judgement:
il Appeal No. 129 of 1965.
Appeal by special leave from the judgment and decree dated August 24, 1962 of the Andhra Pradesh High Court in Appeal No. 419 of 1958.
S.T. Desai, M.S.K. Sastri and M.S. Narasimhan, for the appellants.
H.R.Gokhale and R. Ganapathy lyer, for respondents Nos.
The Judgment of the Court was delivered by Shelat, J.
This appeal by special leave is directed against the judgment and decree of the High Court of Andhra Pradesh confirming the dismissal by the trial Court of the suit filed by appellants 1 and 2.
The pedigree set out below clarifies the relationship between the parties : 295 Chintalapati Venkatapatiraju Somaraj Sitharamaraju (Plaintiff in O.S. 21/23) Pullamraju (died 19 12 1913)widow Surayamma (died 22 10 50) Daughter Subbay Venkay Somaraju Son (said Radhyamma died in yamma yamma died to have been (died 6 4 27) infancy) (died) (died 29 3 21) born and died ' 11 8 56) in infancy).
Kalidindi Venkata Kali Pinnamaraju Subbaraju(1st dindi Gopala Prabhakara Plaintiff) Raju (2nd Lakshmipatiraju Plaintiff) 6th Defendant) Venkatapati Venkayamma Rajayamma Suryamma Raju Subbaraju (1 st Defendant) Rangamma Sitaramaraju Venkatapatiraju Vijayasubbaraju (2nd Defendant) (3rd Defendant) (4th Defendant) Pullamraju died leaving him surviving his undivided Somaraju, his widow Surayamma and three daughters.
Somaraju died on March 29, 1921 whereupon the said Surayamma claimed that he had left a will dated March 26, 1921 whereunder all the properties had been bequeathed to her absolutely.
Sitaramaraju the uncle of Pullamraju filed Suit No. 21 of 1923 for a declaration that Somaraju 's will was not valid as he had executed it when he was a minor and was not in a sound disposing state of mind.
296 Surayamma in her written statement filed in that Suit contended that Somaraju was a major having been born on January 7. 1903 and was in a sound disposing state of mind when he executed the said will.
The suit ended in a compromise decree by which Sitartmaraju admitted that Somaraju was a major when he died, that he was in a sound disposing state of mind and that the will therefore was genuine and valid.
Under the compromise decree he received 26 out of about 57 acres of land and the rest of the property was retained by Surayamma.
Thereafter Surayamma conducted herself as the absolute owner of the properties which came to her under the said decree.
By two deeds, dated March 30, 1925 she settled part of the land received by her under the said decree in favour of her two daughters the mothers of plaintiffs 1 and 2 and defendant 6 respectively.
The said properties have since been possessed of and enjoyed first by the said two daughters and later by plaintiffs 1 and 2 and defendant 6.
On November 3 1947 Surayamma gifted another portion of the said property to defendant No. 6. Surayamma died on October 22, 1950.
Plaintiffs and 2 and defendant 6 (the present appellants) thereafter obtained a deed of surrender from their mothers and filed the suit out of which this appeal arises, contending that they were the nearest reversioners of Somaraju, being the sons of his sisters; that the said compromise decree was collusive that the said Somaraju did not execute the said will that even if he did he was not a major nor of sound disposing state of mind when he executed it and that therefore the said will was not valid.
By a subsequent amendment of the plaint they also contended that some of/he lands left by Somaraju were not disposed of under the said will that there was consequently intestacy in respect thereof which in any event they as reversioners were entitled to claim.
The respondents resisted the suit contending that the said will was valid, that the said compromise decree was binding on the appellants and that they having accepted and enjoyed the said properties settled upon their mothers by Surayamma, they were estopped from challenging the will or the said decree.
They also denied that any of the properties left by Somaraju remained undisposed of by the said will or that there resulted any intestacy regarding them or that on such intestacy the appellants became entitled thereto.
The trial Court held that Somaraju did execute the will that the original will was with the appellants and was suppressed by them, that therefore its certified copy produced from the records of the court was admissible, that the ' said will was valid as Somaraju was a major and in a sound disposing state of mind when he executed it, that the said decree was by way of a family arrangement in settlement of bona fide disputes that it was binding upon the appellants and that the appellants were estopped from disputing the will or the said decree.
