judgement:
No. LXX of 1949.
Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated the 22nd April, 1943.
100 782 M.C. Setalvad, Attorney General for India (Sri Narain And ley, with him), for the appellant.
P.L. Banerjee (H. J. Urnrigal, with him), for the respondents.
November 14.
MLKHERJEA J. This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939.
The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond.
The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor.
The loan carried interest at the rate of 9 per cent per annum and there was a stipula tion to pay the mortgage money within one year from the date of the bond.
The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture.
It was stated in the plaint that absolutely nothing was paid by the mortgagor or his succes sor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent.
per annum up to the date of the suit.
A number of pleas were taken by the contesting defend ant in answer to the plaintiff 's claim, most of which are not relevant for our present purpose.
The 783 substantial contentions raised by the defendant were of a three fold character.
In the first place, it was urged that the document sued upon was not a properly attested or valid ly registered document and could not operate as a mortgage instrument in law.
The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2,000, which was represented by items 3 and 4 of the consideration clause in the document.
The third and the last material defence related to a claim for relief under the United Provinces Agriculturists ' Relief Act.
The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas.
The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5,500 with interest at certain rates as are sanctioned by the U.P. Agriculturists ' Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.
Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Verma and York JJ.
The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiff 's suit on one ground only, viz., that the bond was not attested in the manner required by law and consequently could not rank as a mortgage bond; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the plaintiff.
It is against this judgment that the plaintiff has come up on appeal to this court, and the main contention raised by the learned Attorney General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materi als in the record it had no justification for reversing the findings of the trial court on that point.
The question for our consideration is undoubtedly one of fact, the decision of which depends upon the 784 appreciation of the oral evidence adduced in the case.
In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court.
This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge.
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par ticular witness which has escaped the trial Judge 's notice or there is a sufficient balance of improbability to dis place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(1).
The gist of the numer ous decisions on this subject was clearly summed up by Viscount Simon in Watt vs Thomas(2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3).
The observations are as follows: "But if the evidence as a whole can reasonably be re garded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.
This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.
Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when (1) Vide Lord Atkin 's observations in W.C. Macdonald vs Fred Latinmer, AI.R. 1929 P.C. 15, 18.
(2) at p. 486.
(3) Vide Saraveeraswami vs Talluri, A.I.R. 785 estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their evidence is given.
" It is in the light of these observations that we propose to examine the propriety of the decision of the s learned Judges of the High Court in the present case.
It will appear that the mortgage deed besides containing the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting wit nesses and the third one as the scribe.
Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe.
Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act.
Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor; nor did the mortgagor sign in their presence.
On this statement being made, the witness was declared hostile and he was allowed to be cross examined by the plaintiff 's Counsel.
He was cross examined by the defendant also and in answer to the questions put to him by the defendant 's lawyer, he stated that he signed the deed at the Collector ate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the scribe.
Jawala Prasad Tewari signed the deed after him.
The mortgagor certainly did not come to that place and his signature was already on the deed when the witness signed it.
The details of the defendant 's version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the 786 side of the defendatnt.
He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace.
The draft was prepared under instructions from Bhikhi Ram, the mortgagee.
and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared.
After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature.
After obtaining the Raja 's signa ture, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collector ate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari.
They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja.
As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal.
According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and not his father, went to the Raja 's palace at about 10 or 11 A.M. in the morning to get the document executed.
He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed.
They found Jawala Prasad Patwari already with the Raja when they reached the Kot.
The draft was prepared by Buddhu Lal at the suggestion of the Raja.
It was the plaintiff 's desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad patwari.
After the Raja had put his signature on the 787 document in the presence of Harbhajan Lal and Tewari, both the latter signed the document in the presence of the Raja.
The subsequent events narrated by the plaintiff relate to the registration of the document and we do not consider them to be material for our present purpose.
This story of the plaintiff is supported materially and on all points by Buddhu Lal, who was an old servant of the family, though he was no longer in service when he deposed in court.
There were thus two conflicting versions placed before the court and each side attempted to substantiate its case by verbal testimony of witnesses.
The trial Judge was to decide which of the two versions was correct and he ac cepted the story of the plaintiff and rejected that of the defendant.
The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impres sions created in his mind by the witnesses who deposed before him.
What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant 's witnesses.
It is observed by the High Court that the trial Judge, when he found the defendant 's story to be improbable, should have considered whether or not there were improbable features in the plaintiff 's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all.
The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant 's case was unreliable.
These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff 's story 788 as narrated by him and his servant is improbable and not worthy of belief.
In our opinion, the High Court 's approach to the case has not been proper and its findings are unsupportable on the materials in the record.
Here was a case where the controversy related to a 'pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties.
It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not possess.
The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge 's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses (1).
The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improba bility arising from proved circumstances which, in the opinion of the court, outweighs such finding.
Applying this principle to the present case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document.
In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is not at all probable that the plaintiff and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed.
The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going 'to execute a document in his favour.
The learned Judges seem to think that the plaintiff was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plaintiff in order to Vide the observations of Lord Carson in Nether landsche Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202, 205.
789 enable him to prove attestation.
