judgement:
133 of 1959.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
A. V. Viswanatha Sastri and G. Gopalakrishnan, for the petitioner.
D. Narasa Raju, Advocate General, of Andhra Pradesh, D. Venkatappayya Sastri and ' T. M. Sen, for respondents Nos.
T. V. R. Tatachari, for respondent '1 No. 4. 1960.
December 6.
The Judgment of the Court was delivered by section K. DAS, J.
This is a writ petition under article 32 of the Constitution.
Gazula Dasarstha Rama Rao is the petitioner.
The respondents are (1) the State of Andhra Pradesh, (2) the Board of Revenue, Andhra Pradesh, (3) the Collector of Guntur in Andhra Pradesh and (4) Vishnu Molakala Chahdramowlesshwara 933 Rao.
The petitioner prays that this Court must declare section 6 of the Madras Hereditary Village Offices Act,, 1895 (Madras Act III of 1895), hereinafter called the Act, as void in so far as it infringes the fundamental right of the petitioner under articles 14 and 16 of the Constitution, and further asks for an appropriate writ or direction quashing certain orders passed by respondents 1 to 3 in favour of respondent No. 4 in the matter of the latter 's appointment as Village Munsif of a newly constituted village called Peravalipalem.
When this petition first came up for hearing we directed a notice to go to other States of the Union inasmuch as the question raised as to the constitutional validity of the law relating to a hereditary village office was of a general nature and might arise in relation to the existing laws in force in other States.
Except the State of Andhra Pradesh which has entered appearance through its Advocate General, none of the other States have entered appearance.
The Advocate General of Andhra Pradesh has appeared for respondents 1 to 3, and respondent 4 has been separately represented before us.
These respondents have contested the application and have pleaded that section 6 of the Act does not violate any fundamental right, nor are the impugned orders of respondents 1 to 3 invalid in law.
The short facts are these: Village Peravali in Tenali taluq of the district of Guntur in the State of Andhra Pradesh was originally comprised of a village of the same name and a fairly large hamlet called Peravalipalem.
The two were divided by a big drainage channel.
It is stated that for purposes of village administration the villagers felt some difficulties in the two being treated as one unit So the villagers, particularly those of the hamlet, but in an application to the Revenue authorities for constituting the hamlet into a separate village.
This application was re commended by the Tehsildar and was accepted by the Board of Revenue and the State Government.
By an order dated August 25, 1956, Peravali village was bifurcated and two villages were constituted.
The 118 934 order was published in the District Gazette on October 115,1956, and was in these terms: "The Board sanctions the bifurcation of Peravali village of Tenali taluq, Guntur district, into two villages, viz., (1) Peravali and (2) Peravalipalem along the boundary line shown in the map submitted by the Collector of Guntur with his letter Re. A. 4.
28150/55 dated 30th June, 1956.
These orders will come into effect from the date of publication in the District Gazette.
The Board sanctions the following establishments on the existing scale of pay for the two villages: Peravali: 1 Village Munsif.
1 Karnam.
1 Talayari.
3 Vettians.
Peravalipalem: 1 Village Munsif.
1 Karnam.
1 Talayari.
1 Vettian.
" It is convenient to read at this stage sub section
(1) of section 6 of the Act under which the bifurcation was made: "section 6(1).
In any local area in which this Act is in force the Board of Revenue may subject to rules made in this behalf under section 20, group or amalgamate any two or more villages or portions thereof so as to form a single new village or divide any village into two or more villages and, thereupon, all hereditary village offices (of the classes defined in section 3, clause (1), of this Act) in the villages or portions of villages or village grouped, amalgamated or divided as aforesaid, shall cease to exist I and new offices, which shall also be hereditary shall the created for the new village or villages.
In choosing persons to fill such new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished.
" 935 On the division of the village into two villages, all the hereditary village offices of the original village ceased to exist under the aforesaid sub section, and new offices were created for the two villages.
We are concerned in this case with the appointment to the office of Village Munsif in the newly constituted village of Peravalipalem.
In accordance with the provisions of sub section
(1) of section 6 and certain Standing Orders of the Board of Revenue, the Revenue Divisional Officer, Tenali, invited applications for the post of Village Munsif of Peravalipalem.
Eight applications were made including one by the petitioner and another by respondent 4.
Respondent 4, be it noted, is a son of the Village Munsif of the old village Peravali.
By an order dated October, 18, 1956, the Revenue Divisional Officer, appointed the petitioner as Village Munsif of Peravalipalem.
From the order of the Revenue Divisional Officer, respondent 4 and some of the other unsuccessful applicants preferred appeals to respondent 3, the Collector of Guntur.
By an order dated April 1, 1957, respondent 3 allowed the appeal of respondent 4 and appointed him as Village Munsif of Peravalipalem.
In his order respondent 3 said: "Shri V. Chandramowleswara Rao is qualified for the post.
He is the son of the present Village Munsif of Peravali and is, therefore, heir to that post. section 6(1) of the Hereditary Village Offices Act states that in choosing a person to fill a new office of this kind the Collector shall select the person whom he may consider best qualified from among the family of the last holder of the office which has been abolished.
The Village Munsif 's post of the undivided village of Peravali was abolished when the village was divided and the new post of Village Munsif of Peravalipalem has to be filled up from among the family of the previous Village Munsif.
The same instructions are contained in Board 's Standing Order 148(2).
" The petitioner then carried an appeal from the order of respondent 3 to the Board of Revenue.
By an order dated April 24, 1958, the Board dismissed the appeal and stated: "According to section 6, in choosing the person to fill 936 in a new office like this, the Collector shall select the person whom he considers best qualified from among the families of the last holders of the office, which have been abolished.
Here the office of the Village Munsif was abolished and two new offices have been created.
As the last holder of the office was appointed to the new village, Peravali, after bifurcation,, the Collector has appointed the son of the last office holder as Village Munsif of Peravalipalem as he is the nearest heir.
The appellant before the Board cannot claim any preference over the son of the last office holder. 'The Board, therefore, holds that the Collector 's order is in accordance with the law on the subject.
No interference, is, therefore, called for." The petitioner then moved respondent, 1, but without success.
Thereafter, he filed the present writ petition.
The petitioner relies mainly on clauses (1) and (2) of article 16 of the Constitution.
We may read those clauses here: "article 16(1).
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State: (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
" On behalf of the petitioner it has been contended that (1) the office of Village Munsif of Peravalipalem is an office under the State, and (2) respondents 1 to 3 in passing their orders in favour of respondent 4 expressly stated that they proceeded on the basis of the hereditary principle laid down in section 6(1) of the Act and discriminated against him as a citizen.
on the ground of descent only.
This discrimination, it is argued violates the guarantee of equal opportunity enshrined in article 16, cls.
(1) and (2) and section 6(1) of the Act to the extent that it permits such discrimination is void under article 13(1) of the Constitution.
The first question before us is if the office of Village 937 Munsif under the Act is an office under the State within the meaning of cls.
