judgement:
Appeal No. 192 of 1970.
Appeal by special leave from the,, judgment and order dated December 15, 1969 of the Punjab and Haryana High Court in R.S.A. No. 1949 of 1968.
section C. Manchanda, section K. Mehta, K. L. Mehta,and K. R. Nagraj, for the appellant.
Rameshwar Dial, section K. Bagga, section D. Sood and section Bagga, for the respondent.
641 The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the Punjab & Haryana High Court.
In December 1966 Labhu Ram who was the owner of the land in dispute sold the same in two lots to Bhagwan Das (do,ceased) now represented by his legal representatives and others.
The lands mentioned in clauses (a) and (b) of the title of the. plaint in the suit out of which the present appeal has arisen were sold for Rs. 20,000/ and Rs. 1,000/ respectively.
The respondent Chet Ram was a tenant at will of the lands covered by the sales.
Bhagwan Das and others filed a suit against Chet Ram in the revenue court for ejectment under section 14A (i) read with section 9 ( 1 of the Punjab Security of Land Tenures Act 1953 which was decreed on July 31, 1967.
On August 31, 1968 Bhagwan Das and others entered into possession of the aforesaid lands after evicting Chet Ram by virtue of the decree for eviction obtained against him.
After his eviction Chet Ram the present respondent filed a suit for possession of the lands which were the subject matter of sale by pre emption under section 15(1)(a) FOURTHLY of the Punjab Preemption Act, 1913, (Punjab Act 1 of 1913), hereinafter called the 'Act ',.
By that provision the right of pre emption has been declared to vest in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof.
It was admitted before the trial court that the respondent was a tenant before July 31,.
1967 and that before the institution of the pre emption suit his tenancy had been determined.
The trial court dismissed the suit.
On appeal the learned Additional District Judge, in view of certain decisions of the Punjab High Court, allowed the appeal and decreed the suit.
The judgment was upheld in second appeal by the High Court.
The sole question for determination is whether a person who has ceased to hold the land sold as a tenant can succeed in a suit for possession by pre emption under section 15(1)(a) FOURTHLY.
The Punjab & Haryana High Court in Kashmiri Lal & Others vs Chuhar Ram(1) had expressed the view that in a suit based on a right under the aforesaid clause the plaintiff was required to prove only that he was a tenant under the vendors on the date of the sale and not at any time thereafter as he could not remain a tenant under the vendors after they had sold the property.
In certain other judgments delivered by learned single judges of the Punjab High Court it had been recognised that the rule was firmly established in the law relating to pre emption that a pre emptor in order to succeed must have a right to pre empt not only at the (1) Letters Patent Appeal No. 71 of 1965 decided on November 19,1969; 642 time of sale but also at the institution of the suit and the passing of the decree by the trial court.
In other words, the pre emptor 's right should subsist up to the date of the passing of the decree and if he lost that right at any time before the decree was granted his suit must fail.
These learned judges of the High Court, however, considered that the language of section 15 (1) (a).
FOURTHLY ,showed that the legislature intended to depart from the well settled principle mentioned before and all that has to be seen is whether the plaintiff was a tenant of the vendor on the date of sale (see Sahan Singh vs Udho Ram & Others(1).
In Hans Nath & Others vs Ragho Prasad Singh (2) it was laid down by the Privy Council that the decisive date as regards the right of a pre emptor to pre empt the sale was the date of the decree.
A. full bench of the Lahore High Court in Thakur Madho Singh & Another vs Lt. James R. R. Skinner & Another(1) while considering the relevant provisions of the Act applied this rule to a case where a vendee had improved his status during the pendency of the pre emption suit and held that a vendee could de feat the right of a pre emptor by improving his status at any time before the passing of the decree.
The right of pre emption is a weak one and is liable to be defeated by, all legitimate means at the instance of a vendee against whose contract an inroad is being attempted by the pre emptor.
The vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right.
The pre emptor is an aggressor and as he wishes to dislocate the vendee he must show that the superior right of pre emption which he had at the date of the sale continued to remain superior at all relevant times: vide Faiz Mohammad vs Fajar Ali Khan & Another(1) (Full Bench).
In the latest full bench decision of the Punjab High Court in Ramji Lal & Another vs The State of Punjab & Others( ) the rule that a pre emptor must maintain his qualification to pre empt upto the date of the decree was recognised as well settled. 'In the presence of the above principle which is firmly entrenched in the law of pre emption it is difficult to conceive that the legislature intended to depart from it in section 15 (1) (a) FOURTHLY nor has any reason been suggested for doing so.
The language employed is not very happy but the clear requirement is that the tennant must hold the land as such.
If his tenancy, has come to an end and he has been dispossessed it can never be said that he is holding the land under tenancy of any one.
The legislature can hardly be attributed the intention of giving the right to a tenant, who has been dispossessed and whose tenancy has been (1) (2) 59 I.A. 138.
(4) 1.
(3) 1. L. R. [1942] 23 ILah.
(5) 643 determined either before or during the pendency of the suit, to obtain a decree for possession by pre emption.
This is particularly so as the statutory right of pre emption is one which attaches to the land and is not a mere personal right.
There could be no basis for the legislature giving an indefeasible right to a person who happens to be in possession of the land sold as a tenant of the vendor.
His right is neither better nor worse than any other person who has been conferred that right by the provisions of section 15 of the Act.
For instance, a co sharer has been given a right to pre empt the sale of a share out of joint land by clause (b) FOURTHLY of section 15(1).
If a co sharer must retain his right upto the date of the decree, which he must, (See Surjit Singh vs Gurnam Singh etc.(1) there is no intelligible ground for treating a tenant differently.
The tenant must show his right at all material times before he can succeed in a suit for pre emption.
In other words his tenancy must remain intact and he must hold the land in his capacity as a tenant till the date of the decree.
It must be remembered that sale alone does not and cannot divest the tenant of his ' right to hold the land of which he is in possession by virtue of his tenancy under the vendor.
But if his tenancy is determined by a decree for eviction he loses his status of a tenant.
He then does not satisfy the first requirement of s.15(1) FOURTHLY that he is a tenant who holds the land.
In that situation he cannot succeed in a pre emption suit if the decree for eviction has been passed after the sale but before the institution of the suit or during its pendency and before the date of the decree.
This would be so by applying the well established rule which, as stated earlier, has become a part of the law relating to pre emption.
In the present case not only a decree for eviction was passed against the respondent but he was also actually dispossessed from the land in his tenancy pursuant to the decree before he filed the pre emption suit.
We are altogether unable to see how he could be granted a decree in such a suit.
An attempt was made by means of C.M.P. No. 4634 of 1970on behalf of the respondents to reopen the question of the area in respect of which the decree for eviction had been passed on July 31, 1967.
It was maintained that it related only to certain Khasra Numbers which were covered by the first sale shown as clause (a)in the heading of the plaint and that there was no order relating to eviction from the land covered by the second sale mentioned in clause (b) therein.
This question was never raised in the courts below and as it involves an investigation into matters of (1) (1964) P. L. R. 10623.
644 fact it was not possible to allow the same to be reopened at this stage.
The appeal is allowed and the suit of the respondent is dis missed.
In view of the nature of the points involved the parties are left to bear their own costs in this Court.

summary:
The appellants purchased certain lands and filed a suit against the respondent, who was the tenant at will under the vendor, for ejectment The suit was decreed.
The appellants entered into possession and the tenancy of the respondent was determined.
Thereafter, the respondent filed a suit for possession by pre emption under section 15(1) (a) Fourthly of the Punjab Pre emption Act, 1913 which provides that a right of preemption vests in a tenant who holds, under tenancy of the vendor the land or property sold or a part thereof.