The trial Court also repelled the contention that Somaraju left any property undisposed of under the said will or 297 that the appellants became entitled thereto upon an intestacy.
In appeal against the said judgment the High Court confirmed the dismissal of the suit by the trial Court.
The High Court also confirmed the trial Court 's conclusion that the certified copy of the said will was admissible as secondary evidence thereof and that Somaraju was a major and in a sound disposing state of mind when he executed the said will.
The High Court also confirmed the trial Court 's conclusion that the said decree was binding on the appellants and that 'the appellants and their respective mothers having accepted and enjoyed the properties settled upon them by Surayamma were estopped from disputing either the will or the said decree.
Mr. S.T. Desai for the appellants raised the following contentions : (1) that the burden of proof that the will was validly executed by Somaraju and that he was a major at the time of executing it was upon the respondents and that they failed to discharge that burden; (2) that the conclusion of the High Court and the trial Court that he was 19 years of age at the time he executed the will was not justified; (3) that the High Court erred in holding that extracts from the birth and death Registers produced by the appellants were not public documents within the meaning of section 35 of the Evidence Act and therefore not admissible; (4) that the High Court erred in holding that even if the will was not proved to have been validly executed, the said compromise decree was binding on the appellants and estopped them from challenging the validity of the will or the said decree; (5) that the appellants did not claim through the said Venkamma but under the Hindu Law of Inheritance (Amendment) Act 2 of 1929 and therefore there was no question of the compromise decree being binding on them or their being estopped from disputing 'the will or the said decree; and (6) that in any event, Somaraju did not dispose of land admeasuring about A 15.14.that there was therefore intestacy in regard to it and the appellants as reversioners ought to have been held entitled to it.
As aforesaid, the respondents did not produce the original will but produced only its certified copy, exhibit B. 9; which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement.
The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will.
Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants ' custody that they had deliberately withheld it as it was in their interest not to produce it.
The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will.
Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it.
It was undisputed that its scribe and the attesting witnesses were all dead except Dalapati Venkatapathi Raju, D.W. 4.
But the appellants ' contention as regards D.W.4 was that he was not the same person who attested the will.
The High Court appears to have relied upon section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested.
Such a presumption, however, under that section arises in respect of an original document.
Where a certified copy of a document is produced the correct position is as stated in Bassant Singh vs Brij Rai(2) where the Privy Council laid down that if the document produced is a copy admitted under section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine.
The production of a copy therefore does not warrant the presumption of due execution of the original document.
The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old.
Relying on the words "where any document purporting or proved to be 30 years old" in section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided.
This view has since then been approved of by this Court in Harihar Prasad vs Must of Munshi Nath Prasad(3).
The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will.
But, apart from such presumption there was evidence from which the High Court could conclude that 'the will was duly executed by Somaraju and attested by the witnesses who appear to have affixed their signatures thereto.
There was, firstly, the fact of Surayamma having produced the will soon after its execution in Suit No. 21 of 1923.
Secondly, there was evidence of her having based her claim to Somaraju 's property in the said suit by virtue of and under 'the said will.
Thirdly, there was the evidence of conduct of Surayamma in ' dealing with the property as an absolute owner basing her claim under the said wilt.
Fourthly.there were the three settlement deeds executed by her in favour of her daughters and lastly the fact of the terms of the said will being natural and rational, consistent with Somaraju 's anxiety that in the absence of any male heir to him the properties should go to his mother to enable her 'to make due provision for his three sisters instead of dying intestate and the properties thereon going to the said Sitaramaraju and his heirs under the law as it then stood.
There was next the evidence of D.W. 4 testifying to the execution of the wilt by Somaraju and to his having attested the original will along with other witnesses.
His evidence also was that Somaraju was then in a sound disposing state of mind.
Both the trial Court and the High Court accepted the evidence of D.W. 4 as of the person who along with others had attested the will.
There was thus ample evidence from which the High Court could conclude and in our view rightly that Somaraju executed the said will and was at the time in a sound disposing state of mind.
