judgement:
Appeals Nos. 645 and 646 of 1957.
Appeal from the judgment and decree dated August 1956, of the Patna High Court, in Second Appeals Nos. 2155 and 2156 of 1948.
A. V. Viswanatha Sastri and R. C. Prasad, for the appellant.
B. K. Garg, M. K. Ramamurthi, section C. Agarwal, and D. P. Singh, for respondents Nos.
1 to 4. 1961.
April 28.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
These are appeal against the judgment of the High Court of Patna in Second Appeals Nos.2155 and 2156 of 1948 on certificates granted by the High Court under article 133(1)(c) of the Constitution.
The facts leading to this litigation lie in a narrow compass.
One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate.
For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two persons, Rajdewan Dubey and Kailash Dabey, who were also the next reversioners, for a sum of Rs. 1,100.
It is not in dispute that this deed is binding on the reversioners.
On June 17, 1943, Laung Kuer sold to the appellant a portion of the properties which were the subject matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600 Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was paid in cash.
It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a ruined condition.
It is to meet these expenses that Laung Kuer raised Rs. 500.
After obtaining the sale deed, the appellant sought 561 to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties.
The appellant deposited the mortgage amount in court under section 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption.
Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour the appellant was not binding on the reversioners.
And both the suits were tried together.
The parties were at issue on several questions of fact of which the only one material at this stage is whether the sale in favour of the appellant was supported by necessity and binding on the reversioners.
The District Munsif of Palamau who tried the suits held on a review of the evidence that necessity was established in respect of all the four items of consideration and that the sale was binding on the reversioners.
He accordingly dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a decree for redemption in Title Suit No. 69 of 1944 filed by the appellant.
The respondents herein, the reversioners, preferred appeals against both the decrees passed by the District Munsif of Palamau and they were heard by the Subordinate Judge of Palamau, who, agreeing with the findings given by the District Munsif, affirmed the decrees and dismissed the appeals.
Against these decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in the High Court of Patna.
While these appeals were pending, Laung Kuer died on March 14, 1952, and on the application of the respondents, the plaint in Title Suit No. 126 of 1943 was amended by adding reliefs for possession and mesne profits.
The appeals were then heard by a Bench consisting of Rai and Misra, JJ., who in separate but concurring judgments, held that the sale deed in favour of the appellant was not binding on the reversioners.
Misra, J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity.
Indeed, being a finding of fact, it would be binding on the court in Second 562 Appeal.
He, however, held, following the decision in Dasrath Singh vs Damri Singh (1) that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them.
A different view was taken in Lala Ram Asre Singh vs Ambica Lal (1), where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay.
But the learned Judge declined to follow this decision and stated the reason thus: "Following, therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later or to refer the case to a larger Bench for settling the position.
In my opinion, however, the present case is not one in which it is desirable to refer this case to a larger Bench.
Following, therefore, the authority of this Court in Dasrath Singh 's case which completely covers the present case, it must be held that the courts below were in error in relying upon the decision in Lala Ram Asre Singh 's case."
In the result the learned Judge held that the sale deed in favour of the appellant dated June 17, 1943, was not binding on the reversioners.
Rai, J., expressed the view that as the bona fides of the sale in favour of the appellant was questioned by the reversioners and as there had been no finding on that point by the Subordinate Judge, the matter might have to be remanded for a finding on that question, but that, as the sale deed was not supported by necessity, he agreed with the conclusion of Misra, J. The Second Appeals were accordingly allowed and consequential reliefs granted.
Thereafter, the appellant applied in the High Court under article 133 for leave to appeal to this court, and in granting certificates, Ramaswami, C. J., and Raj Kishore Prasad, J., observed in their (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.(2) 1i Pat.L.T. 6; A.I.R. 1929 Pat.563 Order dated November 27, 1956, that there being a conflict between the decisions in Dasrath Singh 's case (1) and Lala Ram Asre Singh 's case (2), the point was one of sufficient importance for grant of leave to appeal to this Court.