Mr. Banerjee appearing for the defendant respondent went to the length of suggesting that it was only after Harbhajan Lal turned hostile in the witness box and denied that he attested the document that the new story was invented by the plaintiff.
We think that this argument rests on an extremely flimsy basis which does not bear examination.
It may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram.
As, however, he was the Raja of Basti, the document was executed at his palace and not in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transac tion.
The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.
It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion.
It appears from the evidence on the record that Harbhajan Lal, who was a pro fessional deed writer, was usually employed for writing deeds of the plaintiff 's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff 's father was a party.
It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith him to the Raja 's palace on the day that the 790 mortgage bond was executed and we see no reason to disbe lieve the plaintiff 's statement that his original intention was to have the deed scribed by Harbhajan Lal.
It is said by the High Court that in the mofussil districts in the United Provinces the Patwari is the person generally em ployed for drafting and scribing deeds.
This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari.
We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the plaintiff 's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work.
In this case also if Jawala Prasad Patwari had not been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiff 's father had been scribed by this man on previous occasions.
We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff consented to the document being scribed by Jawala Prasad Patwari.
As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the plaintiff 's family.
That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (exhibit 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the dis puted mortgage deed.
We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Raja 's palace on the day of the execution of the document.
The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Kutchery as alleged by him.
Speak ing for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree wit.h the trial Judge in holding that Harbhajan 791 Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation.
On his own evidence he had attested numerous documents and he could not recall.
a single instance where he signed the document in such manner as he did in the present case.
The ' way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal 's evidence does not appear to be satisfactory.
The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over confidence is not relevant and need not be taken seriously.
Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja 's Kot after the document was executed.
Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted.
Why Harbha jan Lal did go over to the defendant 's side is a question which may not admit of an easy answer.
The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co villager of Harbhajan.
We think it unnecessary to specu late upon these matters, for in our opinion Harbhajan Lal stands condemned by his own statement in court.
Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion.
The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inade quate grounds.
The result is that the appeal must be allowed and the judgment of the High Court should be 792 set aside.
As the High Court, however, has dismissed the suit only on the ground of non attestation of the mortgage bond and did not consider the other points which were raised before it, the case must go back to that court in order that the other matters, which have been left undecided, may be heard and decided by the learned Judges and the case dis posed of in accordance with law.
The plaintiff appellant is entitled to costs of this hearing as well as the costs of the High Court against defendant No. 1.
Appeal allowed.

summary:
When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact.
It would not detract from the value to be attached to a trial judge 's finding of fact if the judge does not express ly base his conclusion upon the impressions he gathers from the demeanour of witnesses.
The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.
[Where the High Court reversed a finding of fact arrived at by the trial court depending on oral evidence on the ground that the rule that the appellate court should be s1ow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him, but upon the inherent improbability of the circumstances deposed to ,the Supreme Court held that the high court 's approach to the case was not proper and, after weighing the whole evidence in case reversed the finding of the High Court.] W.C. Macdonald vs Fred Latimer (A.I.R. 1929 P.C.15 at p. 18), Watts vs Thomas ([1947] A.C. 484 at p. 486), Sarave eraswami vs Talluri (A.I.R. 1949 P. C. 39.), Nether landsche Handel Maatschappij vs
R.M.P. Chettiar Firm and Others (A.I.R. ,205), referred


judgement:
Appeal No. 63 of 1952.
Appeal from the Judgment and Order dated 7th November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and Deshpande JJ.) in Civil Case No. 9 A 5 1 of 1950.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi and Ghulam Ahmad Khan, with them) for the appellants.
B. Somayya and Akbar Ali Khan (B. V. Subharayudu, with them) for the respondents.
December 9.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 (1) of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7, 1950, passed on a petition under article 226 of , the Constitution.
By this judgment the learned Judges of the High Court declared an Act, known as the Waliuddowla Succession Act of 1950, void under article 13(2) of the Constitution to the extent that it affected the 'rights of the present, respondents 1 to 12 who were the petitioners 'in the article 226 proceeding.
The object of the impugned Act, which received the assent of H.E.H. the Nizam as Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes that existed at the time regarding succession to the matrooka or personal estate of Nawab Waliuddowla ', 'a wealthy nobleman and a high dignitary of Hyderabad, and what, in substance, the Act provided was to dismiss the claims of succession to the said properties put forward by two of the alleged wives of the late Nawab, named Mahboob Begum and Kadiran Begum, and their children.
These two ladies as Well as their 406 children filed a petition before the Hyderabad High Court under article 226 of the Constitution challenging the validity of the Act mentioned aforesaid inter alia on the grounds that it conflicted with the petitioners ' fundamental rights guaranteed under articles 1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition.
The claim was resisted by Ameerunnissa Begum, an admitted wife of the late Nawab, and her children, and they are the persons who would primarily be benefited by the provisions of the impugned Act.
The High Court ,substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected them.
Against this decision the present appeal has been taken to this court by Ameerunnissa Begum and her children.
To appreciate the contentions that have been raised by the parties, a brief resume of the antecedent events leading up to the passing of the disputed legislation would be necessary.
