very desirable that they should meet, under the presidency of the candidate or his election agent, before the opening of the poll for the purpose of mutual discussion and co operation.
" What that passage means is that as the duty to be performed by the polling agents at the several booths is of the same character, it would be desirable that they should all be assembled and their duties explained to them.
This has no bearing on the question whether those duties are such as must inherently promote the election prospects of the candidate.
A passage which is more in point is the one at page 18, mentioning who could be appointed as polling agents.
It is as follows: "Any competent person, whether an elector or not, may be appointed as polling agent, provided he be not the returning officer, the acting or deputy acting returning officer, or an officer or clerk appointed under P.E.R., r. 27, or a partner or clerk of any of them.
" In this connection, it must be noted that while section 41 of Act No. XLIII of 1951 contains a prohibition against the appointment of certain persons as election agents, there is none such with, reference to the appointment of polling agents under section 46 of the 568 Act.
To hold that Government servants are, as such and as a class, disqualified to act as polling agents would be to engraft an exception to the statute, which is not there.
Accordingly, we reaffirm the view taken by us that the appointment of a Government servant as polling agent does not, without more, contravene section 123(8).
It is scarcely necessary to repeat our observation in the original judgment that "if it is made out that the candidate or his agent had abused the right to appoint a Government servant as polling agent by exploiting the situation for furthering his election prospects, then the matter can be dealt with as an infringement of section 123(8).
" In the result, this petition is dismissed; but under the circumstances, without costs.
Petition dismissed.

summary: Held, (modifying the view of law taken in Civil Appeal No. 52 of 1954) that in view of section 3(8) of the , a contract with the Chief Commissioner in a State (in this case Himachal Pradesh Chief Commissioner) is a contract with the Central Government and that would be a disqualification for election to the Legislative Assembly of the State under section 17 of Act XLIX of 1951, read with section 7(d) of Act XLIII of 1951.


judgement:
Appeal No. 2467 of 1966.
Appeal from the judgment and decree dated March 27, 1963 the Kerala High Court in Appeal Suit No. 848 of 1960 '.
Sarjoo Prasad, P.K. Pillai and M.R.K. Pillai, for the: appellants.
V.K. Krishna Menon, R. Thiagarajan and K. Jayaram, for respondents Nos. 1 to 3.
Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate from the judgment of the High Court of Kerala in A.S. No. 848 of 1962 dated March 27, 1963 reversing the decree of the principal Subordinate Judge, Trivandrum in O.S. No. 182 of 1957 dated May 23, 1960.
The father of the plaintiffs who are appellants herein was a Hindu Nadar namely Raman Nadar.
He had an eider brother named Krishanan Nadar.
On May 9, 1946 the said Krishanan Nadar and Raman Nadar jointly executed a deed of will exhibit P 2 in respect of the assets of Krishanan Nadar.
On the date of the will, Raman Nadar had only three daughters and no sons.
Krishnan Nadar died on December 5, 1947.
After the death of Krishnan Nadar the appellant 's mother ' was married to Raman Nadar, who is the father of the appellants.
It is specifically provided in the will exhibit p 2 that in the event of Raman Nadar begetting a son or sons in future those male issues will succeed to the assets of Krishnan Nadar to the exclusion of the daughters.
The material portion of the will, exhibit p 2, reads as follows: "Deed of will executed by Krishnan aged 51, Nadar, son of Kaliyambi, merchant, Makkavazhi, Kuzhiamvilakathu Veettil, Melkaladi, Airanimuttan, Pakuthy, Nellamn Adhikaram and his brother Raman son of the said Kaliyambi of do.
, aged 39, merchant, on 26th Madam, 1111 M.E. with their own consultation and to their entire satisfaction.
Some properties have been acquired in the name of the 1st named and in the name of the 2nd named out of love and affection towards him and his children, with the self acquired money of the 1st named 'and without the income of the Tarwad properties of the 1st named and without the help of the other members of the Tarwad or the 2nd named.
They are held 473 by the 1st named in his possession and enjoyed by him till this date.
The 1st named has, till the end of his life; absolute freedom, authority and right to alienate (the properties) in whatever manner he likes and to execute deeds.
The first named is unmarried and the second named has married Parvathy alias Snahappoo daughter of Sarah, Maraikkamuttath Veettil, Vazhuthoor Desom, Neyyattinkara Taluk, through whom he has three daughters Ammukutty aged 14, Chellamma aged 10 and Rajammal aged 5 but no son.
As the first named felt himself desirous of making during his life provision for the devolution after his life of the movable and immovable properties belonging to him in absolute rights as aforesaid, the following provisions regarding them are made: The first named till the end of his life will have the right to pay the land revenue to enjoy and dispose in any manner whatsoever all the movable and immovable properties that belong or may belong to himself.
After the life of the first named, all the properties above said will be taken and enjoyed by the second named maintaining his children named above and those born to him later and without alienating or westing the properties.
After the life of the second named, if he leaves behind no sons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the first named and the second named, either in common or in equal shares, effecting mutation, taking pattahs and paying the revenue in their own names, but without making any alienation thereof.
If there be sons born to the second named, they will take after the life of the second named all the movable and immovable properties of the first named and the 2nd named and enjoy them for ever, effecting mutation, taking pattahs and paying revenue, and with all powers of disposal; and in that event, the daughters of the 2nd named will not have and should not claim any right and they will not get any right.
" Soon after the death of Krishnan Nadar defendants 3 and 4 and the mother of the 5th defendant as plaintiffs filed O.S. No. 37 of 1124 M.E. for the administration of the estate of the deceased Krishnan Nadar.
The mother of appellants was made one of the defendants in that suit and the allegation was that Raman Nadar had contracted an illicit relationship with her and that he had executed a gift deed exhibit D 1 in her favour in respect of some of the plaint items.
O.S. No. 37 of 1124 was dismissed on the ' ground that the plaintiffs of that suit had lost their rights under the will on the birth of a son to Raman Nadar through his second 474 wife on February 7, 1951 during the pendency of the suit.
The plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98 of 1955 against the aforesaid decree and that was disposed of by a Division Bench of the Kerala High Court on February 2, 1957.
The High Court observed as follows: "We do not consider it proper to decide this question 'of 'the legitimacy of the son born to the 1st defendant in his second marriage) in this suit.
This can be gone into in 'a suit, if any, instituted by or on behalf of the son.
The 1st defendant had no right to revoke the will after Krishnan Nadar 's death .
The plaintiffs do not and cannot get the right to possession of the properties until after the 1st defendant 's death but a right to maintenance from the income of the properties has been provided for the plaintiffs by exhibit A (the will) and this they are entitled to get.
The 1st defendant is not entitled to do any act which affects this right of the plaintiffs.
