judgement:
Appeal No. 974 of 1964.
Appeal by special leave from the judgment and order dated September 10, 1964, of the High Court in Madhya Pradesh in Misc.
Petition No. 113 of 1964.
up.165 8 654 M. C. Setalvad, section L. Jain and M. section Gupta, for the appellants.
A. V. Viswanatha Sastri, B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for respondent No. 1.
The Judgment of the Court was delivered by Mudholkar, J.
In this appeal from the judgment of the Madhya Pradesh High Court the question which arises for decision is whether the assessment list of house tax and conservancy tax confirmed by the Municipal Council, Khurai, at a special meeting on February 24, 1964 is effective or is liable to be quashed on the ground that it was not made in accordance with the provisions of the Madhya Pradesh Municipalities Act, 1961 (hereafter referred to as the Act).
The material facts are not in dispute.
On December 28, 1962 the Municipal Council by a resolution, appointed a Sub Committee consisting of the Vice President and two Members for hearing objections under section 138(2) of the Act against the new assessment which the Chief Municipal Officer would propose to make.
On the 30th of that month the Chief Municipal Officer was directed to prepare the assessment lists for all the 11 words into which the municipal area has been divided.
Up till then taxes were levied at the rate of Rs. 7 12 0 per cent.
on the annual letting value of the house properties and building sites liable to be taxed.
On March 3, 1963 the Council considered a proposal for introducing a slab system for assessing these proper ties.
Upon that one of the members, Smt.
Poonabai suggested a modification of the office proposal and her suggestion was accepted by the majority of the members of the Council.
On March 6, 1963 the assessment list prepared by the Chief Municipal Officer in pursuance of the resolution was authenticated by him.
It was then duly published that day under section 136 of the Act.
Objections were also invited from the assessees.
About 2,200 objections were lodged which were considered by the Sub Committee between April 7, 1963 and April 14, 1963.
In the meanwhile it would appear that a suit had been instituted by some of the assessees in which the validity of the resolution of March 3, 1963 varying the rate of tax and seeking a permanent injunction against the Committee restraining it from giving effect to the new basis of assessment.
The Committee, it would appear, realised that it could not vary the old rates without obtaining the sanction of the State Government and, therefore, in the written statement filed on its behalf, made it clear that an early meeting would be held for deciding whether the resolution of March 3, 1963 should not be given effect to.
That 655 meeting was held on April 28, 1963 and there the resolution of March 3, 1963 was revoked and the old rate of assessment was reverted to.
Numerous complaints were made by assessees to the effect that the Sub Committee had shown partiality in dealing with objections to assessments and had in fact shown favour to rich persons.
The President of the Council enquired into the complaints and was satisfied that there was substance in them.
In the meanwhile, however, pursuant to a decision of the Sub Committee dated August 21, 1963 the assessment list as revised by the Sub Committee was authenticated by the Chief Municipal Officer as required by section 140 of the Act and was published on August 30, 1963.
It would appear that notices of demand were also issued against the assessees on the basis of the revised list.
The President had, in the meantime, intimated to the Collector that the Sub Committee had shown partiality, particularly to rich assessees and in vited him to suspend the revised list in exercise of his supervisory powers.
On October 9, 1963 the Collector made the following order "In exercise of the powers delegated to me under section 323 of the M.P. Municipalities Act, 1961 I hereby suspend the execution of the decision of the Sub Committee appointed by the Municipal Council Khurai under section 71(v) of the said Act for assessment of the House Tax and Latrine Tax vide its resolution No. 2 dated 28 12 1962, as the decision taken by the said Committee is not in conformity with the law, is detrimental to the interest of the Council and is causing annoyance to the public.
The decision shall remain suspended until the assessment is properly revised afresh.
" He forwarded a copy of the order to the Government of Madhya Pradesh and requested that his Order may be confirmed under section 323 (2) of the Act.
He made the following endorsement on the copy of the Order forwarded to the President of the Municipal Committee : "Copy forwarded to the President, Municipal Council, Khurai, for information and immediate necessary action in respect of the demand notices issued for recovery of the taxes.
Apparently the assessment has not been properly made.
No reasons for not accepting the overseer 's valuation have been given and rich persons have been shown favour thereby.
The Council 656 has thus defaulted in performing the duty imposed on it under the said Act.
The Council is, therefore, called upon to show cause for its ' failure as required under section 327(1) of the said Act and to furnish its explanation within a period of 15 days to my office." After receiving this communication the President caused a proclamation to be made bringing it to the notice of the assessees that the assessment list had been suspended and intimating to them that taxes on the basis of the revised list should not be paid.
The Government, acting upon the communication received from the Collector issued notice to the Council on December 2, 1963 under section 323(2) to show cause why the order passed by the Collector should not be confirmed.
Eventually the Government confirmed the Collector 's Order.
On December 29, 1963 the Council, at a special meeting, resolved that the assessment lists should be revised under section 141 ,of the Act.
On January 7, 1964 the Council issued individual notices to 300 persons to show cause why the annual letting value of their properties should not be enhanced.
The Council heard the objections between February 16, 1964 and February 20, 1964 and revised the assessments of some or all the persons to whom notices had been issued.
On February 24, 1964 the Council, at a special meeting, confirmed the revised assessment as from April 1, 1963.
Its resolution was authenticated on March 4, 1964 under section 140(1) by the Chief Municipal Officer and according to the Council the assessment list then became final.
It is after this that the writ petition out of which the present appeal arises was presented before the High Court by some of the assessees.
It was supported before it on four grounds which have been summarised thus by the High Court in its judgment "(1) The Municipal Council, Khurai, was not competent to appoint a Sub Committee for the purpose of hearing and deciding the objections made against the assessment list.
(2) The notice given for lodging objections against the assessment list was not in accordance with the provisions of the Act.
(3) The Municipal Council acted illegally and without jurisdiction in adopting a slab system with different and varying rates in disregard of the rate of Rs. 7/13/ 657 per cent at which the house tax had been initially imposed.
(4) When the execution of the decision of the SubCommittee dated 21st August, 1963 was suspended (and subsequently revoked), it was not open to the Municipal Council to have recourse to section 141 of the Act for making limited amendments in the assessment list.
The Municipal Council had to prepare an assessment list de novo in accordance with the provisions of the Act including those made by sections 137, 138 and 140 of the Act." The High Court thought it unnecessary to consider the first three of these grounds because in its opinion the fourth ground was sufficient for granting relief to the assessees.
According to the High Court the assessment list which had been confirmed by the Council on February 24, 1964 and sought to be given effect to was not a valid assessment list because the Municipal Council gave notice only to 300 assessees and heard their objections and not the remaining 1900 assessees.
Before us it is contended by Mr. Setalvad on behalf of the Council that an appeal had already been preferred by the respondents against the assessment list and, therefore, they were not entitled to any relief under article 226 of the Constitution.
It is true that the High Court would not ordinarily entertain a petition under article 226 of the Constitution where an alternative remedy is open to the aggrieved party.
Though that is so the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstances of the case.
In the present case the High Court has chosen to exercise discretion in favour of the respondents and it would not be right for us to interfere with the exercise of that discretion unless we are satisfied that the action of the High Court was arbitrary or unreasonable.
Nothing has been brought to our notice from which it could be inferred that the High Court acted arbitrarily in granting the writ prayed for to the respondents.
Coming to the merits, Mr. Setalvad contends that the list having been authenticated by the Chief Municipal Officer under section 140 it became final and, therefore, under section 141 of the Act it was open to the Municipal Council to amend the assessment list.