(1) and (2) of article 16 of the Constitution.
For determining that question it is necessary to examine the scheme and various provisions of the Act.
The long title shows that it was an Act made to repeal Madras Regulation VI of 1831 and for other purposes.
The purposes mentioned in the preamble are "to provide more precisely for the succession to certain hereditary village offices in the State; for the hearing and disposal of claims to such offices or the emoluments annexed thereto; for the appointment of persons to hold such offices and the control of 'the holders thereof, and for certain other purposes.
" Section 3 of the Act refers to classes of village offices to which the Act applies and Village Munsif is one of such offices.
Under section 4 "emoluments" of the office means and includes (i) lands; (ii) assignment of revenue payable in respect of lands; (iii) fees in money or agricultural produce; and (iv) money salaries and all other kinds of remuneration granted or continued in respect of, or annexed to, any office by the State.
Section 5 lays down that the emoluments of village offices, whether such offices be or be not hereditary, shall not be liable to be transferred or encumbered in any manner whatsoever and it shall not be lawful for any Court to attach or sell such emoluments or any portion thereof Sub section
(1) of section 6 relates to the grouping or division of villages; this sub section we have already read.
Sub section
(2) of section 6 gives a right to the Board of Revenue, subject to the approval of Government, to reduce the number of village offices, and on such reduction the Collector is empowered to dispense with the services of the officers no longer required.
Sub section
(3) of6 which was subsequently added in 1930 says thatminor shall not be ineligible for selection by reasonof his minority only.
Section 7 states the circumstances in which the Collector may, of his own motion or on complaint and after enquiry suspend, remove or dismiss, etc.
, some of the village officers mentioned in section 3.
A similar power of punishment is also given to the Tehsildar.
Under these provisions the Collector may suspend, remove 938 or dismiss the Village Munsif.
Section 10 lays down certain rules which are to be observed in making appointments to some of the village offices and these rules lay down, among other things, the general qualifications requisite for appointment to the offices in question.
For example, for the appointment to the office of Village Munsif no person.
is eligible unless he has attained the age of.
majority, is physically and mentally capable of discharging the duties of the office, has qualified according to the educational test prescribed for the office by the Board of Revenue, has not been convicted by a Criminal Court of any offence which, in the opinion of the Collector, disqualifies him for holding the office and has not been dismissed from any post under the Government on any ground which the Collector considers sufficient to disqualify him for holding the office.
One of the qualifications prescribed by section 10 as it originally stood required that the applicant must be of the male sex.
This requirement was deleted by the Adaptation (Amendment) Order of 1950, presumably to bring the section into conformity with articles 15 and 16 of the Constitution which prohibit discrimination on the ground of sex.
Sub section
(2) of section 10 says that the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartable zamindar is in Southern India. ' Sub section
(3) of section 10 says that where the next heir is not qualified, the Collector shall appoint the person next in order of succession, who is so qualified, and, in the absence of any such person in the line of succession, may appoint any person duly qualified.
Sub sections
(4), (5) and (6) of section 10 deal with matters with which we ore not directly concerned.
Section 11 lays down the rules to be observed in making appointments to certain offices in proprietary estates and one of the rules is that succession shall devolve in accordance with the law or custom applicable to the office in question.
Section 13 in effect says that any person may sue before the Collector for any of the village offices specified in section 3 or for the recovery of the emoluments of, any such office on the ground that he is entitled to hold such office and 939 enjoy such emoluments.
There are some provisos to the section which lay down limitations on the right of suit.
With those limitations we are not concerned in the present case.
Section 14 lays down the period of limitation for bringing a suit.
Sections 15, 16 and 17 relate to the transfer and trial of such suits and the decrees or orders to be passed therein.
Section 20 empowers the Board of Revenue to make rules and section 21 bars the jurisdiction of Civil Courts.
Section 23 provides for appeals.
The above gives in brief the scheme and provisions of the Act.
These provisions show, in our opinion, that the office of Village Munsif under the Act is an office under the State.
The appointment is made by the Collector, the emoluments are granted or continued by the State, the Collector has disciplinary powers over the Village Munsif including the power to remove, suspend or dismiss him, the qualifications for appointment can be laid down by the Board of Revenue all these show that the office is not a private office under a private employer but is an office under the State.
The nature of the duties to be performed by the Village Munsif under different provisions of the law empowering him in that behalf also shows that he holds a public office.
He not only aids in collecting the revenue but exercises power of a magistrate and of a Civil Judge in petty cases.
He has also certain police duties as to repressing and informing about crime, etc.
The learned Advocate General appearing for respondents 1 to 3 has contended that the expression " office under the State" in article 16 has no reference to an office like that of the Village Munsif, which in its origin was a customary village office later recognised and regulated by law.
His contention is that the expression has reference to a post in a Civil 'Service and an ex cadre post under a contract of service,, as are referred to in articles 309 and 310 in Part XIV of the Constitution relating to the Services under the Union and the States.
He has referred in support of his contention to Ilbert 's Supplement to the Government of India Act, 1915, p. 261, where a similar 940 provision with regard to the Indian Civil Service has been referred to as laying down that "no native of British India. . is by reason only of his religion, place of birth, descent, or colour, or any of them disabled from holding any place, office or employment under His Majesty in India" and has pointed out that the aforesaid provision reproduced section 87 of the Act of 1833 and historically the office to which the provision related was an office or employment in a Service directly under the East India Company or the Crown.
He also referred to section 298 of the Government of India Act, 1935, which said inter alia that "no subject of His Majesty domiciled in India shall on grounds only of religion, place of birth, descent, colour or any of them be ineligible for office under the Crown in India.
" The argument ' of the learned Advocate General is that article 16 embodies the same principle as inspired the earlier provisions referred to above, and like the earlier provisions it should be confined to an office or post in an organised public Service or an excadre post under a contract of service directly under the Union or the State.
He has further suggested that the deletion of the requirement as to sex in section 10 of the Act was by reason of article 15 and not article 16 of the Constitution.
The argument is plausible, but on a careful consideration we are unable to accept it as correct.
Even if we assume for the purpose of argument that articles 309 and 310 and other Articles in Chapter 1, Part XIV, of the Constitution relate only to an organised public Service like the Indian Administrative Service, etc., and ex cadre posts under a direct contract of service which have not yet been incorporated into a Service, we do not think that the scope and effect of cls.
(1) and (2) of article 16 can be out down by reference to the provisions in the Services Chapter of the Constitution.
Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India.
It is available to all, irrespective of whether the person claiming it is a citizen or not.
Article 15 prohibits discrimination on some special grounds religion, race, caste, sex, place 941 of birth or any of them.
It is available to citizens only, but is not restricted to any employment or office under the State.
Article 16, cl.
(1), guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and el.
(2) prohibits discrimination on certain grounds in respect of any such employment or appointment.
It would thus appear that article 14 guarantees the general right of equality; articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances.
Article 15 is more general than article 16, the latter being confined to matters relating to employment or appointment to any office under the State.
