judgement:
Appeal No. 613 of 1965.
Appeal from the judgment and decree dated March 25, 1960 of the Mysore High Court in Regular Appeal No. 155 of 1953.
V. Krishnamurthy and R. Gopdlakrishnan, for the appellant.
H. R. Gokhale, B. Subbiah and R. Thiagaraian, for, respondents Nos. 2 and 4.
The Judgment of the Court was delivered by Ramaswami, J.
The plaintiff G. Narayana Raju filed O.S. 34 of 1951 52 in the Court of District Judge, Mysore for partition and separate possession of suit properties mentioned in the various schedules of the plaint.
The first defendant is the brother 465 of the plaintiff.
The second defendant is the widow of Muniswami Raju, the eldest brother of the plaintiff.
The third defendant is the legal representative of the plaintiffs mother.
She is now the, appellant having been brought on record as the legal representative of the deceased plaintiff.
The case of the original plaintiff was that he, the first defendant and Muniswami Raju (husband of the second defendant) were the sons of one Gopala Raju and were all members of the joint family Gopalaraju died in May 1931 and after his death the plaintiff and his brothers continued to be members of the joint family.
The joint status of the, family was severed by the issue of a registered notice by the first defendant to the plaintiff in July 1951.
An ancestral house in Nazar bad belonging to the family was acquired by the City IuprovementTrust Board in or about the year 1909.
Out of the compensation paid for that house and supplemented by the earnings of the members of the joint family, the house item No. I of Schedule 'A ' to the plaint was purchased by Gopalaraju in or about the year 1910.
Subsequently item No. 2 of Schedule 'A ' was also purchased by Gopalaraju from the income of item No. I supple mented by the earnings of the members of the family.
All the other items of properties mentioned in Schedule 'A ' and other Schedules attached to the plaint were acquired out of the income from items 1 and 2 of Schedule 'A ', It was further alleged that the business known as "Ambika Stores" was also the joint family business and all the properties mentioned in the Schedules except items I and 2 of Schedule 'A ' were acquired out of the income of the members of the family including the income from the business of Ambika Stores.
The plaintiff accordingly claimed that he and the first defendant would each be entitled to get 5/14ths share and the second and third defendants would each be entitled to get 2/14ths.
share.
In the alternative the plaintiff pleaded that if for any reason the Court held that the properties stand in the name of Muniswami Raju and were not acquired with the aidof the joint familv nucleus, he and the second defendant were entitled to equal shares as co owners of the joint family business.
The suit was mainly contested by the second defendant who asserted that the properties mentioned in all the Schedules of the plaint were self acquisitions of Miiniswami Raju and constituted his separate properties.
It was alleged that Muniswami Raju was the only carniiig member of the family at the time of the acquisition of items 1 and 2 of Schedule operties and the plaintiff and the first defendant were emploved,in petty jobs in Wesley Press.
Muniswami Raju later on employed the plaintiff in his shop as a salaried servant and the latter had no proprietary right in the business of Ambika Stores.
After consideration of the oral and documentary evidence the District Judge held that the plaintiff, first defendant and Muniswami Raju were not divided and that the only property which was divisible was item No. I of Schedule 466 'A ' and there was not sufficient ancestral nucleus for acquisition of the other properties and that all properties except item No. 1 of Schedule 'A were the self acquisitions of Muniswami Raju, that Muniswami I Raju never blended his properties with that of the joint family that the plaintiff was only an employee under Muniswami Raju and therefore he was not entitled to the alternativ ' relief claimed by him.
Accordingly, the District Judge granted a preliminary decree holding that the plaintiff was entitled to 2/7ths share in item No. I of Schedule 'A '.
The plaintiff took the matter in appeal to the Mysore High Court.
By its judgment dated March 25, 1960 the High Court affirmed the decree of the trial court with the modification that besides item No. I of Schedule 'A ' item No. 2 also should be hold to be joint family property and the plaintiff was entitled to partition of his share in this item also.
The High Court cancelled the I direction of the District Judge that the plaintiff should account for the moneys and properties of Muniswami Raju in his hands before he is given possession of his share.
This appeal is brought by certificate on behalf of the plaintiff from the judgment of the Mysore High Court dated March 25, 1960 in R.A. No. 155 of 1953.
The first question to be considered in this appeal is whether the business of Ambika Stores was really the business of the joint family and whether the plaintiff was entitled.
to a partition of his share in the assets of that business.
: It was contended on behalf of the appellant that the business of Ambika Stores grew out of a nucleus of the joint family funds of at least by the efforts of the members of the joint family include the appellant.
The contention of the appellant has been negatived by both the lower courts and there is a concurrent finding that the Ambika Stores was the separate business of Muniswami Raju and it was neither the joint family business nor treated as joint family business, It is wellestablished that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager, of the joint family.
Unless, it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.
The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact. (See the decisions of the Judicial Committee in Bhwu Mal vs Jagannath (1) and in Pearey Lal vs Nanak Chand (1) and of this Court in Chattahatha Karayalar vs Ramachandra (1) A.T.R (2) A.T.R. 467 lyer) (1).
In the present, case there is a concurrent finding of both the lower courts that the business of Ambika Stores was a separate, business of Muniswami Raju and it, was neither a joint family business nor treated as joint family business.
The concurrent finding of the lower courts on this issue is upon a finding of fact and following the usual practice of this Court, it is not now open to further scrutiny by this Court under article 133 of the Constitution.
It was, however, contended on behalf of the appellant that the finding of the lower.
courts is vitiated in, law because of the circumstance that they have not taken into account three important documents, exhibit D, exhibit E and exhibit DDD.
We are unable to accept this argument as correct.
It is manifest on a perusal of the judgment of the High Court that all the documents have been examined, regarding the issue whether the business of Ambika Stores was a joint family business or whether it was p. separate, business of Muni swami Raju.
As regards exhibit D, the High ,Court has, after examining the evidence adduced, remarked that the, mere fact that item No. 2 of Schedule 'A was given as a security by Muniswami Raju did not result in any detriment to the joint family property and, it cannot therefore be held that the business of Ambika Stores grew out of the joint family funds or with the aid of the joint family funds.
On behalf of the appellant reliance was placed on the recitals in exhibit E, a deed of mortgage dated July 26, 1928 executed by Gopalaraju, Muniswamiraju and the appellant in favour of the Mysore Bank.
The property that had been mortgaged under this document is item No. 2 of Schedule 'A '.
The recital is that the borrowing from the Bank was for the business and trade of the executants and for the benefit and use of their family.
There is also a recital in an earlier portion of the document that the business, was being carried on for the benefit of the family, but it is not quite clear as to whether this related to the business carried on by Narayana Raju or whether it was intended to relate to some business carried on by all the three executants.
It is possible that the appellant had other business of his own carried on on his own.
account at that time and it cannot be, assumed that the borrowing under exhibit E must have been for the purpose of Ambika Stores.
It should be noticed that Muniswarni Raju has been described in the document as the proprietor of Ambika Stores which description is.
not consistent with the contention of the appellant that the business, was a joint family business.
The High Court has, in this connection, referred to exhibit I an application dated February 14, 1929, by the appellant to the City Co operative Bank, Mysore wherein, the appellant has said that he was getting a decent earning by doing; out of door commercial business with Ambika Stores.
There is also the, recital in exhibit I that Muniswami Raju was the proprietor of Ambika Stores.
Having regard to this recital in I it is not (1) ; 468 unlikely that the appellant had some business of his own at the material time and it cannot be assumed that borrowing under exhibit E, was for the purpose of Ambika Stores business only.
The High Court has also dealt with the effect of exhibit DDD, mortgage deed produced on behalf of the appellant.
It is true that in this document the appellant and Muniswami Raju have been described as proprietors of Ambika Stores.
The finding of the High Court is that this recital was made in the document for the purposes of borrowing from the Bank.
Reference was made in this context to a letter dated May 5, written by Muniswami Raju as proprietor of Ambika Stores to the Bank of Mysore.
In ' this letter, he has requested the Bank to take note of the fact that he has authorised the appellant to accept drafts, and sign letters etc.
on behalf of the firm ' There is another Letter, exhibit 76, dated April 14, 1934 written by Muniswami Raju to the Bank of Mysore wherein Muniswami Raju has been described as the proprietor of Ambika Stores and there is an intimation to the Bank, that the appellant Narayana Raju was authorised to sign for the firm.
In the context and background of these circumstances it is evident that though both the appellant and Muniswami Raju were described as proprietors of Ambika Stores the description was only for the purpose of borrowing money from the Bank, as contended for by the respondents.
In this connection the High Court has also taken into account exhibit 7 5 (b), a letter written by Muniswami Raju.
In this letter Muniswami Raju has described himself as the proprietor of Ambika Stores and has instructed the Bank that he has cancelled the authority given to the appellant to operate one his Current Account with the Bank.
It is therefore not possible for us to accept the contention of the appellant that the finding of the High Court that the business of Ambika Stores was the exclusive business of Muniswami Raju is vitiated in law.