" The High Court remanded the suit for fresh disposal to the Additional Subordinate Judge, Trivandrum.
After the suit went back on remand the Additional Subordinate Judge, Trivandrum held that the plaintiffs were not entitled to any relief and dismissed the suit.
The daughters of defendant no.1 preferred an appeal, A.S. No. 340 of 1959 to.
the High Court.
Meanwhile the appellants instituted O.S. No. 182 of 1957 for a declaration that the first defendant had only a life estate in the properties of Krishnan.
Nadar with the remainder vested in them under the will referred to above.
The suit was decreed by the Principal Subordinate Judge, Trivandrum who held that the second marriage of the 1st defendant was legal and the sons born out of that marriage were entitled to Krishnan Nadar 's property subject to the life estate of the 1st defendant.
It was further held that the daughters of the 1st defendant (plaintiffs in O.S. No 37 of 1124) were not entitled to any right over the properties.
The daughters of the 1st defendant preferred an appeal against the.
decree of the Principal Subordinate Judge being A.S. No. 848 of 1960.
The High Court decided this.
appeal and A.S. No. 340 of 1957 by a common judgment on March 27, 1963.
Appeal A.S. No. 848 of 1960 was allowed in whole and suit O.S. No. 182 of 1957 filed by the appellant was dismissed.
A.S. No. 34 of 1959 was partly allowed and appellants 1 and 2 (being the first two plaintiffs in O.S. No. 37 of 1124) were held entitled to maintenance of Rs. 50/ per head per menses from February 18, 1957.
The alienations, Exs.
C, D and E were held not binding upon the plaintiffs in that suit nor to have any force beyond the life of the 1st defendant.
The other prayer sought by the plaintiffs in the appeal was disallowed.
475 In dismissing O.S. No. 182 of 1957 the High Court took the view that the legal validity of the bequests in exhibit P 2 had to be ascertained as on the date of Krishnan Nadar 's death which was December 5, 1947.
The marriage of the first defendant took place on 14 1 1124 (corresponding to August 29, 1948) and the first child of that marriage was born on February 7, 1951.
The sons of the 1st defendant born of his second wife were, therefore, not in existence at the time of the death of the testator Krishnan Nadar.
Krishnan Nadar belonged to the State of Travancore and all his properties were located in that State where the doctrine of pure Hindu Law reigned supreme unaffected by any legislation.
The High Court held that according to pure Hindu Law a gift cannot be made in favour of a person who was not in existence at the date of the gift.
A person capable of taking under a will must either in fact or in contemplation of law be in existence at the death of the testator.
The devise in favour of plaintiffs in O.S. No. 182 of 1957 was void as they were not born at the time of death of Krishnan Nadar.
After the life estate of the 1st defendant, the daughter:rs became entitled to the properties for their life time.
The question involved in this appeal is whether the High Court was right in holding that plaintiffs have not established their title to the disputed properties.
Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee.
This doctrine was laid down for the first time in Tagore 's case(1), in which it was held by the Judicial Committee that a Hindu cannot make a gift in favour of a person who is not in existence either in fact or in contemplation of law at the time the gift was to take effect.
The Judicial Committee purported to base its decision on a passage in Dayabhaga, Ch. 1, verse 21 as.
appears from the following passage in the judgment: "This makes it necessary to consider the Hindu Law of Gifts during.
life and wills, and the extent of the testator 's power, whether in respect of the property he deals with of the person upon whom he confers it.
The Law of Gifts during life is of the simplest character.
As to ancestral estate it is said to be improper that it should be aliened by the holder, without the concurrence of those who are interested in the succession, but by the law as prevailing in Bengal at least (1) the impropriety of the alienation does not affect the legal character of the act (factum valet), and it has long been recognised as.
law (1) I.A. (1872) Supp.
476 in Bengal that the legal power of transfer is the same as to all property, whether ancestral or acquired.
It applies to all persons in existence and capable of taking from the donor at the time when the gift is to take effect so as to fall within the principle expressed in the Dayabhaga, cup.
iv. 21, by the phrase 'relinquishment in favour of the donee who is a sentient person ' By a rule now generally adopted in jurisprudence this class would include children in embryo, who afterwards come into separate existence." (pp. 66 67).
But the Judicial Committee was apparently under some misconception with respect to the meaning of the words of Dayabhaga.
The whole sentence in the original is as follows: of which the following is the: correct translation: "Since in a gift the done 's ownership in the thing (given) arises from the very act of the donor, consisting of the relinquishment of his ownership with the intention of passing the same to a sentient being.
" The sentence neither expresses nor implies that the "sentient being" must be in existence.
or be present at the time and place of the relinquishment.
On the contrary the whole argument contained in paragraphs 21 to 24 of Ch.
1 of Dayabhaga shows that a gift is completed by the donor 's act alone, the acceptance of the donee being not necessary.
Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does not depend upon acceptance.
Mr. Sarjoo Prasad suggested that the matter required reconsideration.
But it is manifest that the decision of the Judicial Committee in Tagore 's case(1) has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed.
We are hence of the opinion that this is a proper case in which the maxim communis error facit jus may be applied.
The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass for right"; as an example of which may be mentioned the case of common recoveries in English law, which were fictitious proceedings introduced by a kind of pea fraus to elude the statute de Donis, and which were at length allowed by the Courts to be a bar to an estate tail, so that these recoveries however clandestinely introduced, became by long use and acquiescence a legal mode (1) I.A. (1872) Supp.
477 of conveyance whereby a tenant in tail might dispose of his lands.
There is a reference made to this principle by Lord Blackburn in his speech in Charles Dalton vs Henry Angus & Co.(1) as follows: "I quite agree with what is said by the late Chief Justice Cookburn (3 Q.B.D. at page 105) that where the evidence proved an adverse enjoyment as of right for twenty years, or little more, and nothing else, 'no one had the faintest belief that any grant had ever existed, and the presumption was known to be a mere fiction '.
He thinks.
that thus to shorten the period of prescription without the authority of the Legislature was a great judicial usurpation.
Perhaps it was The same thing may be said of a11 legal fictions, and was often said (with, 1 think more reason) of recoveries.
But I take it that when a long series of cases have settled the law, it would produce intolerable confusion if it were to be reversed because the: mode in which it was introduced was not approved of even where it was originally a blunder, and inconvenient, communis error facit ]us.
" The doctrine in Tagore 's case(:) has been altered by three Acts, namely, the Hindu Transfers and Bequests Act, 1 of 1914, the Hindu Disposition of property Act of 1916 and the Hindu Transfers and Bequests (City of Madras) Act, 1921.
The legal position under these Acts is that no bequest shall be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testator 'section death.
This rule, however, is subject to the limitations and provisions contained in sections 113, 114, 115 and 116 of the .