They also stated that the question as to the practice to be followed when there was a conflict of decisions, was likewise one of public importance, which ought to be settled by this Court.
They accordingly granted certificates under article 133 (1)(c) and that is how these appeals come before us.
Before considering the two questions referred to in the order of the High Court granting certificates, we shall deal with a contention raised on behalf of the respondents, which if well founded would necessitate a remand of these appeals.
It was argued that the sale deed in favour of the appellant was not bona fide, that it had been so held by the District Munsif, but that the Subordinate Judge had failed to record a finding on this question, and that therefore there should be a remand for a decision on that point.
As already stated, Rai, J., appears to have been impressed by this contention.
But when the contention is further examined it will be found to be wholly without substance.
What the District Munsif said was that "after the death of Prithi Dubey the relatives of Lawan Kuer had fallen on her property like vultures", and that it was quite possible "that the transaction in question was also brought at their instance and they were also benefited by it."
This only means that the relatives of Laung Kuer were guilty of spoliation of the estate.
But that would not affect the rights of the appellant unless he was a party to it, which, however, is not the case, and that is what the District Munsif himself observes with reference to this aspect: "But in the present suit I have got to consider the interest of Jaisri Sahu who has in good faith already paid Rs. 500 to the Mostt.and has deposited the balance of Rs. 1,100 in court for the redemption of the Zarpeshgi."
This finding that the appellant himself acted bona fide was not challenged before the Subordinate Judge (1) 8 Pat.L.T. 314.A.I.R. 1927 Pat. 219.(2) 11 Pat.L.T. 6; A.I.R. 1929 Pat.564 on appeal and the point is accordingly not open to the respondents.
Dealing next with the points mentioned in the Order of the High Court dated November 27, 1956, the first question that arises for decision is whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage.
This has been answered in the affirmative by the learned Judges of the High Court on the strength of the decision in Dasrath Singh vs Damri Singh (1).
There the last male holder, one Sitaram Singh, had created a usufructuary mortgage, and after his death the widow sold the property for the discharge of this debt and of certain other debts, and for meeting the marriage expenses of her daughter and grand daughter.
It was held by Das and Adami, JJ., that all these items of consideration were supported by necessity, but nevertheless the sale was not binding on the reversioners.
Das, J., who delivered the judgment observed as follows "It is contended that under the terms of the usufructuary mortgage it would be open now to the plaintiffs to redeem that mortgage and it is pointed out that their right to redeem should not have been jeopardised by the widow by the transfer of the property to the mortgagee.
In my opinion this argument is right and should prevail."
If the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it.
Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them.
That, however, is not the law.
When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her.
She fully represents the estate, the interest of (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.565 the reversioners therein being only spes successionis.
The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one.
It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law.
It is for this reason that it has been held that when Crown takes the property by escheat it takes, it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: Collector of Masulipatam vs Cavaly Venkata (1).
Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume.
Her powers in this regard are, as held in a series of decisions beginning with Hanooman Persaud vs Mussamat Ba booee (2), those of the manager of an infant 's estate or the manager of a joint Hindu family.
In Venkaji vs Vishnu (3) it Was observed that "A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided. . she acts fairly to her expectant heirs '."
And more recently, discussing this question, it was observed in Viraraju vs Venkataratnam ( '): "How exactly this obligation is to be carried out, whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound.
In the absence of mala fides or extravagance, and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation."
Judged by these principles, when there is a mortgage subsisting on the property, the question whether (1) (1861) 8 M.I.A. 529.(3) , 536.(2) (4) I.L.R. 231.72 566 the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case.
What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties.
If the income from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income.
In this view, the decision in Dasrath Singh 's case,( ') in so far as it held that a Bale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrong.
In Lala Ram Asre Singh 's case (2), which was a decision of Das and Fazl Ali, JJ., the facts were similar to those in Dasrath Singh 's case (1).
Dealing with the contention that a sale by the widow of properties which were the subject matter of a Zerpesbgi deed was not binding on the reversioners because the Zerpeshgidar was in possession of the properties and he could not sue to recover the amount due thereunder, Das, J., delivering the judgment of the court observed: "This in my view is an impossible argument.