On the other hand, it was contended on behalf of the respon dents that the finding of the High Court is supported by proper evidence.
The business of Ambika Stores was started by Muniswamiraju as the proprietor thereof at a time when Muniswamiraju himself was comparatively well off as a result of his partnership with Krishnaswamy Chetty & Co. In the year 1925 the partnership of Krishnaswamy Chetty & Co. was dissolved by a document exhibit D.
The entire business with 'all the assets ad liabilities was taken over by Muniswami Raju while the widow and son of Krishnaswamy Chetty were given a house estimated by the appellant himself at Rs. 3,000/ and furniture worth Rs. 400/ .
Muniswami Raju changed the name of the 'shop after taking it over into Ambika Stores and continued the business as is apparent from Exs.
XVIII, XXVI and XXVI(A).
There is also evidence that at the time when Ambika Stores was started other members of the family we 're not in a financial position to make any contribution to pur 469 such a business.
The appellant joined Wesley Press in 1912 on a salary of Rs. 8 or Rs. 9 p.m. and he was drawing Rs. 27 p.m. in 1927 when he resigned from the Press.
The first defendant joined Wesle Press in 1910 on a salary of Rs. 10 p.m. and he was continuing to work there till the institution of the present suit. 'Me income of the property item No. 2 of ' Schedule 'A ' was Rs. 15 p.m. and the income from pounding rice for which there is no satisfactory evidence was also negligible.
Therefore, the earnings of the members of the family other than Muniswami Raju were hardly sufficiently to maintain the family at the time when the business of Ambika Stores was started.
The High Court has found that the family did not have sufficient nucleus and that Muniswami Raju was not a partner of Krishnaswamy Chetty & Co. on behalf of the family but that he was a partner in his own right.
The High Court has observed that there is no evidence to show that the family supplied the money or that the family had enough means or that Muniswami Raju was representing the family when he started the business of Ambika Stores.
As we have already said, the finding of the High Court and of the District Judge is a concurrent finding on a question of fact and Counsel on behalf of the appellant has been unable to make good his argument that the finding is vitiated in law on any account.
We pass on to consider the alternative argument put forward on behalf of the appellant, namely, that even if the business of Ambika Stores was started as, a separate business of Muniswami Raju, it became converted at a subsequent stage into joint family business.
It was argued on behalf of the appellant that the business of Ambika Stores was thrown by Muniswami Raju into the common stock with the intention of abandoning all separate claims to it and therefore the business of Ambika Stores lost its character of a separate property and was impressed with the character of joint family property.
It is a well established doctrine of Hindu law that property which was originally self acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upon it.
The doctrine has been repeatedly recognized by the Judicial Committee [See Hurpurshad vs Shea Dayal(1) and Lal Bahadur vs 'Kanhaiya Lal( ).
But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case.
It must be established that there was a clear intention on the part of the copareener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done, from kindness or affection [See the decision in Lata Muddun Gopat vs Khikhinda Koer (3).
For instance, in Naina Piltal vs Daiyanai (1) 3 I.A. 259.
(2) 34 I. A. 65.
(3) 18 I. A. 9.
470 Ammal, (1) where in a series of documents, self acouired property was described and dealt with as ancestral joint family it was held by the Madras High Court that the mere dealing with self acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property.
The important point to keep in mind, is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right it as separate prop".
A man 's intention can be discovered only from his words or from his acts I and conduct.
When his inention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct.
But it is the intention that we must seek in every case, I the acts and conduct being no more than evidence of the intention.
In the present case, the High Court has examined the evidence adduced by the parties and has reached the conclusion that there was no intention on the part of Muniswami Raju to throw the separate business of Ambika Stores into the common stock, nor was it his intention to treat it as a joint family business.
Counsel on behalf of the appellant referred to the recital, in exhibit E describing the properties being those of the executants and that the borrowings was for trade and benefit of the family and it was argued that there was a clear intention on the part of.
Muniswaini Raju to treat the business as joint family business.
We have already referred to this document and indicated that the recitals were probably made for the purpose of securing a loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business.
Further, there is ample evidence to show that in all succeeding years before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores, Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive right to the business or to allow the business ' to be treated as joint family business.
Exhibits XXXV to XLVI are all documents executed by third parties in favour of Muniswami Raju in which Muniswami Raju has been described as the proprietor of Ambika Stores.
Exhibits III, XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB are all communications addressed by institutions like Banks etc., in which Muniswwni Raju has been described as the proprietor of Ambika Stores.
It may be stated that the appellant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any_money, he would ask Muniswami Raju and obtain (1) A.I.R. 1936 Mad .177. 471 from him.
If really the appellant had considered himself to be I co owner equally with Muniswami Raju, such conduct on his part is not explicable.
it was urged on behalf of the appellant that there was no documentary evidence to show that the appellant was being paid any salary 'Muniswami Raju, and that prior to Muniswami Raju 's death, it was the appellant who was in the entire management of Ambike stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appellant who had been in management.
Al, the books of account and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant.
But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the Case of the respondents that he was a salaried servant.
It is therefore not unreasonable to draw an inference from the conduct of the appellant that the Account Books, if produced in court, would not have supported his case.
We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju in throwing the business into the common stock or in blending the earnings of the business with the joint family income.
it was finally contended on behalf of the appellant that, in any event, the appellant became a co owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business.
In our opinion, there is no substance in this argument.
It is evident that the appellant gave up his job in Wesley Press and joined Ambika Stores about 9 or 10 months after it was started by Muniswami Raju.
The appellant does not state in his evidence that he was a co owner when he joined Ambika Stores.
On the other hand, in exhibit 68 which is an application dated March 20, 1928 by the appellant to the City Co operative Bank, the appellant has described himself as a clerk in Ambika Stores and Muniswami Raju has been described as his proprietor.
There is no satisfactory evidence on behalf of the appellant to show as to when and under which circumstances his status of a clerk changed to that of a co owner.
In another application, exhibit I which is of the year 1929 the appellant has described Muniswami Raju as the Proprietor of Ambika Stores and he has described himself as doing out door commercial business with Ambika Stores.
Again, in exhibit C which is a loan application made in 1932 by both the brothers, Muniswami Raju has been described as the proprietor of Ambika Stores while the appellant has been described as a General Merchant of Mysore.
Reference was made on behalf of the appellant to recitals in exhibit DDD, a mortgage deed dated June 20, 1934 in which Muniswami Raju and the appellant have been described as proprietors of Ambika Stores.
We have already dealt with this, document and for the reasons already mentioned we hold that the description of the 472 executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant .
co owner of the partnership business.
There is no evidence of any assertion by the appellant during Muniswami Raju 's life time of his being a co owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the appellant.
On the other hand, there is sufficient evidence to show that whatever the appellant did in connection with the business was only done with the Authority conferd by Muniswami Raju.
In our opinion the High Court has rightly rejected the claim of the appellant that he was a co owner of the partnership business.
For the reason expressed we hold that this appeal has no merit and it must be dismissed with costs.
R.K.P.S. Appeal dismissed.

summary:
There is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family.
Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.
[466 F H] Bhuru Mal vs Jagannath, A.I.R. 1943 P.C. 40, Pearey Lai vs Nanak Chand, A.I.R. 1948 P.C. 108, Chattanatha Karayalar vs Ramachandra Iyer; , , referred to.
The separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property but by his own volition and intention, by his waiving or surrendering his special right in it as separate property.
Mere recitals in deeds dealing with self acquisitions as ancestral joint family property is not by itself sufficient; but it must be established that there was a clear intention on the part of the coparcener to waive his separate property.[470 B c] Hurpurshad vs Sheo Dyal, 3 I.A. 219.
Lal Bahadur vs Kanhaiya Lai, 34.
I.A. 65, Lola Muddun Gopal vs Khikhinda Koeri 18 I.A. 9, Naina Pilla vs Daiyanai Ammal, A.I.R. 1936 Mad.
177, referred to.
where there is a concurrent finding of both the lower courts that the business is a separate business and it is neither a joint family business nor treated as joint family business, it is not open to further scrutiny by this Court under article 133 of the, Constitution.
[467 A B]


judgement:
Appeal No. 641 of 1966.
Appeal by special leave from the judgment and order dated July 27, 1964 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 32 of 1964.
R. V. section Mani, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Vaidialingam, J.
In this appeal, by special leave, the appellant attacks the judgment and order, dated July 27, 1964, of the Nagpur Bench, of the Bombay High Court, dismissing Special Civil Application No. 322 of 1964.
Badridatta Ishwardas Trust is a public charitable trust, maintaining a Dharamshala.
The appellant, the Managing Trustee of the said Trust, filed an application, under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act XCIX of 1958) (here inafter called the Act), before the Naib Tehsildar, Balapur (the third respondent, herein), to direct the fourth respondent, the tenant, to surrender four acres of land, on the ground that the lands were required for being cultivated personally.