Nawab Waliuddowla, who was one of the Paigah noblemen of Hyderabad and was at one time, the President of the Executive Council of the State, died at Medina on February 22, 1935, while on a pilgrimage to Hedjaz.
Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind him matrooka or personal estate of considerable value.
As regards the surviving relations of the Nawab, who could claim rights by inheritance to his estate, it is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased, There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive.
It appears, however, that she left her husband soon after marriage and did not return to him any time thereafter.
During the period, which is material for our present purpose, the 407 only claim which she put forward against the estate of the Nawab was one for recovery of her dower debt &mounting to one lakh of rupees.
The whole dispute between the parties to this litigation really centered round the point as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who are respectively respondents I and 5 in this appeal, were, the lawfully married wives of the late Nawab or were they merely in his keeping as.
kavases or permanent concubines? If there was no legal marriage between them and the Nawab, it is not disputed that their children, though admittedly begotten on them by the Nawab, would not be entitled to any share in the matrooka or personal estate left by the deceased.
, This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of the Paigah estate amongst the heirs of the late Nawab.
In April, 1935, shortly after Ameerunnissa Begum, who had accompanied her husband to Mecca, returned to Hyderabad after the death of the latter, the Committee addressed letters to Ameerunnissa Begum, Fatima Begum and also to Mahboob Begum enquiring about the wives and children left, by the Nawab.
No letter, it seems, was sent to Kadiran Bi.
On a consideration of the replies given by the several addressees and also of the statements made on their behalf at the hearings before the Committee, the latter submitted a report to the Executive Council of the Nizam.
The Paigah Committee proceeded on the footing that the Nawab 's marriage with Ameerunnissa Begum was beyond dispute, but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee, she as well as Kadiran Bi were treated as concubines.
The Committee recommended that the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab 60% of the income was to go to Ameerunnissa Begum and her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well as to 53 408 their children.
These recommendations were approved by the Nizam in a Firman dated 9th July, 1936.
Previous to this, express intimations were given to the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding the matrooka or personal estate of the Nawab, should be decided by proper proceedings in a court of law and pending such decision the estate might be kept ' under the supervision of the Paigah Committee.
On the 8th February, 1938, Mahboob Begum and her children filed a suit in the Dar ul Quaza, which was a court established under the law for deciding rights of succession, marriage, divorce etc.
of the Muslims in the Hyderabad State, praying for a declaration that Mahboob Begum was the legally married wife of the Nawab and the children were his legitimate children and for other consequential reliefs in the shape of participation in the matrooka and recovery of the dower debt payable to Mahboob Begum.
Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in the suit.
During the pendency of the suit and before it came on for actual hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on the application of Ameerunnissa Begum, directing the withdrawal of the suit from the Dar ul Quaza court and the appointment of a Special Commission consisting of Nawab Jiwan Yar Jung, the then Chief Justice of Hyderabad and the Judge of Dar ul Quaza before whom the suit was pending, to investigate the matter and submit a report to the Nizam through the Executive Council.
Proceedings before the Special Commission commenced on 27th March,1939.
Kadiran Bibi filed a plaint before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children, and though this plaint was at first rejected by the Commission it was subsequently entertained under specific orders of the Executive Council.
It appears that Fatima Bibi also lodged a plaint in respect of 409 her Mahar against the estate of the Nawab and ,this matter was also directed to be investigated by the Commission.
The enquiry before the commission was a long affair in which a large volume of evidence, both oral and documentary, was adduced.
The Commission submitted the report on October 16, 1944, and their findings, in substance, were that both Mahboob Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka.
Fatima Begum was also held to be a legally wedded wife of the Nawab, and as such entitled to the dower claimed by her.
When the report came up for consideration by the Executive Council the Members of the Council were divided in their opinion.
A minority was in favour of accepting the findings of the Commission but the majority view was that further expert opinion should be taken in the matter.
Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August, 1945, that the report of the Special Commission should be scrutinised by an Advisory Committee consisting of three persons, namely, two Judges of the High Court and the Legal Adviser of the State.
This Committee was directed to examine fully the bulky report of the Special Commission and submit their opinion with a view to assist the Executive Council in coming to their decision.
They were not to take any fresh evidence or hear any further arguments from the parties.
The Advisory Committee submitted their report on 24th November, 1945, and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum was the legally wedded wife of Nawab Waliuddowla.
Despite this report, the majority of the Executive Council recommended that the findings of the Special Commission should be accepted.
The Nizam accepted this recommendation and by his Firman dated 26th June, 1947, directed that the findings of the Special Commission should be implemented at an early date.
410 There was a proposal at the beginning that the members of the Special Commission themselves should be asked to implement their findings, but eventually it was decided by a resolution of the Executive Council dated 22nd September, 1947, that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of the Hyderabad High Court.
It appears that in subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June, 1947, by now orders in the nature of a compromise.
The Executive Council, however, stuck to their decision and on 17th June, 1948, the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible.
On 2nd July, 1948, another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to His Exalted Highness for his sanction.
This direction was embodied in a resolution of the Executive Council dated 2nd September, 1948.
The police action in Hyderabad commenced soon after that and it was on 25th September, 1948, after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of the resolution mentioned above was made to the Chief Justice.