It is, however, not disputed in the present case that on the relevant date none of the three Act was operative and the doctrine or pure Hindu Law was applicable to the Travancore State.
It follows that the principle laid down in Tagore 's case(2) applied and the bequests in favour of the sons of the 1st defendant are void and of no legal consequence.
On behalf of the appellants it was contended that the bequest in favour of the sons of the 1st defendant was in the nature of a family provision and, therefore, fell outside the principle laid down in Tagore 's case(2).
In our opinion, there is no justification in this argument.
Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testor directs that his properties after his death shall be taken by his nephews or in their absence (2) 1. A. (1872) Supp.
(1) [1881] 6A.C. 740,812.
478 by his nieces cannot be characterised as a family provision.
The object of such a disposition is obviously not to make a family provision but to chart a course for future devolution of the testators properties.
The argument was stressed on behalf of the appellants that the will exhibit P 2 was a joint will executed by Krishnan Nadar and Raman Nadar and it was designed to take effect only after the death of both the testators.
As the sons of the 1st defendant must necessarily be born before that event the principle in Tagore 's case(1) was not attracted.
Reference was made to the following passage from Jarman on wills 8th edn. "Two or more: persons may make a joint will, which, if properly executed by each, is, so far as his own property is concerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will.
But a joint will made by two persons, to take effect after the death of both, will not be admitted to probate during the life of either.
Joint wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor.
" In our opinion there is no warrant for this argument.
The 'will exhibit P 2 contains separate provisions regarding the devolution of the properties of each of the testators.
In regard to the properties of Krishnan Nadar it devises a life estate to let defendant and the remainder to his sons or in their absence to his daughters.
In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters.
It is therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators.
In regard to the Krishnan Nadar 's properties the life estate devised in favour of the 1 st defendant must necessarily take effect 'and remain in force during the life of the 1st defendant and not after that.
It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the will will take effect only subsequent to their death.
But the true intention o,f the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of the has redundant or contradictory.
It must, therefore, be held that as the express devise to the: 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of 1st defendant, the last clause in the will cannot be literally correct.
It was then contended on behalf of the appellants that in any event the High Court was in error in holding that the title of the (1) I. A. (1872) Supp.
479 plaint properties vested in the daughters of the 1st defendant under the terms of the will, exhibit P 2.
It appears that during the pendency of the appeal defendant No. 1 Raman Nadar died on May 20 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant No. 1.
It is manifest from the will that the bequest to the daughters is subject to the prior condition that the defendant No. 1 leaves behind no sons at the date of his death.
The relevant portion of exhibit P 2 states: "After the life of the second named, if he leaves behind no sons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the.
first named and the second named, either in common or in equal sharps . . " The bequest to the daughters was, therefore, defensible on the sons being born to defendant No. 1.
Hence upon the death of defendant not 1 on May 13, 1969 there was no valid bequest to the daughters.
In other words there was an intestacy and the provisions of the (Act No. 30 of 1956) would be applicable.
The sons of defendant No. 1 cannot take under the will because they were unborn on the date of the death of the testator Krishnan Nadar.
The daughters also cannot take under the will as the bequest in their favour was subject to the defeatisms clause.
It is evident that the appellants would, be entitled to, their lawful share of the properties of Krishnan Nadar under the provisions of the and they are entitled to a declaration to that effect and other consequential reliefs.
But it is not possible for us to finally dispose of this appeal because there was an issue in the trial court as to whether the appellants were the legitimate sons of defendant No. 1.
The case of the defendants 3 to 5 was that there was No. legal marriage between the 1st defendant and the mother of the plaintiffs.
But the assertion of the plaintiffs, was that their mother married the 1st defendant after getting herself converted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant.
The trial court decided the issue in favour of the plaintiffs but the High Court has not gone into the question nor recorded a finding as to, whether the plaintiffs are the legitimate sons of defendant No. 1.
For these reasons we hold that this appeal must be allowed, the judgment of the Kerala High Court dated March 27, 1963 in A.S. No. 848 of 1960 should be set aside and the appeal should be remanded to the High Court for determining the issue whether 480 the plaintiffs were the legitimate sons of defendant No. 1 and thereafter dispose of the appeal in accordance with law.
The parties will bear their own costs upto this stage.
The application made by the plaintiffs for the appointment of a Receiver will be dealt with by the High Court.
Appeal allowed.

dataset_name: IN-Abs

summary:
K, a Hindu had no issue, but had a brother R who had 3 daughters.
K, and R jointly executed a will bequeting the assets of K to son or sons born in future to R, to the exclusion of the daughters, after the death of K and R. K died in 1947.
The appellants claiming to be the sons of R by his subsequent marriage, filed a suit for a declaration that R had only life interest in K 's properties with the remainder vested in them under the will.
The trial court decreed the suit holding that the second marriage of R was legal and the appellants were entitled to the properties subject to R 's life estate and that R 's daughter had no right in the properties.
R 's daughters filed an appeal to the High Court.
Soon after K 's death, another suit was filed by R 's daughters 'for administration of K 's estate in which the: appellants mother was a party.
This suit was dismissed on the ground that the plaintiffs had lost their right on the birth of appellants.
An appeal to the High Court was pending in this suit also.
The High Court by a common judgment held that the appellants, sons of R, were born after K 's death, so the devise in their favour was void, and that after the life estate of R, his daughters became entitled to the properties for their life time.
HELD: Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or 'bequest for the benefit of an unborn person yet that doctrine has been engraved in Hindu Law by the decision of the Judicial Committee in Tagore vs Tagore.
I.A. (1872) Supp.
This doctrine was laid down for the first time in the case of Tagore.
This decision of the Judicial Committee has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have passed.
Therefore this was a proper case in which maxim communis error facit jus be applied.
The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass for right".
The bequests in favour of R 's sons were void and of no legal consequence.
[477 A; 478 F G] It is, therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators.
In 'regard to K 's properties the life estate devised in favour of R must necessarily take effect and remain in force during the life of R and not after that; it is true that at the end of the will there is a clause that both the testators have the right to revoke the will during their lives and that the will take effect only sub:sequent to their death.
But the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
It must, therefore, be held that as the express devise to R for his life is a disposition intended to take effect after the death of K and before the death of R the last clause in the will could not be literally correct.
The daughters also could not take under the will as the bequest in their favour was subject to the defeasance clause.
[480 E H] 472 Tagore 's case, I.A. (1872) Supp.
47 and Charles Dalton vs Henry Angus & Co., , 812, referred to.


judgement:
Petitions Nos. 512, 513, 574 & 575, 578 & 579, 581 & 582, 583 & 584, 587 & 588, 605 & 606, 609 & 610 and 1466 and 1467 of 1969.