According to the appellant, the necessary notices, terminating the tenancy of the fourth respondent, had been given, under the Act, and that he was entitled to get possession of the lands, in question.
The fourth respondent raised various objections, on merits; but all those objections were over ruled, by the third respondent.
The fourth respondent raised a legal contention that, inasmuch as the lands, in question, belonged to the Trust, the appellant Managing Trustee could not be considered to be the landlord.
He further contended that 'the Trust itself could not 'cultivate personally ' the lands and, therefore, the application, filed by the appellant, was not maintainable.
The third, respondent overruled these objections, on the ground 'that the Managing Trustee was a person in whom the properties of the Trustee vested in law and, therefore, it was open to him to make a claim for possession of the lands from a tenant, on the ground that they were required for 'personal cultivation '.
In this view, the third respondent further held that the Managing Trustee was a landlord, under the Act, entitled to get possession of the lands.
Finally, the third respondent ordered the tenant to surrender possession of the land, as required by the appellant.
The order of the third respondent was challenged, by the tenant, in appeal, before the Special Deputy Collector, Tenancy 443 Appeals, Akola (the second respondent).
The latter, by order dated October 30, 1963, reversed the decision of the Naib Tehisildar.
The second respondent accepted the appellant 's plea that he was the Managing Trustee of the Trust, in question, but took the view that a claim, on behalf of a Trust, for personal cultivation, under the Act, could not be made, as a Trust was incapable of cultivating lands personally.
The second respondent followed, in this regard, the decision of the Maharashtra Revenue Tribunal, in Shri Kalanka Devi Sansthan, Patur vs Pandu Maroti(1), which had held that a Deity or Sansthan, which is a juristic person, could hold property, but could not act, except through a Wahiwatdar or Manager, and, as such, was incapable of cultivating lands personally.
In this view the second respondent held that the appellant was not a person capable of cultivating land personally and, as such, was not entitled to ask for surrender of the lands, from the tenant.
The appellant went up, in revision, against this order, before the Maharashtra Revenue Tribunal Nagpur (the first respondent).
That Tribunal took the view that the case was governed by the decision of the Bombay High Court, in Buvasaheb vs Yesu Krishna( '), and dismissed the revision.
The High Court summarily rejected the writ petition, filed by the appellant, against this order.
Mr. R. V. section Mani learned counsel, appearing for the appellant, raised two contentions before us : (1) that the appellant, being a Managing Trustee of the Public Charitable Trust, the properties of the Trust vested in law in him and so he was the landlord, under the Act, entitled to ask for possession of the lands for personal cultivation; and (11) if the Managing Trustee was not so entitled, under the Act, such of the provisions of the Act, which were to be construed, as denying the fundamental rights of the appellant, would have to be struck down, as violative of articles 14 and 19(1)(f), of the Constitution.
There has been no appearance, before us, on behalf of the respondents.
At the outset, it has, to be stated that in the grounds of appeal, filed, in this Court, there has been a mixing up of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948), and,.
the Act; but, on a careful perusal of the proceedings, before the Revenue Tribunals, it is seen that the proceedings were initiated, by the appellant, under the Act and, therefore, we shall refer to the material provisions of that Act.
We may further add that, in the view that we take, regarding the construction to be placed, on the material provisions of the Act, it becomes unnecessary for us to consider the second contention, raised by Mr. Mani, for the appellant.
(1) (1963)Mh.
L.J.249.
(2) (1960) N.L.J 219.
444 Section 2, of the Act, contains the definitions, of the various expressions, occurring in the Act.
Clause (12), omitting the Explanations, reads "(12) 'to cultivate personally ' means to cultivate on one 's own account (i) by one 's own labour, or (ii) by the labour of any member of one 's family, or (iii) under the personal supervision of one self or of any member of ones family by hired labour or by servants on wages payable in cash or kind but not in crop share " Clause (31) defines 'tenancy ' as meaning that relationship of landlord and tenant.
Under clause (32), 'tenant ' means a person who holds land on lease and include (a) a person who is deemed to be a tenant under sections 6, 7 or 8; (b) a person who is a protected lessee, or occupancy tenant, and the word 'landlord shall be constructed, accordingly.
It must be noted that there is no separate definition of the word 'landlord ' but, as provided in cl, (32), the word 'landlord ' has to be construed accordingly.
There is no controversy, in this case, that the fourth respondent is a 'tenant ', as defined in cl.
(32) of section 2.
The appellant gave the necessary notice, as required by sub section (1) of section 38, claiming that he bona fide required the land, for cultivating it personally.
It was, after complying with the provisions of this section,;. that he applied for possession of the land, ' under section 36(1) of. the Act.
The ' claim.
of the Managing Trustee, in this case, is that he intends to cultivate personally ', the lands in question.
The objection, raised by the fourth respondent, to the appellant 's claim, was that the properties belonged to the Trust, and a Trust could not 'cultivate personally ' lands.
It was further urged that if the Managing Trustee cultivated the lands of the Trust, he could not be considered to 'cultivate on one 's own account, ' as any cultivation, by the Managing Trustee of Trust lands, must necessarily be on, account of the Trust, therefore, section 2 (12) will not be satisfied.
This objection found favour with respondents I ' and 2.
The High Court also appears to agree 'with their views, as is evident ,from the. fact, that it dismissed the Writ petition of the appellant, summarily: To consider the soundness of the objection raised by the tenant, it is necessary to refer, in law, to the position of a Trustee vis a vis Trust properties.
Under section 2 (18), of the Bombay Public Trusts Act, a Trustee has been defined, as meaning a person, in 445 whom, either alone or in association with other persons, the trust property is vested, and includes a Manager.
In view of this definition, it is clear that, in this case, the properties of the Trust vest in the Managing Trustee, Pandit Ishwardas, and he is the 'landlord ', under cl.
(32) of section 2.
No doubt, as Trustee, he will have to administer the properties, for the purpose of carrying out the objects of the Trust; but, as the properties vest in him and he is a 'landlord ', he can ask for a surrender, from the tenant, of the lands of the Trust 'to cultivate personally '.
He can cultivate the lands, either by his own labour, or under the personal supervision of himself, by hired labour, or by servants, on wages payable in cash or kind, as contemplated under sub cls.
(i) or (iii), of cl.
(12), of section 2.
As the properties vest in him, in law, cultivation, by him.
as indicated above, is to be considered 'on one 's own account. ' Thus the requirements of section 38(1), read with section 2(12), are amply satisfied, in this case.
It follows that the application, filed by the appellant, was maintainable, and the order of the third respondent accepting the appellant 's claim, is correct.
In our opinion, the decision of the Bombay High Court, in Buvasaheb 's case( '), relied on by the Maharashtra Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand.
The question, that arose for consideration, in that decision, was as to whether a Wahiwatdar, or Manager, of lands belonging to a Deity, was entitled to apply, under section 34, read with section 2(6), of Bombay Act LXVII of 1948, for surrender of lands, from the tenant, for personal cultivation.
The High Court held that there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of the properties, which vest in an idol, which is the legal owner.
On this basis, the learned Judges have held that, inasmuch as the legal ownership of the property, in the case before them, vested in the idol, and as the Manager or Wahiwatdar of such property, was no more than an administrator of the property, managing that property, for and on.
behalf of the idol, he was not a 'landlord ' and hence could not Apply, for surrender of lands from a tenant, on the ground of personal cultivation.
It is their further view that it is, only the person, in whom the legal ownership of the lands vest, who can be regarded as the landlord, and who alone can apply, on the ground that he requires the land, bona fide, for personal cultivation.
The expressions 'to cultivate personally ', 'tenant ' and 'landlord ', which the learned Judges had to consider, in Bombay Act LXVII of 1948, are substantially similar to the definitions, contained in the Act.
We may also refer, to a later decision, of the Bombay High Court, in kesheoraj Deo Sansthan, Karanja vs Bapurao(2).
In (1) (1960) N.L.J.219.
(2) (1964) Mh.
L.J. 589 446 that decision, the learned Judges had to consider the.
identical provisions of the Act.
The claim, for personal cultivation, in that case, was made by the Manager of a private Sansthan.
The learned Judges held that Sansthan is a juristic person, in whom the properties vest.
They further held that cultivation, through an agency, like a Manager, on behalf of a juristic person, did not come within the ambit of the definition to cultivate personally, ' in section 2(12) of the Act.
They also held that an idol, or a juridical person, like the Sansthan, was not capable of cultivating personally, and hence the tenancy of a tenant of land, owned, by a Deity or Sansthan, could not be terminated, under section 38 of the Act.
We do not propose to express any Opinion, as to whether a Manager or Shebait, of the properties of an idol, or the Manager of a Sansthan, can or cannot apply, for surrender, by a tenant, of lands for personal cultivation.
It is enough to point out that the learned Judges of the Bombay High Court, in both the decisions, cited above, have indicated that a Trustee, in whom the properties vest in law, stands on a different footing, from a Shebait or a Wahiwatdar or Manager.