Sub section (1) of that section, without the proviso, is the only part which is relevant for our purpose and it reads thus 658 "The Council may at any time, amend the assessment list by the inclusion, omission or substitution of any matter." Mr. B. R. L. lyengar for the respondents, however, contends that section 141(1) can be availed of only for correcting arithmetical errors or other similar errors and not for revising the taxes.
Further, according to him, this provision is available only with respect to the amendment of a current list and that since the assessment list had not become final under section 142 it could not be amended under section 141.
Then, according to him, the appropriate provision to which resort could be had was section 146 of the Act.
Mr. Iyengar also raised a third argument, which is to the effect that since the assessment list had been suspended by the Collector under his Order made under section 323 of the Act the Council had no power to amend it under section 141.
The final argument advanced by him was that the power of hearing objections or of revising the list could not be delegated to the Sub Committee and that, therefore, the revised list was bad in law.
It is not disputed before us that the procedure laid down in sections 134, 135 and 136 of the Act for the assessment of buildings and lands to pay the tax was duly followed.
It is also not disputed that 2,200 objections were lodged with the, Municipal Council which were investigated and dealt with by the Sub Committee appointed by the Municipal Council.
Mr. Setalvad, therefore, contends that having followed this procedure the next step was the authentication of assessment lists by the Chief Municipal Officer as required by section 140(1).
This procedure was also followed and, therefore, the assessment list became final and the Municipal Council had the power to amend it under section 141 (1) of the Act.
Mr. lyengar, however, contends that the provisional assessment list which was prepared under section 134(1) of the Act and published under section 136 was upon the basis of the new rates of taxes which had been imposed by the Municipal Council on March 3, 1963.
According to him, as the Resolution of March 3, 1963 was revoked on April 28, 1963 and the old rate of Rs. 7/13/ per cent.
was reverted to it was necessary to publish a fresh assessment list on its basis.
His further objection which we have already indicated is that the objections could be dealt with not by the Sub Committee but by the Municipal Council as a whole.
In view of these defects the assessment list did not become final by reason of its authentication by the Chief Municipal Officer under section 140.
According to Mr. Setalvad these objections were not urged before the High Court.
But that is not quite accurate.
We 659 have already quoted from the judgment of the High Court the summary of the grounds urged before it and the objections of Mr. lyengar are to be found in the first two grounds.
It is true that the High Court did not think it necessary to deal with these grounds upon the view which it took on the fourth ground which was urged before it.
But that does not preclude us from considering those grounds.
In our opinion, both the grounds are substantial and strike at the very root of the finality of the assessment list which was purported to be authenticated by the Chief Municipal Officer under section 140.
The assessment list which has to be published under section 136 of the Act must contain full and accurate particulars specified in section 134(1) of the Act.
Amongst those particulars are the following : (1) Valuation of the property based on capital or annual letting value, as the case may be, on which the property is assessed; (2) the rate, of tax applicable; (3) the amount of tax assessed thereon.
In view of the fact that the resolution of March 3, 1963 on the basis of which the list was published had been revoked, the particulars mentioned in the second and the third of the above items would necessarily be different from those which would be arrived at after taking into account the resolution of April 28, 1963.
Under article 265 of the Constitution no tax shall be levied or collected except by authority of law.
This clearly implies that the procedure for imposing the liability to pay a tax has to be strictly complied with.
Where it is not so complied with the liability to pay the tax cannot be said to be according to law.
The objections which the assessees had filed in pursuance of the notification actually published by the Chief Municipal Officer were based upon the list published under section 136 and not in pursuance of what the liability would be under the Resolution of the Municipal Council, dated April 28, 1963.
Therefore, it cannot he said that the opportunity as contemplated by the Act was at all given to the assessees for lodging their objections as required by section 137 of the Act.
Moreover, Mr. Setalvad was not able to point out to us any provision of the Act or of the rules, except section 78, whereunder the Council could delegate its function of hearing and deciding objections to a Sub Committee.
Section 78 reads thus: "Any powers or duties or executive functions which may be exercised or performed by or on behalf of the 660 Council may, in accordance with the rules made under this Act, be delegated by the Council to the President or Vice President or to the Chairman of the Standing or other Committees, or to one or more stipendiary or honorary officers, but without prejudice to any powers that may have been conferred on the Chief Municipal Officer by or under section 92." Even assuming that under this provision the power of the Council of hearing objections could be delegated, the delegation can presumably be only in favour of the persons mentioned in section 78 quoted above.
It cannot be in favour of a Sub Committee or a Committee.
It is true that the Convenor of the Sub Committee appointed by the Council was the Vice President but the delegation was not to him alone but to the Sub Committee.
The two arc not the same thing because while in one case the right to decide an objection would be solely exercisable by the Vice President in the other it will be exercisable by the Sub Committee as a whole.
If there is unanimity amongst the members of the Sub Committee no prejudice may be caused.
But if the Vice President is of one opinion and the other two members are of a different opinion the decision of the Sub Committee cannot be said to be that of the Vice President at all.
But to the contrary.
For these reasons we are of opinion that the assessment list authenticated by the Chief Municipal Officer was not prepared according to law and, therefore, the provisions of section 141 were not available to the Council.
Upon the view we take we do not find it necessary to consider whether the reason given by the High Court is right or not.
The appeal is, therefore, dismissed with costs.
Appeal dismissed.

summary:
An assessment list of house and conservancy taxes was prepared on the basis that a slab system of taxation would apply, and was published by the appellant under section 136 of the M.P. Municipalities Act, 1961.
The assessees filed objections to it under section 138(2).
The appellant later re voked the slab system and reverted to the old rate of assessment.
A sub committee appointed by the appellant, considered the objections filed to the list and completed its revision.
The final list was published after authentication.
when some complaints of partiality in its preparation were made, the list was suspended.
The appellant then decided to amend the list under section 141 and, after issuing notices to some assessees and after hearing their objections a new list was authenticated and published.
The respondents having preferred an appeal against the new assessment list under the Act, also challenged it in writ petition to the High Court.
The High Court allowed the petition.
On appeal to the Supreme Court.
HELD : The assessment list authenticated by the Chief Municipal Officer was not prepared according to law and therefore, the provisions of s.141 were not available to the appellant.
[660 E] (i) Article 265 of the Constitution, implies that the procedure for imposing the liability to pay a tax has to be strictly complied with.
Since in the instant case, the objections which the assessees had filed were in respect of the list compiled on the basis that the slab system would apply and not in pursuance of what the liability would be upon the reversion to the old rate of tax, it could not be said that the opportunity as contemplated by the Act was given to the assessees for lodging their objections as required by section 137 of the Act.
[659 E G] (ii) Assuming that under section 78, the appellant council could delegate the power to hear objections against a proposed list under section 138(2) to its vice president or certain other officers, this power could not be delegated to a sub committee.
[660 B C] (iii) Though an alternate remedy is open to an aggrieved party the High Court has jurisdiction under article 226 to give relief to such a party in appropriate cases.
[657 FF]


judgement:
No. 110 of 1964.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
B. Sen and B. N. Kirpal, for the petitioner.
422 C. K. Daphtary, Solicitor General and B. R. G. K. Achar, for the respondent Nos. 1 and 2.
The Judgment of the Court was delivered by Wanchoo, J.
This petition under article 32 of the Constitution is a sequel to the judgment of this Court in T. Devadasan vs Union of India(1).
The petitioner was Assistant in Grade IV of the Central Secretariat Service.