Applications by defendant No. 1 for rejection of plaints and for stay of the hearing of the suits.
Original suits Nos. 3 of 1967, 1 and 3 to 9 of 1968.
Petitions under article 131 of the Constitution of India.
Niren De, Attorney General, V.A. Seyid Muhammad and B.D. Sharma, for respondent No. 1 (in all the suits).
D.N. Gupta, for defendant No. 2 fin suits 968 ).Nos.
3 to 8 of D.N. Mukherjee, for defendant No. 2 (in suits Nos. 3 of 1967, 1 and 9 of 1968).
D.P. Singh, for the plaintiff (in suits Nos. 3 of 1967, 1, 3, 5 and 6 of 1968).
D. Goburdhun, for the plaintiff (in suits Nos. 4 and 7 of 1968).
U.P. Singh, for the plaintiff (in suit No. 8 of 1968).
R.C. Prasad, for the plaintiff (in suit No. 9 of 1968).
The Judgment of the Court was delivered by Mitter, J.
This group of applications can be divided into two parts.
The object of one group is to get the plaints in nine suits filed in this Court rejected while that of the other group is to stay the hearing of the suits.
The suits are all of the same pattern in each of which the State of Bihar figures as the plaintiff.
The Union of India is the first defendant in all of them while the second defendant in six is Hindustan Steel Ltd. and in three others the Indian Iron and Steel Company Ltd. The cause of action in all the suits is of the same nature.
Briefly stated the plaintiffs case in all the suits is that "due to the negligence or deliberate action of the servants of both defendants there was a short delivery of iron and steel material ordered by the plaintiff to various sites in the State of Bihar in connection with the 524 construction work of the Gandak Project".
As the goods were in all cases booked by rail for despatch to the project site, both defendants are sought to be made liable for short delivery, the first defendant as the owner of the railways and the second defendant as the consignor of the goods under contract with the State of Bihar for supply of the material.
In each case there is a prayer for a decree for a specific sum of money to be passed either against the first defendant "or alternatively against the second defendant".
Normally all suits of this kind are instituted all over India in different courts beginning from the courts of the lowest jurisdiction to the High Courts exercising original jurisdiction.
The only distinguishing feature of this series of suits from others of everyday occurrence in different courts is that a State is the plaintiff in each case.
In all suits of a similar nature which are filed in courts other than this Court, a notice under section 80 of the Code of Civil Procedure is an essential prerequisite.
No such notice has been served in any of these cases.
The applications were set down for trial of three issues sought to be raised by way of preliminary issues.
They are as follows : 1.
Whether the alleged cause or causes of action in this suit are within the scope of article 131 of the Constitution ? 2.
Whether this suit is within the scope of article 131 of the Constitution in view of a non State, viz, defendant No. 2, having been made a party to the suit ? 3.
Whether the suit is barred by the provisions of section 80 C.P.C. for want of notice to defendant No. 1 ? The question before this Court is, whether the dispute in these cases is within the purview of that article (quoted in the foot note.
It must be noted that the article confers jurisdiction on this Court to the exclusion of all other courts in any dispute between the parties mentioned therein.
There is however an over riding provision that such jurisdiction is subject to the provisions of the Constitution and our attention was drawn to a few of these provisions where the disputes specified are to be adjudicated upon in entirely different *article 131.
Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, 525 manner.
The most important feature of article 131 is that it makes no mention of any party other than the Government of India or any one or more of the States who can be arrayed as a disputant.
The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions.
The words in the article "if and in sO far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends" are words of limitation on the exercise of that jurisdiction.
These words indicate that the disputes should be in respect of legal rights and not disputes of a political character.
Moreover this Court is only concerned to give its decision on questions of law or of fact on which the existence or extent of a legal right claimed depends.
Once the Court comes to its conclusion on the cases presented by any disputants and gives its adjudication on the facts or the points of law raised, the function of this Court under article 131 is over.
article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are.
It is open to an aggrieved party to present a petition to this Court containing a full statement of the relevant facts and praying for the declaration of its ' rights as against the other disputants.
Once that is done, the function of this Court under article 131 is at an end.
The framers of the Constitution do not appear to have contemplated the contingency of a party to an adjudication by this Court under article 31 not complying with the declaration made.
Our law is not without instances where a court may be called upon to make an adjudication of the rights of the parties to an agreement or an award simpliciter on the basis of such rights without passing a decree.
A case in point is section 33 of the Indian Arbitration Act.
Further, all adjudications by a court of law even under a decree in a suit need not necessarily be capable of enforcement by way of execution.
Section 42 of the now replaced by section 34 of the new Act enables a person entitled to any legal character or to any right as to any property to institute a suit against any person denying or interested to deny his title to such character or right without asking for any further relief subject to the limitations prescribed by the section.
We If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or execucated before the commencement of the construction, continues in operation after such commencement, or which provides that the said jurisdication shall not extend to such a dispute.
526 need not however lay much stress on this aspect of the case as we are only concerned to find out whether the suits can be entertained by this Court.
Clauses (a), (b) and (c) of the article specify the parties who can appear as disputants before this Court.
Under cl.
(a) it is the Government of India and one or more States under cl.
(b) it is the Government of India and one or more States on one side and one or more other States on the other, while under cl.
(c) the parties can be two or more States without the Government of India being involved in the dispute.
The specification of the parties is not of an inclusive kind.
The express words of cls.
(a), (b) and (c) exclude the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute.
There is no scope for suggesting that a private citizen, a firm or a corporation can be arrayed as a party by itself on one side and one or more States including the Government of India on the other.
Nor is there anything in the article which suggests a claim being made by or preferred against a private party jointly or in the alternative with a State or the Government of India.
The framers of the Constitution appear not to have contemplated the case of a dispute in which a private citizen a firm or a corporation is in any way involved as a fit subject for adjudication by this Court under its exclusive original jurisdiction conferred by article 131.
Like many of the provisions of our Constitution this article had a fore runner in the Government of India Act, 1935.
Section 204 of that Act provided for conferment of original jurisdiction on the Federal Court of India.
That section ran as follows : "(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federal States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to (a) a dispute to which a State is a party, unless the dispute (i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the 527 legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or (ii) arises under an agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or (iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty 's Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute; (b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend 'to such a dispute.
(2) The Federal Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment.
" Clause (a) of the proviso.
to the section defined the categories of disputes which might be raised before the Federal Court while clause (b) permitted the parties to provide for the exclusion of such jurisdiction in the agreement in respect whereof the dispute arose.
It will be noted that the scope of the dispute under subcl.
(i) of cl.
(a) was limited to the interpretation of the Government of India Act or Order in Council or to the extent of legislative or executive authority vested in the Federation while under sub cl.
(ii) the dispute had to relate to the administration in a State of a law of the Federal Legislature or otherwise concerned with some matter relating to the legislative competency of the said legislature.