The debt was there; it was a subsisting debt, only the creditor was in possession of a part of the estate and was unable to recover it by instituting a suit in the civil courts.
But the result was that a considerable portion of the income was withdrawn from Basmati Kuer who had succeeded her husband.
It is well established that where a case of necessity exists, an heiress is not bound to borrow money, with the hope of paying it off before her death.
Nor is she bound to mortgage the estate, and thereby reduce her income for life.
She is at liberty, if she thinks fit, absolutely to sell off a part of the estate."
In our judgment these observations correctly state the position in law.
It will be noticed that Das, J., deli (1) 8 Pat.L. T. 314; A.I.R. 1927 Pat.219, (2) ii Pat.L. T. 6; A.I.R. 1929 Pat.567 vered the judgment in both Dasrath Singh 's case (1) and Lala Ram Asre Singh 's case (2 ) and that the decision in Dasrath Singh 's case (1) is not referred to in the judgment in Lala Ram Asre Singh 's case (2).
It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes.
She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her.
On the other hand, by a sale of a portion of the properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to redeem the other properties and the estate had the benefit of the income from those properties.
The District Munsif and the Subordinate Judge on appeal have both of them held on a review of all the facts that the sale in favour of the appellant is a proper one binding on the reversioners.
We are of opinion that this finding is not open to attack in Second Appeal.
Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of the same High Court.
When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
In Buddha Singh vs Laltu Singh (3), the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench.
After referring to Suraya Bhukta vs Lakhshminarasamma (4) and Chinnasami Pillai vs Kunju Pillai (5), where decisions had been given based on the opinions expressed by Devananda Bliatta in the Smriti Chandrika, the Privy Council observed: "Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision, Parasara Bhattar vs Rangaraja Bhattar (6) of the same court to which Turner, (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.(2) 11 Pat.L.T. 6; A.I.R. 1929 Pat.(3) All. (4) Mad.(5) Mad.152 (6) Mad.2. 568 C. J., was also a party.
In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed.
It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies.
Had that course been followed their Lordships would probably have had more 'detailed reasoning as to the change of opinion on the part at least of one Judge." (pp. 622, 623).
Considering this question, a Full Bench of the Madras High Court observed in Seshamma vs Venkata Narasimharao (1): "The Division Bench is the final Court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law.
In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; see The Vera Cruz (No. 2) (2), Harrison vs Ridgway Ratkinsky vs Jacobs (4) and Phillips vs Copping If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the rules of this court provide.
If this course is not adopted, the courts subordinate to the High Court are left without guidance.
Apart from the impro priety of an appellate Bench refusing to regard itself bound by a previous decision on.
a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice, there are the additional factors of the loss of money and, the waste of judicial time."
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in (1) I.L.R. , 474.(2) (3) (4) (5) [1935] 1 K.B. 15.569 case of difference of opinion, the question should be authoritatively settled.
It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision.
The question has also been discussed as to the correct procedure ' to be followed when two such conflicting decisions are placed before a later Bench.
The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later.
In England the practice is, as noticed in the judgment in Seshamma vs Venkata Narasimharao (1), that the decision of a Court of Appeal is considered as a general rule to be binding on it.
There are exceptions to it, and one of them is thus stated in Halsbury 's Laws of England, third edition, Vol. 22, para.
1687, pp. 799, 800: "The court is not bound to follow a decision of its own if given per incuriam.
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.
In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords." In Virayya vs Venkata Subbayya (2) it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in Bilimoria vs Central Bank of India (3 ).
The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other.
We have no doubt that when such situations arise, the Bench (1) I.L.R. , 474.(2) A.I.R 1955 Andhra 215, 217.(3) A.I. R. 570 hearing cases would refer the matter for the decision of a Full Court.
In the result these appeals are allowed and the decrees passed by the trial court restored with costs throughout.
One set of hearing costs.
Appeals allowed.

summary:
P died on July 14, 1932, leaving behind his widow, L as his heir.