It is also worthy of note that article 15 does not mention 'descent ' as one of the prohibited grounds of discrimination, whereas article 16 does.
We do not see any reason why the full ambit of the fundamental right guaranteed by article 16 in the matter of employment or appointment to any office under the State should be cut down by a reference to the provisions in Part XIV of the Constitution which relate to Services or to provisions in the earlier Constitution Acts relating to the same subject.
These Service provisions do not enshrine any fundamental right of citizens; they relate to recruitment, conditions and tenure of service of persons, citizens or otherwise, appointed to a Civil Service or to posts in connection with the affairs of the Union or any State.
The word 'State ', be it noted, has a different connotation in Part III relating to Fundamental Rights: it includes the Government and Parliament of India, the Government and Legislature of each of the States and all local or other authorities within the territory of India, etc.
Therefore, the scope and ambit of the Service provisions are to a large extent distinct and different from the scope and ambit of the fundamental right guaranteeing to all citizens an equality of opportunity in matters of public employment.
The preamble to, the Constitution states that one of its objects is to secure to all citizens equality of status and opportunity; article 16 gives equality of opportunity in matters 119 942 of public employment.
We think that it would be wrong in principle to cut down the amplitude of a fundamental right by reference to provisions which have an altogether different scope and purpose.
Article 13 of the Constitution lays down inter alia that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall to the extent of the inconsistency be void.
In that Article 'law ' includes custom or usage having the force of law.
Therefore, even if there was a custom which has been recognised by law with regard to a hereditary village office, that custom must yield to a fundamental right.
Our attention has also been drawn to cl.
(4) of article 16 which enables the State to.
make provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
The argument is that this clause refers to appointments or posts and further talks of inadequate representation in the services, and the learned Advocate General has sought to restrict the scope of cls.
(1) and (2) of article 16 by reason of the provisions in el.
We are not concerned in this case with the true scope and effect of cl.
(4) and we express no opinion with regard to it.
All that we say is that the expression 'office under the State ' in cls.
(1) and (2) of article 16 must be given its natural meaning.
We are unable, therefore, to accept the argument of the learned Advocate General that the expression " office under the State ' in article 16 has a restricted connotation and does not include a, village office like that of the Village Munsif.
In M. Ramappa vs Sangappa and Others (1) the question arose whether certain village offices governed by the Mysore Villages Offices Act, 1908, were offices of profit under the Government of any State within the meaning of article 191 of the Constitution.
This Court held that the offices were offices of profit under the Government and said.
"An office has to be held under someone for it is impossible to conceive of an office held under no one.
(1) 943 The appointment being by the Government, the office to which it is made must be held under it, for there is no one else under whom it can be held.
The learned Advocate said that the office was held under the village community.
But such, a thing is an impossibility for village communities have since a very long time, ceased to have any corporate existence.
" Learned Counsel for respondent 4 has presented a somewhat different argument on this question.
He has submitted that the office of Village Munsif is not merely an office simpliciter; but it is an office cum property.
His argument is that article 16 does not apply to a hereditary village office because a person entitled to it under the Act has a pre existing right to the office and its emoluments, which he can enforce by a suit.
We now proceed to consider this argument.
Learned Counsel for respondent 4 has relied on the decision of this Court in Angurbala Mullick vs Debabrata Mullick (1) where it was held that in the conception of shebaiti under Hindu law, both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other.
He has argued that on the same analogy the office of a village Munsif must be held to be an office cum property.
We do not think that the analogy holds.
As this Court pointed out in Kalipada Chakraborti and Another vs Palani Bala Devi and Others (2) shebaitship is property of a peculiar and anomalous character and it is difficult to say that it comes under the category of immovable property as it is known to law.
As to the office of a Village Munsif under the Act, the provisions of the Act itself and a long line of decisions make it quite clear that what go with the office are its emoluments, whether in the shape of land, assignment of revenue, agricultural produce, money, salary or any other kind of remuneration.
These emoluments are granted or continued in respect of, or annexed to, the office by the State.
This is made clear by section 4 of the Act.
Apart from the office there is no right to the emoluments.
In other words, when a person is appoint (1) (2) 944 ed to be a "Village Munsif" it is an appointment to a an office by the State to be remunerated either by the use of land or by money, salary, etc.
; it is not the case of a grant of land burdened with service, a distinction which was explained by the Privy Council in Lakhamgouda Basavprabhu Sardesai vs Baswantrao and Others (1).
In Venkata vs Rama (2) where the question for decision was the effect of the enfranchisement of lands forming the emoluments of the hereditary village office of Karnam, it was pointed out: "Emoluments for the discharge of the duties of the office were provided either in the shape of land exempt from revenue or subject to a lighter assessment, or of fees in grain or cash, or of both land and fees.
. . . . . . . . . When the emoluments consisted of land, the land did not became the family property of the person appointed to the office, whether in virtue of an hereditary claim to the office or otherwise.
It was an appanage of the office inalienable by the office holder and designed to be the emolument of the officer into whose hands soever the office might pass.
If the Revenue authorities thought fit to disregard the claim of a person who asserted an hereditary right to the office and conferred it on a stranger, the person appointed to the office at once become entitled to the lands which constituted its emolument.
" The same view was re affirmed in, Musti Venkata Jagannada Sharma vs Musti Veerabhadrayya (3) where the history of the office of Karnam was examined and it was observed that the "Karnam of the village occupies his office not by hereditary or family right, but as personal appointee, though in certain cases that appointment is primarily exercised in favour of a suitable person who is a member of a particular family." This latter decision was considered by a Full Bench of the Madras High Court in Manubolu Ranga Reddi vs Maram Reddi Dasaradharami.
Reddi (4) (1) A.I.R. 1931 P.C. 157.
(3) A.I.R. 1922 P.C. 96.
(2) I.L.R. 8 'Mad.
(4) I.L.R. 945 and it was pointed out that their Lordships of the Privy Council, though they indicated the nature of the right which the Karnam had, did not consider the ' question whether on the creation of an office under section 6(1), the members of the family of the last holder of the abolished office had the right to compel the Collector to carry out the duty cast upon him by the section.
It was held that section 6(1) creates a right in the family which can be enforced by suit.
Learned Counsel for respondent 4 has relied on this decision.
It is worthy of note, however, that the decision was given on the footing that section 6(1) was valid and mandatory in character.
No question arose or could at that time arise of the contravention of a fundamental right guaranteed by the Constitution, by_ the hereditary principle embodied in section 6(1) of the Act.
The decision proceeded on the footing that the Act recognised a 'right vested in a family ' to the office in question and contained provisions to enforce that right.
It did not proceed upon the footing that the family had a right to the property in the shape of emoluments, independent or irrespective of the office.
In other words, the decision cannot be relied upon in support of the contention that a hereditary village office is like a shebaiti, that is, office cum property.
That was not the ratio of the decision.
The ratio simply was this that the Act bad recognised the right vested in a family to the office in question.