The effect of the certified copy of the will having been thus rightly admitted was as if the contents of the will were before the Court and the Court could proceed to construe those contents.
We are supported in this conclusion by authority.
In Setthaya vs Somayalulu(1) the original grant which was 250 years old was lost but a copy of it was produced from the respondents ' custody.
It bore the following endorsement of the predecessors of the respondents: 'Originals have been retained by us and copies have been filed, 1858 '.
The Privy Council held that the copy was properly admitted under section 65 and 90 of the Evidence Act as secondary evidence of the terms of the grant and that the statement and the said endorsement authenticating the copy were evidence as a statement by a deceased person in a document relating to a relevant fact and also as an admission of the respondents ' predecessors.
The Privy Council also held that the copy being admissible as secondary evidence of the terms of the original grant the Court could proceed upon the footing that the terms of the said grant were before it and could therefore consider them.
The High Court was therefore quite competent in construing the contents of the said will and in holding that the terms of the said will were 'natural and rational and proved that Somaraju was fin a sound disposing state of mind.
The question, however, still remains whether Somaraju was a major at that time.
The onus of proof that he was then a major and could competently execute it was on the respondents who relied on the will (See Ganaprakasam vs Paraskthy)(2).
The appellants ' case was that Somaraju was born in 1905 and not in 1903 as alleged by the respondents.
The admitted position was that all the children of Pullamraju were born in the village Isukapalli.
The parties in support of their rival contentions produced both oral and documentary evidence.
Apart from the certified copy of the will and Suryamma 's written statement in Suit No. 21 of 1923, 4 other documents Exs.A4, A5, A9 and B24 were filed in the trial Court.
B24 produced by the respondents was an extract from the 'birth register of Isukapalli.
A4 and A5 produced by the appellants were respectively an extract from the birth register of Isukapalli and an extract from the death register relating to Somaraju 's death.
exhibit A9 also produced by the appellants was a reply to them from the department concerned that there was no entry in regard to Somaraju 's birth in the birth register of 1903 of Isukapalli.
Curiously the registers of births and deaths of IsUkapalli village for 1903 and 1905 were available in 1955 but in 1957 when the trial Court called for these registers it was informed that those registers could not be traced.
The result was that the only evidence before the Court consisted of certified copies of extracts, Exs. A4 and A5, from those registers and the said letter exhibit A9.
exhibit B24, it appears, was motheaten overwritten and tampered with at some places with ink different from the original ink in which the rest of the document was written.
Both the trial Court and the High Court were agreed that it could not therefore be considered as furnishing evidence of Sornaraju 's date of birth.
exhibit A4 was an extract of birth register for the year 1905.
The appellants ' contention was that this extract furnished evidence that Somaraju was born in 1905.
It was said to have been obtained by Surayamma in 1941 as she intended to file some suit which she ultimately did not.
Assuming that Ex A. 4 was admissible under section 35 of the Evidence Act, it could not assist the appellants as it only indicated at best that a son was born of Pullamraju in 1905.
The case of the respondents however was that another son besides Somaraju was born of Pullamraju after Somaraju 's birth.
In the absence of any evidence led by the appellants that A.4 related to Somaraju and no one else, the extract obviously could not establish that Somaraiu was born in 1905 and therefore was a minor in 1921.
exhibit A. 5 showed that Somaraju died on March 29 1921 but there was dispute as to the date of his death.
There was no doubt reference in that extract that he died at the age of 16.
But the High Court found that the figure '16 ' for his age was written in an ink different from that used for the others entries in the extract and that that figure was an interpolation made by someone subsequently.
Both the trial Court and the High Court were in fact of the opinion that Exs.A4 and A.5 were not genuine.
The High Court was further of the view that exhibit A.5 had been tampered with and therefore could not be relied upon.
Exhibits B.24, A.4 and A.5 thus having been found to have been tampered with and therefore unreliable documents, it is not necessary for us to go, as the High Court did, into the question whether such extracts were admissible under section 35 of the Evidence Act or not.