Soon afterwards on the application of Ameerunnissa Begum made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16th October, 1948.
This stay order was again cancelled on 5th November, 1948, and the execution proceedings were allowed to continue.
On 5th December, 1948, the Chief Justice submitted his report regarding the distribution of the matrooka to the Executive Council.
Strangely, however, by a Firman dated 24th February, 1949, the Nizam purporting to set under the advice of the Military 411 Governor directed that the findings of the three men Advisory Committee, who differed from the views taken by the Special Commission, should be given effect to.
In other words, the claims of Mahboob Begum and Kadiran Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as the dower due to the latter.
Protest was lodged against the decision by Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam under the advice of the Military Governor on 7th of September, 1949.
By this Firman the earlier order of 24th February, 1949, was revoked and the whole case was referred for opinion and report to Sir George Spence, the Legal Adviser to the Military Governor, who was directed to hear the parties and take such further evidence as he considered necessary.
The enquiry then began before the Legal Adviser but neither party adduced any evidence.
Sir George Spence submitted his report on 7th January, 1950.
The material findings and recommendations in his report were as follows: " 76.
My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the matrooka.
77.If this finding is accepted, the order required for its implementation would be an order dismissing the claims of Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar.
" The Constitution of India came into force on 26th January, 1960.
As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties.
Recourse was 412 therefore had to legislation and on April 24, 1950, this impugned Act was passed which purported to give a legislative sanction to the findings in the report of Sir George Spence.
The material provision of the Act is contained in section 2, clause (1), which *lays down that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab Waliuddowla are hereby dismissed".
The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account of her Haq Mahar.
Under section 3, the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the High Court of Hyderabad shall, on the application of any person interested in the decision affirmed in section 2, execute the said decision as if it were a decree passed by itself and such person was a decree holder.
It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla.
It may be conceded that before the coming in of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans, which were issued by him in connection with the present dispute, may appear to be capricious and arbitrary, strictly speaking they were not 'unconstitutional in the sense that they were beyond his competence as the supreme legislature in the State.
After the Constitution came into force and prior to the setting up of a duly constituted legislature in the Hyderabad State, the legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the State under the provision of article 385 of the Constitution read with article 212 A (2) inserted by the President 's (Removal of Difficulties) Order No. II dated 26th January, 1950; but the legislative power exercisable by the Nizam was a strictly limited power.
The Rajpramukh 413 was not only to act in conformity with the provision of article 246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to the entries in the different legislative lists, but the legislation must not be in conflict with any of the fundamental rights guaranteed under Part&, III of the Constitution.
The impugned Act, as its title and preamble show, was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala.
Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not legitimate, there was no express declaration to that effect in the operative portion of the Act which merely lays down that the claims of these two ladies as well as of their children to participate in the distribution of the matrooka of the late Nawab are dismissed.
The legislation may be said to relate to succession and indirectly to marriage also and as such may come within the purview of entry 5, List III of the Seventh Schedule to the Constitution.
It has not been argued by Mr. Somayya, who appeared for the respondents, that a legislation on these topics must be a general legislation; but it has not been disputed by either side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of the Constitution.
The contention of the learned Attorney General is that the legislation in the present case does not violate the principles of the equality clause and he has attempted to combat with much force the decision of the High Court on this point.
This is the main question in the case which requires to be examined carefully.
The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition.
It is well settled that a legislature which 414 has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects ; and for that purpose it must have large powers of selection or classification of persons and ,*things upon which such laws are to operate.
Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause.
To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.
The learned Attorney General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal vs The Union of India(1) and he attempted to call in his aid the two propositions recognised and relied upon in that decision, namely, (1) that the presumption is always in favour of the constitutionality of an enactment, and (2) a law may be constitutional even though it relates to a single individual, family or corporation.
The pro positions themselves may be well founded but whether or not they would apply to a particular case would depend upon the facts and circumstances of that case.
In Chiranjit Lal 's case (1), it is to be noted, the circumstances were somewhat exceptional.
The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community, and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social, political and economic interest of the community as a whole.
In doing so, as Prof Willis observed, the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and capable of sustaining the classification made by it(").
In the case before us what the legislature has done is to single out two groups of persons consisting of two (1) ; , (2) Willis on constitutional Law, p. 580, 415 ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of the latter to which they might be entitled under the general law of the land.
They ' claim to be wives and children of the deceased and, as such entitled to have shares in his personal estate, and no competent court of law has as yet negatived their claims in this respect.
On what principle then, it may be asked, was the disability imposed upon these persons alone while the claim of the other claimants was, accepted ? Nay, the legislation goes further than this and denies to these specified individuals a right to enforce their claim in a court of law, in accordance with the personal law that governs the community to which they belong.
They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile and discriminatory legislation can be supported.
It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights.
The only purpose of the legislation, as appears from the preamble, was to end certain private disputes.
It is true that the quarrel between the two rival parties regarding succession to the estate of the deceased Nawab was going on since, 1938; and after several vicissitudes, for which the Nizam himself or his Legal Advisers were prima rily responsible, there was a report prepared by the Legal Adviser to the State in a particular way, which, contrary to the opinion given by an 'earlier ' Special Commission, negatived the claims of these two ladies and their children.