This distinction, pointed out by the learned Judges of the Bombay High Court, has not been properly appreciated, by the Revenue Tribunal, in the present case.
To conclude, the appellant, the Managing Trustee, is a person, in whom the legal ownership of, the property is vested and, as such, he was entitled to apply for surrender, by the tenant, of the lands in question, 'to cultivate personally ', under section 38, read with section 2(12), of the Act.
Inasmuch as all the other points, on facts, have been held in the appellant 's favour, it follows that this appeal will have to be allowed in consequence, the order of the third respondent, dated June 29, 1963, will stand restored.
There will be no order as to costs.
R.K.P.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was the Managing Trustee of a public charitable trust maintaining a Dharamshala.
He filed an application under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, XCIX of 1958 before the Naib Tehsildar, the third respondent to direct the fourth respondent, the tenant, to surrender four acres of land, on the ground that the lands were required for personal cultivation.
According to the appellant, the necessary notices, terminating the tenancy of the fourth respondent, had been given and be was entitled to get pos session of the lands.
The tenant raised a legal contention that inasmuch as the lands belonged to the Trust, the appellant could not be considered the landlord; the trust itself 'could not 'cultivate personally ' the lands within the meaning of the.
Act and therefore the appellant 's application was not maintainable.
This contention was overruled and the tenant ordered to surrender possession of the land to the appellant.
However, the tenant 's appeal to the Special Deputy Collector, Tenancy Appeals, Akola, the second respondent, was allowed and this decision was confirmed in revision by the Maharashtra Revenue Tribunal, Nagpur.
A writ petition filed by the appellant was summarily rejected by the High Court.
On appeal to this Court, HELD : The appeal must be allowed and the order of the Naib Tehsildar restored.
Under section 2(18), of the Bombay Public Trusts Act, a Trustee has been defined as meaning a person, in whom either alone or in association with other persons.
the trust property is vested and includes a manager.
In view of this definition, it is clear that in the present case, the properties of the Trust vest in the Managing Trustee the appellant; and he is the 'landlord ', under cl.
(32) of section 2.
As trustee, he would have to administer the properties for the purpose of carrying out the objects of the Trust; but, as the properties vest in him and he it a 'landlord ', he can ask for a surrender from the tenant of the lands of the Trust 'to cultivate personally '.
He can cultivate the lands, either, by his own labour, or under the personal supervision of himself, by hired labour or by servants as contemplated under sub cls.
(i) or (iii), of cl.
(12) of section 2.
As the properties vest in him.
in law, cultivation by him, is to be considered 'on one 's own account. ' [444 H 445 C] Shri Kalanka Devi Sansthan, Patur vs Pandu Maroti [1963] Mh.
L. J. 249, referred to.
Buvasaheb vs Yesu Krishna, (1960) N.L.J. 219 and Kesheoraj Deo Sansthan Karanja v Bapurao, (1964) Mh.
L.J. 589.
distinguished.


judgement:
Appeal No. 59 of 1953.
Appeal from the Judgment and Order dated the 5th April, 1950, of the High Court of Rajasthan at Jaipur in Case No. 24 of Samvat 2005 (Review modifying the Decree dated the 3rd March, 1949, of the High Court of the former Jaipur State in Civil Second Appeal No. 187 of Samvat 2004 against the Decree 52 dated the 15th April, 1948, of the Court of the District Judge, Jaipur City, in Civil Appeal No. 40 of Samvat 2004 arising out of the Decree dated the 23rd August, 1947, of the Civil Judge, Jaipur City, in Suit No. 66 of Samvat 2002).
Dr. Bakshi Tek Chand, (Rajinder Narain, with him) for the appellant.
D.M. Bhandari, (K. N. Aggarwala and R. N. Sachthey, with him) for the respondent.
April 9.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.
This is an appeal from the judgment and decree of the High Court of Judicature of Rajasthan, dated the 5th April, 1950, modifying the decree of the High Court of the former Jaipur State, dated the 3rd March, 1949, on an application for review in a second appeal concerning a suit for possession of property.
The property in dispute originally belonged to one Ramchandra who died sonless in the year 1903.
He was survived by his mother, Sheokori, his widow, Mst.
Badni, and his two daughters,.
Bhuri and Laxmi.
It is alleged that he made an oral will under which he bequeathed the property in dispute to his daughter, Laxmi.
On the 6th September, 1906, Mst.
Sheokori and Mst.
Badni, purporting to act in accordance with the directions of the oral will, executed and registered a deed of gift of the property in dispute in favour of Mst.
Laxmi.
The gift deed contains the following recitals: " These houses are made a gift to you according to the will of your father, Ramchandra. .
In this way, these houses belonging to us were purchased by your father, Ramchandra, and he in his last days having made a gift of these houses to you, made a will to us that he had made a gift of that house to his daughter, Laxmi, and directed us to get the gift deed registered in her name.
He further said that if we or our relations., kinsmen, creditors do raise any dispute with her he would I damangir hoonga catch hold of him by his 53 garments.
According to his aforesaid will, we have got this gift deed executed in your favour, while in best of our senses and in discharge of our sacred duty enjoined by Dharma.
No other person except you has got any claim over the house.
You deal with your house in any way you like.
If anybody takes back the land gifted by himself or his ancestors, he will live in hell as along as the sun and moon shines.
" The scribe, it seems, did not in appropriate language express the directions of the two widows and his ideas of the legal situation were somewhat confused but there can be no manner of doubt that the two executants were not conferring themselves any title which they had in the property on Laxmi but were merely giving effect to the oral will as executors and were putting the legatee in possession of the bequeathed property in this manner.
That the widows had no title themselves is evident from the fact that Mst.
Sheokori also joined in executing the gift deed.
Admittedly Ramchandra 's estate could not devolve on her.
Bhuri, the second daughter, died in the year 1907, while Mst.
Badni, the widow., died in the year 1927.
Laxmi remained in possession of the property till her death in the year 1928.
After her death Balabux, her husband, on the 5th of July, 1930, claiming as heir to her mortgaged the house in dispute to the defendant appellant Nathoo Lal and later on the 5th of October, 1933, he sold it to him and put him into possession of it and since then he is in possession.
On the 4th October, 1945, that is one day before the expiry of the period of 12 years from the date of the defendant 's entry into possession of the house, the plaintiff, son of Mst.
Bhuri, sister of Mst.
Laxmi, claiming as an heir to her estate, filed this suit in forma pauperis for possession of the house.
He alleged that he was in possession of the house till the 24th of August, 1933, through his tenant, that after it was vacated by the tenant he locked it and went away to his native village Harmara ; and that on the 27th of September, 1944, he came to know that the house had been taken possession of by the appellant during his absence.
It 54 was contended by him that Balabux had no right either to mortgage or sell the house and that Laxmi was not the absolute owner of the property but had only a limited estate in it, and on her death he was entitled to possession of it.
On the 28th of August, 1947, the suit was dismissed by the Civil Judge, who held that Mst.
Laxmi became the absolute owner of the property, and the plaintiff therefore had no title to claim possession of it after her death, Balabux being her stridhan heir.
The learned Judge however held that the suit was within limitation.
On appeal, this decision was affirmed by the District Judge.
He expressed the opinion that the widow in executing the deed of gift was only acting as an execution of the oral will made by Ramchandra at his deathbed and that Laxmi got under this will an absolute estate in the suit property.
The plea of limitation raised by the defendant was negatived on the finding that the plaintiff was in possession of it within twelve years of the suit.
Plaintiff preferred a second appeal to the High Court of Jaipur and this time with success.
The High Court held that after the death of Laxmi the plaintiff continued in possession of the house till he was dispossessed by the defendant on the 5th of October, 1933, and that he was in possession even during her lifetime.
On the main question in the case the High Court held that though the house was bequeathed to Laxmi by Ram chandra under an oral will, there was no proof that it conferred upon her an absolute interest in the property and that in the absence of any evidence indicating that the donor intended to convey an absolute interest to her, the gift being in favour of a female could only confer upon her a limited life estate and on her death revert to the donor 's heirs and the plaintiff being such an heir was entitled to succeed.
In the result the appeal was allowed and the plaintiff 's suit was decreed with costs throughout.
The defendant applied for a review of this judgment.
Meanwhile the Jaipur High Court had become defunct and the review was heard by the Rajasthan High Court 55 as successor to the Jaipur High Court under the High Courts Ordinance and was partially allowed on the 5th of April, 1950, and the decree was accordingly amended and it was provided therein that the plaintiff shall not be entitled to possession of the house except on payment of Rs. 4,000 to the defendant as costs of improvements and repairs.
It is against this judgment and decree passed after the coming into force of the Constitution of India that the present appeal has been preferred to this Court by leave of the Rajasthan High Court under article 133(1)(c) of the Constitution.
The learned counsel for the respondent raised a preliminary objection as to the maintainability of the appeal.