Besides these extracts, the appellants also produced Exs.A.8 and A.9 a memo issued by the Taluk office, Kakinada and an endorsement dated September 17, 1955 issued by the Head Clerk of the Taluk Office, Pithapuram respectively.
The memo stated that there were no entries in the birth register of 1903 for Tanuwalla village relating to the birth of any of the children of Pullamraju.
The endorsement stayed that an application for extract from the birth register for 1903 in respect of the birth of any of the children of Pullamraju was fried but as there were no such entries in the birth register for/sukapalli for 1903 the stamps sent by the applicants for the copy were returned.
Neither the writer of exhibit A.8 nor of A.9 was examined to testify to the contents of 'the said memo and the said endorsement and to establish that notwithstanding their diligent efforts the original registers were not traceable.
A.8 and A.9 could not be admitted in evidence without the formal proof of the entries and were rightly held inadmissible.
We need not consider the rest of the documentary evidence viz. Exs.A. 3 and A.7 produced by the appellants as neither of them was relied upon before us.
Both the parties, as aforesaid, led considerable oral evidence.
However, except for the evidence of D.W. 4 both the trial Court as well as the High Court found that the oral evidence of these witnesses was speculative in character and therefore could not be said to have established either of the rival contentions as to Somaraju 's age.
No reason has been shown that their assessment of this evidence was wrong.
This being the position regarding the evidence led by the parties there remains only three pieces of evidence requiring consideration, viz., (1 ) the statement of Somaraju as to his age in the said will; (2) the statement of Surayamma in the said written statement and (3) the subsequent conduct of Surayamma, the mothers of the appellants and the appellants themselves.
The question canvassed both before the High Court and us was whether the statements made by Somaraju and Surayamma in the said will and in the said written statement respectively were admissible and could be used to establish that Somaraju was 19 years of age at the time when he executed the said will.
Section 32(5) of the Evidence Act provides that : "When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge" Section 32(6) provides that "When the statement relates to the existence of any relationship by blood, marriage or adoption between 1 Sup.CI/68 5 302 persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made".
Both the sub sections require that such a statement can be admissible only if it was made before the question in dispute was raised.
It is clear from sub section 5 that if construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption.
But such a literal construction is not a proper one as has been ruled in more than one decision.
In Oriental Govt.Security Life Assurance Co. Ltd. vs Narasimha Chari(1).Bhashyam Ayyangar J. Following Rama Chandra Dutt vs Yogeshwar Narain Deo(2) held that statement as to the age of a member of a family made by his deceased sister is admissible under section 32(5), the principle being that the time of one 's birth relates to the commencement of one 's relationship by blood and therefore a statement as to his age made by a person having special knowledge relates to the existence of such relationship.
This observation was approved in Mohammed Syedol Ariffin vs Yeohooi Gark(3) where the Privy Council held that the question of age in such a case falls within section 32(5) as it indicates the commencement of such relationship.
In Gulab Thakur vs Fadali(4) a statement by a person made when he was 36 years of age that he was adopted when he was 4 years old was held admissible after his death prove the fact of his adoption as he possessed special knowledge about the relationship required by the section.
It was also held that the fact that the person making the adoption died while 'the adopted was too young to remember him would not be material as the latter would be able to declare that he had been adopted from that acquaintance with the history of his family which he would necessarily possess.
Similarly, in Mst.Naima Khatun vs Basant Singh(5) the High Court of Allahabad following the decision in Ariffin vs Yeohooi Gatk(3) held that a statement as regards age is tantamount to a statement as to the existence of relationship.
Therefore a statement by an adoptive mother as regards the age of the adopted boy, although it would not show her own relationship with him was admissible.
In Pralhad Chandra vs Ramsaran(6), the Calcutta High Court held that a statement in the Guardianship application as to the date of birth is admissible if the person who had made it is dead and had special means of knowledge of the relationship.
This being the position under section 32(5) the statement made by Somaraju in his will that he was 19 years of age at the time of its execution was admissible and was rightly relied upon by both the trial Court and the High Court as establishing that Somaraju was a major and was competent to make the said will.
As regards the written statement of Surayamma the position of her declaration therein is somewhat different.
Both sub sections 5 and 6 of section 32, as aforesaid, declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead, i.e., before the commencement of any controversy actual or legal upon the same point.