It is also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report.
That may be the reason for passing this legislation but it would not furnish any rational basis 54 416 for the discrimination that it made.
The continuance of a dispute even for a long period of time between two sets of rival claimants tot he property of a private person is not a circumstance of such unusual nature as would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes.
As appears from the preamble to the Act, the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the fact that there was an adverse report against them made by the State Legal Adviser.
This ground is itself arbitrary and unreasonable.
The dispute regarding succession to the estate of the Nawab was a legal dispute pure and simple and without, determination of the points in issue by a properly constituted judicial tribunal a legislation based upon the report of a nonjudicial authority and made applicable to specific individuals, who are deprived thereby of valuable rights which are enjoyed by all other persons occupying the same position as themselves, does, in our opinion, plainly come within the constitutional inhibition of Article 14.
The analogy of private Acts of the British Parliament, to which reference was made by the learned Attorney General in the course of his arguments, is not at all helpful.
The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power.
There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estates of certain princely families.
The Bijni Succession Act (Act.
II of 1931) passed by the 'Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance.
But at that time the Governor General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial Legislatures to make laws regarding subjects of a private nature.
Quite apart from this, no 417 question of infraction of the equal protection rule could arise in pre Constitution days.
We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment ; but when on the ' face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause.
The learned Attorney General contended before us that the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis of the recommendations of the Special Commission, and that this decree was a property within the meaning of law of which these respondents have been deprived by the impugned legislation.
The point is not free from doubt, and much could be said on both sides.
We think, therefore, that it would not be proper on our part to express,any opinion upon it in the present appeal.
We understand that the respondents have filed an execution application in the City Civil Court of Hyderabad which has ordered that execution should proceed and that objections have been taken to this application by the present appellants who have raised inter alia the point that there is no final and effective decree which is capable of execution.
As the point is still pending hearing by the Civil Court of Hyderabad, we do not desire to influence their decision in any way by expressing any opinion on this matter.
We only desire to state that notwithstanding the observations made by the High Court referred to above, the question shall be treated as an open one.
The applicability of article 14 of the Constitution in the present case is, however, not at all dependent upon the fact as to whether or not the respondents have already acquired property in the shape of a decree.
Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and 418 the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution.
Having regard to the view that we have taken, it as unnecessary to consider whether the impugned Legislation violates the provisions of article 31(1) or article 19(1) (f) of the Constitution.
The result is that the appeal is dismissed with costs.
Appeal dismissed.
Agent for respondents Nos.
1 to 12 M. section H. Sastri.

dataset_name: IN-Abs

summary:
The continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such unusual nature as Would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes, and the fact that a non judicial authority had made a report against one set of the claimants is not a reasonable ground for depriving them by legislation of their ordinary rights under the law and prohibiting them from having resort to courts of law for establishing their rights.
A nobleman of Hyderabad died in 1936 when it was under the rule of the Nizam, and disputes as to succession arose between his legally married wife and two ladies, Mahboob Begum and Kadiran Begum, who claimed to be his wives.
After protracted proceedings before several non judicial bodies a report adverse to the latter was made in January, 1950, but before the Nizam could issue a firman in accordance with it, Hyderabad became a part of the Indian Union and the Constitution of India came into force.
An enactment called the Waliuddowla Succession Act, 1950, was therefore passed by the Hyderabad Legislature which provided that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab are hereby dismissed" and that the above decision "cannot be called in question in any court of law Held, that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community, in Courts of law, the Act was discriminatory ; that there was no rational or reasonable basis for the discrimination, and the Act contravened the provisions of article 14 of the Constitution and was therefore void.
The analogy of private Acts of the British 405 Parliament is not helpful as the British Parliament enjoys legislative omnipotence and there are no constitutional limitations on its authority or power.


judgement:
Appeal No. 446 of 1958.
Appeal from the judgment and order dated April 18, 1956, of the High Court of Judicature at Madras in Tax Revision Case No. 93 of 1955.
M. C. Setalvad, Attorney General of India, section Swaminathan and K. L. Mehta, for the appellants.
V. K. T. Chari, Advocate General of Madras, M. M. Ismail and T. M. Sen, for the respondent.
N. A. Palkhivala, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the Intervener (Tata Loco & Engineering Co. Ltd., Bombay).
March 28.
The Judgment of the Court was delivered by section K. DAB, J.
This is an appeal on a certificate granted by the High Court of Madras.
The firm of Messrs. Ashok Leyland Ltd., Ennore, is the appellant before us.
For brevity and convenience, we shall hereinafter refer to the firm as the assessee.
The State of Madras through the Commercial Tax Officer, Saidapet, is the respondent before us.
The assessee is a firm with its factory at Ennore in the State of Madras, where it manufactures, assembles and sells motor vehicles and spare parts and accessories thereof, through an elaborate organisation spread over several States.
It is, perhaps, necessary to indicate briefly the organisational set up in order to appreciate the point on which the case was heard in the High Court and argued before us.
The system of distribution of its motor vehicles, spare parts and 609 accessories at one uniform price to consumers in the various States which the assessee adopted, consisted of the appointment of a distributor (called a dealer) with a definite territorial jurisdiction, both inside and outside the State of Madras.