The next post which the petitioner could expect to get was of Section Officer (Assistant Superintendent).
Recruitment to the post of Section Officer is made in the following manner : (i)50% by direct recruitment from those who obtain lower ranks in the Indian Administrative Service etc.
examinations.
(ii)25 % by promotion from Grade IV on the basis of a departmental examination held at intervals by the Union Public Service Commission, and (iii) 25 % by promotion from Grade IV on the basis of seniority cum fitness.
In February 1960 the Union Public Service Commission issued a notification to the effect that a limited competitive examination for promotion to the post of Section Officers would be held in June 1960.
The notification further stated that reservation of 121% of the available vacancies would be made for members of scheduled castes and 5% for the members of scheduled tribes.
The number of vacancies to be filled was to be announced later.
The petitioner sat for this examination and he is said to have secured the 37th position in order of merit.
Later, a press communique was issued by the Union Public Service Commission in the which it was stated that the number of vacancies expected to be filled was 48 out of which 32 were reserved for schedule castes and scheduled tribes and 16 were unreserved.
Eventually however the Union Public Service Commission recommended 45 names for appointment, 16 of which were unreserved and 29 were reserved against vacancies for scheduled castes and scheduled tribes.
Finally, however, the Government made only 43 appointments, 15 in the unreserved quota and 28 in the reserved quota.
This heavy reservation for scheduled castes and scheduled tribes was made on the basis of the "carry forward" rule which was put into force from 1955.
According to the resolution of the Ministry of Home Affairs dated September 13, 1950 reservation for scheduled castes and (1) ; 423 scheduled tribes was fixed at 121% and 5% respectively without anything like the 'carry forward" rule.
In 1952 however supplementary instructions were issued in this connection in the following terms : "5(3).
If a sufficient number of candidates of the communities for whom the reservations are made, who are eligible for appointment to the post in question and are considered by the recruiting authorities as suitable in all respects for appointment to the reserved quota of vacancies, are not available the vacancies that remain unfilled will be treated as unre served and filled by the best available candidates; but a corresponding number of vacancies will be reserved in the following year for the communities whose vacancies are thus filled up in addition to such number as would originally be reserved for them under the,orders contained in the.
Resolution.
"5(4).
If suitably qualified candidates of the communities for whom the reservations have been made are again not available to fill the vacancies carried forward from the previous year under clause (3) above, the vacancies not filled by them will be treated as unreserved and the reservations made in those vacancies will lapse.
As a result of these instructions reserved vacancies for scheduled castes and scheduled tribes which could not be filled in one examination would be carried forward to the next examination.
But if sufficient number of scheduled caste and scheduled tribe candidates were not available to fill the vacancies carried forward plus vacancies of the next year the vacancies were to be treatd as unreserved and the reservation made in those vacancies would lapse.
Thus according to 1952 instructions the carry forward was only for two years and thereafter there was no carry forward in 1955 however.
Government made further change in the carry forward rule and paras.
5 (3 ) and 5 (4) of the instructions of 1952 were substituted thus '5 (3 ) (a).
If a sufficient number of candidates, considered suitable, by the recruiting authorities, are not available from the communities for whom reservations are made, in a particular year, the unfilled vacancies should be Mated as unreserved and filled by the best available candidates.
The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the L3 Sup./65 11 424 following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year. "Thus the number of reserved vacancies of 1954 which were treated as unreserved for want of suitable candidates in that year will be added to the normal number of reserved vacancies in 1955.
Any recruitment against these vacancies in 1955 will first be counted against the additional quota carried forward from 1954.
If however suitable candidates are not available in 1955 also and a certain number of vacancies are treated accordingly as 'unreserved ' in that year, the total number of vacancies to be reserved in 1956 will be un utilised balance of the quota carried forward from 1954 and 1955 plus the normal percentage of vacancies to be reserved in 1956.
The un utilised quota will not, however, be carried forward in this manner for more than two years. "An annual report of reserved vacancies which were treated as unreserved for want of suitable candidates from scheduled castes or scheduled tribes as the case may be should be forwarded to the Ministry of Home Affairs in the form enclosed as Annexure I along with the annual communal returns already prescribed.
In addition Ministries themselves will take adequate steps to ensure that any lapse on the part of subordinate authorities in observing the reservation rules cannot go unnoticed by a reviewing authority within the Ministry itself at a sufficiently early date. " (b) In the event of a suitable scheduled caste candidate not being available, a scheduled tribe candidate can be appointed to the reserved vacancy and vice versa subject to adjustment in the subsequent point.% of the roster.
" The result of this change was to carry forward the unfilled vacancies for two years and thus in the third year the vacancies to be filled by scheduled caste and scheduled tribe candidates would be the un utilised balance from the previous two years plus the normal percentage of the vacancies reserved in the third year.
Unlike the rule of 1952, this rule did not provide for any lapse 425 but said that the un utilised quota will not however be carried forward in this manner for more than two years.
The result of the substitution of the 1955 rule was that paras.
5(3) and 5(4) of the 1952 rule ceased to exist and it was in pursuance of the 1955 rule that the Union Public Service Commission announced as already indicated that out of 48 expected vacancies, 16 would be unreserved and 32 would be reserved for scheduled caste and scheduled tribe candidate& Ibis reservation was attacked in the, case of Devadasan(1) and this Court struck down the carry forward rule of 1955 (in place of paras 5(3) and 5(4) of the 1952rule) on the ground that the carry forward rule as modified in 1955 was unconstitutional.
No other relief besides the declaration that the 1955 carry forward rule was unconstitutional was granted in Devadasan 's case(1).
It was however hoped that the department concerned would implement the decision of this Court in an appropriate manner.
The petitioner contends that the effect of this Court 's judgment in Devadasan 's case(1) is that there is no carry forward rule in existence as the 1955 carry forward rule was struck down by this Court and the 1952 rule had ceased to exist by the substitution made by the Government of India in 1955.
The petitioner further contends that in view of there being no carry forward rule either of 1952 or of 1955 after the judgment of this Court in Devadasan 's case(1) all that the Government of India could do in the matter of reservation for the examination conducted in 1960 was to reserve 12 1/2% of the vacancies for scheduled castes and for scheduled tribes.
In the alternative it is submitted that if the carry forward rule of 1952 is still deemed to exist that rule is also bad being violative of article 16 of the Constitution.
The petitioner finally contends that the carry forward rules of 1952 and 1955 being out of this way and the only reservation that was possible in the examination of 1960 being 12 1/2% for scheduled castes and 5 % for scheduled tribes, he was entitled to be appointed ' on that basis.
He therefore prays that a direction should be issued setting aside appointments of certain candidates belonging to scheduled castes and scheduled tribes over and above the reserved quota of 171 % and the Union Public Service Commission should be directed to announce the result of the said examination afresh after receiving 12 1/2 % of the vacancies for scheduled castes and 5% for scheduled tribes.
The application is opposed on behalf of the Union of India and the main contention urged is that even if the carry forward rule (1) ; 426 of 1952 is deemed to be non existent because it was substituted by the carry forward rule of 1955, the petitioner would not be entitled to be appointed in any case in view of the position he had secured in the examination.
The first question therefore that arises is whether the carry forward rule of 1952 can still be said to exist.
The next question is whether the carry forward rule of 1952, if it still exists is bad for the same reasons as the carry forward rule of 1955, as held by this Court in Devadasan 's case(1).
The last question is whether the petitioner would be entitled to appointment even if the carry forward rule of 1952 does not exist.