It was contended that it was sufficient if the plaintiff proved that he was a tenant under the vendor ,on the date of the sale.
HELD: The well established principle being that a pre emptor must maintain his qualification to preempt upto the date of the decree for possession by pre emption, the Legislature cannot be attributed the intention of giving the tight to a tenant who has been dispossessed and whose tenancy has been determined either before or during the pendency of his suit, claiming the right of pre emption.
This is particularly so as the statutory right of presumption is one which attaches to the land and is not a mere personal right.
[641 H; 642 A B, F G; 643 A B] Hans Nath vs Ragho Prasad Singh, 59 I.A. 138, Thakur Madho Singh vs Lt.
James R. R. Skinner, I.L.R. [1942] 23 Lah. 155, Faiz Mohammad vs Fajar Ali Khan, I.L.R. [1944] 25 Ladfl 473 and Surjit Singh vs Gurnam Singh, , referred to.
Ramji Lal vs State of Punjab, , approved.
Kashmiri Lal vs Chuhar Ram, and Sohan Singh vs Udho Ram, , over ruled.


judgement:
minal Appeal No. 212 of 1967.
Appeal by special leave from the uderstand order dated August 3, 1967 of the Patna High Courtin Criminal Appeal No. 389 of 1965 with Special Leave Petition (Criminal) No. 1048 of 1969 from the judgment and order dated July 14, 1969, of the Patna High Court in Criminal Misc.
No. 411 of 1969.
from the judgment and, order dated July 14, 1969, of the Patna Hi& Court in Criminal Misc.
No. 411 of 1969.
section N. Prasad, for the appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave raises the question of the applicability of the rule of issue estoppel.
The appellant, 620 Gopal Prasad Sinha, was tried on a charge under section 409, I.P.C., for having committed criminal breach of trust of Rs. 27,800/during the period between January 31, 1960 and November 30, 1960, while acting as a cashier of the Public Works Department, East Division, Gaya.
The Assistant Sessions Judge framed three points for determination : "1.
If the accused Gopal Prasad Sinha was a Public servant and was working as cashier in the office of the Executive Engineer, P.W.D., Gaya East Division, during the period between 31 1 60 to 30 11 60 ?" 2.
Whether charge amount namely Rs. 27,800/ was entrusted to the accused or he had dominion over it in his capacity as a public servant ? 3.
Whether the accused committed criminal breach of trust in respect of this charge amount ?" The learned Assistant Sessions Judge, after going through the oral and documentary evidence, answered the first point in the affirmative and held that the accused was handling the cash in the office during the aforesaid period as a cashier.
On point No. 2 the learned Assistant Sessions Judge, after considering the oral and documentary evidence, held : "It is proved that the accused was in charge of one key of one of the locks of the door of the iron chest of the office of the Executive Engineer P.W.D., Gaya East Division.
It is also proved that the accused was dealing with the cash of the Division and he was receiving and disbursing money of the Division.
I accordingly hold that the charge money was entrusted to the accused and the accused had dominion over the charge amount of Rs. 27,800/ while acting as cashier of P.W.D., Gaya East Division.
" On point No. 3 he held that "the accused made entries in the cash book showing remittance of the charge amount to sub divisions Nos. 2 and 3 but the same were not actually remitted by the accused nor they were received in sub division Nos. 2 and 3." The point of issue estoppel was raised before him, the point being that the accused was put up on trial in a previous case under section 409, I.P.C., for having committed criminal breach of trust with respect to certain amounts during the period December 8, 1960 to August 17, 1961, and in that case the High Court had acquitted the accused holding that he was not in 621 charge of the cash.
The learned Assistant Sessions Judge held that the aforesaid finding of the High Court could not operate as a res judicata.
The High Court, on appeal in the present case, upheld the findings of fact of the learned Assistant Sessions Judge.
The High Court also repelled the argument regarding rule of issue estoppel thus : "In the earlier case out of which criminal appeal 40 of 1963 arose, the defalcations in question were alleged to have been committed by the present appellant in his capacity as a cashier during the period 8 12 60 to 17 8 61.
As such, the point in issue in that case was whether the accused, that is, the present appellant, was the cashier and was incharge of the cash during the aforesaid period.
In the present case, however, the defalcations in question are alleged to have been committed during an altogether different period, namely, 31 1 60 to 30 11 60 and the point in issue in the present case is whether the appellant was the cashier of the division and was in charge of the cash during this particular period.
The finding of fact as given in the aforesaid appeal that the appellant was not a cashier and was not in charge of the cash must be held as being operative for the period 8 12 60 to 17 8 61 during which the defalcations forming the subject matter of the aforesaid appeal were alleged to have been committed and, as such, those findings cannot in any way operate under the principle of issue estoppel to preclude the prosecution from adducing evidence in the subsequent case, that is, in the present case, to show that the appellant was the cashier of the division and was in charge of the cash during the period 31 1 60 to 30 11 60.
" The learned counsel for the appellant contends that subs tantially it was the same issue that was tried during the earlier trial, and if the accused was not the cashier from December 8, 1960 to August 17, 1961, he could not be held to be a cashier from January 31, 1960 to November 30, 1960.
He said that the defence in both the cases was identical and the evidence also almost the same.
In our opinion, the High Court came to the correct con clusion.
The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous litigation.
The question then arises : Was it the same issue of fact which was determined in the earlier 62 2 case ? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier.
He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.
If there is any likelihood of facts or conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact.
It seems to us that the later finding must necessarily be in contradiction of the previous determination.
There can be no such contradiction if the periods are different and the facts relating to the carrying on of the duties of a cashier are different.
The learned counsel has referred to a number of cases of this Court where the rule of issue estoppel has been approved; e.g. Pritam Singh vs State of Punjab(1); Manipur Administration vs Thokchom Bira Singh (2) ; State of Andhra Pradesh vs Kokkiligada Meeraiah(3); and Assistant Collector of Customs vs L. R. Malwani(4), but these cases do not support the contention of the learned counsel for the appellant.
It appears that the appellant surrendered on December 1, 1961, and in Sessions Trial No. 90 of 1962 he was sentenced to five years ' rigorous imprisonment.
He started serving his sentence on November 15, 1962.
His appeal to the High Court was allowed on October 5, 1964, and thereafter he remained in prison as an undertrial prisoner.
In the present case he was sentenced to six years ' rigorous imprisonment and a fine of Rs. 25,000/ or in default to undergo further imprisonment for 18 months.
In the circumstances given above we consider the sentence of six years in the present case as excessive and reduce it to rigorous imprisonment for three years, and a fine of Rs. 25,000/or in default further imprisonment for 18 months.
In the result the appeal is partly allowed in the matter of sentence, as stated above.
Special Leave Petition (Criminal) No. 1048 of 1969 is accordingly dismissed.
V.P.S. Appeal partly allowed.
(1) A.I.R. 1956 S.C. 415.

dataset_name: IN-Abs

summary:
The appellant was tried under section 409, I.P.C., for having committed criminal breach of trust during the period between January 31, 1960 and November 30, 1960 while acting as a cashier.
He was put up for trial in a previous case under section 409, I.P.C., for having committed criminal breach of trust during the period December 8, 1960 to August 17, 1961 and in that case he was acquitted because it was held that he was not in charge of the cash.
On the question, whether on the principle of issue estoppel he should be acquitted, because, if he was not a cashier from December 8, 1960 to August 17, 1961 he could not be held to be a cashier from January 31, 1960 to November 30, 1960.
HELD : The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous proceeding, that is, the latter finding must necessarily be in contradiction of the previous determination.
In the present case, however, the accused was never appointed as a cashier, but was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.