He contended that according to the Code of Civil Procedure of the Jaipur State the decision of the Jaipur High Court had become final as no appeal lay from it and hence this appeal was incompetent.
It was argued that the proceedings in the suit decided in 1945 had concluded by the decision of the High Court given in 1949, and the review judgment which modified the decree in regard to improvements, could not entitle the appellant to reopen the decision of the High Court of Jaipur given in 1949.
In our opinion, this objection is not well founded.
The only operative decree in the suit which finally and conclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajasthan High Court and that having been passed after the coming into force of the Constitution of India, the provisions of article 133 are attracted to it and it is appealable to this Court provided the requirements of that article are fulfilled.
The Code of Civil Procedure of the Jaipur State could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal.
The requirements of article 133 having been fulfilled, this appeal is clearly competent.
The learned counsel then contended that the High Court was in error in granting the certificate in this case.
We are unable to agree.
An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20,000 or that the decision affected 56 property of the value of above Rs. 20,000.
A substantial question of law was involved in the case, that is, whether a testamentary disposition by a Hindu in favour of a female ' heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property.
In these circumstances the High Court was fully justified in granting the certificate.
We ourselves would have been prepared to admit this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, if such a certificate had not been given in the case.
For the reasons given above we see no force in either of these two preliminary objections which we overrule.
Dr. Bakshi Tek Chand for the appellant contended that the Courts below were in error in holding that the plaintiff 's suit was within limitation.
He urged that in order to bring the suit within limitation the plaintiff in paragraph 5 of the plaint alleged that after the death of Laxmi he kept tenants in the house, realised the rent and enjoyed it and/that the last tenant vacated on the 24th August, 1933, and thereafter he went to his native place after locking the house, but that this allegation had not been made good by him, and as there was no evidence that he looked the house, it should be held that plaintiff 's possession discontinued with effect from the 24th August, 1933, and hence his suit brought more than twelve years from that date was not within time.
It has been found by the Courts below that the plaintiff was in possession of this house even during the lifetime of Laxmi and continued in possession thereafter.
Even if the tenant vacated the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one.
The law presumes in favour of continuity of possession.
The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff continued in possession of the house and the suit was within limitation.
There are no valid grounds for reviewing this finding in the fourth Court and the contention is therefore negatived.
57 Dr. Bakshi Tek Chand next contended that Laxmi acquired an absolute title in the suit property under the will of her father and that the High Court was in error in@holding that unless there were express words indicating that the donor who had absolute interest in the gifted property intended to convey an absolute interest to her, the gift in favour of an heir who would ordinarily inherit a limited interest could not be construed as conferring an absolute interest.
The learned counsel for the respondent on the other hand raised two contentions.
He urged in the first instance that it seems that the intention of Ramchandra was to make a gift of the suit property in favour of Laxmi but he was unable to perfect the gift by executing a registered deed, being on his deathbed and in that situation the property devolved on his widow by inheritance and it only came to Laxmi under the widow 's gift and under it she could not get a larger interest than what the widow herself possessed, namely, a limited life estate, which terminated on her death.
In the alternative, it was said that there was no evidence as to the terms of the oral will and that 'being so, the gift being in favour of a female heir, the presumption in the absence of evidence to the contrary was that the donee got only a limited life interest in the bequeathed property.
In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondent 's 'counsel have any validity.
That Ramchandra bequeathed the suit property and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage.
It was admitted by the plaintiff himself in the witness box.
This is what he said : " Ramchandra had made a will in favour of Mst.
Laxmi and in that connection my maternal grandmother and maternal great grandmother got the gift deed registered.
This very gift deed was got executed by my maternal grandmother and maternal great grandmother and had got it registered.
Through this gift deed Mot.
Laxmi held possession over it till she was alive.
She had kept deponent as her son and so 8 58 she got the rent notes executed in my name." ' What is admitted by a party to be true must be presumed to be true unless the contrary is shown.
There is no evidence to the contrary in the case.
The gift deed fully supports the testimony of the plaintiff on this point.
It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked.
Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes.
It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he himself possessed.
She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to confer on her whatever title he himself had.
Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmi 's husband who had full right to alienate it.
We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest.
It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumool V. Shewukram(1) wherein it was held that a bequest to a daughter in law passed a limited estate.
The proposition laid down in Mahomed Shumsool 's case was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation.
Later decisions of the Judicial Committee made it clear that if words were used (1) 2 I.A. 7. 59 conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being con ferred by express and additional terms.
Shumsool 's case(1) has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there is no presumption one way or the other and there is no difference between the case of a male and the case of a female, and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male (see Nagammal vs Subbalakshmi Ammal(2).
The matter has now been set at rest by the decision of this Court in Ram Gopal vs Nand Lal(3).
In this case it was observed as follows: " It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.
The reasoning adopted by Mitter J. of the Calcutta High Court in Mst.
Kollani Kuar vs Luchmi Kuar(4), which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable.
It was held by the Privy Council as early as in the case of Tagore V. Tagire (5) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance.
This is the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a "widow 's estate, ' there is no justification for departing from this principle.
There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.
" The position, therefore, is that to convey an absolute estate to a Hindu female, no express power (1) 21 A. 7.
(4) (2) (1947) I M.L.J. 64.
(5) , P.C. (3) ; 60 of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership." The learned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate.
For the reasons given above we allow the appeal, set aside the decree of the High Court decreeing the plaintiff 's suit and restore the decree of the trial Court dismissing the plaintiff 's suit.
In the circumstances of this case we will make no order as to costs.
Appeal allowed.

summary:
It may be taken as well settled that there is no warrant for the proposition of law that when a grant of immoveable property is made to a Hindu female she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her.
The law is that there is no presumption one way or the other and there is no difference between the case of a male and the case of a female and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male.
Mohamed Shumsool vs Shewakram (2 I.A. 7), Nagammal vs Subbalakshmi 1(1947) I.M.L.J. 641 and Ram Gopal vs Nand Lal (A.I.R. referred to.


judgement:
Appeal No. 1805 of 1967.
Appeal by special leave from the judgment and order dated the 20th October 1967 of the Allahabad High Court in Special Appeal No. 864 of 1967.
R. K. Garg, section C. Agarwala, Anil Kumar, Shiv Punjan Singh N. M. Ghatate, for the appellant.
C. B. Agarwala and 0.
P. Rana, for the respondents.
The Judgment of the Court was delivered by Hidayatullah C.J.
This is an appeal against the judgment of a division Bench, October 20, 1967, in a Special Appeal (No. 864 of 1967) of the High Court of Allahabad affirming the dis 435 missal of 61 writ petitions by a learned single Judge of the High Court.
This appeal arises from one such petition.
The appellant was elected Pramukh of Sarwan Khera Kshettra Samiti and his term of office which was co terminus with the term of the Samiti, extended to five years.
He challenges in this appeal, (as he did in the High Court), two Government notifications issued by the Government of Uttar Pradesh under the Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam 1961 (Act 33.
of 1963).
By these notifications the Government of Uttar Pradesh has redivided the rural area In the district to which the matter relates into new Khands specifying the limits and constituents of their areas and as a consequence has abolished a few khands and created new Khands in their Place.
The Khand relating to the appellant 's Samiti has been abolished by the first notification and by the second notification ' the term of the Samiti has also been brought to a close,.
Both the notifications are of July 1, 1966.
The appellant challenges these notifications as also sections 3 and 8 of the Act on various grounds.
To understand his contentions we may begin by setting out how the Act is constructed.
The Act was passed in 1961 for the establishment of Kshettra Samities and Zila Parishads in Uttar Pradesh.
It was intended to make democracy broad based and to give training in the art of administration and running democracy to the rural population.
It is a long Act of 274 sections and 8 schedules.
It is not possible to give more than a brief idea of the constitution of the Samitis and their functions and Organisation.
The preamble of the Act states as follows "Whereas it is expedient to provide for the establishment of Kshettra Samitis and Zila Parishads in the districts of Uttar Pradesh to undertake certain govermental functions at Kshettra and district levels respectively in furtherance of the principle of democratic decentralisation of governmental functions and for ensuring proper municipal government in rural areas, and to correlate the powers and functions of Gaon Sabhas under the United Provinces Panchayat Raj Act, 1947, with Kshettra Samitis and Zila Parishads;" The Act goes on to define a Kshettra Samiti as a Kshettra Samiti established under section 5 of the Act and a Khand as an area of the district specified as such by the State Government under section 3 Chapter II of the Act deals inter alia with the establishment of Kshettra Samitis and section 3 provides as follows "The State Government shall by notification in the Gazette divide the rural area of each district into khands 436 specifying each Khand by a name and the limits or constituents of its area and may likewise change the names or make modifications in the areas and limits of the Khands by including therein or excluding therefrom areas or create new Khands.
" This section allows the State Government to divides the rural area of each district into Khands.
It also enables the Government to change the name of a Kshettra Samiti and to make modifications in the areas and limits of the Khands and to create new Khands.