We shall first consider the question whether the carry forward rule of 1952 still exists.
It is true that in Devadasan 's case(1), the final order of this Court wag in these terms : "In the result the petition succeeds partially and the carry forward rule as modified in 1955 is declared invalid.
" That however does not mean that this Court held that the 1952rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid.
The carry forward rule of 1952 was substituted by the carry forward rule of 1955.
On this substitution the carry forward rule of 1952 clearly ,Ceased 'to exist because its place was taken by the carry forward rule of 1955.
Thus by promulgating the new carry forward rule in 1915, the government of India itself cancelled the carry forward rule,of 1952.
When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive.
We are therefore of opinion that after the judgment of this Court in Devadasan 's case(1) there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955 in its place.
But it must be made clear that the judgment of this Court in Devadasan 's case(2) is only concerned with that part of the instructions of the Government of India which deal with the carry forward rule; it does not in any Way touch the reservation for scheduled castes and scheduled tribes at 12 1/2% and 5% respectively; nor does it touch the filing up of scheduled tribes vacancies by scheduled ; 427 caste candidates where sufficient number of scheduled tribes are not available in a particular year or vice versa, The effect of the judgment in Devadasan 's case(1) therefore is only to strike down, the carry forward rule and it does not affect the year to year reservation for scheduled castes and sheduled tribes or filling up of scheduled tribe vacancies by a member of scheduled castes in a particular year if a sufficient number of scheduled tribe candidates are not available in that year or vice versa.
This adjustment in the reservation between scheduled castes and tribes has nothing to do with the carry forward rule from year to year either of 1952 which, had ceased to exist or of 1955 which was struck down by this Court.
In this view of the matter it is unnecessary to consider whether the carry forward rule of 1952 would be unconstitutional, for that rule no longer exists.
This brings us to the last question whether the petitioner would be entitled to appointment on the basis that there was no carry forward rule in existence in 1960.
Originally it was notified that the number of vacancies expected were 48.
On that basis the reservation for scheduled castes would be 6 and for scheduled tribes would be 2.4.
But as it is impossible to get 2.4 individuals and the reservation for scheduled tribes is a minimum of 5%, they would be entitled to three vacancies.
Thus out of 48 expected vacancies, 9 would be reserved vacancies and 39 would be unreserved.
Actually however the Public Service Commission recommended only 45 names.
On the basis of 45, scheduled castes would be entitled to 5.625 vacancies (i.e. 6 vacancies) while scheduled tribes would be entitled to 2.25 vacancies (i.e. 3 vacancies).
In actual effect however because one of the candidates recommended in the reserved quota died and one of the candidates out of the unreserved quota was appointed to another service, the Government of India made only 43 appointments.
On this basis, the scheduled castes would be entitled to 5.375 vacancies (i.e. 6 vacancies) and the scheduled tribes to 2.15 vacancies (i.e. 3 vacancies).
Thus on the actual appointments made the total reservation for scheduled castes and scheduled tribes would be 9 while 34 would be available for the unreserved quota.
The petitioner secured 37th place in the unreserved quota.
Out of these 37, one unreserved candidate was recruited to another service and thus the petitioner 's position may conceivably be said to have bettered and become 36th.
According to the calculation which we have already indicated, 9 out of 43 vacancies actually filled will go to scheduled castes and scheduled tribes together and 34 (1) ; 428 would go to the unreserved quota.
The petitioner however was 36th on the unreserved quota and therefore even on the basis of there being no carry forward rule only 34 candidates would be appointed from the unreserved quota and the petitioner being 36th on his own showing can not claim appointment.
The petition therefore fails.
In the circumstances we make no order as to costs.
Petition dismissed.

dataset_name: IN-Abs

summary:
In 1950 by a resolution of the Ministry of Home Affairs a reservation was fixed for scheduled castes and tribes to the extent of 12 1/2% and 5% respectively in respect of vacancies in public services to be filled from year to year.
In 1952.
a "carry forward" rule was introduced whereby the unfilled reserved vacancies of a particular year would be carried forward for on year only.
In 1955 the above rule was substituted by another providing that the unfilled reserved vacancies of a particular year would be carried forward for two years.
In 1960 a limited competitive examination was held by the Union Public Service Commission for promtion to the post of Section Officers.
The petitioner who was an Assistant in the Central Secretariat Service appeared at this examination and secured the 37th rank.
Although 43 appointments were made as a result of the examination the petitioner could not be appointed because under the 1955 "carry forward" rule as many as 28 vacancies were to be filled by Scheduled caste and scheduled tribes candidates.
In 1963 the 1955 rule was declared invalid by this Court in Devadasan '.s case, whereupon the petitioner filed a petition under article 32.
He claimed that the 1952 "carry forward" rule having been substituted by the 1955 rule, and the latter having been declared unconstitutional there was no "carry forward" rule in existence in 1960 and therefore by virtue of his rank in the examination he ought to be appointed to the post of Section Officer.
HELD : (i) When L 1952 "cary forward" rule was substituted by the rule of 1955 the former ceased to exist.
The 1955 rule having been declared unconstitutional in Devadasan 's case there was no "carry forward" rule in existence in 1960 when the petitioner appeared at the examination.
[426 F G] (ii) It must made clear that the judgment of this Court in Devada.vans ' case was only concerned with that part of the instructions of the Government of India which deal with the "carry forward" rule; it did not in any way touch the reservation for scheduled castes and scheduled tribes at 12 1/2% and 5% respectively.
This reservation had to be given effect to.
After allowing for these reservations only 34 unreserved vacancies were left to be filled and the petitioner 's rank being lower, he could not succeed.
[426 G H; 428 A B] T. Devadasan vs Union of India, ; , explained.


judgement:
l Leave Petition (Civil) No. 890 of 1964.
Petition for special leave to appeal to the Supreme Court from the judgment and decree dated December 16, 1963 of the Rajasthan High Court in Civil First Appeal No., 54 of 1956.
Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Naunit Lal, for the petitioner M. C. Setalvad, and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The petitioner applies for special leave to appeal under article 136 of the Constitution, against the judgment of the High Court of Rajasthan dated December 16, 1963 in Civil First Appeal No. 54 of 1956 on two grounds (1) that the judgment of the High Court involves a claim or question respecting property of not less than Rs. 20,000 in value, and the High Court erred in refusing a certificate under article 133(1) (b) of the Constitution; and (2) that the case is otherwise fit for appeal to the Supreme Court.
The material facts bearing on the plea raised are these.
The petitioner commenced on July 2, 1951 in the Court of the Subordinate Judge, First Class, Ajmer an action against the respondents claiming a decree for Rs. 10,665 and for rendition of accounts in respect of the balance of sale proceeds of 104 bales of cotton purchased by him through the agency of the respondents.
The petitioner claimed that 104 bales of cotton purchased by him were sold by the respondents as his agents on May 14, 1948 for Rs. 27,267/13/6 and without settling the account the respondents delivered towards that amount a demand draft for Rs. 11,000 which was encashed and four cheques of the aggregate value of Rs. 13,000 which because of lack of arrangement with the respondents ' bankers were not encashed, and the petitioner on that account was entitled to receive from the respondents Rs. 10,665 being the amount due on the foot of dishonoured cheques and interest thereon at the rate of 6% per annum between July 2, 1947 to July 1, 1951, less Rs. 4,000 subsequently received by him.
The petitioner also claimed a decree for the balance of the price.
753 after giving credit for commission, dalali and godown charges incurred by the respondents as his agents and as he was not in a "position to know" the amounts due to or disbursed by the respondents, he claimed a decree for rendition of account.