A person may be acting as a cashier at one period and may not be acting as a cashier at another.
In such circumstances, when the periods are different, there can be no such contradiction.
Therefore, the rule of issue estoppel does not apply to the facts of the case.
[621 H; 622 A C]


judgement:
Appeals Nos. 1772 and 1773 of 1970.
Appeals from the judgment and order dated July 24, 1970, of the Delhi High Court in Letters Patent Appeals Nos. 72 and 73 of 1969.
C. K. Daphtary, section P. Nayar, for the appellant (in both the appeals).
N. A. Palkhivala, Santosh Chatterjee, G. section Chatterjee and A. M. Parikh, for respondent No. 1 (in both the appeals).
B. N. Kirpal and Bishamber Lal, for respondent No. 2 (in C.A. No. 1772 of 1970).
B. Sen and O. P. Khaitan, for respondent No. 2 (in C.A. No. 1773 of 1970).
N. A. Palkhivala, Bhuvanesh Kumari, Santosh Chatterjee, J. B. Dadachanji, for intervener No. 1.
M. C. Setalvad., Santosh Chatterjee, C. M. Oberoi and J. B. Dadachanji, for intervener No. 2.
C. K. Daphtary and 1.
N. Shroff, for intervener No. 3.
A. N. Sinha and Rathin Das, for intervener No. 4.
C. K. Daphtary and section K. Dholakia, for intervener No. 5.
The Judgment of the Court was delivered by Shah, J.
On May 29, 1965, the Allied International Products Ltd hereinafter called 'the Company issued 'a prospectus offering to the public for subscription 5,00,000 equity shares 664 of Rs. 10 each and 10,000 cumulative preference shares of Rs. 100 each, and intimating that "applications are being made to "Bombay, Calcutta and Delhi Stock Exchanges for permission to deal in for official quotations of the shares of the Company".
On June 3, 1965, the Company submitted applications to the Stock Exchanges at Bombay, Calcutta and Delhi which are recognised Stock Exchanges within the meaning of section 2(39) of the ), for "enlisting" its shares.
The subscription list of the Company was closed on June 21, 1965.
On June 22, 1965, the Bombay Stock Exchange extended the. time for consideration of the application till the expiry of seven weeks from the date of closing of the subscription list and requested the Company to furnish certain particulars to facilitate compliance with section 73 of the Indian .
On August 6, 1965, the Exchange informed the Company that the application was receiving further consideration and requested that certain formalities be complied with.
On September 13, 1965.
the Exchange informed the Company that it had considered and approved the application for "enlisting" its shares.
On June 9, 1965, the Calcutta Stock Exchange called upon the Company to modify certain Articles of Association, and by letter dated July 12, 1965, asked for particulars in respect of specified matters.
On July 27, 1965, the Calcutta Stock Exchange granted time for compliance till the end of the seventh week from the date of the closing of the subscription list.
On November 5, 1965, the Calcutta Stock Exchange rejected the application of the Company for "enlisting" the shares.
The Delhi Stock Exchange informed the Company on July 10, 1965, that in order to facilitate compliance with the provi sions of section 73 of the , "the allotment of shares should be finalised as soon as possible in consultation with the Stock Exchange".
By another letter dated August 9, 1965, the Exchange informed the Company that the matter of "enlistment" of shares was under consideration, and the Company will be intimated of the decision of the Exchange as soon as it is taken.
The Delhi Stock Exchange by letter, dated December 4, 1965, rejected the application of the Company for "enlistment" of its shares.
The Company challenged the orders passed by the Calcutta and Delhi Stock Exchanges rejecting the applications for "enlistment", in separate appeals under section 22 of the Securities Contracts (Regulations) Act 42 of 1956.
The Central Government dismissed the appeals.
In the orders recording dismissal it was recited that the Exchange did not grant the permission for the shares 665 to be "enlisted" before the expiry of four weeks from the date of closing of the subscription list as required by section 7 3 (1) of the , and that the Exchange did not notify any extension of time for the grant of the permission within four weeks.
The Company then moved petitions id the High Court of Delhi for the issue of writs quashing the orders passed by the Central Government in appeals under section 22 of the , and the orders of the Stock Exchanges rejecting the application of the Company as "void, illegal and of no effect", and for orders directing the Stock Exchanges to "grant enlistment" of the shares of the Company, and further declaring section 22 of the Securities Contracts.
(Regulation) Act 42 of 1956, and section 73 of the , ultra vires the Constitution of India.
Rangarajan, I was of the opinion that grant of permission by the Bombay Stock Exchange was valid, and that allotment of shares did not become void, merely because one out of the three Exchanges alone gave the permission to "enlist" the Company 's shares.
The learned Judge quashed the order of the Central Government and directed that writs of mandamus do issue against the Calcutta and Delhi Stock Exchanges requiring them to "enlist" the shares of the, Company.
Against the decision of Rangarajan, J., the Union of India appealed to a Division Bench of the High Court of Delhi.
The two Exchanges acquiesced in the orders passed against them.
The High Court confirmed the orders of Rangarajan, J. With certificate granted by the High Court, the Union of India has appealed to this Court.
In support of these appeals, two principal contentions were urged on behalf of the Union : (1) The permission granted by the Bombay Stock Exchange after the expiry of seven weeks violated the provisions of section 73(1) of the and was on that account invalid; and (2) that grant of permission by one out of the three Exchanges did not protect the allotment of shares from being invalid under section 73(1) of the .
The two Stock Exchanges which had acquiesced in the judgment of the Rangarajan, J., urged that the order granting writs of mandamus requiring the two Exchanges to "enlist" the shares of the Company was without jurisdiction.
Rangarajan, J., it was L436 Sup.
CI/70 6 66 said, could only direct that the applications be considered by the two Exchanges.
The relevant provisions of section 73 of the , in force at the date of the applications for permission for the shares to be dealt in the Exchanges provided: "(1) Where a prospectus, whether issued generally or not, states that application has been made or will be made for permission for the shares or debentures offered thereby to be dealt in on a recognised stock exchange, any allotment made on an application in pursuance of ,he, pros tu shall, whenever made, be void, if the permission has not been applied for before the tenth day after the first issue of the prospectus, or, if the permission has not been granted before the expiry of four weeks from the date of the closing of the subscription lists or such longer period not exceeding seven weeks as may, within the said four weeks be notified to the applicant for permission by or on behalf of the Stock Exchange.
(2) Where the permission has not been applied for as aforesaid, or has not been granted as aforesaid, the company shall forthwith repay without interest all, moneys received from applicants in pursuance of the prospectus, and, if any such money is not repaid within eight days after the company becomes liable to repay it, the directors of the company shall be jointly and severally liable to repay that money with interest at the, rate of five per cent per annum from the expiry of the eighth day Provided (5) For the purpose of this section permission shall not be deemed to be refused, if it is intimated that the application for permission though not at present granted, will be given further consideration.
(7) No prospectus shall state that application has been made for permission for the shares or debentures offered thereby to be dealt in on any stock exchange, unless it is a recognised stock exchange.
" 667 By the , 'machinery is set up for extending recognition to and for withdrawal of recognition to Stock Exchanges and for other incidental matters such as the making of rules and bye laws of the Exchanges and appeals against the orders of recognised Exchanges.
By section 22 of the Act it is provided : "Where a recognised stock exchange acting in pursuance of any power given to it by its bye laws, refuses to list the securities of any public company, the company shall be entitled to be furnished with the reason for such refusal, and may appeal against the decision of the recognised stock exchange to the Central Government, and the Central Government, may after giving the stock exchange an opportunity of being heard, vary or set aside the decision of the recognised stock exchange and when it does so the stock exchange shall be bound to act in conformity with the orders of the Central Government." Sub section (5) of section 73 of the , is intended to be explanatory of sub sections
(1) & (2) of section 73.