The words "before the question in issue was raised" do not necessarily mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.
The principle on which this restriction is based is succinctly stated in Halsbury 's Laws of England, 3rd Ed.15, p. 308 in these words: "To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations".
In Kalka Prasad vs Mathura Prasad(1) a dispute arose in 1896 on the death of one Parbati.
In 1898 in a suit brought by one Sheo Sahai a pedigree was filed.
After this, the suit from which the appeal went up to the Privy Council was instituted in 1901.
It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam.
As a contrast there is the decision in Bahadur Singh vs Mohan Singh(2), where the Privy Council held certain statements made in 1847 to be admissible as the heirship of the then claimants was not then really in dispute.
(See also Field on the Law of Evidence, 9th Ed.III, p. 1847).
There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time.
The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub section 5 and sub section 6 and could not be availed of by the respondents.
As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma (1) 35 I.A.166.(2) 29 I.A.1.304 conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him.
Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit.
Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will.
The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants.
Such a conduct iS only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made.
In our view there being the statement of Somaraju admissible under section 32(5) coupled with 'the evidence of D.W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major.
Such a conclusion was obviously fatal to the appellants ' claim in the suit.
In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desai 's contentions Nos. 4 and 5.
There remains therefore his contention No. 6 only for consideration.
The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is rounded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12.
The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable, in favour of his mother.
It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area.
The fact that the total area comprised of the several survey numbers mentioned in the Schedule do not aggregate 60 acres 9 cents appears to be the result of some mistake.
It appears from the record that the survey numbers in vogue in 1902 were altered in/912.
It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the ,new record of the revised survey numbers.
It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule.
In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate.
We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property.
Consequently we must reject Mr. Desai 's contention.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
A Hindu died bequeathing all his properties to his mother absolutely by a will executed three days before his death.
In the will he stated his age to he 19 years, and that he was thereby disposing of his entire properly, movable and immovable, in favour of his mother.
After his death, the nearest reversioner under the law as it then stood, filed a suit for a declaration that the will was not valid because it was executed by the testator when he was a minor and when he was not in a sound disposing state of mind.
The mother of the testator (legatee) contened the suit and asserted in her written statement that when he executed the will the testator was a major and was in a sound disposing state of mind.
The suit was compromised By the compromise, the reversioner admitted that testator when he executed the will was a major and was in a sound disposing state of mind, that the will was valid and genuine, and the testalor 's properties were divided between the reversioner and the legatee There was a decree in terms of the compromise.
Thereafter, the reversioner and the legatee conducted themselves as the absolute owners of their respective shares of the property.
The legatee executed settlement deeds in favour of her daughters with respect to part of the land received by her under the decree.
The daughters took passion of the properties accepting their mother as their absolute owner.
After the death of the legatee, the appellants.
who were the sons of those daughters obtained a deed of surrender from their mothers accepting the legatee as the absolute owner of the properties.
They then filed a suit against the respondents.
who were the descendants of the reversioner who filed the first suit contending that the compromise decree in the first suit was collusive.
that the testator was not a major nor of sound disposing state of mind when he executed the will, that the will did not.
cover all the properties of the testator and that the appellants were in any event entitled to those properties with respect to which there was an intestacy.
as the sisters sons of the last male holder under the Hindu Law of Inheritance (Amendment) Act of 1929.
The respondents contested the suit and case notice to the appellants to produce the original will alleging that it was in the posses 293 sion of the appellants, but the appellants denied the allegation, and the respondents, thereupon, relied upon a certified copy of the wilt produced from the records of the court filed in the first suit.
The trial court dismissed the suit and the High Court confirmed the dismissal in appeal.
In appeal to this Court, it was contended inter alia: (1) that the burden of proof that the will was validly executed by the testator and that he was a major at the time of executing it was upon the respondents ,red that they failed to discharge that burden; and (2) that there was an intestacy with respect to a portion of the land and that the appellants were entitled to it.
HELD:(1) (a) As the lower Courts held that the appellants deliberately withheld the original will, its certified copy could be admitted as secondary evidence of its contents under 8. 65 of the Evidence Act, 1872.