The subject matter of the suit was, therefore, a claim for Rs. 10,665 due to the petitioner on a cause of action arising on cheques dishonoured and a claim for the balance of the price due as may be ascertained on taking accounts.
The trial Court passed a decree directing that account be taken for ascertaining the amount due in respect of the entire transaction of 104 bales and for taking accounts appointed a Commissioner.
The High Court of Rajasthan reversed the decree passed by the Trial Court and dismissed the suit, holding that the transactions in respect of which the claim was made by the petitioner were those of an unregistered firm constituted by the petitioner and another person named Duli Chand and the suit was barred because the firm was not registered.
An application filed by the petitioner for certificate under article 133 of the Constitution was rejected by the High Court.
The judgment of the High Court proceeds entirely upon appre ciation of evidence and on the findings recorded the petitioner 's suit must stand dismissed.
But counsel for the petitioner urged that the judgment of the High Court directly involves a claim or question respecting property of value not less than Rs. 20,000 and he was entitled as a matter of right to a certificate from the High Court under article 133(1) (b) of the Constitution.
This argument is sought to be presented in two ways.
It is urged in the first instance that the judgment of the High Court involves a question relating to the right of the petitioner respecting 104 bales of cotton belonging to him and sold by the respondents for an amount exceeding Rs. 27,000.
Secondly, it is urged that pursuant to the order of the Trial Court a Commissioner was appointed and the Commissioner reported that Rs. 12,089/14/6 with interest at the rate of 6% per annum from May 14, 1948 were due to the petitioner and as the amount due to the petitioner on that footing was not less than Rs. 20,000 at the date of the decree of the High Court, the judgment of the High Court involved a claim respecting property of that amount or value.
In our view the contention raised by the petitioner under either head has no substance.
It is conceded, and in our judgment counsel is right in so conceding, that the petitioner could not seek a certificate under cl.
(a) 754 of article 133(1).
The claim in the court of first instance did not Teach Rs. 20,000 and one of the conditions for a certificate under that clause being absent, the claim could not be maintained.
To attract the application of article 133(1) (b) it is essential that there must be omitting from consideration other conditions not material a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less that Rs.20,000.
The variation in the language used in cls.
(a) and (b) of article 133 pointedly highlights the conditions which attract the application of the two clauses.
Under cl.
(a) what is decisive is the amount or value of the subject matter in the court of first instance and "still in dispute" in appeal to the Supreme Court: under cl.
(b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from.
The expression "property" is not defined in the Code, but having regard to the use of the expression "amount" it would apparently include money.
But the property respecting which the claim or question arises must be property in addition to or other than the subject matter of the dispute.
If in a proposed appeal there is no claim or question raised respecting property other than the subject matter, cl.
(a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject matter of the dispute cl.
(b) will apply.
In the present case the subject matter in dispute was a claim for money.
A part of that claim was definite and the rest was to be ascertained on taking accounts.
The judgment did not involve any claim or question relating to property in addition to or other than the subject matter in dispute of the value of Rs. 20,000.
It was admitted by the petitioner in his plaint that the bales of cotton were sold by the respondents as his agents.
The right of the respondents to sell the bales was not in dispute.
what was challenged was the right of the respondents to retain the price received by them.
It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of property belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold.
Nor does the alternative ground assist the petitioner.
It is true that by his petition the petitioner claims restoration of the decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioner 's claim as awarded under the report 755 of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20,000.
But this is still the subject matter in dispute : the Judgment does not involve any claim or question respecting property in addition to or other than the subject matter of the suit.
The petition therefore fails and is dismissed with costs.
Petition dismissed.

summary:
The petitioner filed a suit in the court of the Sub Judge claiming a decree for Rs. 10,665 and any balance ascertained as due to him on taking account, being proceeds of sales made by the respondents as the petitioner 's agents.
The trial court passed a decree directing that an account be taken of the amount due and appointed a Commissioner for the purpose.
In appeal the High Court reversed the decree and dismissed the suit.
An application filed by the petitioner for a certificate under article 133 was rejected by the High Court.
Upon a petition for special leave to appeal tinder article 136, it was contended on behalf of the petitioner, that the judgment of the High Court involved a claim or question respecting property of a value exceeding Rs. 20,000 and the petitioner was entitled as a matter of right to a certificate from the High Court under article 133(1)(b).
HELD : Under cl.
(a) what is decisive is the amount or value of the subject matter in the court of first instance and "still in dispute" in appeal to the Supreme Court; under el.
(b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sough, to be appealed from.
The expression "property" is not defined in the Code, but having regard to the use of the expression " amount" it would apparently include money.
The property respecting which the claim or question arises must be property in addition to or other than the subject matter of the dispute.
If in a proposed appeal there is no claim or question raised respecting property other than the subject matter, cl.
(a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject matter of the dispute el.
(b) will apply.
[754 B E] In, the present case, the claim in the court.
of first instance did not reach Rs. 20,000, and therefore a certificate could not be granted under article 133(1)(a).
[754 A] It could not be said that a judgment dealing with a claim to money alleged to be due from an agent for price of goods belonging to the principal, sold by the agent, involved a claim or question respecting the goods which had been sold.
Furthermore, although the petitioner 's claim on appeal including interest exceeded Rs. 20,000, this was still the subject matter in dispute; the judgment did.
not involve any claim or question respecting property in addition to or other than the subject matter of the suit.
Article 133(1)(b) was, therefore, also not applicable.
[754 G H; 755 A] 752


judgement:
l Appeal No. 191 of 1952.
Appeal by special leave granted by the Supreme Court on the 21st May, 1951, from the Judgment and Decree dated the 13th December, 1949, of the High Court of Judicature at Madras (Rao and Somasundaram JJ.) in Appeal No. 529 of 1946 arising out of the Judgment and Decree dated the 20th February, 1946, of the Court of Subordinate Judge of Coimbatore in O.S. No. 138 of 1945.
P.Somasundaram (R. Ganapathy Iyer, with him) for the appellant.
B.Somayya (K. R. Chowdhury, with him) for respondent No. 1. 1953.
October 14.
The Judgment of the Court was deli vered by MUKHERJEA J.
This appeal, which has come before us on special leave, is directed against a judgment and decree of a Division Bench of the Madras High Court dated December 13, 1949, affrming, with slight modification, those of the Subordinate Judge, Coimbatore, passed in O.S. No. 138 of 1945.
The suit was commenced by the plaintiff, who is res pondent No. I in this appeal for specific allotment, on partition, of his one third share in the properties described in the plaint, on the allegation that they were the joint properties of a family consisting of himself, his father, the defendant No. 1, and his brother, the defendant No. 2, and that he was entitled in law to one third share in the same.
It appears that the plaintiff and defendant No. 2, who are two brothers, are both sons of defendant No. I by his first wife who predeceased her husband.
After the death of plaintiff 's mother, the defendant No. I married again and his second wife is defendant No. 3 in the suit.
The allegations in the plaint, in 245 substance, are that after the step mother came into the house, the relation between the father and his sons became strained and as the father began to assert an exclusive title to the joint family property, denying any rights of his sons thereto, the present suit had to be brought.
The properties in respect of which the plaintiff claims partition are described in Schedule B to the plaint.
They consist of four items of agricultural land measuring a little over 5 acres in the aggregate, one residential house in the town of Erode and certain jewellery, furniture and brass utensils.