On June 21, 1935, L executed a Zerpeshgi in favour of the respondents for an admittedly binding purpose, and on June 17, 1943, she sold to the appellant a portion of the properties which were the subject matter of the Zerpeshgi deed for the purpose of redeeming the Zerpeshgi and for certain other necessary purposes.
The respondents who were the reversioners 559 instituted a suit challenging the validity of the sale.
The trial court and the lower appellate court held that the sale was a proper one binding on the reversioners.
On second appeal, a Division Bench of the Patna High Court took a contrary view and allowed the appeal.
One of the judges while he did not disagree with the findings of fact of the courts below as to the necessity for the sale followed a decision of the same High Court to the effect that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of reversioners to redeem them.
A different view of the law had been taken in a later decision of that court, but the learned judge declined to follow that decision observing that the practice of that Court was either to follow the previous Division Bench ruling in preference to the later or to refer the case to a larger Bench for settling the position, but that in the present case it was not desirable to adopt the latter course.
The other learned judge was of the opinion that the sale deed was not supported by necessity.
Held, that the High Court was in error in holding that the sale deed in favour of the appellant was not binding on the reversioners.
When there is a mortgage subsisting on the property, the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case.
What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties.
Hanooman Persaud vs Mussamat Babooee, , Vankaji vs Vishnu, Bom.
534 and Viraraju vs Vankataratnam, I.L.R. , relied on.
Dasrath Singh vs Damri Singh, A.I.R. 1927 Pat.
219, dis approved.
Lal Ram Asre Singh vs Ambica Lal, 1929 Pat.
216, approved.
Held, further, that when a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Where two conflicting decisions are placed before a later Bench, the better course for the latter is to refer the matter to a Full Bench without taking upon itself to decide whether it should follow the one Bench decision or the other.
Buddha Singh vs Laltu Singh, All. 604, Seshamma vs Venkata Narasimharao, I.I.R. , Bilimoria vs Central Bank of India, A.I.R. 1943 Nag.
340 and Virayya vs Venkata Subbayya, A.I.R. 1955 Andhra 215, con sidered.


judgement:
Appeals Nos. 499 to 502 of 1958.
Appeals from the judgment and decree dated July 13, 1956, of the former Travancore Cochin High Court in A. section Nos.
94, 95, 96 and 156 of 1952.
G. section Pathak and G. C. Mathur, for the appellants (in C. As.
499 to 501 of 58).
P. George and M. B. Krishna Pillai, for the appellants (in C. A. No. 502 of 58).
T. N. Subramania Iyer, B. Ganapathy Iyer and G. Gopalakrishnan, for the respondent.
January 27.
The Judgment of the Court was delivered by KAPUR, J.
These four appeals are brought against the judgments and decrees of the erstwhile High Court of Travancore Cochin.
The appellants were the plaintiffs in the respective suits out of which these appeals have arisen and the respondent was the defendant in all the suits.
As all the suits involve a common question of law, it will be convenient to dispose of them by one judgment.
The facts of the cases are these.
On September 9, 1943, the Nagercoil Municipal Council the respondent, passed a resolution under section 78 of the Travancore District Municipalities Act (Act XXIII of the Malayalam year 1116), hereinafter called the Act.
By this resolution, it was resolved to levy a profession tax at the rates specified in the schedule.
This was notified in the Government Gazette of September 26, 1943, under the name of the Commissioner of the respondent Council.
In this notification, it was stated : " Any inhabitant of the local municipal town objecting to the proposal may submit his objection in writing to this office within 30 days of date of publication of this notification in the Government Gazette.
This notification was also published in a local newspaper called the Abhimani.
It does not appear, nor is there any assertion or allegation that any 611 objection was raised to this tax by the appellants or any one else.
On January 12,,1944, a resolution under section 79 of the Act wag passed, by which the profession tax became payable from the beginning of the second half of the Malayalam year 1119.
A trust, Kottar Chetty Ninar Desikavinayaga Swamy filed a suit on February 10, 1946, challenging the legality of this tax.
C.A. 502 of 1958 has arisen out of that suit.