Section 4 specifies the effect of change in Khands and the temporary and permanent consequences thereof are provided for.
Section 5 then deals with the establishment and incorporation of Kshettra Samitis for each Khand bearing the name of the Khand for which it is established.
It says inter alia that every Kshettra Samiti is a body corporate having perpetual succession and common seal and subject to any restrictions or qualifications imposed by any other enactments, possesses the power to acquire, hold and dispose of property and to enter into contracts and may by its corporate name sue and be sued.
Section 6 details the composition of Kshettra Samitis providing for elections and cooptions.
Section 7 lays down the procedure for the election of the Pramukhs and the Up Pramukhs of the Kshettra Samitis and its members and section 9 in the same way deals with the term of the Pramukhs and the UP Pramukhs.
Section 10 then enables the Government to arrange for the constitution of the first Kshettra Samiti for every Khand and for the reconstitution thereof on the expiry of the first and each subsequent term or when otherwise required under the Act having regard to the provisions of section 6.
Sections 11 16 deal with the resignation of Pramukhs, Up Pramukhs and members, filling of casual vacancies, disqualifications for being, chosen or co opted as members, disputes as to membership or disqualification and motion of non confidence in Pramukh or Up Pramukh and removal of Pramukh or Up Pramukh.
In this way complete local self government is established.
In 1965 by a Sanshodan Adhiniyam, 1965 certain changes were introduced in the parent Act.
In section 8 a second proviso was inserted which read: "Provided further that where the State Govern ment is of opinion that it is necessary or expedient so to do with a view to re organisation of Khands, it may by notification in the Gazette determine the term of all or any Kshettra Samitis.
" The Amending Act also added section 8A of which the second sub section is material for our purpose and may be read here.
437 "where on account of changes in the areas of the Khands under section 4, a Khand ceases to exist, or where under the second proviso to sub section (1) of Section 8 the term of the Kshettra Samiti of any Khand is determined, the Pramukh and the member of the Kshettra Samiti of such Khand who are members of the Zila Parishad under clauses (i) and (ii) respectively of sub section (1) of Section 18 shall, notwithstanding anything contained in Sections 1 81 and 20, continue to be members of the Parishad for the residue of the term of the Parishad.
" When the Kshettra Samitis were formed Khands were estab lished and the appellant was the Pramukh of Kshettra Samiti relating to a Khand called Sarwan Khera.
By the impugned notifications, the Khand and its Kshettra Samiti have been abolished and the appellant loses the office of Pramukh of the Kshettra Samiti concerned.
He challenged in the High Court the two notifications as ultra vires and repugnant to the scheme and the purpose of the Act.
He challenged also sections 3 and 8 as suffering from excessive delegation of legislative functions and involving a violation of article 14 of the Constitution.
These arguments were repelled concurrently in the High Court and his further allegation that the action was mala flde was also discountenanced.
He urged the same arguments before us.
Mr. R. K. Garg on behalf of the appellant took us through the provisions of the Act pointing out that the Samiti once constituted had a corporate existence with perpetual succession and it was not possible for the State Government to destroy a corporation so set up and which owned property and a fund and whose existence for five years was contemplated under the Act with possibility of further continuance.
It is not necessary to refer to these sections because they are to be found in all legislation dealing with the establishment of corporate local self Government bodies.
The question is not whether Kshettra Samitis enjoy perpetual succession.
The question is whether the Kshettra Samitis once established enjoy perpetual existence.
The scheme of the Act clearly indicates that the area of the district is required to be divided into many Khands with a Kshettra Samiti in each Khand.
Sections 3, 4, 8 and 8A confer power upon the State Government to alter the area of the Khand , constitute new Khands and re establish old ones.
This power is.
given by the legislature advisedly so that the working of democracy in the rural areas in the Kshettra Samitis and Zila Parishads may be ' smooth and without difficulty.
The reorganisation of the Khands may become necessary because of circumstances too numerous to mention here.
Power has, therefore, been reserved to Govern 438 ment to make the alterations as stated above.
It will be seen that the latter part of section 3 gives specific power to create new Khands in addition to the change of areas of the existing Khands which means that new Khands may be brought into existence and old Khands abolished.
In fact, sections 4 and 8A and the newly added proviso to section 8 bear upon the abolition of existing Khands.
In other words, what the State Government did was by, an express grant from the legislature.
The other provisions of the Act to which our attention was drawn merely indicate what Kshettra Samiti is required to do as long as the kshettra Samiti exists.
Similarly the term of the Kshettra Samitis is to apply to a Kshettra Samiti which is not abolished but continues.
The perpetual succession in this context means successions of one Kshettra Samiti to another but in fact it does not entail perpetual existence of any Samiti or any Khand notwithstanding the inadvisability of continuing it for administrative or other valid reason.
The power, exercised by the Government in issuing the two notifications flow clearly from the provisions of the law under which Government was acting.
It is for this reason that the attack of Mr. Garg was next directed against sections 3 and 8 of the Act.
He compared the power to make new Khands and to reorganise the old ones with the other scheme of the Act under which the Kshettra Samitis are required to function with right to hold property, to possess fund and to carry on administration.
All this does not show that the power given by the act to reconstitute Khands is ' any way impaired or frustrated.
The two powers are quite distinct.
The first power exists when the Samitis are established and continue.
The second power comes into play when the need for reconstitution of the Khand emerges.
The provisions of sections 3 and 8 cannot thus.
be said to negative the other _provisions to which our attention was drawn.
It was next contended by Mr. Garg that sections 3 and 8 were in valid because they involved excessive delegation of legislative functions to the State Government and being not supported by adequate safeguards or guides, most be struck down.
This argument is not valid.
The Act speaks for itself and is self contained.
Its policy is stated in clear, terms and the power to create Khands must be read with the I power to abolish Khands and create new Khands in their place.
The details of how big a Khand should be, what territory it should involve and so on and so forth cannot be the subject of detailed legislation.
The Act gives ample indication of what the purpose of making a Khand is and the duties which the Kshettra Samitis must perform.
On this subject the legislative will has been sufficiently expressed and must, therefore, guide the State Government in making its notifi 439 cations.
This case is analogous to the one reported in State of Bhopal and others vs Champalal and others( ').
In that case it was observed that the preamble and long title of the Act made clear that the enactment was "for the reclamation and the Development of the land by the eradication of Kans weed 'in certain areas in the State.
" The purpose being specified as the radication of kans in area infested with it, the Act was said to be valid although the selection of the land was left to the Executive.
The legislative policy behind the provisions of law were held to be writ large on it, and what remained or was left to the Executive was to carry out the mandate and give effect to the law to achieve the purpose of the Act.
In present case also the underlying policy and the objective of the legislation is clearly set out and the details of the duties of the Kshettra Samitis are indicated.
It has, however, been left to :he State Government to determine what the Khands should be and how many Kshettra Samitis should be constituted in each district.
This is not a subject for detailed legislation because it s eminently a matter which can be left to the determination of 'he Executive which is to act in conformity with the wishes of ,he local people, the political exigency of the situation and the requirements of administrative control.
In our opinion, the Act as not erred by conceding unfettered or uncanalised power to he State Government as is contended.
On the other hand, it has itself spoken on the relevant subject in full detail so as to outline its own will which alone the Executive is supposed to Implement.
It was next contended that sections 3 and 8 violate article 14 because 'hey furnish an indirect method of removal of the Pramukh, the Up Pramukh and the Members of a Kshettra Samiti without having to take recourse to the provisions for their removal as laid down in the Act.
Reliance in this connection is placed upon decision of this Court in Ram Dial and others vs State of Punjab(2).
That case is easily distinguishable.
There the Punjab Municipalties Act contained two Provisions for the removal of a member in the public interest.
By one provision he was entitled to a hearing and by 'he other not.
This Court held that as it was open to choose.
one method rather than the other and that there was room for arbitrary action.
Here the provision on the subject of removal of members of the Kshettra Samitis are not congruous with the subject of reorganisation of Khands.
The two provisions operate In entirely different fields.
One is concerned directly with the removal of the Pramukh, Up Pramukh and the members.
The other is directly concerned with the abolition of the Khands and (1) ; (2) ; 440 reconstitution of different Khands These are two different powers and cannot be compared at all.
It may be that by abolishing a Khand and its Kshettra Samiti the members also must go, but that is a consequence of the exercise of quite a different power.
Of course, if the action in abolishing the Khand could be shown to be directly connected with the removal of the Pramukh, Up Pramukh or a member of the Kshettra Samiti the action of the Executive Government can be struck down as mala fide.
It was for this purpose that the appellant pleaded in the, High Court mala fides on the part of the Government.
The two judgments now under appeal negative the existence of any mala fide intention.
No material was placed before us to establish mala fides nor could the findings be attacked since they were concurrently reached.
In this view of the matter we must hold that the State Government in exercising its powers acted honestly and within the four corners of its jurisdiction.