That decision cannot assist respondent 4 in support of his contention that article 16, cls.
(1) and (2), do not apply to the office, even though the office is an office under the State.
In Ramachandurani purshotham vs Ramachandurani Venkatappa and Another (1) the question was whether the office of Karnam was 'property ' within the meaning of article 19(1)(f) of the Constitution.
It was held that it was not property within the meaning of that Article.
The same view was expressed in Pasala Rama Rao vs Board of Revenue (2) where if was observed that the right to succeed to a hereditary office was not property and the relation back of an adopted son 's rights was only with regard to property.
(1) A.I.R. 1952 Mad.
(2) A.I.R. 1954 Mad.
946 This view was not accepted in Chandra Chowdary vs The Board of Revenue (1) where it was observed that the fact that the adoption was posthumous did not make any difference and the adoption being to the last office holder, the adopted son must be deemed to have been in existence at the time of the death of the male holder and had the right to succeed to the office.
It was further observed that the office of a Village Munsif was 'property ' so as to attract the operation of the rule that the adoption related back to the date of the death of the last male holder.
We are not concerned in this case with the doctrine of relation back in the matter of a posthumous adoption.
The simple question before us is whether the office, though it is an office under the State, is of such a nature that cls.
(1) and (2) of article 16 of the Constitution are not attracted to it.
We are of the view that there is nothing in the nature of the office which takes it out of the ambit of cls.
(1) and (2) of article 16 of the Constitution.
An office has its emoluments, and it would be wrong to hold that though the office is an office under the State, it is not within the ambit of article 16 because at a time prior to the Constitution, the law recognised a custom by which there was a preferential right to the office in the members of a particular family.
The real question is is that custom which is recognised and regulated by the Act consistent with the fundamental right guaranteed by article 16? We do not agree with learned Counsel for respondent 4 that the family had: any pre existing right to property in the shape of the emoluments of the office, independent or irrespective of the office.
If there was no such pre existing right to property apart from the office, then the answer must clearly be that article 16 applies and section 6(1) of the Act in so far as it makes a discrimination on the ground of descent only, is violative of the fundamental right of the petitioner.
There can be no doubt that section 6(1) of the Act does embody a principle of discrimination on the ground of descent only.
It says that in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from (1) A.I.R. 1959 Andhra Pradesh 343.
947 among the families of the last holders of the offices which have been abolished.
This, in our opinion, is discrimination on the ground of descent only and is in contravention of article 16(2) of the Constitution.
Learned Counsel for respondent 4 has also submitted that the petitioner cannot be permitted to assert the invalidity of section 6(1) of the Act when he himself made an application for appointment as Village Munsif under the Act.
He has drawn our attention to the decision in Bapatla Venkata Subba Rao v, Sikharam Ramakrishna Rao(1).
That was a case where the appellant was appointed as a hereditary Karnam under the Act and but for the Act, he would not have had any claim to be appointed to the office of Karnam.
It was held that he could not be permitted to contend for the first time in appeal that the very Act but for which he would not have had any right to the office, was unconstitutional.
Apart from the question whether a fundamental right can be waived, a question which does not fall for consideration in this case, it is clear to us that the facts here are entirely different.
The petitioner had the right to make an application for the new village office and he was accepted by the Revenue Divisional Officer.
Respondents 1 to 3, however, passed orders adverse to him and in favour of respondent 4, :acting on the principle of discrimination on the ground of descent only as embodied in section 6(1) of the Act.
It is, we think, open to the petitioner to say that section 6(1) of the Act in so far as it violates his fundamental right guaranteed under article 16 of the Constitution is void and his application for appointment must, therefore, be decided on merits.
Finally, we must notice one other argument advanced by the learned Advocate General on behalf of respondents 1 to 3.
The argument is based on the distinction between articles 15 and 16.
We have said earlier that article 15 is, in one respect, more general than article 16 because its operation is not restricted to public employment; it operates in the entire field of State discrimination.
But in another sense, with (1) A.I.R. 1958 Andhra Pradesh 322.
948 regard to the grounds of discrimination, it is perhaps less wide than article 16, because it does not include , descent ' amongst the grounds of discrimination.
The argument before us is that the provision impugned in this case must be tested in the light of article 15 and not article 16.
It is submitted by the learned Advocate General that the larger variety of grounds mentioned in article 16 should lead us to the conclusion that article 16 does not apply to offices where the law recognises a right based on descent.
We consider that such an argument assumes as correct the very point which is disputed.
If we assume that article 16 does not apply, then the question itself is decided.
But why should we make that assumptions If the office in question is an office under the State, then article 16 in terms applies; therefore, the question is whether the office of Village Munsif is an office under the State.
We have held that it is.
It is perhaps necessary to point out here that cl.
(5) of article 16 shows that the Article does not bear the restricted meaning which the learned Advocate General has canvassed for; because an incumbent of an office in connexion with the affairs of any religious or denominational institution need not necessarily be a member of the Civil Service.
For the reasons given above, we allow the petition.
The orders of respondents 1 to 3 in respect of the appointment to the post of Village Munsif of Peravalipalem in favour of respondent 4 are set aside and we direct that the application of the petitioner for the said office be now considered on merits by the Revenue authorities concerned on the footing that section 6(1) of the Act in so far as it infringes the fundamental right of the citizens of India.
under article 16 of the Constitution is void.
The petitioner will be entitled to his costs of the hearing in this Court.
Petition allowed.

dataset_name: IN-Abs

summary:
Village P in the State of Andhra Pradesh was originally comprised of a village of the same name and a fairly large hamlet called PP, but in view of the difficulties in the two being treated as one unit for purposes of village administration the Board of Revenue sanctioned the bifurcation of P into two villages, P and PP.
On the division of the village all the hereditary village offices of the original village ceased to exist under section 6(1) of the Madras Hereditary Village Offices Act, 1895, and new offices were created for the two villages.
The section provided, inter alia, that "in choosing persons to fill such new offices the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished." Though applications for the post of Village Munsif of PP had been invited by the Revenue authorities and the petitioner among others had made the application, respondent 4 who was the son of the Village Munsif of the old village, P, was selected on the ground that in view of section 6(1) of the Act, as the last holder of the office was appointed to the new village, P, after bifurcation, respondent 4 as the son of the last holder and nearest heir had a preferential claim for the post of Village Munsif for PP.
The petitioner challenged the validity of the order of the Revenue authorities on the grounds (1) that the office of Village Munsif was an office under the State, and that the order in favour of 932 respondent 4 which expressly stated that they proceeded on the basis of the hereditary principle laid down in section 6(1) of the Act, discriminated against him as a citizen on the ground of descent only and violated the guarantee of equal opportunity enshrined in article 16 of the Constitution of India, and (2) that section 6(1) of the Act, to the extent that it permitted such discrimination was void under article 13(1) of the Constitution.