Before that sub section was amended by Act 31 of 1965 different phraseology was used in sub sections
(1) & (2) and in sub section
(5) : the former used the expression "permission has not been granted", whereas sub section
(5) used the expression "permission shall not be deemed to be refused".
The expression "permission has not been granted" is ambiguous : it may mean "permission has been refused" : it may also mean that the application for permission is under consideration and has not been disposed of.
Sub sections (1) & (2) of section 73 were borrowed from section 51 of the English Companies Act, 1948 with slight modifications.
But the draftsman of the Indian Act, for reasons which it is difficult to appreciate, substituted the expression "permission has not been granted" for the expression "permission has been refused".
In enacting sub section
(5) of section 73 the words used in sub section
(5) of section 51 of the English Act, viz. "Permission shall not be deemed to be, refused" were adopted.
In our judgment, the expression "permission has not been granted" in sub sections
(1) & (2) was intended in the context in which it occurs and in the light of the object of the enactment, to mean "permission has been refused".
A Stock Exchange fulfils a vital function in the economic development of a nation: its main function is to "liquify capital by enabling a person who has invested money in say a factory or a railway to convert it into cash by disposing of his share in the enterprise to some one else".
Investment in joint stock companies is attractive to the public, because the value, of the shares is announced day after day in the Stock Exchanges, and the shares 66 8 quoted on the Exchanges are capable of almost immediate conversion into money.
In modern days a company stands little chance of inducing the public to subscribe to its capital, unless its shares are quoted in an approved Stock Exchange.
All public companies are anxious to obtain permission from reputed exchanges for securing quotations of their shares and the management of a company is anxious to inform the investing public that the shares of the company will be quoted on the Stock exchange. 'To prevent malpractices, the Parliament enacted legislation which aimed at securing control over the proper functioning of the Stock Exchanges, and also placed stringent restrictions upon the representations made by the companies in issuing prospectus inviting subscriptions.
The Parliament enacted the 42 of 1956, and simultaneously made provision in section 73 of the , for ensuring that representations made in the prospectus are carried out and fluidity of the investment by the holder of stock is ensured by procuring permission for quotation of shares in a recognized stock exchange.
Under sub section
(1) of section 73 an application for permission to secure quotation, if not previously made, shall be made before the tenth day after the first issue of the prospectus, and if the.
application is not so made, the allotment is void.
Again if the Exchange rejects the application within four weeks, or within seven weeks after extending the time, the allotment will be void, unless within that period the Exchange has informed the Company that further consideration will be given to the application.
It is however not enacted in section 73(1) that if the application is not granted within the time prescribed, it cannot be granted after the expiry of the prescribed period, even if the Exchange has intimated that it will give further consideration to the application.
Sub section (5) contains a clear implication to the contrary.
If the Exchange has intimated within the period prescribed by sub section
(1) that the application will be given further consideration, it is not to be, deemed that the application is refused.
The Exchange is not obliged to give any intimation relating to the consideration of the application before the last day of the prescribed period.
If no intimation is given till the last date of the prescribed period, no inference of refusal follows.
It would then be difficult to hold that if the Exchange intimates that it is considering the application or intends to give further consideration to the application that such an inference may follow.
The amendment made by Act 31 of 1965 in sub section
(5) by the substitution of the expression "Permission shall not be deemed to be refused" by the expression "it shall not be deemed that permission has not been granted" also gives, a clue to the legislative intention that the inference of refusal will not be made if the 669 Exchange has intimated to the applicant that further consideration will be given to the application.
We are unable to hold that permission for "enlistment" of shares can be given within the initial four weeks or if time be extended within seven weeks from the date of the closing of the subscription list, and if permission be not granted by the Exchange within those seven weeks, the allotment becomes void, even if the Stock Exchange intimates that it is giving further consideration to the application.
The intendment of sub sections
(1), (2) & (5) is plain.
If within four weeks from the date of the closing of the subscription list, the Stock Exchange sends no intimation either extending the time or notifying that the application "though not at present granted will be given further consideration," the application is deemed to be refused.
If the Stock Exchange so desires it may intimate that the period is being extended to seven weeks.
The Exchange may say nothing more within the extended period, in which case, on the expiry of the extended period the allotment becomes void.
If, however, within the four weeks, or within the extended period of seven weeks, the Exchange intimates that even though the application for permission is not at present granted, the application will be given further considera tion, the application is not deemed to be re fused until it is finally decided.
The application for allotment of shares and acceptance thereof constitute a contract between the Company and the applicant.
Section 73(1) of the imposes a penalty whereby the allotment of shares becomes void on the happening of the contingency specified therein.
The imposition of penalty depends upon the violation of the Exchange and when imposed operates to invalidate all contracts resulting from allotment of shares between the applicants for shares and the Company.
Such a provision must be strictly construed.
Unless the statute in clear terms so provides, when the Exchange intimates its desire to consider the application further an inference that the Exchange has still rejected the application, cannot be made.
It is true that in the prospectus issued by the Company it was intimated that applications are being made to the Bombay, Calcutta and Delhi Stock Exchanges for permission for official quotations of the shares of the Company.
It is not contended, and it cannot reasonably be contended, that only one application for permission to secure quotation of the shares in an 'approved Exchange may be made.
The expression "a recognised stock exchange" means "any recognised exchange".
More applications than one for quotation of shares may therefore be made In the present case, three applications were submitted on June 3, 1965.
Two of these applications were rejected and one was granted.
We 670 are unable to hold that unless all the applications were granted, the allotment of shares must, by virtue of sub section
(1) of section 73, be invalid.
The object of section 73(1) is that the subscribers to the shares must have facility to approach an Exchange for having their holdings converted whenever they desire.
Even if out of several Exchanges approached, one or more, but not all, have granted the application for "enlistment",.
the facility of ensuring quick conversion is still avail able.
If after representing in the prospectus that an application has been made to a recognised exchange for "enlistment" or will be made within the prescribed period, the Company is unable to obtain permission for "enlistment" from any exchange, the allotment will be invalid.
But sub section
(1) is not intended to mean that it will be invalid, even if permission is obtained, but not from all the Exchanges to which applications have beer, made.
Section 73(1) is enacted with the object that the subscribers will be ensured the facility of easy convertibility of their holdings when they have subscribed to the shares on the re presentation in the prospectus that an application for quotation of shares has been 'II be made.
The allotment of shares will, be invalid only or WI when permission for quotation is not obtained.
When permission from one or more of the Exchanges is obtained, it carries out the object of the Act.
It will be a mechanical interpretation wholly divorced from the true object and intendment of the Act to hold that even if permission is secured for quotation of shares in an Exchange, the allotment will be invalid because another exchange has not granted the permission.
That this is the true meaning of section 73(1) is clear from the fact that the penalty of avoidance of allotment of shares is attracted not only where the permission ' applied for has not been granted, but where no application has been made within the prescribed period. 'If applications are made to several exchanges, some within the period of ten days after the first issue of the prospectus, and some beyond, or that one or more applications, but not all, is or are defective, and the error is not rectified, it would be unreasonable to hold that because some of the applications made beyond the tenth day after the first issue of the prospectus, or are defective, are liable to be rejected, the applications properly made before some of the Exchanges are 'also ineffective and the allotment made may be invalid.
Counsel for the Calcutta Stock Exchange urged that where a person is induced to subscribe for shares relying upon a representation that an application is made or intended to be made for quotation of the shares in an Exchange near his home town, and it is found that the application is not made, or if made it is rejected by the Exchange, it would be a great hardship to the 67 1 shareholder if he is bound by the allotment, even if the condition of securing quotation in the Exchange convenient to him is not carried out.