In addition to these it is averred in paragraph I I of the plaint that there is a sum of about Rs. 15,000 deposited in the name of the first defendant in the Erode Urban Bank Limited; that money also belongs to the joint family and the plaintiff is entitled to his share therein.
The defendant No. I in his written statement traversed all these allegations of the plaintiff and denied that there was any joint family property to which the plaintiff could lay a claim.
His case was that items I and 2 of Schedule B lands as well as the house property were the self acquired properties of his father and he got them under a will executed by the latter as early as in the year 1912.
The other items of immovable property as well as the cash, furniture and utensils were his own acquisitions in which the sons had no interest whatsoever.
As regards the jewels mentioned in the plaint, it was said that only a few of them existed and they belonged exclusively to his wife the defendant No. 3.
The defendant No. 2, who is the brother of the plaintiff, supported the plaintiff 's case in its entirety.
The defendant No. 3 in her written statement asserted that she was not a necessary party to the suit and that whatever jewellery there were belonged exclusively to her.
After hearing the case the trial judge came to the con clusion that properties bequeathed to defendant No. I by his father should be held to be ancestral properties in his hands and as the other properties were acquired by defendant No. 246 1 out of the income of the ancestral estate, they also became impressed with the character of joint property.
The result was that the Subordinate Judge made a preliminary decree in favour of the plaintiff and allowed his claim as laid in the plaint with the exception of certain articles of jewellery which were held to be non existent.
Against this decision, the defedant No. I took an appeal to the High Court of Madras.
The High Court dismissed the appeal with this variation that the jewels such of them as existed were held to belong to defendant No. 3 alone and the plaintiff 's claim for partition of furniture and brass utensils was dismissed.
The High Court rejected the defendant No. 1 's application for leave to appeal to this court but he succeeded in getting special leave under article 136 of the Constitution.
The substantial point that requires consideration in the appeal is whether the properties that the defendant No. I got under the will of his father are to be regarded as ancestral or self acquired properties in his hands.
If the properties were ancestral, the sons would, become co owners with their father in regard to them and as it is conceded that the other items of immovable property were mere accretions to this original nucleus, the plaintiff 's claim Must Succeed.
If, on the other hand, the bequeathed properties could rank as self acquired properties in the hands of defendaant No. 1, the plaintiff 's case must fail.
The law on this point, as the courts below have pointed out, is not quite uniform and there have been conflicting opinions expressed upon it by different High Courts which require to be examined carefully.
For a proper determination of the question, it would be convenient first of all to refer to the law laid down in Mitakshara in regard to the father 's right of disposition over his self acquired property and the interest which his sons or grandsons take in the same.
Placitum 27, chapter 1, section I of Mitakshara lays down: "It is settled point that property in the paternal or ancestral estate is by birth, though the father has independent 247 power in the disposal of effects other than the immovables for indispensable acts of duty and for purposes prescribed by texts of law as gift through affection, support of the family, relief from distress and so forth; but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessors since it is ordained, 'though immovables or bipeds have been acquired by man himself, a gift or sale of them should not be made without convening all the sons '.
" Mitakshara insists on the religous duty of a man not to leave his family without means of support and concludes the text by saying: "They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support.
No gift or sale should therefore be made." Quite at variance with the precept which seems to restrict the father 's right of disposition over his self acquired property in an unqualified manner and in the same way as ancestral lands, there occur other texts in the commentary which practically deny any right of interference by the sons with the father 's power of alienation over his self acquired property.
Chapter 1, section 5, placitum 9 says: "The grandson has a ri ght of prohibition if his un separated father is making a donation or sale of effects in herited from the grandfather: but he has no right of inter ference if the effects were acquired by the father.
On the contrary he must acquisce, because he is dependent.
" The reason for this distinction is explained by the au thor in the text that follows: "Consequently the difference is this: although he has a right by birth in his father 's and in his grandfather 's property; still since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father 's disposal of his own acquired property." 248 Clearly the latter passages are in flat contradiction with the previous ones and in an early Calcutta case(1) a reconciliation was attempted at by taking the view that the right of the sons in the self acquired property of their father was an imperfect right incapable of being enforced at law.
The question came pointedly for consideration before the Judicial Committee in the case of Rao Balwant vs Rani Kishori(2) and Lord Hobhousel who delivered the judgment of the Board, observed in course of his judgment that in the text books and commentaries on Hindu Law, religious and moral considerations are often mingled with rules of positive law.
It was held that the passages in Chapter 1, section 1, verse 27 of Mitakshara contained only moral or religious precepts while those in section 5, verses 9 and 10 embodied rules of positive law.
The latter consequently would override the former.
It was held, therefore, that the father of t joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable property and his male issue could not interfere with these rights in any way.
This statement of the law has never been challenged since then and, it has been held by the various High Courts in India, and in our opinion rightly, that a Mitakshara father is not only competent to sell his self acquired immovable property to a stranger without the concurrence of his sons(2), but he can make a gift of such property to one of his own sons to the detriment of another(3); and he can make even an unequal distribution amongst his heirs(4).
So far the law seems to be fairly settled and there is no room for controversy.
The controversy arises, however, on the question as to what kind of interest a son would take in the self acquired property of his father which he receives by way of gift or testamentary bequest from him, vis a vis his own male issue.
Does it remain self acquired property in his (1) Vide Muddun, vs Ram, (2) 25 I.A. 54.
(3) Vide Sital vs Madho T.L.R.
I All. 394.
(4) Vide Bawa vs Rejeah, 249 hands also untrammelled by the rights of his sons and grandsons or does it become ancestral property in his hands, though not obtained by descent, in which his male issue be come co owners with him? This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion.
It was held by the Calcutta High Court(1) as early as in the year 1863 that such property becomes ancestral property in the hands of his son as if he bad inherited it from his father.
In the other High Courts the questions Ion is treated as one of construction to be decided in each case with reference to its facts as to whether the gifted property was intended to pass to the sons an ancestral or self acquired, property; but here again there is a sharp cleavage of judicial opinion.
The Madras High Court has held(2) that it is undoubtedly open to the father to determine whether the property which be has bequeathed shall be ancestral or self acquired but unless he expresses his intention that it shall be self acquired, it should be held to be ancestral.
The Madras view has been accepted by a Full Bench of the Patna High Court(3) and the latest decision of the Calcutta High Court on this point seems to be rather leaning towards it(4).
On the other hand, the Bombay view is to hold such gifted property as self acquisi tion of the donee unless there is clear expression of intention on the part of the donor to make it ancestral(5), and this view has been accepted by the Allahabad and the Lahore High Courts(6).
This conflict of judicial opinion was brought to the notice of the Privy Council in Lal Ram Singh vs Deputy Commissioner of Partabgarh(7), but the Judicial Committee left the question open as it was not necessary to decide it in that case. (1) Vide Muddan vs Ram (2) Vide Nagalingham vs Ram Chandra, I. (3) Vida Bhagwat vs Mst.
Kaporni, I.L.R. 23 Pat.
(4) Vida Lala Mukti Prasad vs Srimati lswari.
24 C.W.N. 938.
(8) Vide Jugmohan Das vs Sir Mangal Das.
(6) Vide Parsotam vs Janki Bai, I.L.R. 29 All 354; Amararanth vs Guran, A.I.R. 1918 La],.
(7) 64 T. A. 265.
250 In view of the settled law that a Mitakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co ordinate interest.
This extreme view, which is supposed to be laid down in the Calcutta case(1) referred to above, is sought to be supported on a two fold ground.
The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yagnavalkya.