Amongst other allegations, which are common to the other suits, which will be mentioned presently, the trust pleaded that it was not carrying on a profession within the meaning of the word used in the Act and that it was only a religious trust and had no profes sion.
That suit was tried by the Munsif and was decreed.
An appeal was taken against that decree to the District Judge.
Three private limited companies carrying on business brought three suits challenging the legality of the imposition of the tax out of which the other three appeals, i.e., Civil Appeals Nos. 499 to 501, have arisen.
In these suits, it was alleged that the publication of the resolution was not in accordance with the provisions of section 78 of the Act in so far as (1) it was not published by the respondent Municipal Council, but by the Commissioner; (2) the newspaper in which the advertisement was published was not selected by the Council; (3) time given in the notification was fixed not by the Council, but by the Commissioner; and (4) the period prescribed in the notification, that is, " within 30 days ", was not fixed by the Council and was not in accordance with the Act.
The respondent Municipal Council denied these allegations and several issues were raised and the suits were decreed.
The appeal which had been taken in the suit by the Trust was also decided in favour of that plaintiff.
The result was that all the suits and the appeal were decided against the respondent Municipal Council.
It took four appeals to the High Court.
The decrees were reversed and the suits of the various plaintiffs were dismissed.
Against those judgments and decrees, these four appeals have been brought by the plaintiffs, in the various suits, who are now the appellants.
612 In Civil Appeals Nos. 499 to 501, Counsel for the appellants has raised two points (1) that the publication was not by the Council and (2) that the time given in the notification, i.e., " within 30 days " was not in accordance with the law and as these were conditions precedent to the legality of the resolution under section 79 the resolution was ultra vires and therefore the imposition of the tax was illegal.
It is, therefore, necessary to examine the various provisions of the Act upon which the whole argument has proceeded.
Chapter VI of the Act deals with Taxation and Finance.
In section 77 are enumerated the various taxes which can be levied by Municipal Councils.
Section 78 gives the procedure for the levying of the tax and when quoted it is as follows: "section 78.
Resolution of Council determining to levy tax or tolls.
Any resolution of a municipal council determining to levy a tax or toll shall specify the rate at which any such tax or toll shall be levied and the date from which it shall be levied: Provided that before passing a resolution imposing a tax or toll for the first time or increasing the rate of an existing tax or toll, the council shall publish a notice in Our Government Gazette and at least in one Malayalam or Tamil newspaper having circula tion in the municipality of its intention, fix a reasonable period not being less than one month for submission of objections, and consider the objections, if any, received within the period specified." (Italics are ours).
After the various steps given in section 78 have been taken, a Municipal Council has then to adopt the taxes proposed by means of a resolution under section 79, which provides : "S.79.
Notification of new taxes and tolls When a municipal council shall have determined subject to the provisions of Section 78 to levy any tax or toll for the first time or at a new rate the executive authority shall forthwith publish a notification in Our Government Gazette and by beat of drum specifying the rate at which the date from which, 613 and the period of levy, if any, for which such tax or toll shall be levied.
" The functions of the executive authority, that is, of the Commissioner of the Council are contained in section 16 of the Act, which is as follows : "section 16.
Functions of the Executive Authority.
The executive authority of the municipal council shall (a) carry into effect the resolutions of the council; (b) furnish to the council such periodical reports regarding the progress made in carrying out the resolutions of that body in the collection of taxes as the council may direct; and (c) perform all the duties and exercise all the powers specifically imposed or conferred on the executive authority by this Act, and subject, whenever it is hereinafter expressly so provided, to the sanction of the council, and subject to all other restrictions, limitations and conditions hereinafter imposed, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purposes of this Act.
" Section 16, which contains the power of the executive authority, does not support the contention of the appellants, because it provides that the executive authority has to give effect to the resolutions of the council and has to perform all duties specifically imposed on the executive authority by the Act and can also exercise executive power for the carrying out of the provisions of the Act and can act without sanction, unless the Act otherwise requires.