The plea of the respondents was (1) that the expression "office under the State" in article 16 had no, reference to an office like that of the Village Munsif which in its origin was a customary village office later recognised and regulated by law, and (2) that article 16 did not apply to a hereditary office because a person entitled to it under the Act had a pre existing right to the office and its emoluments which could be enforced by a suit.
Held: (1) that a village office like that of the Village Munsif was an office under the State within the meaning of article 16 of the Constitution of India; M. Ramappa vs Sangappa and otheys; , 167, referred to.
(2) that a person entitled to an office under section 6(1) of the Madras Hereditary Village Offices Act, 1895, did not have any pre existing right to property in the shape of emoluments of the office, independent or irrespective of the office, and consequently to such an office article 16 applied; and, (3) that section 6(1) of the Act embodied a principle of discrimination on the ground of descent only and was in contravention of article 16(2) of the Constitution.


judgement:
l Appeal c, No. 380 of 1957.
Appeal from the judgment and order dated March 8, 1956, of the Bombay High Court in Income tax Reference No. 4 of 1956.
N. A. Palkhivala, section N. Andley, Rameshwar Nath, J. B. Dadachanji and P. L. Vohra, for the appellant.
A. N. Kripal and D. Gupta, for the respondent.
December 7.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This appeal, on a certificate by the High Court, has been filed by Shree Changdeo Sugar Mills, Ltd., to which section 23A of the Income tax Act (prior to its amendment by the Finance Act, 1955) was applied in respect of the assessment year, 1948 49.
The question which was referred to the High Court was whether at the relevant time the assessee Company could be deemed to be a Company, in which the public were substantially interested.
This question was answered in the negative by the High Court.
During the assessment year, the Company had not distributed dividends to the extent of 60 per cent.
of its profits, and an order under section 23A(1) of the Indian Income tax Act was passed by the Income tax Officer.
The Company appealed to the Appellate Assistant Commissioner, who dismissed the appeal.
It next appealed to the Tribunal, but was unsuccessful.
The Tribunal, however, referred the above question which, as already stated, was answered in the negative by the High Court.
The issued, subscribed and paid up capital of the assessee Company consisted of 60,000 shares, which were distributed as follows: 992 (1) 11 Directors of the Company 41,500 shares.
(2) The Managing Agency Firm 2,300 shares.
(3) Mysore Merchants Ltd. 11,880 shares.
(4) Others. . 4,320 shares.
60,000 shares.
The question arose in determining whether the public were substantially interested in the Company, that is to say, held 25 per cent.
of the voting power.
The Bombay High Court in determining this point followed its decision in Raghuvanshi Mills V. Commissioner of Income tax (1), and held that no holding by the Directors of a company could be regarded as one in which the public were substantially interested.
We have heard Civil Appeal No. 30 of 1957 from the decision of the Bombay High Court in the Raghuvanshi Mills case (1), in which judgment has been pronounced today, and have held that that is not the correct test to apply.
We have remanded the said appeal, after setting out the correct test to apply.
What we have said there applies equally here.
There is yet another question, which arose in this appeal but not in the appeal of the Raghuvanshi Mills.
As we have already stated, Mysore Merchants Ltd., held 11,880 shares of the assessee Company.
If these shares could be said to be held by the public along with 4,320 shares, the public would be holding 25 per cent of the voting power, whether or not the Directors of the Company held the rest of the shares.
It was.
, therefore, necessary for the High Court to consider whether the shares held by Mysore Merchants 'Ltd., could be said to be held by the public.
The High Court held against the assessee Company that they could not be counted as part of the holding by the public, and, in our judgment, the High Court has reached the correct conclusion.
The matter has to be judged under the third proviso to section 23A(1), which read as follows: "Provided further that this sub section shall not apply to any company in which the public are (1) 993 substantially interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary company is held by the parent company or by the nominees thereof.
Explanation.
For the purpose of this sub section, a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty five per cent of the voting power have been allotted unconditionally to, or acquired unconditio nally by, and are at the end of the previous year beneficially held by, the public (not including a company to which the provisions of this sub section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in British India or are in fact freely transferable by the holders to other members of the public.
" In applying the proviso and the Explanation, we have to give effect to the words "not including a company to which the provisions of this sub section apply", and have to determine whether Mysore Merchants Ltd., is a Company, to which the provisions of section 23A can be said to be applicable.
Learned counsel for the assessee Company contends that in deciding this, we have to be satisfied on three points, which he summarises as follows: (a)The public should not be substantially interested in that Company; (b)It must have assessable profits for the relevant assessment year; and (c)It must not have distributed 60 per cent of its net assessable profits.
He contends that unless these three conditions are fulfiled, section 23A will not apply to Mysore Merchants Ltd., and that the shares held by it will be deemed to be held by the public.
He points out that Mysore Merchants Ltd., had no assessable income in the corresponding assessment year and had suffered a loss, that conditions (b) and (c) did not, therefore, apply, and 994 that section 23A is not applicable to that Company.
In our opinion, the paramount condition is that even in that Company the public should be beneficially interested in 25 per cent.
of the voting power, and it was admitted before us that it was not a public Company at all but a private Company, and that, therefore, the public were not interested in that Company.
The shares held by Mysore Merchants Ltd., cannot at all be counted as a holding in which the public are beneficially interested, in view of the exclusion contained in the Explanation.
This point will not, therefore, be open for the determination of the High Court, when the question is reconsidered by the High Court in the light of our observations in The Raghuvanshi Mills.Ltd.
vs Commissioner of Income tax, Bombay (1), decided today.
Learned counsel for the assessee Company also contended that in view of cl. 14 of the Part B States (Taxation Concessions) Order, 1950, the provisions of section 23A could not be applied to Mysore Merchants Ltd. That clause reads as follows: " 14.
Requiring distribution of dividends by private companies.
The provisions of section 23A of the Act shall not be applied in respect of the profits and gains of any previous year ending before the appointed day unless the State law contained a provision corresponding thereto.
" This Concession would be open to Mysore Merchants Ltd., if it satisfied the terms of Cl.
That, however, cannot detract from the application of section 23A to determine whether the shares hold by it can be described as those in which the public are beneficially interested in another company.
The Explanation requires that the shares held by a company should be considered as held by the public, only if section 23A does not apply to it.
The Concessions Order does not seek to negative this test; it only confers a benefit on a company, to which cl.
14 applies.
Mysore Merchants Ltd., may be able to avail of that concession, and still fall within (1) ; 995 section 23A for other purposes.
This contention has no force.
The appeal is allowed, and the case is remitted to s the High Court for deciding the question in the light of the observations in our decision in the Raghuvanshi Mills case (1).
As the case is remanded, the costs of this appeal shall be paid by the respondent, but the costs in the High Court will abide the result.
Appeal allowed.

summary:
During the assessment year, the company had not distributed dividends to the extent of 60% of its profits and an order under section 23A(1) of the Act was passed by the Income tax Officer.
The question referred by the Tribunal to the High Court was whether at the relevant time the assessee company could be deemed to be a company in which the public were substantially interested, i.e., held 25% of the voting power, was answered in the negative.