But section 73(1) declares the entire allotment void : it does not take into consideration the right or convenience of individual shareholders.
An enquiry whether a shareholder or a class of share holders was or were induced to subscribe for shares on the representation is irrelevant in determining whether the allotment is for failure to secure compliance with a statutory condition rendered invalid.
We need not consider whether the individual shareholder who finds that an Exchange convenient to him has not listed the shares furnishes a cause of action to him for avoiding the contract.
We are in the view we have taken not called upon to decide whether the provisions of section 73 of the , are ultra vires, nor do we consider it necessary to decide whether section 22 of the , is ultra vires.
It was urged on behalf of the Delhi and Calcutta Stock Ex changes that the High Court ought, in exercise of the power under O. 41 r. 33 of the Code of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the Company 's shares.
An Appellate Court may in appropriate case pass any decree and make 'any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision.
That power may be exercised by the Court notwithstanding that the appeal is as to a part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection.
But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons.
The order passed against the Union and the two Exchanges were in substance distinct.
Against the Union the order was made quashing its order in appeal against the orders of the Exchanges; and against the Exchanges the order was made directing inclusion of the shares in the list of quoted shares. 'Me Exchanges acquiesced in the direction.
We need, however, not express any final opinion in this question.
We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending.
We need not pre judge the result of that application or the appeal, if any, which may be filed in this Court.
The appeals fail and are dismissed with costs.
There will be one hearing fee in favour of the Company.
The other parties will bear their own costs.
Appeals dismissed.

summary:
The first respondents limited company issued a prospectus offering its shares to the public for subscription.
it was mentioned in the prospectus that the company was applying to the Bombay, Calcutta and Delhi Stock Exchanges (which were recognised exchanges within the meaning of section 2(39) of the ), for enlistment of its shares.
On June 3, 1956 the Company submitted the applications.
The subscription list was closed on June 21, 1965.
On June 22, 1965 the Bombay Exchange extended the time for consideration of the application till the expiry of seven weeks from the date of closing of the subscription list.
On August 6, 1965 the Exchange informed the company that the application was receiving further consideration.
On September 13, 1965 the Exchange informed the company that its application for enlisting its shares had been approved.
The Calcutta and Delhi Exchanges rejected the applications made to them.
The company Challenged the orders passed by the Calcutta and Delhi Exchanges in appeals to the Central Government under section 22 of the .
The Central Government dismissed the appeals.
The company filed writ petitions in the High Court.
The Single Judge held that the grant of permission by the Bombay Exchange was valid and that allotment of shares did not become void merely because one out of the three exchanges alone, gave the permission to enlist the company 's shakes.
He quashed the order of the Central Government and.
directed the issue of mandamus to the Calcutta and Delhi Exchanges requiring them to enlist the shares of the company.
The Union of India appealed to the Division Bench.
The Calcutta and Delhi Exchanges acquiesced in the orders passed against them.
The High Court confirmed the order of the Single Judge.
With certificate, the Union of India appealed to this Court.
The questions that fell for consideration were : (i) whether the permission granted by the Bombay Exchange after the expiry of seven weeks from the date of closing of the subscription list violated the provisions of section 73(1) of the and was on that account invalid; (ii) whether the grant of permission by one out of three Exchanges was sufficient to protect the allotment of shares from being invalid under section 73(1) of the ; (iii) whether a shareholder who buys shares on the 15 L436Sup.(P)/71 662 representation that the shares would be enlisted in an Exchange convenient to him is bound by the allotment even when the condition of securing quotation in an Exchange convenient to him has not been carried out; (iv) 'Whether in the circumstances of the case the High Court ought in exercise of its power under O.41 r. 33 of the Code of Civil Procedure, to have vacated the writ of Mandamus requiring the Calcutta & Delhi Exchanges to grant permission for quotation of the Company 's shares.
HELD : (i) It was not possible to accept the argument that permission for enlistment of shares can be given within the initial period of four weeks, or if time be extended,, within seven weeks from the date of closing of the subscription list, and if permission be not granted by the Exchange within those seven weeks, the allotment becomes void, even if the Stook Exchanges intimates that it is giving further consideration to the application.
[669 B] The intendment of sub sections
(1), (2) and (5) of section, 75 of the is plain.
If within four weeks from the date of the closing of the subscription list, the stock exchange sends no intimation either extending time or notifying that the application " 'though not at present granted will be given further consideration", the application is deemed to be refused.
If the Stock Exchange so desires it may intimate that the period is being extended to seven weeks.
The Exchange may say nothing more during the extended period, in which case, on the expiry of the extended period the allotment becomes void.
If however, within the four weeks, or within the extended period of seven weeks, the Exchange intimates that even though the application for permission is not at present granted, the application will be given further consideration the application is not deemed to be refused until it is finally granted.
[669 C D] Being a penal provision section 73(1) must be strictly construed.
Unless the statute in clear terms so provides, when the Exchange intimates its desire to consider the application further, an inference that the Exchange has still rejected the application cannot be made.
[669 F] The amendment made by Act 31 of 1965 in sub section
(5) by the substitution of the expression "permission shall not be deemed to be refused" by the expression "it shall not be deemed that permission has been granted" also gives a clue to the legislative intention that the inference of refusal shall not be made if the Exchange has intimated to the applicant that further consideration will be given to the application.
[668 H] (ii) It cannot be held that unless all the applications to different Exchanges were granted, the allotment of shares must, by virtue of sub section
(1) of section 73 be invalid.
The object of section 73(1) is that the subscribers to the shares must have facility to approach on Exchange for having their holding converted whenever they desire.
Even if out of several exchange I approached, one or more, but not all, have granted the application for enlistment, the facility of ensuring quick conversion is still available.
, It after representing in the prospectus that an application bag been made to a, recognised exchange for '*enlistment" or will be made within the prescribed period, the company is unable to obtain permission for "enlistment" from any Exchange, the allotment will be invalid.
But sub section
(1) is not intended to mean that it will be invalid even if permission is obtained but not from all the Exchanges to which applications have been made.
[670 A C] (iii) Section 73 (1) declares the entire allotment void : it does not take into consideration the right or convenience of individual shareholders.
663 An enquiry whether a shareholder or a class of shareholders was or were induced to subscribe for shares on the representation that the company was applying for enlistment to several exchanges one of which was convenient to him, is irrelevant in determining whether the allotment is tendered invalid for failure to secure compliance with a statutory condition.
[671 B] (iv) An appellate court may in appropriate case pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision.
The power may be exercised by the Court notwithstanding that the appeal is as to a part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed an appeal or objection.
[671 E] [The Court did not give a final opinion on the question whether in the present case the discretion was correctly exercised by the High Court because the Calcutta and Delhi Exchanges had applied for certificates in the High Court of Delhi and the application was pending.] [671 G]


judgement:
Appeals Nos. 1409 and 1721 of 1966.
Appeals by special leave from the judgment and order dated November 15, 1965 of the Bombay High Court, Nagpur Bench in Special Civil Application Nos. 746 and 747 of.
section K. Mehta and K. L. Mehta.
for the appellants (in both the appeals).
M. section Gupta, for respondents Nos. 1 and 2 (in C.A. No. 1409 of 1966.
section section KhanduJa, for respondent No. 3 (in both the appeals).
658 The Judgment of the Court was delivered by Shah, J.
Badridas son of Ramgopal was the owner of fields Survey Nos. 2 and 9/2 of village Bhamberi, taluq Akot, District Akola.