To every such dealer it granted the sole right of selling the products of the firm within the territory allotted to him.
If the territory of the dealer was outside the State of Madras, the agreement entered into by the dealer provided for the delivery of the products of the firm by consignment, by rail or steamer or road transport.
The agreement specifically stipulated that the dealer must not canvass or sell the products outside the territory allotted to him, and in the event of infringement or breach of the undertaking by the dealer, the assessee was entitled to terminate the agreement forthwith.
On such termination, the assessee reserved the right to call upon the dealer to return all or any of the products remaining unsold at the date of such termination.
The case set up by the assessee was that a substantial number of motor vehicles and accessories thereof were consigned to the dealers in other States either by rail or steamer; but due to want of such transport facilities, a number of vehicles were also transported by road.
In the year relevant to the assessment year 1952 53, the total turnover of the asaessee in respect of all its sales came to Rs. 1,43,67,007 odd.
The Deputy Commercial Tax Officer, Madras, computed the taxable turnover of the assessee for that year by excluding the sum of Rs. 1,12,21,707 odd which represented the value of vehicles, spare parts, etc., sold outside the State of Madras and consigned by rail or steamer or transported by road.
The balance of Rs. 31,45,299 odd was determined to be the net assessable turnover of the company.
The tax levied thereon was a sum of Rs. 1,45,655 13 3 and this sum was duly paid by the assessee.
Sometime thereafter, the Commercial Tax Officer, Madras, purporting to act under the powers of revision given to him by section 12 of the Madras General Sales 77 610 Tax Act, 1939 (Madras Act IX of 1939), hereinafter called the Act, called upon the assessee to produce its books of account for the purpose of satisfying himself as to the legality or propriety of the assessment made.
After scrutinising the accounts and other records produced by the assessee, the Commercial Tax Officer issued a notice proposing to revise the assessment by including a sum of Rs. 42,98,068 odd on the ground that the delivery of motor vehicles, etc., in respect of sales covered by the aforesaid sum was made within the State of Madras and was therefore liable to tax under the Act.
The assessee submitted its objection to the revision of the assessment and contended that on the sum of.
Rs. 42 lacs odd the assessee was not liable to pay sales tax as the transactions were in the course of inter State trade and commerce.
This objection was, however, overruled by the Commercial Tax Officer except to a very small extent.
From that decision of the Commercial Tax Officer, an appeal was taken to the Sales Tax Appellate Tribunal, Madras, and the assessee contended in that appeal that the revision of the assessment by the Commercial Tax Officer was without, jurisdiction and that the inclusion of Rs. 42 lacs odd in the taxable turnover was contrary to the provisions of article 286 of the Constitution.
The Tribunal rejected the plea of absence of jurisdiction, but held on merits that the sum of Rs. 12,48,403 odd representing the value of vehicles driven away on their own motive power through the assessee 's own drivers to the places of business of the non resident dealers was not liable to sales, tax.
The assessee then preferred a revision to the High Court of Madras under section 12B(1) of the Act and repeated the contention that the sales in question were in the course of inter State trade and commerce and not liable to sales tax by reason of the provisions of article 286(2) of the Constitution.
In the High Court the liability to tax was challenged by the assessee in respect of the following four items only: (1) A sum of Rs. 1,43,072 odd which represented the value of vehicles delivered ex factory to the 611 dealer 's drivers.
The vehicles were driven away by those drivers after temporary registration of the vehicles in the name of the dealer, outside the State of Madras.
(2) A sum of Rs. 28,01,357 odd which represented the value of vehicles delivered to the drivers of the dealers, which were driven away under the trade number of the dealers, outside the State of Madras.
(3) A sum of Rs. 7,866 odd which represented the value of spare parts or other accessories delivered along with the cars.
(4) A sum of Rs. 15,000 which represented the value of spare parts consigned to the dealers.
These were delivered to the dealers outside the State of Madras and the consignments were sent by rail or steamer.
The High Court repelled the contention of the assessee in respect of the first three item,,; aforesaid, holding that they fell outside the purview of the ban imposed by article 286(2) of the Constitution.
It modified the order of the Tribunal with respect to the fourth item, as in its view that item came within the scope of article 286(2).
The assessee then moved the High Court and obtained the necessary certificate under article 133 of the Constitution.
When the learned Attorney General appearing for the assessee opened the appeal, he submitted in the forefront of his argument that the High Court was in error in holding that the transactions coming under the three items (1), (2) and (3) above were outside the ban imposed by article 286(2) of the ' Constitution, and contended that the transactions were within the purview of the ban.
We then drew his attention to the Sales Tax Laws Validation Act, 1956 (hereinafter called the Validation Act), and asked him to consider the question whether the transactions in question came within the protection of the Validation Act, an aspect of the case which does not appear to have been considered in the High Court.
The argument before us then centered round the question whether the assessment in respect of the three items came within the protection of the Validation Act, and it was conceded by the 612 learned Attorney General that if it did, no other question would survive and it would be unnecessary to determine in this appeal the true scope and effect of article 286(2) of the Constitution and whether the transactions in question came within the ban imposed thereby.