Held, that the test that no holding by the Directors of a company could be regarded as one in which the public were substantially interested was not the correct test to apply.
The test as laid down in Raghuvanshi Mills vs Commissioner of Income tax, ; , would apply to this Case.
Held, further, that the paramount condition in applying the proviso and the explanation of section 23A(1) was that the public should be beneficially interested in 25% of the voting power.
, The explanation to section 23A required that shares held by the company should be considered as held by the public, only if section 23A did not apply to it.
The concession order in cl.
14 of the; Part B States (Taxation Concession) Order, 1950, did not seek to negative that test, it only conferred a benefit on a company, 991 to which cl.
14 applied, and the company could avail that concession, and still might fall within section 23A for other purposes.
The Raghuvanshi Mills Ltd. vs Commissioner of Income tax, SI ' Bombay, ; , applied.


judgement:
Appeal No. 108/ 56.
Appeal by special leave from the Judgment and decree dated May 27, 1953, of the Punjab High Court in Regular Second Appeal No. 176 of 1949, against the judgment and decree dated December 20, 1948, of the District Judge, Ludhiana, arising out of the Judgment and decree dated February 6, 1948, of the Subordinate Judge, 11 Class, Ludhiana, in Suit No. 918 of 1946.
Gopal Singh, for the appellants.
C. B. Aggarwala and K. P. Gupta, for the respondents.
May 6.
The Judgment of the Court was delivered by DAS GUPTA, J.
The suit out of which this appeal has arisen was instituted by the respondents I and 2 Sher Singh and Labh Singh, for a declaration that a deed of gift executed by the first appellant, Jai Kaur, in respect of 8 (1 10) Bighas of land which she had inherited from her husband, Dev Singh, in favour of her two daughters, the 2nd & 3rd appellants before us, " shall be null and void against the reversionary rights of the plaintiffs ", and defendant Nos. 4 to 6 after the death of defendant No. 1 (i.e., Jai Kaur) and shall not be binding upon them.
The plaintiffs ' case was that these lands left by Dev Singh were all ancestral lands qua the plaintiffs and according to the customary law which governs the Jats belonging to Grewal got to which these parties belong daughters do not succeed to property left by sonless fathers and so the gift by Dev Singh 's widow in favour of her daughters would be null and void as against the plaintiffs and others who would be entitled on Jai Kaur 's death to succeed to the estate as reversioners.
In the alternative, the plaintiffs contended that even if the land in suit was not ancestral qua the plaintiffs then also the deed of gift would be null and void as against their reversionary interests inasmuch as even as regards nonancestral property daughters do not succeed among the Grewal Jats.
The main contention of defendants 1 to 3 (the appellants before us) was that the suit land was not ancestral qua the plaintiffs and defendants 977 Nos. 4 to 6, and that according to the customary law governing the Jats of the Grewal got, daughters exclude collaterals as regards non ancestral property and a widow is competent to make a gift of such property in favour of her daughters.
It was pleaded on behalf of the two daughters that they being preferential heirs in respect of the land in suit as against the plaintiffs, the gift is tantamount to acceleration of succession and is valid in every way.
The Trial Judge held that 2B 2B,14 B out of the land in suit was ancestral and the gift was invalid to that extent, because as regards ancestral property a daughter does not succeed in the presence of collaterals.
As regards the remainder of the suit land which he held was non ancestral, the learned Judge was of opinion that the gift was merely an acceleration of succession as under the customary law governing the parties daughters exclude collaterals as regards succession to non ancestral property.
Accordingly he gave the plaintiffs a decree as prayed for as regards 2 B 2B, 14 B out of the land in suit and dismissed it as regards the remaining portion of the land in suit.
The plaintiffs appealed to the District Judge, Ludhiana, against this decree and cross objections were filed by the defendants Nos. 1 to 3.
The Trial Court 's finding about a portion of the land being ancestral and the rest non ancestral was not disputed before the appeal court.
On the question of custom the learned District Judge agreed with the Trial Judge 's view that among the Grewal Jats of Ludhiana the daughter excluded collaterals as regards non ancestral property.
He held, therefore, agreeing with the Trial Judge that as regards the non ancestral property the deed of gift was merely an act of acceleration of succession and was, therefore, valid and binding.
The appeal was accordingly dismissed and so also were the cross objections which appear not to have been pressed.
On second appeal the learned judges of the East Punjab High Court accepted the contention urged on behalf of the plaintiffs that a special custom was proved to be in force among the Grewal Jats under which the daughter does not inherit even as regards 978 non ancestral property.
In that view they held that even as regards the non ancestral property the gift by Jai Kaur would be valid only during her lifetime, and allowed the appeal.
Against this decree of the High Court defendants Nos. 1 to 3 Jai Kaur and her two daughters, the donees have filed this appeal on the strength of special leave granted by this Court.
Two questions arise for consideration in this appeal.
The first is whether under the customary law governing the Jats of the Grewal got in Ludhiana to which the parties belong, the daughter or the collaterals are the preferential heirs as regards non ancestral property.
If the answer to this question be that daughters have preference over collaterals (the plaintiffs here), the other question which arises is whether this gift is such acceleration of succession in favour of the daughters as is permissible under the law.
On the question of custom the appellants rely on the statements in paragraph 23 of Rattigan 's Digest of Customary Law (Thirteenth Edition) that in regard to the acquired property of her father the daughter is preferred to collaterals.
It is not disputed that nonancestral property is " acquired property " within the meaning of this statement by Rattigan.
Against this the plaintiffs respondents rely on the answers to question No. 43 relating to Hindu Grewal Jats of Ludhiana as appear in the Riwaji am prepared at the revised settlement of 1882.
The question and the answer are in these words: Question: " Under what circumstances can daughters inherit ? If there are sons, widows or near collaterals, do they exclude the daughter ? If the collaterals exclude her, is there any fixed limit of relationship or degree within which such Dear kindred must stand Answer: " In our tribe the daughter does not succeed under any circumstances.
If a person dies sonless, his collaterals succeed him.
There is no fixed limit of relationship for purposes of excluding her.
979 If there are no collaterals of the deceased, the owners of the Thulla or Patti or village would be owners of his property." The authoritative value of Rattigan 's compilation of customary law is now beyond controversy, having been recognised in the judicial decisions of the Punjab courts too numerous to mention, which have also received the approval of the Judicial Committee of the Privy Council.
Therefore it is not, and cannot be disputed that under the general customary law of the Punjab daughters exclude collaterals in succession to non ancestral property.
The value of entries in the Riwaj i am has, also however, been repeatedly stressed.
That they are relevant evidence under section 35 of the Evidence Act is clear and the fact that the entries therein the the result of careful research of persons who might also be considered to have become experts in these matters, after an open and public enquiry has given them a value which should not be lightly underestimated.
There is ', therefore, an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the Privy Council in a recent decision in Mt. Subhani vs Nawab (1), that where, as in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it.