The other ground put forward is that the definition of "self acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons.
So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in an cestral property is the well known text of Yagnavalkya(2) which says: "The ownership of father and son is co equal in the acquisitions of the grandfather, whether land, corody or chattel.
" It is to be noted that Vijnaneswar invokes this passage in Chapter 1, section 5 of his work, where he deals with the division of grandfather 's wealth amongst his grandsons.
The father 's gradsons, it is said, have a right by birth in the grand estate equally with the sons and consequently are entitled to shares on partition, though their shares would be determined per stirpes and not per capita.
This discussion has absolutely no bearing on the present question.
It is undoubtedly true that according to Mitakshara, the son has a right, by birth both in his father 's and grandfather 's estate but as has been jointed out before.
a distinction is made in this respect by Maitakshara itself.
In the ancestral or grandfather 's property (1) Vide Muddun vs Ram, 6 NY.
R. 71.
(2) Vide Yagnavalkya.
Book 2. 129.
251 in the hands of the father, the son has equal rights with his father; while in the self acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominent interest in the same(1).
It is obvious, however, that the son can assert this equal right with the father only when the grandfather 's property has devolved upon his father and has become ancestral property in his hands.
The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the Grandfather himself during his lifetime.
On both these occasions the grand father 's property comes to the father by virtue of the latter 's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.
But when the father obtains the grandfather 's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well.
The interest which he takes in such property must depend upon the will of the grantor.
A good deal of confusion.
We think has arisen by not keeping this distinction in mind.
To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner.
The Mitakshara, we think, is fairly clear on this point.
It has placed the father 's gifts under a separate category altogether and in more places than one has declared them exempt from partition.
Thus in Chapter 1.
section 1, placitum 19 Mitakshara refers to a text of Narada which says: (1) Vide Mayne 's Hindu Law 11th edition, page 336.
252 "Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition , and any favour conferred by a father.
" Chapter 1, section 4 of Mitakshara deals with effects not liable to partition and property "obtained through the father 's favour" finds a place in the list of things of which no partition can be directed(1).
This is emphasised in section 6 of chapter I which discusses the rights of posthumous sons or sons born after partition.
In placitum 13 'of the section it is stated that though a son born after partition takes the whole of his father 's and mother 's property, yet if the father and mother has affectionately bestowed some property upon a separated son that must remain with him.
A text of Yagnavalkya is then quoted that "the effects which have been given by the father and by the mother belong to him on whom they are bestowed"(2).
It may be noted that the expression "obtained through favour of the father" (pitr prasada labdha) which occurs in placitum 28, section 4 of Mitakshara is very significant.
A Mitakshara father can make a partition of both the ancestral and self acquired property in his hands any time he likes even without the concurrence of his sons , but if he chooses to make a partition.
he has got to make it in accordance with +the directions laid down in the law.
Even the extent of inequality, which is permissible as between the eldest and the Younger sons, is indicated in the text(3).
Nothing depends upon his own favour or discretion.
When, however, he makes a gift which is only an act of bounty, he is unfetterd in the exercise of his discretion by any rule or dictate of law.
It is in these gifts obtained through the favour of the father that Vijnaneswar, following the earlier sages, declares the exclusive right of the sons.
We hold, therefore, that there is no warrant for saying that according to the Mitakshara, an (1) Vider C. Placitum 28 of Mitakshara.
(2) Vide Yagnavalkya 2, 124.
(3) Vide Mitakshara chapter 1, section 2. 253 affectionate gift by the father to the son constitutes ipso facto ancestral property in the hands of the donee.
If this is the correct view to take, as we think it is, it ' would furnish a complete answer to the other contention indicated above that such gifted property must be held partible between the father and the sons as it does not come within the definition "self acquisition", as given by Mitak shara.
In chapter 1, section 4 of his work, Vijnaneswar enumerates and deals with properties which are not liable to partition.
The first placitum of the section defines what a "self acquisition" is.
The definition is based upon the text of Yagnavalkya that "whatever is acquired by the coparcener himself without detriment to the father 's estate as present from a friend or a gift at nuptials, does not appertain to the co heirs.
" What is argued is this, that as the father 's gift cannot be said to have been acquired by the son without detriment to the father 's estate, it cannot be regarded as selfacquisition of the son within the meaning of the definition given above and consequently cannot be exempted from partition.
This argument seems to us to be untenable.
Section 4 of the first chapter in Mitakshara enumerates various items of property which, according to the author, are exempt from partition and self acquisition is only one of them.
Father 's gifts constitute another item in the exemption list which is specifically mentioned in placitum 28 of the section.
We agree with the view expressed in the latest edition of Mayne 's Hindu Law that the father 's gift being itself an exception, the provision in placitum 28 cannot be read, as requiring that the gift must also be without detriment to the father 's estate, for it would be a palpable contradition to say that there could be any gift by a father out of the estate without any detriment to the estate(1).
There is no contradition really between, placitum I and placitum 28 of the section.
Both are separate and independent items of exempted properties, of which no partition can be made.
(1) Mayane 's Hindu Law, 11th edition,paragraph 280,page 344 254 Another argument is stressed in this connection which seems to have found favour with the learned Judges of the Patna High Court who decided the Full Bench case(1) referred to above.
It is said that the exception in regard to father 's gift as laid down in placitum 28 has reference only to partition between the donee and his brothers but so far as the male issue of the donee is concerned, it still remains partible.
This argument, in our opinion, is not sound.
If the provision relating to self acquisition is applicable to all partitions, whether between collaterals or between the father and his sons, there is no conceivable reason why placitum 28, which occurs in the same chapter and deals with the identical topic should not be made applicable to all cases of partition and should be confined to collaterals alone.
The reason for making this distinction is undoubtedly the theory of equal ownership between the father and the son ancestral property which we have discussed already and which in our opinion is not applicable to the father 's gifts at all.
Our conclusion, therefore, is that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.
As the law is accepted and well settled that a Mitak shara father has complete powers of disposition over his selfacquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family.
If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant.
If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken (1) Vide Bhagwant vs Mst, Kaporni, I.L.R. 23 Pat.
255 along with the surrounding circumstances in accordance with the wellknown canons of construction.
Stress would certainly( have to be laid on the substance of the disposition and not on its mere form.
The material question which the court( would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition.
In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same.
As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other.
It is in the light of these principles that we would pro ceed now to examine the facts of this case.
The will of his father under which defendant No. I got the two items of Schedule B properties is exhibit P 1 and is dated the 6th of June.
The will is a simple document.
It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund.
He had three sons, the eldest of whom was defendant No. 1.
In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Schedule properties to his second son and the properties described in Schedule C shall be taken by the youngest.
The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift, exchange, sale, etc.
from son to grandson hereditarily.
The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also.
They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons.
as indicated in the will.
The D Schedule property 256 was set apart for the marriage expenses of his third son and an unmarried daughter.
Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds.
It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty.
He did not want simply to make a division of his property amongst his heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future.
Had the testator contemplated a partition as is contemplated by Hindu law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter.
His brothers ' wives would not then come into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter.
The testator certainly wanted to make a distribution of his properties in it way different from what would take place in case of intestacy.
But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them.
Here the will is perfectly explicit and it expressly vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange.
There is no indication in the will that the properties bequeathed were to be held by the sons for their families or mate issues and although the will mentions various other relations, no reference is made to sons ' sons at all.
This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children.
That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator.
By the document Exhibit P 2 dated, the Z6th 257 of March, 1914, he revoked that portion of his will which gave the Schedule C property to his youngest son.