On February 26, 1958, Badridas granted a lease for cultivation of the lands to two brothers Kishan and Manik.
At the end of the agricultural year 1958 59 Badridas ' took possession of the lands from Kishan and Manik representating that he desired to cultivate the lands personally.
Badridas cultivated the lands during the agricultural years 1959 60 and 1960 61, and thereafter on January 18, 1961 he granted a lease of the lands for four years to Bhagwant son of Pundalik Kishan and Manik then applied on June 30, 1961 under section 36(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, for an order restored them to possession alleging that their eviction from the lands was illegal.
The Additional Tahsildar dismissed the application, but in appeal the order was reversed.
In the view of the appellate authority Kishan and Manik were in 1958 59 tenants of the lands and they were evicted otherwise than in accordance with the law, and that they were entitled to be restored to possession under section 36(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
In a petition by Bhagwant the Revenue Tribunal reversed the order of the appellate authority.
The Tribunal held that since Kishan and Manik had given up pos session of the lands volutarily and had allowed Badridas to cultivate the lands for the following two years, they had no right to be reinstated into possession of the lands, especially after the lands were let out by Badridas to Bhagwant.
Kishan and Manik then moved in the High Court of Bombay at Nagpur, two Special Civil Applications Nos.
746 and 747 of 1964 in respect of the two fields Survey Nos. 2 and 9/2 separately.
The High Court set aside the order of the Revenue Tribunal and directed that an order for pos session be made in favour of Kishan and Manik in respect of the two lands.
With special leave, these appeals have been preferred by Bhagwant.
The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, was brought into force on December 30, 1958.
Section 20 provides : "A tenant may terminate the tenancy at any time by surrendering his interest of a tenant in favour of the landlord.
Provided that such surrender shall be in writing and shall be verified before the Tahsildar in the prescribed manner." 659 Section 36 of the Act provides : ( 1 ) A tenant .
entitled to possession of any land .
under any of the provisions of this Act or as a result ofeviction in contraven tion of sub section (2) may apply in writing for each.
possession to the Tahsildar.
(2) No landlord shall obtain possession of any land, held by a tenant except under an order of the Tahsildar.
For obtaining such order he shall make an application in the prescribed form and within.
a period of two years from the date on which the right to obtain possession of the land, is deemed to have accrued to him: For the agricultural year 1958 59 Kishan and Manik were tenants in respect of two lands in question.
Badridas took possession of the lands at the end of that year.
Granting that Kishan and Manik delivered the lands voluntarily, there could not under S 20 of the Act be a valid surrender, unless the surrender was in writing and verified before the Tahsildar and in the prescribed manner.
Possession obtained by Badridas was not lawful, for Badridas obtained possession of the land from the tenants without complying with the requirements of section 20 and of sub section
(2) of section 36.
Sub section (2) of section 36 prohibits the landlord from obtaining possession of any land held by a tenant except under an order of the Tahsildar.
Delivery of possession voluntarily by Kishan and Manik did not render the possession of Badridas valid.
Under section 36(1) a tenant who has been evicted in contravention of sub section
(2) may apply in writing to the Tahsildar for such possession.
Counsel for the appellant contended that section 36(2) does not commence with the expression "Notwithstanding any agreement,.
usage, decree or order of a court of law" as section 19 of the Act does,.
and on that account it may reasonably be inferred that the Legislature intended that only those tenants shall be deemed entitled to possession within the meaning of section 36(1) who were dispossessed by fraud, coercion or misrepresentation, and not tenant who had voluntarily parted with possession of the lands.
We are unable to agree with that contention.
Section 19 provides that not with standing any agreement, usage, decree or order of a court of law tenancy of any land held by a tenant shall not be terminated exception the cases specified therein.
Thereby it was intended to make the provisions of section 19 paramount.
In section 20 'of the Act which deals with surrender it is expressly enacted that surrender shall be in writing and shall be Verified in the prescribed manner.
Surrender of tenancy which does not comply with the requirements of section 20, 660 is ineffective.
Again, sub section
(2) of section 36 imposes a disability upon the landlord from obtaining possession of any land occupied by a tenant except under an order of the Tahsildar.
The terms of subs.
(2) of section 36 are explicit : they are not subject to any implication ' that possession obtained with the consent of the tenant, but without an order of the Tahsildar is valid In a recent judgment Madhao s/o Tatya Sonar vs The Maharashtra Revenue Tribunal and ors.
(1) the High Court of Bombay held that section 36(2) is plenary and controls section 20 of the Act.
In the present case there is no surrender of tenancy in writing and no verification of surrender by the Tahsildar.
We need express no opinion on the question Whether mere verification by the Tahsildar without an order of the Tahsildar authorising the landlord to obtain possession disentitles the tenant to claim possession under section 36(1).
The appeals fail and tire dismissed.
Having regard to all the circumstances, however, we think, there should be no order as to costs in this Court.
Counsel for the appellant Bhagwant submitted that there are crops standing on the lands, and prayed that the appellant may be allowed to reap them.
0one months time from the date of this judgment is given to the appellant to deliver possession of the lands.
Y.P. Appeals dismissed.
(1) Special Civil Application No. 206 of 1967 decided on September 11/12 1969.

summary:
The respondents obtained a lease for cultivation of land.
On the landlord 's desire to cultivate the land personally, the respondents surrendered the lands to the landlord.
The surrender was not in writing nor was there verification of the surrender by the Tehsildar.
The landlord cultivated the land for a few years, and thereafter granted a lease to the appellant.
The respondents applied under section 36 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, for restoration of possession to them.
On the question whether the eviction of respondent was legal, this Court, HELD : Possession obtained by the landlord was not lawful for, he obtained possession of the lands from the tenants without complying with the requirements of section 20 and sub section
(2) of section 36.
Sub section (2) of section 36 prohibits the landlord from obtaining possession of any land held by a tenant except under an order of Tahsildar.
Delivery of possession voluntarily by the respondents did not render possession of the landlord valid.
Under s.36(1) a tenant who has been evicted in contravention of sub section
(2) may apply in writing to the Tahsildar for such possession.
[1659 E] By section 20 of the Act which deals with surrender it is expressly provided that surrender shall be in writing and shall be verified in the prescribed manner.
Surrender of tenancy which does not comply with the requirements of section 20 is ineffective.
Again the terms of sub section
(2) of section 36 are explicit; they are not subject to any implication that possession obtained with the consent of the tenant, but without an order of the Tahsildar is valid.
[659 H] In the present case there is no surrender of tenancy in writing and no verification of surrender by the Tahsildar.
Madho S/o Tatya Sonar vs Maharashtra Revenue Tribunal & Ors.
Special Civil Application No. 206/1967 dt.
11 12 1969, followed.


judgement:
Appeal No. 1732 1966.
Appeal from the Judgment and decree dated June 20, 1966 the Mysore High Court in Regular Appeal No. 97 at 1959.
M. C. Chagla, P. N. Tiwari, J. B. Dadachanji, O.C .
and Ravinder Narain for the appellant.
A. K. Sen, section section Javali and M. Veerappa, for respondents 1 and 2.
The Judgment of the Court was delivered by Mitter, J.
One Rudrappa Murigoppa Gugwad died leaving a will dated February 2, 1919.
It is claimed by the appeal that he also left a codicil dated August 10, 1919.
After citing in clause 1 of the will that he had brought UP Lochanappa Gugwad, son of Irappa Sidlingappa Gugwad, and though he had wished to take the said Lochanappa in but had not been able to do so up till then 'and even if the adoption ceremony did not take place in the future, Lochanappa alone would be the owner of his properties he proceeded state in clause 2 of his will that : "Even though I have hereby transferred the ownership of my immovable and movable properties to Lochanappa Irappa Gugwad, Lochanappa should act under the supervision of 'the trustees, namely.