On behalf of an intervener (Tata Locomotive & Engineering Co. Ltd,, Bombay) we have been pressed to decide, on merits, whether the transactions under consideration here come within the ban of article 286(2) of the Constitution, on the ground that such decision will be of assistance in a pending case to which the intervener is party.
We do not think that we can do so for the benefit of the intervener.
The intervener has no right to ask us to decide a question which does not fall for decision if the Validation Act applies; for it is conceded that if the Validation Act applies, that will be decisive of the whole appeal.
We must, therefore, reject the plea of the intervener.
We proceed now to consider the main point argued in this appeal, namely, whether the Validation Act applies to the transactions in question.
It is convenient to read here section 2, which is the relevant section, of the Validation Act: "Section 2.
Notwithstanding any judgment, decree or order of any court, no law of a State imposing or authorising the imposition of, a tax on the sale or purchase, of any goods where such sale or purchase took place in the course of interstate trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce; and all such taxes levied or collected or purporting to have been levied or collected during the aforesaid period, shall be deemed always to have been validly levied or collected in accordance with law".
It will be noticed at once that the transactions under consideration in the present appeal came within the period mentioned in the Validation Act.
being transactions of a period between April 1, 1951, and 613 March 31, 1952.
Indeed, this is not disputed before us.
It is also clear that the wording of a. 2 is general and wide enough to take in "the sale or purchase of any goods where such sale or purchase took place in the course of inter State trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955.
" The section states in effect that notwithstanding any judgment, decree or order of any court, no law of a State imposing a tax on the sale or purchase of goods referred to therein shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce.
The learned Attorney General has advanced two arguments in support of his contention that the Validation Act does not apply to the transactions under consideration here.
His first argument is that the Validation Act applies only when the law of the State imposes, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce.
He emphasises the expression "where such sale or purchase took place in the course of inter State trade or commerce" occurring in the section and from that expression he has drawn the inference that the law must in express terms say that it is taxing transactions in the course of interState trade and commerce.
His second argument is that by reason of section 22 of the Act, inserted by the amending Act of 1957, being Madras Act I of 1957, the Act imposes no tax on transactions under consideration in this appeal; it merely imposes a tax on transactions which are generally known as Explanation sales referable to the Explanation to article 286(l)(a), such as were considered in the decision of this Court in M. P. V. Sundararamier & Co. vs The State Of Andhra Pradesh & Another (1).
We shall consider these two arguments one after the other.
It appears to us the first argument does not correctly reflect the true scope and effect of section 2 of the Validtion Act.
It is necessary, perhaps, to advert to the circumstances which led, to the enactment of (1) 1958 J.s.
S.C.R. 1422 614 the Validation Act.
The true meaning and scope of the Explanation to article 286(1) of the Constitution came up for consideration before this Court in The State of Bombay and Another vs The United Motors (India) Ltd and Others (1).
It was therein held by the majority that though the sales falling within the Explanation would, in fact, be in the course of interState trade.
they became intrastate sales by the fiction introduced by the Explanation and were liable to be taxed by the State within which the goods were delivered for consumption.
Then, came the decision in The Bengal Immunity Company Limited vs The State of Bihar and Others (2) where this Court held, again by a majority, that the sales falling within the Explanation being inter State in character, could not be taxed by reason of article 286(2) unless Parliament lifted the ban, that the Explanation to article 286(l)(a) controlled only that clause and did not limit the operation of article 286(2), and that the law in this respect had not been correctly laid down in the United Motors ' case (2).
The decision in The Bengal Immunity 's case (2) was rendered on September 6, 1955.
The Sales Tax Validation Ordinance No. III of 1956 was promulgated on January 30, 1956, and that was later replaced by the Validation Act.
The constitutionality of the Validation Act was challenged before this Court and in M. P. V. Sundararami 's case (3) this Court upheld its validity, though the sales referred to in the arguments in that case were Explanation sales.
The Validation Act is legislation by Parliament, and it lifts the ban imposed by article 286(2).
Clause (2) of article 286 as it stood before the Constitution (Sixth Amendment) Act, 1956, in these terms: "(2).
Except in so far as Parliament may by law otherwise provide, no law of a State shall impose,or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce." In M. P. V. Sundraramier 's case(3) this court observed: (1) ; (2) [1955] 2 S.C.R.603 (3) 615 "Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation.
It only provides that no law of a State imposing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter State trade or commerce.
The effect of this provision is merely to liberate the State laws from the fetter placed on them by article 286(2) and to enable such laws to operate on their own terms.
The true scope of the impugned Act is, to adopt the language of this Court in the decisions in the United Motors case (1) and The Bengal Immunity Company 's case (2), that it lifts the ban imposed on the States against taxing inter State sales and not that it vali dates or ratifies any such law.
" It should be obvious that in 1939, long before the coming into force of the Constitution, the Act could not have said in express terms that it was taxing sales in the course of inter State trade.
What we have to see is that the fetter under article 286(2) having been removed, does the Act operating on its own terms affect the transactions in question even though they be in the course of inter State trade? If it does, the assessment is no longer liable to challenge on the ground of the ban imposed by article 286(2).
This brings us to the second argument of the learned Attorney General.