But the High Court was not justified in presuming under section 90 of the Evidence Act, that the will itself was duly executed and attested.
merely because the copy was more than thirty years old and was produced from proper custody.
Such a presumption arises only in respect of the original document and not with respect to a copy.
[297 H; 298 A, C. D, F] Harihar Prasad vs Must.
of Mttnshi Nath Prasad, [1956] S.C.R.1. followed.
Munnalal vs Krishobai, A.I.R. 1947 P.C. 15 and Basant Singh vs Bnj Pad, 62 I.A. 180, referred to.
But, apart from the presumption.
on the oral evidence adduced and from the conduct of the legatee, the High Court was justified, in concluding that the testator executed the will and was at that time in a sound disposing state of mind and in construing the contents of the will as disclosed by the certified copy and holding that it was natural and rational.
[298 G; 299 C, F G] Setthava vs Somayajulu, 56 I.A. 146, applied.
(b) The respondents who relied on the will had discharged the onus which lay on them, namely, of proving that the testator was a major at the time he executed the will.
[299 G H] The statement of the mother of the testator in the written statement of the earlier suit that the testator was a major was not relevant either under section 32(5) or 32(6) of the Evidence Act, because, it was made post litm motam.
The words in the sub ,section, namely, 'before The question in issue was raised ' do not mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.
They mean before the existence of any actual controversy.
When the legatee flied her written statement in the first suit a dispute had arisen as to the age of the testator, and the controversy having existed time when the statement was made; the statement was inadmissible.
1303 B D, F H] Bahadur Singh v, Mohan Singh, 29 I.A. 1 and Kalka Prasad vs Mathura Prasad, 35 I.A. 166, referred to.
But, the statement of the testator in the will that he was a major at the time he was executing it was relevant under the sub sections because.
294 the question of age fails within the sub sections as it indicates the commencement of relationship.
[303 A] Md. Syedol Arffin vs Yeohooi Gark, 43 I.A. 256, Rama Chandra Dutt vs Yogeshwar Narain Dec, I.L.R. , Oriental Govt.
Security Life Assurance Co. Ltd. vs Narisimha Chari, I.L.R. , Gulab Tharkur vs Fadali , Prolhad Chandra vs Ramsaran, A.I.R. 1924 Cal.
420, and Mst.
Naima Khatun vs Basant Singh, A.I.R. 1934 All. 406 referred.
Further the conduct of the appellants and their mothers was consistent only with the fact that it was understood amongst the members of the family that the testator was a major at the time of the execution of the will and that the will was validly made.
[303 H; 304 A D] The documents relied upon by the appellants, namely, a memorandum and an endorsement received from the Taluk Office showing that there were no entires relating to the birth of any children in the testators family in the birth register for the year in which the testator stated he was born, were not admissible in evidence as the writers of the documents were not examined to testify to the contents of those documents and to establish that notwithstanding their diligent efforts the original register was not traceable.
[301 B D] (2) In face of the expressly declared intention in the body of the will that he was disposing of the entire property it is impossible to hold that the testator desired to hold back a portion thereof from his mother and leave it intestate.
merely became, there was discrepancy between the total measurement mentioned in the body of the will and that in the schedule to the will.
[304 H; 305 A]


judgement:
ivil Appeal No. 618 of 1966.
188 Appeal by special leave from the judgment and order dated April 29, 1964 of the Madhya Pradesh High Court in Misc.
Petition No. 371 of 2962.
Niren De, Solicitor General, V.A. Seyid Muhamad, R.N. Sachthey, for R.H. Dhebar, for the appellants.
A. K. Sen, Rameshwar Nath and Mahinder Narain, for respondents Nos. 1, 3, 6, 10, 12 and 13.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the Madhya Pradesh High Court dated April 29, 1964 in Miscellaneous Petition No. 371 of 1962.
By its judgment the High Court held that the preparation of provisional gradation lists by the State of Madhya Pradesh under the relevant provisions of the (Act 37 of 1956), hereinafter referred to as the "said Act", was unwarranted in law and the final list published on April 6, 1962 prepared by the State Government under instructions from the Central Government with regard to the integration of officers of the Engineering Department was illegal and ultra vires and must be quashed by the grant of a writ.