, In the result the appeal must be held to be without substance.
It will be dismissed with costs.
V.P.S. Appeal dismissed.

summary:
The appellant was elected Pramukh of a Kshettra Samiti and his term of office which was co terminus with that of the Samiti, was for five years The Government of Uttar Pradesh issued two notifications under sections i and 8 of the Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam, 1961, by which the rural areas in the district were redivided into new Khands, the Khand relating to the appellant 's Samiti was abolished and the term of the Samiti was brought to a close.
As a consequence, the appellant lost the office of Pramukh of the Samiti.
His writ petition in the High Court challenging the notifications was dismissed.
In appeal to this Court it was contended that : (1) The two notifications are repugnant to the scheme of the Act; (2) Sections 3 and 8 are contrary to the other provisions of the Act under which a Samiti once constituted had a corporate existence with perpetual succession owning property and a fund, and whose existence for 5 years was contemplated under the Act with the possibility of further continuance; (3) Sections 3 and 8 were invalid because they involved excessive delegation of legislative functions to the State Government, and (4) The sections violate article 14 of the Constitution because they furnish an indirect method of re moving the Pramukh, Up pramukh and members of a Kshettra Samiti without resorting to the appropriate provisions in the Act.
HELD : (1) The notifications flow from an express grant of power to the Executive by the Legislature.
[438 B] The Act was intended to make democracy broad based and to give training, in the art of administration and running democracy, to the rural population.
Its scheme indicates that the area of the district is required to be divided into many Khands with a Kshettra Samiti in each Khand.
The power to create Khands must be read with the power to abolish Khads and create new Khands in their place.
Sections 3, 4, 8 and 8A confer power upon the State Government to alter the area of the Khand, abolish old Khands, constitute new Khands and re establish old ones; and this power is given by the Legislature advisedly, so that the working of democracy in the rural areas in Kshettra Samities and Zila Parishads may be smooth and without difficulty.
[435 D E; 437 G H; 538 G] (2) The provisions of sections 3 and 8 cannot be said to negative the other provisions of the Act, which merely indicate what a Kshettra Samiti is required to do as long as it exists.
Perpetual 'succession only means succession of one Samiti to another, but does not entail perpetual existence of any Samiti or any Khand notwithstanding the inadvisability of continuing it for administrative or other valid reasons.
Similarly, the fact that the Samities are required to function with right to hold property, to 434 possess fund and to carry on administration, does not show that the power given by the Act to reconstitute Khands is in any way impaired or frustrated.
The first power exists when the Samities are established and continue; and the second comes into play when the need for the reconstitution of a Khand emerges.
[438 B F] (3) The Act has not erred by conceding unfettered or uncanalized power to the State Government.
[439 D E] The underlying policy and the objective of the legislation is set out in the preamble and other provisions of the Act and the Act gives ample indication of what the purpose of making a Khand is and the duties which the Samiti must perform.
The details of how big a Khand should be, what territory it should involve and how many Samities should be constituted in each district, etc.
cannot be the subject of detailed legislation and they are eminently matters which can be left to the determination of the Executive which is to act in conformity with the wishes of the local people, the political exigency of the situation and the requirements of administrative control.
On this subject the legislative will has been expressed in sufficient detail giving guidance to the State Government in making its notifications to implement it [438 G H; 439 C E] State of Bhopal & Ors.
vs Champalal & Ors., [1964] 6 S.C.R. 35, followed.
(4) Sections 3 and 8 do not violate article 14.
The provision in the Act on the subject of removal of members of a Samiti and that dealing with the subject of reorganisation of Khands deal with different powers and cannot be compared at all.
One is concerned directly with the removal of Pramukh, Up Pramukh and other members, while the other is concerned directly with the abolition and reconstitution of Khands.
It may be that by abolishing a Khand and its Kshettra Samiti the members, including the Pramukh, must also go; but, that is the consequence of the exercise of a different power.
If, however the action in abolishing the Khand is for the direct purpose of the removal of a Pramukh, Up Pramukh or member of a Samiti, the action of the Executive Government can be struck down as mala fide.
In the present case, there is no evidence of any mala fides.
[439 G H; 440 A C] Rani Dial and Ors.
vs State of Punjab, ; distinguished.


judgement:
Appeal No. 431 of 1965.
Appeal from the judgment and decree dated August 22, 1963 of the Andhra Pradesh High Court in Appeal No. 554 of 1959.
H. R. Gokhale and K. R. Chaudhuri, for the appellant.
D. Narsa Raju, section T. Desai, A. Vedavalli and A. V. Rangam for the respondents.
474 The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate on be half of the plaintiff from the judgment of the High Court of Andhra Pradesh in Appeal Suit No. 554 of 1959 dated August 22, 1963.
One Gorantla Tathiah, as the, sole plaintiff, filed O.S. No. 2 ,of 1957 in the Court of the Subordinate Judge '.
Bapatla for possession of certain properties which had been left by Gorantla Veeriah when he died issueless on June 24, 1939.
Originally, there were ten defendants in the suit.
Defendant No. 1 is the maternal uncle of Veeriah and Defendant No. 2 and Defendant .no.
3 are, the sons of Defendant No. 1.
Defendants nos.
4 to 8 were the alienees from Defendant No. 1 's family.
Defendants nos.
7, 9 and 10 did not contest the suit.
Defendant No. 8 died in the ,course of the suit and his legal representatives were added as Defendants I I to 14.
Defendants 1 to 3 contested the suit on the ,ground that Defendant No. 1 became entitled to the properties of Veeriah under the will, exhibit B 4 dated June, 17, 1939 which Veeriah executed in his favour.
It was contended in the alternative that at the time when the reversion opened on the death of Veeriah 's mother, Rattamma on October 1, 1956, Defendant No. 1 was the nearest heir and not the plaintiff, under the Hindu Succession Act (XXX of 1956) which had come into force on October 17, 1956.
The Additional Subordinate Judge, Bapatla held ' that the will was true and genuine but it was not legally valid as it was executed by Veeeriah at a time when he had no testamentary capacity.
It was also held that the Hindu Succession Act did not apply to the facts of the case.
The Additional Subordinate Judge accordingly granted a decree for possession of properties except item No. 4 in favour of.
the plaintiff as against Defendants nos.
I to 3, 6, 7 and I I to 14.
Defendants I to 3, 7, 1 1 and 1 3 took the matter in appeal to the High Court of Andhra Pradesh.
The plaintiff also Preferred a Memorandum of Cross Objections to the ,extent the trial Court 's decree was against him.
By its judgment dated August 22, 1963, the High Court allowed the appeal, holding that the will, exhibit B 4 was executed by Veeriah in a sound and disposing state of mind and that the will was not only true but was valid and binding upon the, plaintiff.
The High Court accordingly dismissed the suit.
The Memorandum of Cross Objections was also dismissed.
The first question to be considered in this appeal is whether the will, exhibit B 4 was true and genuine and was executed by Veeriah in a sound and disposing state of mind.
It is not disputed that one Gangiah died leaving his widow Rattamma and his only son through her called Veeriah and a young daughter.
The girl died without leaving any issue in the year 1932.
Veeriah was a little boy and it is not disputed that 475 he was below average, in intelligence and understanding.
Rattamma alongwith her son took up residence with her brother, Defendant No. I who was a man of great wealth and influence in the.
village, owning fifty acres of land and outstanding credits to the extent of Rs. 20,600/ .
Rattamma 's husband had left properties to the extent of 13 acres of land.
In spite of owning so much property Veeriah was engaged as a cow boy in tending cattle.
In June 1939, he had an attack of typhoid, became bed ridden and ulti mately died of the disease on June 24, 1939.
The case of the contesting defendants was that Veeriah executed the will, exhibit B 4 on June 17, 1939, that D.W. 4 wrote it and nine witnesses attested it but the will was not registered in Veeriah 's life time.
On October 15, 1939, defendant No. 1.
and Raittamma presented the will, exhibit B 4 before the Sub Registrar, Chirala for registration.
The Sub Registrar, however, refused to register the, will by his order, exhibit A 45 in W.C. 4 of 1939.
Defendant No. 1 preferred an appeal before the District Registrar, Guntur but the appeal was dismissed.
Defendant No. I then filed O.S. No. III of 1940 in the court of District Munsif, Bapatla against Ramayya (father of defendants 9 and 10), the plaintiff and Rattamma for a direction for registration of the will.
The District Munsif returned the will to defendant No. I for want of pecuniary ,jurisdiction.
Defendant No. 1 presented it to the Subordinate Judge, Bapatla and got it numbered as O.S. No. 6 of 1941.
The suit was ultimately dismissed by the Subordinate Judge on the question of limitation.
Defen dant No. 1 and Rattamma filed O.S. No. 13 of 1942 in the Subordinate Judge 's court, Bapatla for a declaration that the will was genume and valid.
Ramayya filed a written statement and the suit was ultimately decreed in favour of Defendant No. I and Rattamma.