Under sub cl.
(iii) the dispute could only be one under an agreement made after the establishment of the Federation between the State and the Federation or a Province subject to the condition therein specified.
A dispute of the nature which is raised in this scries of a case was outside the ken of section 204 of the Government of India Act.
It may not be out of place to trace the origin of section 204.
The proceedings of the Joint Committee on Indian Constitutional Re 528 form, Session 1933 34, Vol. 1, Part II, paragraph 309 read as follows: "A Federal Court is an essential element in a Federal Constitution.
It is at once the interpreter and guardian of the Constitution and a tribunal for the determination of disputes between the constituent units of the Federation.
The establishment of a Federal Court is part of the White Paper scheme, and we approve generally the proposals with regard to it.
We have, however, certain comments to make upon them, which we set out below.
" The report of the Joint Committee on Indian Constitutional Reform, Session 1933 34, Vol. 1, Part 1 contained two paragraphs bearing on this matter.
Paragraph 322 was a reproduction of paragraph 309 quoted above.
Paragraph 324 ran as follows: "324.
It is proposed that the Federal Court shall have an original jurisdiction in (i) any matter involving the interpretation of the Constitution Act or the determination of any rights or obligations arising thereunder, where the parties to the dispute are (a) the Federation and either a Province or a State, or (b) two Provinces or two States, or a Province and a State; (ii) any matter involving the interpretation of, or arising under, any agreement entered into after the commencement of the Constitution Act between the Federation and a Federal Unit or between Federal Units, unless the agreement otherwise provides.
This jurisdiction is to be an exclusive one, and in our opinion rightly so, since it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them.
For that reason we think that, where the parties are Units of the Federation or the Federation itself, the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws, by which we meant any laws enacted by the Federal Legislature.
" It is clear from the above that the framers of the Government of India Act, 1935 thought that the Federal Court should 529 be the tribunal for the determination of disputes between the constituent units of the Federation and it sought to lay down the exact nature of the dispute which that Court could be called upon to examine and decide.
The Constitutional Proposals of the Sapru Committee show that they had the said report 'and the said proceedings of the Committee in their mind when they advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction both on the original side and the appellate side but maintaining at the same time that it should "act as an interpreter and guardian of the Constitution, and as a tribunal for the determination of disputes between the constituent units of the Federation.
" It is also to be noted that under section 204 of the Government of India Act, 1935 the Federal Court 's jurisdiction was limited to the pronouncement of a declaratory judgment.
article 109 of the Draft Constitution of India prepared by the Constituent Assembly was in the same terms as article 131 of the Constitution as it came into force in 1950.
The proviso to the original article was substituted by the new proviso in the year 1956.
as a result of the Seventh Amendment by reason of the abolition of the Part B States and the changes necessitated thereby.
Reference was made at the Bar in this connection to the Debates in the Constituent Assembly, Vol.
IV, 13th July 1947 to 21st July, 1947.
They however do not throw any additional light.
So far as the proceedings of the Joint Committee on Indian Constitutional Reform and the report of the Committee on the same are concerned, they make it clear that the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces as the constituent units of the Federation, should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit.
Although article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as section 204 of the Government of India Act, and we do not find it necessary to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up.
However, there can 530 be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India.
There is no decision either of the Federal Court of India or of this Court which throws much light on the question before us.
Reference was made at the Bar to the case of The United Provinces vs The Governor General in Council(1) where the United Provinces filed a suit against the Governor General in Council for a declaration that certain provisions of the , were ultra vires the then Indian Legislature.
A claim was also made that all fines imposed and realised by criminal courts for offences committed within the cantonment areas in the United Provinces ought to be credited to the provincial revenues and that the plaintiffs were entitled to recover and adjust all such sums wrongly credited to Cantonment Funds since 1924.
The Governor General in Council contended inter alia that the dispute was not one which was justifiable before the Federal Court.
On the question of jurisdiction.
Gwyer, C.J. was not inclined to think "that the plaintiffs would in any event have been entitled to the declarations for which they originally asked, in proceedings against the Governor General in Council".
According to the learned Chief Justice "their proper course would have been to take proceedings against a name ' Contouring Board, though . such proceedings could not have been brought to this Court.
" He was of the view that it was competent for the court to entertain a suit for a declaration "that section 106 of the Act of 1924 was ultra vires," and said that as the dispute between the parties depended upon the validity of the assertion of the Province to have the fines under discussion credited to provincial revenues and not to the Cantonment funds the dispute involved a question of the existence of a legal right.
According to him the question might have been raised in proceedings to which a Cantonment Board was a party but "it was convenient to all concerned that it should be disposed of in the proceedings before the court.
" The only other Indian case cited at the Bar in this connection was that of the State of Seraikella and others vs Union of India and another(2) where Mahajan, J. expressed the view that section 80 of the Code of Civil Procedure would not affect suits instituted in the Federal Court under section 204 of the Government of India Act.
(1) (2) ; 531 Our attention was drawn to some provisions of the American Constitution and of the Constitution Act of Australia and several decisions bearing on the interpretation of provision which are somewhat similar to article 131.
But as the similarity is only limited, we do not propose to examine either the provisions referred to or the decisions to which our attention was drawn.
In interpreting our Constitution we must not be guided by decisions which do not bear upon provisions identical with those in our Constitution .
The Constitution makes special provisions for settlement of certain disputes in a manner different from that laid down in article 131.
For instance, article 143 gives an over riding power to the President of India to consult the Supreme Court when he is of the view that the question is of such a nature and of such public importance that it is expedient to do so.
Under el.
(1) of that Article the President is empowered to obtain the opinion of the Supreme Court upon any question of law or fact which has arisen or is.
likely to arise and is of such a nature and of such public importance that the President considers it expedient to obtain such opinion.
In such a case the Court after giving such hearing as it thinks fit has to report to the President its opinion thereon.
Clause (2) of the article shows that this power of the President over rides the proviso to article 131.
article 257 provides for control of the Union over the States in certain cases.
Under clause (2) thereof the executive power of the Union also extends to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance.
Under cl (4) where such directions are given and "costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given," the Government of India must pay to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State, Again, when there is a dispute or complaint with regard to the use, distribution or control of the waters of, or in, any interState river or river valley cl.
(2) of article 262 gives Parliament the power by law to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of such dispute or complaint as is referred to in clause (1 ).
Such a law ousts the jurisdiction of the court which would normally be attracted by 532 article 131.
article 290 contains a provision somewhat similar to article 257(4) with regard to certain expenses and pensions and makes the same determinable by an arbitrator to be appointed by the Chief Justice of India.