One has merely to see the definitions of 'sale ' and 'turnover ' and section 3, the charging section, to come to the conclusion that the Act operating on its own terms makes the transactions under consideration in this appeal liable to sales tax.
Explanation (2) to the definition of 'sale ' says: "The sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this State, wherever the contract of sale or purchase might have been made (a) if the goods were actually in this State at the time when the contract of sale or purchase in respect thereof was made, or (b) in the case the contract was for the sale on purchase of future goods by description, then, if the (1) ; (2) 616 goods are actually produced in this State at any time after the contract of sale or purchase in respect thereof was made.
" There can be no doubt that the Explanation brings the transactions in question within the definition of 'sale ' under the Act.
The point now is does section 22 of the Act make any difference ',? We are clearly of the opinion that it does not.
A little history of that section is necessary here.
Section 22 of the Act, as it stood before the amending Act of 1957, was inserted by the Adaptation of Laws (Fourth Amendment) Order, 1952, made by the President in exercise of the powers conferred on him by article 372(2) of the Constitution.
The section was then almost a verbatim reproduction of article 286(l) and (2) of the Constitution.
The effect of the section as it stood then, was considered in M. P. V. Sundararamier 's case (1) and it was held that it had a positive content and the Explanation in the context of section 22 (as it then stood) authorised the State of Madras to impose a tax on sales falling within its purview.
Then came the Validation Act in 1956, which lifted the ban imposed by article 286(2).
In 1957 new section 22 was inserted in the Act with restrospective effect from January 26, 1950, and old section 22 was repealed.
The new section reads: "Section 22.
Sale or purchase deemed to have taken place inside the State in certain cases (1) Any sale or purchase which took place on or before the 6th day of September, 1955, shall be deemed to have taken place inside the State if the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in the State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State, and.
be subject to tax under this Act accordingly.
(2) The provisions of this section shall not affect the liability to tax of any sale or purchase under any other provision of this Act.
" The argument of the learned Attorney General is that (1)[1958] S.C.R. 1422.
617 the now section which operates retrospectively from January 26, 1950, talks of sales in which the goods are delivered for consumption in the State of Madras; in other words, of Explanation sales only; therefore, the Act does not operate on sales of an interState character other than Explanation sales.
We are unable to agree.
First of all, sub section
(2) of new section 22 makes it quite clear that the section does not affect the liability to tax of any sale or purchase under any other provision of the Act.
Secondly, after Parliament had lifted the ban imposed by article 286(2), it was unnecessary to repeat the provisions of that Article in the Act and old section 22 in so far as it repeated article 286(2) became otiose.
Therefore, new section 22 has not the effect of subtracting something from the power to tax conferred on the State by the charging section, section 3, read with the definition of 'sale ' in section 2(h).
To repeat what we have said earlier: after the removal of the fetter of article 286 (2), the Act operating on its own terms makes the transactions in question liable to tax, and new section 22 makes no difference to that position.
For these reasons, we are unable to accept as correct the arguments advanced on behalf of the assessee.
In our view, the Validation Act applies and the assessment on the transactions in question cannot now be challenged on the ground alleged by the assessee.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The appellant firm had its factory in the State of Madras, where it manufactured, assembled and sold motor vehicles, spare parts and accessories.
For the assessment year 1952 53, the sales tax authority computed the appellant 's taxable turnover of sales for that year excluding a sum which represented the value of vehicles etc., sold outside the State of Madras, but on revision, the taxable turnover was increased by including a sum which related to certain transactions with dealers outside the State of Madras on the ground that the sales covered thereby were made within the State of Madras and were therefore liable to tax under the Madras General Sales Tax Act, 1939.
The appellant claimed that these sales were in the course of inter State trade and commerce and not liable to sales tax by reason of the provi sions of article 286(2) Of the Constitution of India.
The matter was taken up to the Supreme Court and in the meantime, the Sales Tax Laws Validation Act, 1956, had been passed by Parliament.
The question was whether the transactions in question, even if they were considered as having taken place in the course of inter State trade, came within the protection of the Validation Act of 1956 and, therefore, the assessment in the present case was valid.
The appellant contended (1) that the Validation Act was applicable only when the law of the State imposed, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce, and (2) that the new section 22 inserted in the Madras General Sales Tax Act, 1939, by Madras Act 1 of 1957, which operated retrospectively from January 26, 1950, talked of sales in which the goods were delivered for consumption in the State of Madras, and, therefore, the Validation Act did not operate on sales of an inter State character other than such sales.
Held: (1) that the effect of the Sales Tax Laws Validation Act, 1956, was to liberate the State laws from the fetter placed on them by article 286(2) of the Constitution of India and enable such laws to operate on their own terms.
Consequently, the transactions in question were liable to tax under the provisions 608 of the Madras General Sales Tax Act, 1939, and it was not necessary to provide in that Act in express terms that it was taxing sales in the course of the inter State trade.
M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh and Another, , relied on.
(2) that the transactions in question came within the definition of sale in section 2(h) of the Madras General Sales Tax Act, 1939, and the power to tax conferred on the State by the charging section, section 3, was not affected by section 22 in view of sub section
(2) therein.