In the present appeal the oral.
testimony given on behalf of either party is practically valueless to show an ,, instance in favour of the custom pleaded by them.
If, therefore, the Riwaj i am does show as urged by the plaintiffs a custom of daughters being excluded by collaterals in respect of non ancestral property, it is clear that Riwaji i am would prevail.
The real controversy in this litigation is, however, on the question whether the entries in the Riwaj i am on which (1) A.I. R. 1941 (P.C.) 21.
980 the plaintiffs rely refer at all to non ancestral property or not.
This controversy has 'engaged the attention of the courts in Punjab for a number of years beginning with 1916.
In that year in Mst.
Raj Kaur vs Talok Singh (1) Sir Donald Johnstone, the Chief Justice held that the Riwaj i am as compiled, did not cover self acquired property and that where the Riwaj i am talked about succession to land without discrimination between ancestral and self acquired, the rule laid down could usually only be taken to apply to ancestral property.
A similar view was taken by Shadilal and Wil be force, JJ., in Budhi Prakash vs Chandra Bhan (2 ).
The view taken in these cases was followed by other judges of the High Court in Narain vs Mst.
Gaindo (3 ) and Fatima Bibi vs Shah Nawaz (4).
In Sham Das vs Moolu Bai (5) the learned judges (LeRossignol and Fforde, JJ.) also laid down the same principles, without any reference to the previous decisions, in these words : "It is true in the Riwaj i ain no distinction is made between ancestral and acquired property, but it is a well recognised rule that unless there are clear indications to the contrary, such an entry in a record of custom refers only to the succession to ancestral property. " After this view had been followed in several other decisions a different line was struck in Jatan vs Jiwan Singh (6).
That was a case between Grewal Jats and the contest lay between collaterals of the last male holder and his married daughter with respect to his non ancestral property.
The learned judges were of opinion that the Question No. 43 in the Riwaj i am related to both ancestral and non ancestral property and so the answer to the question recorded in Riwaj iam proved that as regards the non ancestral property also the daughter was excluded by collaterals.
In coming to this conclusion they laid stress on the fact that in two previous decisions, Ishar Kuar vs Raja Singh (7) and Pratap Singh vs Panjabu (8) the questions and answers in the Riwajiam as regards daughter 's (1) A.I.R. 1916 Lah.
(3) A.I.R 1918 Lah.
304 (5) A.I.R. 1926; Lah.
210 (7) (2) A.T.R. 19T8 Lah.
(4) A.I.R. 1921 Lah.
(6) A.I.R. 1933 Lah.
(8) 981 right to succession were interpreted as covering nonancestral property also and if it was contemplated that a daughter should succeed to self acquired property, one would have expected that fact to be mentioned in the answer.
It was in view of the conflicting views which had thus arisen on the question whether Question No. 43 in the Riwaj i ani in the absence of a clear indication to the contrary related to ancestral property only or to both ancestral and non ancestral property that a reference was made by Mr. Justice Abdur Rahman in Mt. Hurmate vs Hoshiaru 1 to a Full Bench of the High Court.
The Full Bench reviewed the numerous decisions of the Punjab courts in this matter and also took into consideration the fact that Mr. Gordon Walker who had prepared the Riwaj i am in 1882 had stated in the preface that no distinction between self acquired and inherited pro perty in land appeared to be recognised and the rules of succession, restriction on alienation, etc., applied to both alike; and after a careful consideration of all the relevant factors recorded their conclusion that " Question No. 43 of the Customary Law of Ludhiana district relates to ancestral property only and can in no circumstances be so interpreted as to cover self acquired property as well. " Mr. Justice Din Mohammad who delivered the leading judgment observed :" The raison d ' entre of those cases which lay down that the manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible.
Collaterals are, as stated by Addison, J., in 13 Lab.
458, really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory.
What a male holder acquires himself is really no concern of theirs.
It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specific ally told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only.
The fact that on some occasions (1) A.I.R. 1944 Lah. 21, 127 982 the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general.
Similarly, the use of the terms " in no case " or " under no circumstances " would refer to ancestral property only and not be extended so as to cover self acquired property unless the context favoured that construction.
" One would have thought that after this pronouncement by a Full Bench of the High Court the controversy would have been set at rest for at least the Punjab courts.
Surprisingly, however, only a few years after the above pronouncement, the question was raised again before a Division Bench of the East Punjab High Court in Mohinder Singh vs Kher Singh(1).
The learned judges there chose to consider the matter afresh and in fact disregarded the pronouncement of the Full Bench in a manner which can only be said to be unceremonious.
Teja Singh, J., who delivered the leading judgment said that the Full Bench, though noticing the cases of Ishar Kaur vs Raja Singh (2) and Pratap Singh vs Panjabu (3), had not said that those cases had been wrongly decided.
It has to be noticed that the Full Bench in no uncertain terms expressed their conclusion that question No. 43 of the Customary Law of the Ludhiana district related to ancestral property only and could in no circumstances be so interpreted as to cover self acquired property as well.
In coming to that conclusion they had considered numerous decisions of the Punjab courts in support of the general proposition that unless there are clear indications to the contrary the questions relate to ancestral property, considered the cases in which a contrary view had been taken including the three cases of Jattan vs Jiwan Singh (4), Ishar Kaur vs Raja Singh (2 ) and Pratap Singh vs Panjabu (3) and gave their own reasons why the view that unless there are clear indications to the contrary the manuals of customary law should be taken to refer to ancestral property only, and after considering the (1) A.I.R. 1949.
East Punjab 328 (3) (2) (4) A.I.R. 1933 Lah.
983 question and answer in question No. 43 in the case before them as regards the Mohammadan Rajputs, recorded their final conclusion.
It is neither correct nor fair to say that the learned judges of the Full Bench did not hold Jattan 's Case, Pratap Singh 's Case and Ishar Kaur 's Case to have been wrongly decided in so far as these decisions held the question No. 43 of the Customary Law of the Ludhiana dis trict to refer both to ancestral and non ancestral property.
It is true that they did not say in so many words that these cases were wrongly decided; but when a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but he held to have been wrongly decided.
We had recently occasion to disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision.
If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court.
In our opinion, the view taken by the Full Bench in Mt. Hurmate vs Hoshiaru (1) is consonant with reasons and consistent with probability.
The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits of the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think that they were being asked about succession to ancestral property, is entitled to great weight.
It cannot, we think, be seriously disputed that at least in the early years (1) A.I.R. 1944 Lah 21. 984 when the Riwaj i am was in course of preparation most of the property in the countryside was ancestral property, and " self acquisitions " were few and far between.
This fact, it is reasonable to think, had the consequence of concentrating the attention of the tribesmen on the importance of having the tribal custom correctly recorded by the Settlement Officers and their agents, as regards succession to ancestral property, and of attracting little attention, if any, to matters regarding non ancestral property.