Lingappa Sanganabassappa Tyapi and Gurulingappa Gan gappa Gugwad.
it both the trustees find that my property will fall out of use on account of Lochanappa 's taking to bad ways, both the trustees should take possession of the property 'and safeguard it by appointing my extremely faithful clerks Veerabhadrappa Mallappa Suligavi and Basappa Murangappa 693 Tuppadd.
If Lochanappa gets a male issue the, property should be in the possession of both the trustees till that son attains majority.
" In clause 3 he laid down that "In case Lochanappa Irappa dies without leaving male issue, fully authorise, the said trustees to transfer the ownership of the movable and immovable property of my family to the son of Gurupadappa Gangappa Gugwad, resident of Bijapur, and to deliver the entire property into his possession." The original will was deposited with the Collector.
After having executed the will the testator appeared to have proceeded to Benares and from there a dressed a letter to Lochanappa Irappa Gugwad on 10th August, 1919.
By that he directed some money to be advanced to Gurubasappa Bassappa Gugwad to start him on a business and commended the welfare of the said Gurubasappa to the care of Lochanappa adding : "The main thing is that you should pay full attention to him.
I have mentioned in the will that in case male children are not born to you, you should take in adoption in your own name any of the sons of Gurupadappa Gangappa Gugwad of Bijapur and that if you die without taking in adoption, they alone will be the owner of the movable and immovable properties.
But two sons are born to him.
As early as possible that is to say, when one boy becomes five years old or after my death you should execute this work of adoption and you should mention that the property should go to him after your death.
" The last statement appears to be incorrect inasmuch as the testator had not by his will directed Lochanappa to make such an adoption.
Probate of the will was duly taken into possession of all the properties left by the testator.
According to the judgment of the High Court appealed from, the letter was not a formal document as a codicil should be, nor was it referred to in the probate proceedings.
In the year 1935 Gangappa Gurupadappa Gugwad, the appellant herein, filed a suit in the court of the First Class Subordinate Judge at Bijapur against Lochanappa and the said two trustees for a declaration that Lochanappa had only a life interest in respect of the properties described in the schedule to the plaint as per the 694 will and codicil executed by the testator, that certain improvident transactions put through by Lochanappa in contravention of the directions given in the will were not binding on the plaintiff or the properties left by the der eased and that the s Lochanappa having acted contrary to the directions given in will and codicil and having mismanaged the said properties a injunction should be issued against the trustees directing to give Lochanappa only maintenance in terms of the will.
The Subordinate Judge who heard the suit framed several issues of which the important ones were as follows (1) Whether the plaintiff is entitled to sue ? (2) Whether Lochanappa, defendant No. 1 got only a limited interest in the estate of the testator, Rudrappa Gugwad, under the will? (3) Whether acts of mismanagement by Lochanappa contrary to the directions of the will had been proved ? (4) Whether an injunction could be validly given to the trustees to take over the management from Lochanappa and give him only maintenance ?.
Before the Subordinate Judge evidence both oral and documentary were let in.
He construed the will to arrive at the finding that Lochanappa had been made the malik or owner of the pro parties covered by the will and that it was the will of the tesator which recited that the estate given to Lochanappa was be heritable.
With regard to the further directions given in will, he came to the conclusion that "Lochanappa having bee made an owner under the will further expression of such intention cannot be properly allowed to control or qualify that ownership.
" As regards the direction in the letter styled a codicil advising Lochanappa to take one of the sons of Gurupadappa Gangappa Gugwad in adoption, he held that: "In fact, there is no such direction in the original will.
Even assuming that it is so, only means that Gurupaddappa 's sons are to be the owners in case Lochanappa dies without male issue and without adopting one of the sons of Gurupadappa; Lochanappa is still alive and it is yet to be seen whether he adopts plaintiff or not or whether a son will be born to him or not.
Plaintiff has at the most a contingent right and vested interest, and therefore ' it is a question whether he is entitled, to a simple declaration.
" The suit out of which this appeal arises was 'filed by Gang Gugwad after the death of Lochanappa in 1957 against 695 widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his son in the year 1951 and Gurlingappa Gungappa Gugwad, the surviving trustee under the will of Rudrappa pleading inter alia that "Rudrappa did not confer an absolute estate on Lochanappa in respect of his property, that the bequest made in his favour conferred upon him only a restricted life estate and that even assuming Lochanappa was an absolute owner he was entitled to it only during his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and codicil.
" The plain,tiff appellant went on to add that it was incumbent on Lochanappa to adopt him alone and none else and any adoption in contravention of the direction in the will of, Rudrappa Murigappa Gugwad was invalid and even assuming that the said direction was not mandatory, defendant No. 2 could not acquire the status of a son begotten by Lochanappa so as to claim any interest in the property of the deceased testato.
The suit was contested by the widow and the adopted son, defendant No. 2 who plead ed the bar of res judicata on the strength of the judgment in the suit of 1935.
The Subordinate Judge held against the dependent on that issue.
He also found that the appellant.
was the rightful heir to the properties of the deceased testator under the will and codicil of Rudrappa after the death of Lochanappa.
The High Court examined the will and the letter described as codicil over again and came to the conclusion that the letter described as codicil was only an informal communication from one relation to another, that the testator had only a vague recollection of the contents of the will at the time of writing the letter from Benaras and that the order in the probate proceedings did not refer to the letter.
On the basis of the will the High Court held that Lochanappa was an absolute owner of the property.
The High Court further held that the decree in the suit of 1935 operated as res judicata in the subsequent suit.
Referring to the first two issues framed in suit of 1935 the High Court held that there was a clear finding in the judgment in that suit that the appellant had obtained no interest under the will of Rudrappa and therefore he was not entitled to sue.
Before us learned counsel for the appellant contended that in spite of the observations made by the learned Subordinate Judge in the judgment in the suit of 1935 about Lochanappa 's rights under the will and the document styled as codicil, the. decision on the first issue went to show that the appellant 's suit was premature and as such it was not necessary for the Subordinate Judge to go into the other question and his findings on issues other than the first should be treated as obiter.
696 In support of the above contention counsel for the appellant relied on the decision of the Privy Council in Shankarlal vs Hiralal(1).
The head note in that case to which our attention was drawn reading, "Court holding that suit is not maintainable by reason of failure to comply with section 80 Findings given on merits are obiter and do sot support plea of res judicata either in favour of or against party".
seems to be misleading inasmuch as the judgment of the Board does not bear out the above proposition of law.
At best the head note only records a finding by an appellate Bench of the ,Calcutta High Court which the Board by its own judgment did not expressly reject or uphold.
The appeal to the Privy Council arose out of a suit filed by ,one Mangtulal Bagaria for royalties due under a lease of collieries by one Popat Velji Rajdeo of which the said Mangtulal was appointed manager by the court.
The defendants were the lessees under the lease or their representatives and were respondents in the appeal to the Board.
There the defence of the lessees was that the lease had been surrendered in July 1933.
The plaintiffs challenged the surrender and also pleaded that the point was covered by res judicata.
Ameer Ali, J., before whom the suit came on for hearing on the original side of the Calcutta High Court framed several issues, in two groups.
The first issue in Group A related to a plea of res judicate.
The second issue in that group raised a question whether there was any defence apart from surrender.
Group B raised questions as to the fact and validity of the alleged surrender.
The plea of res judicata was based on a judgment of the Subordinate Judge of Dhanbad wherein the lessees had sued Mangtulal and some others for a declaration that the lease had been validly surrendered in 1933.