Therefore, when the Commissioner of the respondent council got published a notification of the resolution under section 78 of the Act to impose a tax, he was acting within his powers and the fixing of the time in which objection had to be made was provided under the Act and was not exercise of authority by the executive which it did not possess.
The only serious question which arises for decision is whether the period of " within thirty days " given" in the notification was compliance with the provisions of the Act or not.
If it was not then is the period of 614 time mentioned a mandatory requirement, a breach of which makes the tax illegal? Counsel for the appellants in the first three appeals argued, and that argument was adopted by counsel for the appellant in the fourth appeal, that the words used in the first proviso to section 78 required that a clear period of one month had to be given for inviting objections and as "within thirty days" was not a clear period of one month, the provisions of the section had not been complied with.
In support of his contention that the provision as to time was a mandatory requirement, he particularly stressed three words and phrases used in that proviso: (1) "before passing a resolution " ; (2) " shall publish " ; and (3) " fix a reasonable period not being less than one month for submission of objections.
" The argument was that where these words are used, the effect was that the requirements were mandatory and not merely directory.
It was submitted that the words "before" and ",shall " provided that what was mentioned in the proviso were conditions precedent for giving power to the Municipal Council to pass a resolution under a. 79 and when those two words were read along with " not being less than one month ", it was a clear indication of the mandatory nature of the requirements of the section.
Quite a number of cases were relied upon by Counsel and besides this it was also emphasized that sections 78 and 79 concerned taxing matters and as the liability of the taxpayers arises after the tax is legally imposed, strict compliance with the provisions was necessary.
It is not necessary to discuss all the cases on which reliance was placed.
The words " not being 'less than one month " do imply that clear one month 's notice was necessary to.
be given, that is, both the first day and the last day of the month had to be excluded.
To put it in the language used by Maxwell on Interpretation of Statutes, 10th Edition, p. 351 : ". when. . not less than ' so many days are to intervene, both the terminal days are excluded from the computation," 615 That does not seem to have been done in the present case.
But in order to decide whether this portion of the proviso is a mandatory provision, it is convenient to see the object for which it has been enacted.
Under section 78, the procedure is laid down for the levying of a. new tax, which has to be done by a resolution.
But in the proviso, it is stated that before such a resolution can be passed, a notice to that effect has to be published in the official gazette and also in one Malayalam or Tamil newspaper having circulation within the municipality.
Then comes the period for inviting objections.
The object of notifying in the Gazette and Local Newspaper is both to give notice to the public and particulary to the persons who are likely to be taxed and to invite their objections.
For this purpose, the proviso requires a reasonable period of not less than one month to be given.
The object of the provision is to give reasonable time and opportunity and it is given as a guidance that reasonable time would be a month.
The use of the words "I reasonable period" before the words ,not being less than one month " is significant.
If sufficient time has been given for the invitation of the objections which only just falls short of the period mentioned in the proviso, then it would serve the object of the legislature.
The provision in regard to time in the context must be held to be directory and not mandatory.
The cases under the Income tax Act like the Commissioner of Income tax vs Ekbal and Co. (1) where the notice under section 22(2) of the Income tax Act (which requires the furnishing of a return within such period not being less than thirty days) of 30 days only was held to be bad, because it was not a notice of thirty clear days, were so decided because that notice is the basis of the jurisdiction to tax, and a legal notice is an obligation imposed in order to tax an individual and it is a mandatory provision.
Similarly, cases under Rent Act will also not apply.
In Thompson vs Stimpson (2) the law required that not less than four (1) [1945]13 I.T.R. 154.
(2) , 79 weeks ' notice shall be given for vacation of premises on a weekly tenancy and only one week 's time was given.
It was held there that it was a bad notice.
It was further held that four weeks ' notice was a condition precedent and the words had been used which had been interpreted in the past as providing for four clear weeks and also it was construed as four clear weeks, so that there might be certainty in the matter.