Unless the questions put to these simple folk, were so framed as to draw pointed attention to the fact that the enquiries were in respect of non ancestral property also, they could not reasonably be expected to understand from the mere fact of user of general words in the questions that these referred to both ancestral and non ancestral property.
As Din Mohammad, J., said in his judgment in the Full Bench, even the fact that on some occasions, the questioner had drawn some distinction between ancestral and nonancestral property, could not have put them (i.e.
, the persons questioned) on their guard in every case, considering their lack of intelligence in general.
Their minds being obsessed with the idea that such enquiries would only refer to ancestral property, they would direct their answers to matters in respect of ancestral property only, and in using forceful terms like " in no case " and " under no circumstances these persons were really saying that " in no case would ancestral property devolve in a particular way and have a particular incidence; and under no " cir cumstances " would ancestral property devolve in a particular way, and have a particular incidence.
These considerations, we think, outweigh the statement made by Mr. Gordon Walker that no distinction between self acquired and inherited property in land appeared to be recognised, and the rules of succession, restriction on alienation, etc., applied to both alike.
We think, therefore,, that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the Riwaj i am refer ordinarily to 985 ancestral property, unless there is clear indication to the contrary, is correct.
Question No. 43 in the Ludhiana district, appears to be the same for all the tribes.
There is not the slightest indication there that the questioner wanted information about nonancestral property also.
The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non ancestral property.
We have, therefore, come to the conclusion that the entries in the Riwaj i am on which the plaintiffs respondents rely do not refer at all to non ancestral property, and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non ancestral property, in preference to daughters.
Reliance was next placed on behalf of these respondents on the fact that the existence of such a custom was recognised in a number of judicial decisions, viz., Jattan vs Jiwan Singh (1), I shar Kaur vs Raja Singh (2) and Pratap Singh vs Panjabu (3).
If these decisions in so far as they recognised the existence of such a custom, had been solely or even mainly based on evidence, other than entries in the Riwaji i am, they might have been of some assistance.
Examination of these cases, however, shows unmistakably that they were either wholly, or mainly based on the entries in the Riwaj i am on the assumption that these entries referred to both ancestral and non ancestral property.
This assumption having been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiffs respondents did exist as regards non ancestral property.
Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom.
It must, therefore, be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to non ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of Rattigan 's Digest i.e.
, the daughter is preferred to (1) A.I.R. 1933 Lah. 553.
(2) (3) 986 collaterals, and consequently, the second and the third appellants, were the next reversioners to that portion of Dev Singh 's property which has been found to be non ancestral.
This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widow 's lifetime.
We have to remember in this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that out of the ancestral property, the house was not included in the deed of gift.
The position, therefore, is that out of the property in which the first appellant held a widow 's estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her.
The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self effacement of the limited owner.
That is why it has been laid down that in order that a surrender by a limited owner to a reversioner, may be effective, the surrender must be of the entire interest of the limited owner in the entire property.
The exception made in favour of the retention of a small portion of the property for her maintenance, does not affect the strictness of the requirement that a surren der to be effective, must be of the entire interest in the entire property: Vide Rangasami Gounden vs Nachiappa Gounden (1) and Phool Kaur vs Pem Kaur (2).) In so far as there is gift to a stranger, there is no effacement of the limited owner; nor is there any effacement in respect of the property which is retained.
We find it impossible to say, therefore, that there is such effacement of the limited owner in this case, as would accelerate the daughter 's rights by converting the future contingent right into a present vested right.
On behalf of the appellants it is argued that there is certainly a total effacement in respect of the nonancestral property, so that the right of the next reversioners the daughters in that property has (1) (1918) L.R. 46 I.A. 72.
(2) ; , 987 been accelerated.
We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis a vis the next reversioner of the non ancestral property when there is no effacement vis a vis the reversioner of the ancestral property, and vice versa.
Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis a vis those next reversioners whom she wants to benefit, law does not recognise such " partial effacement ".
The Hindu Law doctrine of surrender does not, therefore, make the gift of the non ancestral property to the daughters valid beyond the widow 's lifetime.
It is not suggested that there is any customary law, by which such surrender can be made.
Though, therefore, we have found disagreeing with the learned judges of the High Court that tinder the customary law governing the Grewal got of Jats to which the parties belong, the daughters the second and the third appellants are preferential heirs to the non ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughters is not valid even as regards the non ancestral property, beyond the donor 's lifetime is correct and must be maintained.
As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under section 14 of the Hindu Succession Act, which became law in 1956, either the mother or the daughters have become full owners of this property, and so the plaintiffs ' suit should be dismissed.
As the Hindu Succession Act was not on the statute book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under section 14 of that Act could not be thought of and was not raised.
The necessary consequence is that evidence was not adduced, with the facts material for the application of section 14 in view, by either party.
Mr. Agarwala has, on behalf of the plaintiffs respondents, contended that as the record stands the mother had ceased to be in possession and could not get the benefit of section 14 of the Hindu Succession Act, and that the 988 daughters in possession, would not become full owners under section 14.
We do not think it would be proper to consider these questions in the present suit in this haphazard manner when on the all important question of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters ' possession was merely permissive, or whether the daughters were in independent possession, on their own behalf These and other questions of fact, and the questions of law that have to be considered in deciding a claim by the first appellant or the other two appellants under section 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised.
We express no opinion on any of these questions.
For the reasons which have been mentioned earlier, we hold that the High Court rightly decreed the suit in favour of the plaintiffs in respect of the nonancestral property also, and dismiss the appeal.
In the circumstances of the case, we order that the parties will bear their own costs throughout.
Appeal dismissed.

summary:
Under the customary law prevalent amongst the Hindu Jats of Grewal got in Ludhiana, a daughter is a preferential heir to her father in respect of his self acquired property to his collaterals.
Rattigan 's Digest of Customary Law, paragraph 23, which records the correct law on the point, is not in conflict with Riwaji am, 1882, Question NO. 43, which refers only to ancestral property and not to self acquired property at all.
Mt. Hurmate vs Hoshiaru, A.I.R. 1944 Lah.
21, approved.
Mohinder Singh vs Kher Singh, A.I.R. 1949 East Punjab 328, disapproved.
Mt. Subhani vs Nawab, A.I.R. 1941 (P.C.) 21, referred to.
Case law discussed.
The doctrine of surrender in Hindu Law is based on a theory of complete self effacement by the widow in favour of the reversioner and in order that such surrender can accelerate the reversion, it must be of the entire interest in the entire property.
The law does not recognise a partial self effacement nor a division between ancestral and non ancestral property.
The exception made in respect of a small portion of the property retained for the widow 's maintenance does not detract from the rigour of the rule.
Rangaswami Gounden vs Nachiappa Gounden, (1918) L.R. 46 I.A. 72 and Phool Kaur vs Prem Kaur, ; , referred to.
Consequently, in a case where a Hindu widow of the Jat Grewal got made a gift only of the self acquired property of her husband to her daughters such gift had not the effect of a surrender in law so as to accelerate the daughters ' succession and the gift could not be valid beyond her lifetime.