The Subordinate Judge held that the suit did not lie inasmuch as notice had not been served on Mangtulal under section 80 Civil Procedure Code.
He however supported to decide other issues in the suit including one as to the sufficiency of the surrender.
An appeal from the decree of the Subordinate Judge was taken to the High Court at Patna but was withdrawn against Mangtulal and the brother of the lessor and a consent decree, was obtained against the two widows upholding the surrender.
Ameer Ali, J. went into the question of res judicata as ' a preliminary issue and "pressed the view: (1) A.I.R. 1950 P. 30.
697 .lm15 "that the decision of the Dhanbad Court had decided the same issue which had to be decided in his own court and between the same persons and parties.
" In appeal from his judgment the learned " 'Judges held that Inasmuch as the Subordinate Judge in the Dhanbad suit had held that the suit did not lie by reason of the failure to comply with section 30, Civil P.C., he was bound to dismiss the suit under Or.
7 R. 1 1 of the Code and the findings of the Court on the merits were obiter and could not support a plea of res judicata.
" They held further that Ameer Ali, J. had decided nothing but the issue of res judicata.
Accordingly.
they allowed the appeal and remanded the case to the court of first instance for trial of issues other than issue 1.
The judgment of the Judicial Committee shows that before the Board it was conceded on behalf of the appellant that the appellate court was right in the view which it took as to the effect of the Dhanbad decree.
The Board proceeded to observe "Their Lordships have no doubt that the decision in the Dhanbad suit could not support a plea of res judicata on the merits, either in favour of or against Mangtulal.
" The Board rejected the contention of the appellant that Ameer Ali, J. had decided not only the issue of res judicata but also that the alleged surrender of the lease was invalid.
According to the Board the judgment of Ameer Ali, J. was to some extent obscure and there were passages in it which suggested that he thought the surrender invalid but "it was clear that he did not purport to decide anything beyond the issue of res judicata" and he expressly stated that h. , was not deciding the issues in the second group.
Accordingly the Board saw no reason to differ from the view of the appellate Judges that the issues as to surrender were not decided by the trial Judge and did not feel inclined to interfere with the direction given by the 'appellate court regarding the remand of the trial of the issues in the court of first instance.
On the strength of the dictum of the appellate Bench of the Calcutta High Court forming a part of the headnote to the above decision it was contended before us, that once the Subordinate Judge of Bijapur recorded a finding on the first issue against the appellant in the suit of 1935 his construction (if the will and the effect thereof were obiter and they would not be binding on the appellant in the second suit.
This was sought to be fortified by the observations in the concluding portion of 698 the judgment in the suit of 1935 which we have quoted above that the plaintiff had at the most a contingent right and no vested interest.
It was.argued that the learned Subordinate Judge 's view that the suit was premature was sufficient to dispose of the case before him without his going into the other questions and the issues raised.
No doubt it would be open to a court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law.
If for instance the plaintiff 's cause of action is against a Government and the plaint does not show that notice under section 80 of the Code of Civil Procedure claiming relief was served in terms of the said section,, it would be the duty of the court to reject the plaint recording an order to that effect with reason for the order.
In such a case the court should not embark upon a trial of all the issues involved and such rejection.
would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
But, where the plaint on the face of it does not show that any relief envisaged by section 80 of the Code is being claimed, it would be the duty of the court to go into all the issues which may arise on the pleadings including the question as to whether notice under section 80 was necessary.
If the court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of section 80 of the Code and absence of notice thereunder should not operate.
as, res judicate in a subsequent suit where the identical questions arise for determination between same parties.
In our view the High Court was right in deciding the issue as to res indicate against the appellant.
The High Court rightly pointed out that the Subordinate Judge had in clear terms decided that the appellant had obtained no interest under the will of Rudrappa and therefore he was not entitled to sue.
The Subordinate Judge had further held that the estate obtained by Lochanappa under the will was an absolute estate.
With respect, we concur with the view expressed by the High Court.
There was no question of the trial of any preliminary issue in the suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to a finding thereon.
The nature of the right acquired by Lochanappa under the will of the testator was directly in question and the Subordinate Judge went elaborately into it to take the view that Lochanappa had become absolutely entitled to the,properties left by the testator.
The observation referred to in the concluding portion of the judgment of the Subordinate Judge is not to be taken 699 as the decision on a preliminary issue so as to render the findingon the other issues mere obiter or surplusage.
In our view the High Court rightly relied on the observations of this Court in Vithal Yeshwant father vs Shikandarkhan Makhtum khan Sardesai(1) that if the final decision in any matter at issue between the parties is based by a court on its decisions on.
more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties.
The question as to the nature of the estate taken by Lochanappa under the will and the document called codicil to the will of the testator, Rudrappa having been in issue in the suit of 1935 and it having been decided that Lochanappa had obtained an absolute estate to the property,, the decision would bind the appellant in any subsequent litigation to which the claim is, based on the will and codicil.
We accordingly dismiss the appeal on the ground that the decision in the t of 1935 was a bar to the trial of the second suit of 1957.
The respondent will be entitled to costs throughout.
G.C. Appeal dismissed.
(1) ; at 290.

summary:
R wanted to adopt L as his son but did not actually do so.
In accordance with R 's will executed in 1919 L inherited R 's property after his death.
In 1935 the appellant herein instituted a suit against L and the trustees appointed under R 's will.
It was the appellant 's claim that the will was supplemented by a codicil (this referred to a letter written by R to L some time after the execution of the will).
Under these documents, according to him, L inherited only a life estate.
He alleged that L was mismanaging the property and prayed for an injunction directing the trustees to take over management of the properties.
The Subordinate Judge framed four issues to the affect (1) whether the appellant was entitled to sue, (2) whether L inherited only a life interest, (3) whether L had mismanaged the property and (4) whether an injunction as prayed should be issued to the trustees.
The Subordinate Judge held that L had inherited not a life Mate but full ownership, and that the appellant had only a contingent right in the property depending on L dying without male issue, so that it was not possible to grant to the appellant the declaration he prayed for.
L adopted a son C in 1951, and died in 1957.
After his death the appellant filed another suit against L 's widow, C the adopted son and the surviving trustee.
This suit was also based on the claim that L had inherited only a life estate under R 's will and codicil.
The contesting defendants raised the plea of res judicata based on the decision in the suit of 1935.
The plea of res judicata was rejected by the trial court but accepted by the High Court.
In appeal before this Court it was urged on behalf of the appellant that the trial court in the suit of 1935 having held the suit to be premature and thus decided the preliminary issuability the appellant, its decision on the other issues was only obiter and could not operate as res judicata.
HELD: The appeal must fail.
There was no question of the trial of any preliminary issue in the suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to a finding thereon.
The nature of the right acquired by L under the will of the testator was directly in question and the subordinate judge went elaborately into it to take the view that L had become absolutely entitled to the properties left by the ,testator.
The observation referred to in the concluding portion of the Judgment of the Subordinate Judge is not to be taken as the decision on a preliminary issue so as to render the finding on the other issues mere obiter and surplusage.
L698 G 699 Al If the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point eacb of which by itself 6 92 would be sufficient for the ultimate decision the decision one these points would operate as resjudica between the parties.
question as to the nature of the estate taken by L under the will and document called codicil to the will of the testator having been in is in the suit of 1935 and the Court having been decided that L had obta an absolute estate to the property, this decision would bind the up in any subsequent litigation such as the present, in which the claim based on the will and cod cil.
[699 B C] Shankarlal vs Hiralal, A.I.R. 1950 P.C. 80, explained and distinguished Vithal Yeshwant Jathar vs Shikandarkharn Mukhtum khan (19631 2 S.C.R. 285, 290, applied.