Apart from these special provisions a dispute which falls within the ambit of article 131 can only be determined in the forum mentioned therein, namely, the Supreme Court of India, provided there has not been impleaded in any said dispute any private party, be it a citizen or a firm or a corporation along with a State either jointly or in the alternative.
A dispute in which such a private party is involved must be brought before a court, other than this Court, having jurisdiction over the matter.
It was argued by counsel on behalf of the State of Bihar that so far as the Hindustan Steel Ltd., is concerned it is 'State ' and the suits in which the Government of India along with Hindustan Steel Ltd. have been impleaded are properly filed within article 131 of the Constitution triable by this Court in its original jurisdiction.
Reference was made to the case of Rajasthan State Electricity Board vs Mohan Lal(1).
There the question arose between certain persons who were permanent employees of the Government of the State of Rajasthan and later placed at the disposal of the State Electricity Board and one of the questions was whether the appellant Board could be held to be 'State ' as defined in article 12.
This Court by a majority held that the Board was "other authority" within the meaning of article 12 and therefore was a 'State ' to which appropriate directions could be given under articles 226 and 227 of the Constitution.
It will be noted that under article 12 all local or other authorities within the territory of India or under the control of the Government of India are 'States ' for purposes of Part III which defines and deals with the Fundamental Rights enshrined in the Constitution.
The expression "the State" has the same meaning in Part IV of the Constitution under article 36.
No reason was shown as to why the enlarged definition of 'State ' given in Parts III and IV of the Constitution would be attracted to article 131 of the Constitution and in our opinion a body like the Hindustan Steel Ltd. cannot be considered to be "a State" for the purpose of article 131 of the Constitution.
In the result we hold that the suits do not lie in this Court under article 131 of the Constitution and issue No. 2 must be answered in the negative.
It is not necessary to give any answer to issue No. 1 nor to issue No. 3.
On the view we take the ; 533 plaints must be returned for the purpose of presentation to courts having jurisdiction over the disputes.
Let the plaints be returned for presentation to the proper court after endorsing on them the date of presentation of the plaints in this Court and the date on which they were returned.
We make no order as to costs of these applications.

summary:
The State of Bihar filed a number of suits in this Court under article 131 of the Constitution in connection with the delayed delivery of iron and steel materials for its Gandak project.
In six of the suits the defendants were: The Union of India (Defendant No. 1 ) and Hindustan Steel Ltd. (Defendant No. 2).
In six other suits the defendants were: The Union of India (Defendant No. 1) and The Indian Iron & Steel Co. Ltd. (Defendant No. 2).
The prayers in all the suits were that decrees for specific sums of money be passed either against the Union of India or the second defendant.
Identical preliminary issues were set down for consideration in all the suits, namely: (1) whether the cause or causes of action in this suit are within the scope of article 131 of the Constitution? (2) Whether the suit is within the scope of article 131 of the Constitution in view of a non State viz. defendant No. 2, having been made a party to the suit ? (3) Whether the suit is barred by the provisions of section 80 C.P.C. for want of notice to defendant No. 1.
HELD: (i) The specification of the parties in article 131 is not of the inclusive kind.
The express words in cls.
(a), (b) and (c) of the Article exclude the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute.
The contents of the corresponding section, of the Government of India Act, 1935 namely section 204, and the legislative history culminating in the adoption of article 131 of the Constitution support the conclusion that so far as the parties to a dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly Or jointly with another unit or the Government of India.
For other types of controversies or disputes special provision has been made in the sonstitution e.g. in article 143 257, 262 and 290 A dispute in which a private party, is involved must be brought before a court other than this Court having jurisdiction over the matter.
[52.6 D F; 530 B; 531 C, F, H; 532 C] The United Provinces vs The Governor General in Council, and State of Seraikella and Others vs Union of India and another, [151] S.C.R. 474, referred to.
The enlarged definition of 'State ' given in Parts III and IV of the Constitution is not attracted to article 131 of the Constitution and a body like the Hindustan Steel Ltd. could not be considered to be "a State" for the purpose of article 131 of the Constitution.
[532 G] Rajasthan State Electricity Board vs Mohan Lal, ; , distinguished.
523 In view of the above finding on issue No. 2 the suits did not lie in this Court under article 131 of the Constitution and the plaints must be returned; it was accordingly unnecessary to decide issues Nos. 1 and 3.
[532 H] Article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are.
Once this Court has given a declaration of its rights to the aggrieved party the function of the Court under article 131 is over.
[525 C F]


judgement:
Appeal No. 1576 of 1966.
Appeal from the judgment and ordered dated October 26.
1965 of the Punjab High Court in Letters Patent Appeal No. 174 of 1964.
Bishan Narain, S.K. Mehta and K.L. Mehta, for the appellant.
Harbans Singh and R.N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
In the month of August, 1942 the appellant company (hereinafter called the Company) was incorporated with its registered office in the city of Jullundur dealing in sale 535 and purchase of land as its substantial business.
By a sale deed executed on November 24, 1944 the company purchased 646 karnals, 9 marlas of land from Harjit Singh for a sum of Rs. 32,326/ .
The land was located in village Monanpura of District Sheikupura, now in West Pakistan.
Out of the consideration for the sale, a sum of Rs. 9,000/ ' was left with the company for payment to the previous mortgagees and the balance of the money was paid to Harjit Singh before the Sub Registrar at the time of registration.
On the basis of the registered sale deed the company was allotted 27 standard acres and 11 1/2 units of land village Bohani, Tehsil Phagwara District Kapurthala in the year 1950 in lieu of the land abandoned in Pakistan.
A sanad No. K2/4/8 dated March 9, 1950 was issued in favour of the company.
There was consolidation of holdings in village Bohani and as a result of consolidation the area allotted to the company came to 23 kanals and 5 marlas.
Out of this the company sold 9 1/2 kanals to Mohan Singh, a Jar of village Bohani for Rs. 1900.00 by registered sale deed dated May 22, 1956.
Another portion of 220 kanals and 15 marlas was sold on September 12, 1958 for Rs. 10,012/ to one Mehnga Singh and his sons.
It was later discovered that the company had been allotted less area of land than it was entitled to as a result of consolidation operations and so.
an additional area of 24 kanals was allotted to the company in village Bohani to make up the deficiency.
On August 30, 1960 the Managing Officer, respondent No. 3, made a report, Annexure C, to the Chief Settlement Commissioner, Respondent No. 2 recommending cancellation of the allotment of land to the company and consequently the grant of permanent rights to it.
The company was heard by the Chief Settlement Commissioner and thereafter the Chief Settlement Commissioner rejected the registered sale deed and balance sheets and relying on the jamabandi, annexure X, came to the conclusion that at the time of partition the company did not own any, land in Pakistan nor was it in occupation of any such land.