The present plaintiff, Gorantla Tathaiah was, however, not a party to that suit.
In the will, exhibit B 4 it is stated by the testator as follows ".
Typhoid condition has set in.
As no treatment has been effective in curing this condition I have lost confidence that I will survive.
Therefore I have wholeheartedly made the following disposition regarding my movable and immovable properties in order that there may be no obstruction in future from any source whatsoever.
That my mother Rattamma should be maintained comfortably for her life time and.that in case there is disagreement between her and I material uncle.
Venkatasubbayya and they decide to live separately, my mother, Rattamma, should enjoy the income of the property mentioned in 'B ' Schedule for her life time without exercising any powers of disposition by way of gift, sale etc., over the property and that after her life.
L7 Sup.
C.I./68 6 476 time.
the entire property mentioned in 'B ' schedule should devolve in my maternal uncle, Venkatasubbayya.
My maternal uncle, Venkatasubbayya shall enjoy the entire properties mentioned in 'A ' and 'B ' Schedules with absolute powers of disposition by way of gift, sale etc.
" In the will it is mentioned that Veeriah had sold his land on May 30, 1939 to defendant No. 4 and received an advance of Rs. 165/with the stipulation that the balance of sale price should be paid at the time of registration.
Veeriahl also said that in case he did not live long enough, defendant No. 1 should complete the sale transaction and receive the balance of price from defendant No. 4.
The will was written by one Ammanamanch Sambiah, D.W. 4 the karnam of the village.
There are 9 attesting witnesses of whom three are dead.
On behalf of the plaintiff two of the; attestors P.Ws. 8 and 9 were examined and two attesting witnesses were examined as Court witnesses I and 2.
On behalf of defendants two attesting witnesses D.v.
I and 6 besides the scribe D.W. 4 gave evidence.
P.W. 8 deposed that the testator did not give any instructions or particulars for drafting the will.
The testator was very weak and in a delirious state and he was not in a position to put his thumb impression to the will.
P.W. 9 is stone deaf and he could not give proper evidence.
He did not remember if Veeriah was raving and was tearing his clothes.
D.Ws. 1, 4, 6 and 14 and C.Ws. 1 and 2 say that the testator was in a sound and disposing state of mind.
It was the testator who gave instructions regarding the disposition of the properties.
D.W. 4 wrote the will and read it over to Veeriah who approved of it and put his thumb impression thereon.
The evidence of P.Ws. 8 and 9 is therefore clearly in conflict with the evidence of C.Ws.
I and 2 and D.Ws. 1, 4, 6 and 14.
The evidence of C.Ws.
I and 2 is interested.
It is admitted that C.W. I is related to defendant No. 1 and C.W. 2 is indebted to the first defendant to the extent of Rs. 1,400/ .
As regards D.Ws. 1, 4 and 6, the trial court has remarked that their testimony is not impartial and we see no reason to take a different view as regards the effect of their testimony.
So far as D.W. 1 is concerned, he appears to have khatha dealings with the first defendant.
D.W. 4 admitted that he and Venkata swamy were good friends and worked as karnam and Village Munsif for 30 years.
There was a case of misappropriation against Venkataswamy and D.W. 4 deposed in his favour in that case.
It is in evidence that D.W. 6 is related to Ambati Veeriah who is married to the, first defendant 's niece.
With regard to P.Ws. 8 and 9 the High Court has remarked that they had attested the will without any protest or adding any note Of protest though the testator, Veeriah was not in a sound state of mind at the time of the execution of the will.
In our opinion, this circumstance is of no consequence and the High Court was not justified in reject 477 ing the evidence of P.Ws. 8 and 9 on this ground alone.
On the other hand, there are two important features in the present case which throw a great deal of doubt as to whether the testator was in a sound and disposing state of mind at the time of the execution of the will.
It is the admitted position that, the first defendant took a prominent role at the time of the execution of the will by summoning the scribe and the attesting witnesses.
It is stated by D.W. 1 that the first defendant, also procured the writing materials and the black ink for affixing the thumb impressions of the witnesses.
It is also admitted that the will preferred the first defendant to the mother.
Normally, the testator would have bequeathed all )us property to the mother and would have also given her power to adopt a boy to perpetuate the lineage of the family.
Instead the mother was given, in the will, a life interest in items 1 and 6 and the rest of the properties were given absolutely to defendant No. 1.
It is undisputed that the testator was 24 years of age at the time of the execution of the will and that he was far below the average level of intelligence and understanding and nobody was prepared to offer a girl in marriage to him.
There is evidence that Veeriah was "lacking in wits" and that he was employed for tending cattle.
Further more, the testator was suffering from typhoid fever at the time of the execution of the will and he died a week thereafter i.e., on June 24, 1939.
In exhibit B 4 it is recited that the testator was ailing for about 15 days and had become delirious.
According to D.W. 4 when he arrived Veeriah was lying on a cot and he was not in a position to sit up by himself.
Both D.Ws.
I and 4 admit that the attesting witnesses and the scribe had all bled and waited for nearly an hour, Both P.Ws. 8 and 9 say that at the time of the execution of the will.
Veeriah was in a delirious state.
D.Ws, 1, 4, 6, 14 and C.W. I all admit that the testator was delirious on the day previous to the execution of the will and also subsequent to the day of the execution of the will.
These witnesses, however, state that the testator, was quite all right and in normal condition on the date of the execution of the will.
It is difficult to accept this part of the defence evidence.
Considering that the condition of the testator became, worse and he died a week thereafter it is difficult to accept the, evidence of defence witnesses and of CW.
I that the testator was, in a sound state of mind on the date of the execution of the win but he was in a delirious 'state the day before and the day after the execution of the will.
In our opinion, the Subordinate Judge was right in his conclusion that the testator was physically weak and in a delirious mental state at the time of the execution of the will.
We think the High Court had no justification for reversing the view taken by the Subordinate Judge on this point.
It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who pro 478 pound the will to remove that suspicion.
What are suspicious circumstances must be judged in the facts and circumstances of each particular case.
If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending 7 the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner.
It is observed in Williams on "Executors and Administrators", Vol.
I, 13th Ed., p. 92: "Although the rule of Rom an Law that 'Qui se scripsit haeredem ' could take no benefit under a will does not prevail in the law ' of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased.
" According to the decision in Fulton vs Andrew( '), "those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing, the righteousness of the transaction ". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out".
In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well known observations of Baron Parke in the case of Barry vs Butlin (2).
The two rules of law set out by Baron Parke are : "first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party *rites or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
" In Sarat Kumari Bibi vs Sakhi Chand & Ors., (3) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the (1) (1875) L.R.7H.L.448.
(2) (1838) 2 Moo.
P.C.480,482.
(3) 56 I.A. 62.
479 execution of the will and receives benefit under it.
There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator.
" This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell vs Painton(1): "The rule in Barry vs Butline (2 Moo.
P.C. 480); Fulton vs Andrew [(1875) L.R. 7,H.L. 448]; and Brown vs Fisher [(1890) is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large bene fits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirma tively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." (Lindley, L.J.).
"It must not be supposed the principle in Barry v Butlin ; is confined to cases where the person who prepares the will is the person who takes the benefit under it that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey, L.J.).
It is in the light of these principles that the evidence adduced in this case will have to be considered.
As we have already pointed out, there is abundant testimony in this case which proves 'beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will.
It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and in procuring the writing materials for the execution of the will.
There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiah 's death the first defendant brought Rattamma and Veeriah to his house and was looking after them.
, The first defendant had therefore considerable influence over Veeriah and his mother Rattamma.
(1) ,157,159.
480 There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding.
Having regard to the cumulative effect of all the circumstances we are of opinion that the will, exhibit B 4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff.
We accordingly set aside the finding of the High Court on this issue.
It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case and whether defendant No. 1 was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.
We therefore consider it necessary that the case should go back to the High Court for hearing the parties afresh and recording a finding on this question and to submit it to this Court within three months from the date of receipt of the record by the High Court.
The parties will not be allowed to give additional evidence in the case and the High Court will submit a finding on the evidence already adduced by the parties.
The appeal will be placed for further hearing before this Court after the finding is submitted by the High Court in accordance with the directions we have given.
V.P.S. Appeal remanded.

summary:
One V lost his father when he was only 10 years old and.
thereafter lived along with his mother, in the house of the first defendant who was his maternal uncle.
The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding.
V died when he was 24 years old.
A few.
days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death.
At the time of the execution of the will V was physically in a weak condition.
The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will.
Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will.
On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid.
[480,A B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion.
What are suspicious circumstances must be judged on the facts and circumstances of each particular case.
If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case the court should proceed in a vigilant and cautious, manner.
[477 R; 478 A B] Barry vs Butlin, ; , 482, Fulton vs Andrew, , Tyrrell vs Painton, , 157, 159 and Sarat Kumari Bibi vs Sakhi Chand & Ors., 56 I.A. 62, applied.