As this son had fallen into bad company and was disobedient to his father,.
he revoked the bequest in his favour and gave the same properties to his other two sons with a direction that they would pay out of it certain maintenance allowance to their youngest brother, or to his family if he got married.
There was a second revocation instrument, namely, Exhibit P 3, executed on 14th April, 1914, by which the earlier revo cation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son in law and the legatee was directed to hand them over to the third son whenever he would feel con fident that the latter had reformed himself properly.
In our opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self acquisition without being fettered in any way by the rights of their sons and grandsons.
In other words, he did not intend that the property should be taken by the sons as ancestral property.
The result is that the appeal is allowed, the judgments and decrees of both the courts below are set aside and the plaintiff 's suit is dismissed.
Having regard to the fact that the question involved in this case is one of considerable importance upon which there was considerable difference of judicial opinion that the plaintiff himself is a pauper, we direct that each party shall bear his own costs in all the courts.
Appeal allowed.
Agent for the respondent No. 1: M.S.K. Aiyangar.

summary:
Property gifted by a father to his son could not become ancestral property in the hands of the son simply by reason of the fact that he got it from his father.
The father is quite competent when he makes a gift, to provide expressly either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family and if there are express provisions to that effect in the deed of gift or will, the interest which the son would take in such property would depend on the terms of the grant.
If there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the established canons of construction.
The material question in such cases would be whether the grantor really wanted to make a gift of the properties to his son or the apparent gift was only an integral part of a scheme to partition the same.
There is no presumption that he intended either the one or the other, as it is open to the father to make a gift or partition his properties as he himself chooses.
Muddun vs Ram , Nagalingam vs Ramachandra (I.L.R. , Bhagwat vs Mst.
Kaporni (I.L.R. 23 Pat? 599), Jugmohan Das vs Mangal Das (I.L.R. , Parsottam vs Jankibai (I.L.R 29 All. 354), Amarnath vs Guran (A.I.R. Lal Ram Singh vs Deputy Commissioner, Partabgarh (64 I.A. 265) referred to.
Where a testator who had 3 sons, after giving certain properties to his wife and other relations, provided that the properties in Schedules A,B and C of the will which were his self acquired properties shall be taken by his eldest, second and third son respectively, and that the sons shall enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift, exchange, sale etc.
from son to grandson hereditarily: LB(D)2SCT 2(a) 244 Held, that as the will expressly vested the sons with abso lute rights with full powers of alienation, the property be queathed to them was not ancestral property in their hands vis a vis their own male issue.


judgement:
Appeal No. 771 of 1964.
Appeal by special leave from the judgment and order dated H May 29, 1964, of the Mysore High Court in Civil Petition No. 90 of 1964.
801 section section Khanduja and Ganpat Rai, for the appellants.
B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for respondents Nos. 1 to 7.
The Judgment of the Court was delivered by Shah J.
On May 5, 1964 the respondents hereinafter called 'the plaintiffs ' instituted in the High Court of Mysore an action in the nature of a passing off action against the appellants hereinafter called 'the defendants for a declaration that they "are exclusive owners of the trade mark consisting of the letters R.S.F. and No. 806", for a permanent injunction restraining the defendants from passing off their washing soap as the goods of the plaintiffs and for incidental reliefs.
By section 105 of the Trade and Merchandise Marks Act 43 of 1958 a passing off action whether the trade mark is registered or unregistered may be instituted in any court not inferior to a District Court having jurisdiction to try the suit.
It appears that on May 5, 1964 the District Court of Mysore, within the territorial limits of which the cause of action was alleged to have arisen, was closed for the summer vacation, and it is common ground that on that day there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court.
At the request of the plaintiffs the High Court entertained the plaint and also an application for interim injunction restraining "the defendants their agents or servants from using the trade mark R.S.F. on washing soap manufactured by them and from selling washing soap bearing the said offending mark pending disposal of the case.
" By order dated May 29, 1964 the High Court granted the temporary injunction in terms of the prayer in the application.
In this appeal with special leave, counsel for the defendants argues that the High Court had no jurisdiction to entertain the action instituted by the plaintiffs and had no power to make an order issuing a temporary injunction.
The action, as framed, could properly be instituted in the District Court.
The expression "District Court" has by virtue of section 2(e) of Act 43 of 1958 the meaning assigned to that expression in the Code of Civil Procedure, 1908.
Section 2(4) of the Code defines a "district" as meaning the local limits of the jurisdiction of a principal civil court called the District Court and includes the local limits of the ordinary original civil jurisdiction of a High Court.
If therefore a High Court is 802 possessed of ordinary original civil jurisdiction, it would, when exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression "District Court".
Exercise of jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962.
The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate.
It is true that by section 12 of the Mysore High Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of Mysore was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf.
But section 12 of the Mysore Act 1 of 1884 has been repealed by section 14 of Mysore Act 5 of 1962.
The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction : it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction.
The High Court is competent to exercise original jurisdiction under section 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court, and not otherwise, and the High Court of Mysore not being invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action.
But it was urged that in a State the High Court is at the apex of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise, and it is competent to entertain all actions as a court of original jurisdiction which may lie in any court in the State.
For this exalted claim, there is no warrant in our jurisprudence.
Jurisdiction of a Court means the extent of the authority of a Court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits.
Barring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone.
As a Court of Appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.
803 Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument.
Among the powers conferred upon a High Court by section 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [section 24(1) (b) (i)].
But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by section 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it.
Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court.
Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.
Section 151 of the Code of Civil Procedure preserves the in herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law.
Reliance was sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J : Kaverappa vs Narayanaswamy, which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1.
The learned Judge is reported to have observed that section 24 of the Code of Civil Procedure "read along with section 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice".
It does not appear that the judgment is reported in any series of reports authorised or unauthorised, and we have not been supplied with a copy of the original judgment.
But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess, merely because an "extraordinary situation" has arisen, with respect to the learned Judge, we are unable to approve of that view.
By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise 804 cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it.
The appeal must therefore be allowed.
Temporary injunction granted by the High Court is vacated and the plaint is ordered to be returned for presentation to the proper Court.
As before the High Court, no objection was raised about the maintainability of the suit or the application for injunction, we direct the parties to bear their own costs.
Appeal allowed.

summary:
The respondents instituted a passing off action in the High Court of Mysore for a declaration that they were exclusive owners of a certain trade mark and for a permanent injunction restraining the appellants from passing off their goods as that of respondents.
By section 105 of the Trade and Merchandise Mark Act such an action may be instituted in any court not inferior to a District Court having jurisdiction to try the suit.
It appears that on the day the suit was instituted the District Court was closed and there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court.
The High Court entertained the plaint and granted temporary injunction.
In appeal by special leave : HELD:(i) The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction; it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction.
It would be competent to exercise original jurisdiction under section 105 of the Act if it was invested with ordinary original jurisdiction of a District Court and not otherwise.
[802 D F] As a Court of appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.
[802 H] (ii) Power under section 24 of the Code of Civil Procedure to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.
[803 C D] (iii) Section 151 of the Code of Civil Procedure preserves the inherent powers of the Court, but it does not authorise the High Court to invest itself with jurisdiction where the jurisdiction is not conferred by law.
[803 D E] (iv) By "jurisdiction" is meant the extent of the power which is conferred upon the court by its constitution to try a proceeding : its exercise cannot be enlarged because an extraordinary situation "requires" the court to exercise it.
[803 H 804 A]