By his order dated February 27, 1961 respondent No. 2 set aside the permanent rights acquired by the company to the extent of 27 standard acres, 111/2 units and also cancelled the quasi permanent 'allotment of the ,land made in the name of the company.
On March 29, 1961 a revision petition was filed by the company to the Central Government, respondent No. 1.
But the revision petition was dismissed on May 10, 1961.
On June 8, 1961 the company filed a writ petition under article 226 of the Constitution praying for grant of a writ to quash the order of the Chief Settlement Commissioner dated February 27, 1961.
The writ petition was allowed by Shamshat Bahadur, J.
But the respondent took the matter in appeal under el.
10 of Letters Patent to a Division Bench which reversed the judgment of the learned single Judge and ordered the writ petition to be dismissed.
536 Section 24 of the (44 of 1954) (hereinafter called the Act) states: "(1) The Chief Settlement Commissioner may at any time call for the record o/any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit.
(2) Without prejudice to the generality of the foregoing power under sub section (1 ), if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or 'allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, canceling the lease or 'allotment granted to him; 'and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, Such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner be recovered in the same manner as an arrear of land revenue.
In support of the appeal it was contended on behalf of the company that the document described as jamabandi, annexure II to writ petition, was not the jamabandi of the year 1946 47 of the land in dispute and the Division Bench was in error in holding that the Chief Settlement Commissioner could properly rely upon annexure .
It was pointed out that annexure II was not the jamabandi for 1946 47 but it consisted of three notes one saying "Maamur bai", that is, that there is no land of non Muslims in the village.
the second note related to Kartar Chand and Gopal Dass who embraced Islam and the third related to sale of his land by Harjit Singh in favour of S.A. Latif.
All these notes are dated May 3, 1951.
It was pointed out that these notes were made on May 3, 537 1961 for the purposes of exchange of jamabandi and the document did not depict the state of affairs as on August 15, 1947 which was the material date.
It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by means of fraud, false representation or concealment of any material fact" within the meaning of section 24(2) of the Act.
It is true that the Chief Settlement Commissioner had recorded a finding that the company had not proved its title to any land in village Momonpura and the allotment was "undeserved".
But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts.
Such a finding is a condition precedent for taking action under section 24(2) of the Act.
The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had ,no jurisdiction to cancel the allotment made to the company under section 24(2) of the Act.
For these reasons we hold that the appeal should be allowed and the judgment of the Division Bench dated October 26, 1965 in Letters Patent Appeal should be reversed and the judgment of Shamshat Bahadur, J., dated November 28, 1963 quashing the order of the Chief Settlement Commissioner dated February 27, 1961 should be restored.
The appeal is accordingly allowed with costs.
R.K.P.S. Appeal allowed.

summary:
By a sale deed executed on November 24, 1944 the appellant company purchased certain land located in an area now part of West Pakistan.
After the partition of India, the company, on the basis of a registered sale deed, was allotted certain land in Kapurthala in 1950 in lieu of the land abandoned in Pakistan.
On a report made by the Managing Officer, Respondeat No. 3 on August 30, 1960 recommending cancellation of the allotment of land to the company and after hearing the company, the chief Settlement Commissioner rejected the registered sale deed and came to the conclusion that at the time of partition the company did not own any land in Pakistan nor was it in occupation of any such land.
Therefore by his order dated February 27, 1961, he set aside the permanent rights acquired by the company.
HELD: The order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the company had obtained allotment of the land "by means of fraud, false representation or concealment of any material fact" within the meaning of section 24(2) of the Act.
It is true that the Chief Settlement Commissioner had recorded a finding that the company had not proved its title to any land in the area now part of Pakistan and the allotment was "undeserved".
But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts.
Such a finding is a condition precedent for faking action under section 24(2) of the Act.
The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under section 24(2) of the Act.
[537 A D]


judgement:
No. 211 of 1969.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
Hardev Singh, for the petitioner, Naunit Lal, for the respondent.
518 The Judgment of the Court was delivered by Bhargava, J.
The petitioner in this petition under Article 32 of the Constitution was arrested and detained under an order made under section 3(1)(a)(ii) of the (hereinafter referred to as "the Act") on 24th April, 1968.
On 30th August, 1968, he filed a petition in the High Court of Assam under article 226 of the Constitution for issue of a writ of habeas corpus.
The same day he was released by the Government and, according to him, without being set at liberty, he was again put in detention in pursuance of a fresh order dated 29th August, 1968 passed under section 3(1)(a)(ii) of the Act.
The grounds of detention were also served on the same day.
He made his representation on 17th September, 1968 and his case was referred to the Advisory Board also on the same date.
The report of the Advisory Board was received on 28th October, 1968.
On 7th November, 1968, his order of detention was confirmed by the Government on the basis of the report of the Advisory Board.
This petition was then received in this Court from the petitioner in July, 1969.
challenging his detention trader the order dated 29th August, 1968.
The petition came up for hearing before a Bench of this Court on 29th August, 1969 when, at the request of the counsel for the State of Assam, time was granted by the Court till 8th September, 1969 to send for full material.
Meanwhile, it appears that a fresh order for his detention under section 3(1)(a)(ii) of the Act was issued on 28th August, 1969 and this order was served on the petitioner in Delhi on 29th August, 1969, after the adjournment had been obtained from this Court.
Thereupon, the petitioner, on 1st September, 1969, filed an application for amendment of the writ petition and for adding additional new grounds so as to challenge the validity of his detention under the order dated 28th August, 1969.
The grounds of detention under this new order were also served on the petitioner on 29th August, 1969.
When this petition came up for hearing before us on 9th September, 1969, learned counsel for the State of Assam stated that no material had been received from the Government and wanted time to be granted to meet the facts put forward in the application dated 1st September, 1969.
It appears that, though an officer was sent by the Government of Assam to Delhi to serve the order dated 28th August, 1969 on the detenu which he did on 29th August, 1969, no attempt was made to obtain the material for which time had been obtained from the Court on 29th August, 1969.
If a fresh order had been passed and had been served on the petitioner in supersensible of the previous order which was challenged in the writ petition, the State Government should have sent full material relating to this order, which it became necessary for the petitioner to challenge by amending his writ peti 519 tion.
Detention of a person without trial, even for a single day,, is a matter of great consequence and, hence, we did not consider that, in the circumstances mentioned above, there was any justification for granting further time to the State Government to obtain material and file a reply to this application dated 1st September, 1969.
In view of the facts mentioned above, it is clear that the ' validity of the order of detention dated 29th August, 1968, which was first challenged in the petition, has become immaterial because the petitioner is now under detention by virtue of the fresh order dated 28th August, 1969 served on him on 29th August, 1969.
In the counter affidavit filed it was stated that the first order of detention dated 24th April, 1968 had automatically lapsed, because that order did not receive the approval of the State Government within 12 days as required by section 3(3) of the Act.