In other cases, that were relied upon and which related to taxing statutes, the Municipal Council, Cuddapah vs The Madras and Southern Mahratta Railway Ltd. (1), The Borough Municipality of Amalner vs The Pratap Spinning, Weaving and Manufacturing Co. Ltd., Amalner (2) and Kalu Karim vs Municipality of Broach (3) ; it was held that taxing statutes have to be strictly construed and requirements which are precedent to the imposition of the tax have to be complied with before tax can be legally imposed.
In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved.
As we have said above, the use of the words " not being less than one month " implies the giving of a clear month excluding both the first and the last day of the month.
There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in Thompson vs Simpson (4) will apply.
But the question that arises in the present case is: what is the exact significance of these words when used in the context of the other words used in the proviso.
The power of the municipality to levy the tax does not depend upon a period prescribed for notice for objections.
The power to tax is derived from the Statute; the provisions relating to the length of notice inviting objections and publication are merely procedural.
The object of the notification is to inform the future rate payers and to invite objections from them.
The proviso itself uses words " reasonable time" '.
Reading " reasonable time " and " not being less than one month" together, it is clear that the (1) Mad. 779.
(2) I.L.R. (3) Bom.
(4) 617 time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed.
In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part.
Counsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade.
This question was never raised at any previous stage and was not taken in the statement of the appellants ' case.
Therefore, it cannot be allowed ' to be raised.
Besides it is without any substance in view of the definition of profession as given in section 91 of the Act, which includes business.
In our opinion, the High Court ,Was right in so holding and the three appeals Nos.
499 to 501 of 1958 are dismissed with costs, one hearing fee.
Coming now to Civil Appeal No. 502 of 1958, in the plaint it was alleged that the trust was a religious trust and was following no profession and therefore it did not fall within the definition of the word " profession " as used in section 91 of the Act.
The defendant joined issue and the matter was put in issue in the following form: "Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act ?" Although no specific finding was given as regards the operation of section 91, the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings, that is, in appeal in the court of the District Judge and in the High Court.
It is this point which was urged by counsel for the trust; his plea was that his case was not covered by section 91, as being a religious trust it had no profession and was carrying on none.
That is a matter which, in our opinion, should have been decided, and as neither the District 618 Judge nor the High Court has given a finding on that point, it is necessary to remit the case to the High Court with the direction that the appeal be reheard and that particular question be decided on the materials on the record.
Nothing that has been said in this judgment must be taken to be an expression of opinion on the merits of this plea taken by the appellant Trust.
Appeal No. 502 of 1958, is therefore, allowed and the case remitted to the High Court for decision.
The costs in this Court and in the High Court will abide the decision of the appeal in the High Court.
Appeals nos.
499 to 501 dismissed.
Appeal No. 502 allowed.
Case remitted.

dataset_name: IN-Abs

summary:
The imposition of "profession tax" by the respondent Municipal Council under the Travancore District Municipalities Act (Act XXIII of the Malayalam year 1116) was challenged on the grounds, inter alia (1) that the requisite notification was not published by the Municipal Council but by its commissioner, (2) that the period of thirty days which was given for filing objections to the imposition was insufficient in law which required a period of " not less than a month ", and (3) that this was a mandatory provision under the proviso to section 78 of the Act.
Held, that under section 16 the Commissioner being the executive authority of the Municipal Council was authorised to give effect to the resolutions of the Council and to perform all its executive duties.
The words " not being less than one month " in the proviso to section 78 implied the necessity for one clear month 's notice excluding the first and last day of the month, but the use of the words " reasonable period " before the words " not being less than one month " showed that the time given must be reasonable.
In view of the facts of the case the period allowed must be regarded as reasonable and to have complied with the provision which is directory in its later part.
Commissioner of Income tax vs Ekbal and Co. [1945] 13 I.T.R. 154 and Thompson vs Stimpson, , distinguished.
Municipal Council, Cuddapah vs The Madras and Southern Mahratta Railway Ltd. Mad. 779, The Borough Municipality of Amalner vs The Pratap Spinning, Weaving and Manufacturing Co. Ltd., Amalner, I.L.R. and Kalu Karim vs Municipality of Broach BOM.
764, referred to.
610 The definition of " profession " as given in section 81 includes business.