This admission would indicate that, after the expiry of those 12 days, the petitioner 's detention was not justified by any valid order passed in law until the second detention order was served on him on the 30th August, 1968 after releasing him from custody.
However, in the present writ petition, we are not concerned with the effect of this procedure adopted by the State Government, because, even if it be assumed that the second order of detention was validly served on the petitioner on 30th August, 1968, the period of that detention expired on 28th August, 1969 in view of section 11 A of the Act which prescribes a maximum period of 12 months for detention under the Act on the basis of an order passed under section 3 of the Act.
On 29th August, 1969, the detention under the second order dated 29th August, 1968 having expired, the State Government passed this third order of detention and served it on the petitioner while he was still in custody in Delhi.
The question is whether the further detention under this third order is valid.
The provision contained in section 11 A(2) of the Act clearly lays down the intention of Parliament that on the basis of grounds found to exist at one time, the maximum period of detention under section 3 should be 12 months and no more.
On the expiry of that period, that order of detention would lapse; but a fresh order of detention is permitted to be passed under section 13(2) of the Act which is as follows : "13.
(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government 520 or a State Government or an officer, as.
the case may be, is satisfied that such order should be made." "This provision clearly lays down that a fresh detention order can be made on the revocation or expiry of a previous detention order only in cases where fresh facts have arisen after the date of revocation or expiry.
This principle was explained by this Court in Hadibandhu Das vs District Magistrate, Cuttack and Another(1) where it was held : "On January 28, 1968, the State of Orissa purported to revoke the first order and made a fresh order.
The validity of the fresh order dated January 28, 1968, made by the State of Orissa is challenged on the ground that it violates the express provisions of Section 13(2) of the .
In terms that subsection authorises the making of a fresh detention order against the same person against whom the previous order has been revoked or has expired in any case where fresh facts have arisen after the date of revocation or expiry, on which the detaining authority is satisfied that such an order should be made.
The clearest implication of Section 13(2) is that after revocation or expiry of the previous order, no fresh order may issue on the grounds on which the order revoked or expired had been made.
In the present case, the order dated December 15, 1967 passed by the District Magistrate, Cuttack was revoked on January 28, 1968, and soon thereafter a fresh order was served upon the appellant.
It is not the case of the State that any fresh facts which had arisen after the date of revocation on which the State Government was satisfied that an order under Sec.
3(1)(a)(ii) may be made.
There was a fresh order, but it was not based on any fresh facts.
" In view of this decision, we have to see whether, in the present case, the requirements laid down by section 13(2) of the Act for making a fresh order were or were not satisfied.
The main requirement is that the order must be made not merely on the past grounds, but no fresh facts which have arisen after the date of expiry.
In the present case, we have compared the grounds of detention served in pursuance of the order dated 28th August, 1969, with the grounds of detention which were served on the petitioner pursuance of the second detention order dated 29th August, 1968, and we find that the two are identical, except that two (1) ; 521 small paragraphs have been added when serving the grounds of detention in respect of the detention order dated 28th August, 1969.
These paragraphs are as follows: "That though in preventive custody, he has been maintaining links with Shah Syed Hussain and other associates, who went underground in Nagaland, through his friends and relatives.
Shah Syed Hussain and his gang since received some arms and explosives from Naga rebels for committing acts of sabotage and creating large scale disturbances, particularly in the plains areas along Assam Nagaland border.
That, in the circumstances, Shri Khetra Gogoi 's being at large will jeopardise the security of the State and the maintenance of public order in this region.
" The first one of these two paragraphs is the only one that purports to mention some ground in addition to the grounds which were included amongst the grounds which were the basis of the order dated 29th August, 1968.
We have found it very difficult to appreciate how a person in preventive custody could continue to maintain links with his associates outside jail who had gone underground even through his friends and relatives.
of the (present) petitioner was able to maintain such links, it casts a sad reflection on the persons in charge of him while he was in custody and, in any case, it would appear that his detention could serve no useful purpose.
It appears (to us) to be, in fact, very doubtful whether any such contacts could possibly have been maintained.
However, even if we accept that such links were maintained, this additional ground mentioned does not satisfy the requirements of section 13(2) of the Act, because the only allegation is that the links were maintained during the period of preventive detention.
Under section 13(2) what is required is that fresh facts should have arisen after the expiry of the previous detention.
Facts arising during the period of detention are, therefore, not relevant when applying the provisions of section 13(2).
In the present case, the fresh order was passed on 28th August, 1969, a day before the expiry, and it is obvious that no fresh facts could by that date arise and yet be held to have arisen after the date of expiry.
The order dated 28th August, 1969 was, therefore, not at all justified under section 13(2) of the Act and that order being in violation of the provisions of the Act has to be held to be invalid, so that the detention under that order is illegal.
The petition is allowed.
The petitioner shall be set at liberty forthwith.
Y.P. Petition allowed.

summary:
Section 11 A(2) of the lays down in part that the maximum period of detention under section 3 should be 12 months and no more, and after the expiry of that period, that order.
of detention would lapse.
A fresh detention order under section 13(2) can be made on the revocation or expiry of a previous detention order only in cases where fresh facts have arisen after the date of revocation or expiry.
The petitioner, was put in detention in pursuance of an order dated August 29, 1968.
He presented a petition under article 32 of the Constitution for the issue of a write of habeas corpus, while this petition was pending, another order of detention was issued on August 28, 196.9, a day before the expiry of the previous order.
The grounds of detention in this latter order was identical to that of August 28, 1968 excepting the charge that the petitioner, though in preventive custody was maintaining links with certain named hostile persons through friends and relatives and that his liberty would jeopardise the security of the State and public order in the region.
The petitioner challenged the latter order of detention by adding additional grounds.
: The order of detention dated August 28, 1969 was not justified under section 13(2) of the Act, being in violation of the provisions of the Act, and was invalid.
Under sec.
13(2) what is required is that fresh facts should have arisen.
after the expiry of the previous detention.
Facts arising during the period of detention, are, therefore, not relevant when applying the provisions of section 13(2).
In the present case, the fresh order was passed on 28th August, 1969, a day before the expiry, and it was obvious that no fresh facts could by that date arise and yet be held to have arisen after the date of expiry.
It is very difficult to appreciate how a person in preventive custody could continue to maintain links with his associates outside jail, who had gone underground, even through his friends and relatives.
If the petition was able to maintain such links, it cast a sad reflection on the persons in charge of him while he was in custody and, in any case, it would appear that his detention could serve no useful purpose.
Even if it be accepted that such links were maintained, this additional ground mentioned did not satisfy the requirements of section 13(2) of the Act, because the only allegation was that the links were maintained during the period of preventive detention.