The said Act was enacted to provide for the reorganisation of the States of India and for matters connected therewith and came into force with effect from November 1, 1956.
By section 9 (1) of the said Act there was formed a "new State" to be known as the State of Madhya Pradesh comprising the following territories: "(a) the territories of the existing State of Madhya Pradesh, except the districts mentioned in clause (e) of sub section (1) of section 8; (b) the territories of the existing State of Madhya Bharat, except Sunel tappa of Bhanpura tahsil of Mandsaur district; (c) Sironj sub division of Kotah district in the existing State of Rajasthan; (d) the territories of the existing State of Bhopal, and (e) the territories of the existing State of Vindhya Pradesh;".
Respondents 1 to 13 were Assistant Engineers in the erstwhile State of Madhya Pradesh.
The first four of them were, appointed as such on probation from October 27, 1956 and the others had been appointed as temporary Engineers.
The respondents continued to serve in the new State and a new "Buildings, Roads and 189 Irrigation Branch of the Public Works Department" was constituted with the officers taken over from the absorbed States and regions.
The integration of the services became therefore necessary and a principle had to be evolved for integration of the services and fixing inter se seniority as several officers had been taken over into the reconstituted branch.
Section 115 of the said Act provided as follows: "115.
Provisions relating to other services: (1) Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State.
(2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part H shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State, unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State.
(3) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(4) Every person who is finally allotted under the provisions of sub section ( 3 ) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in 190 default of such agreement, as may be determined by the Central Government.
( 5 ) The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to (a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons.
Section 116 provided for the continuance of officers in the posts they previously held and section 117 empowered the Central Government to give directions to the State Government in respect of their integration.
Section 117 enacts: "The Central Government may at any time before or after the appointed day give such directions to.
any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.
" Subsequent to the passing of the said Act a meeting of the Chief Secretaries of the various States that were to.
be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 at the invitation of the Central Government.
In this meeting certain decisions were taken as to the general principles that should be observed with regard to the integration work.
By their letter No. 62/22/56 SR 11 dated April 3, 1957 (Annexure R I of the counter affidavit) the Government of India informed the State Governments that they had decided that the work of integration of services should be dealt with by the State Governments in the light of general principles already decided in the meeting of the Chief Secretaries.
The State Governments were also informed that the Central Government was constituting Advisory Committees for assisting them in dealing with the representations from the officers affected by reorganisation.
With regard to the principle for determining equation of posts and relative seniority the following conclusions were reached at the conference of the Chief Secretaries: 191 "It was agreed that in determining the equation of posts, the following factors should be borne in mind : (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; (iv) the salary of the post; It was agreed that in determining relative seniority as between two persons holding posts declared equivalent to each other, and drawn from different States, the following points should be taken into account : (i) Length of continuous service, whether temporary or permanent, in a particular grade; this should exclude periods for which an appointment is held in a purely stop gap or fortuitous arrangement; (ii) age of the person; other factors being equal, for instance, seniority may be determined on the basis of age.
Note: It was also agreed that as far as possible, the inter se seniority of officers drawn from the same State should not be disturbed.
" By a notification dated May 20, 1958 (Annexure R 2 of the counter affidavit) the Government of India constituted a Central Advisory Committee under section 115(5) of the said Act for the purpose: of assisting the Central Government in dealing with the problems arising out of the allocation and integration of the services.
The. functions of the Committee.
were: "(i) To advise the Central Government in regard to the division and integration of members of the gazetted cadres of the State Services among the new States and the States of Andhra Pradesh and Madras, and (ii) To make recommendations to the Central Government with a view to ensure that fair and equitable treatment is given to the service personnel belonging to the Gazetted cadres of the State Services who are affected by the State Reorganisation and to consider representations submitted by them." 192 As directed by the Central Government, the State Government also appointed the necessary committees to undertake the preliminary work of integration.
On September 12, 1959 a provisional gradation list of the department to which the respondents belonged was published by the State Government by notification No. 3175 Integ.
dated September 12, 1959.
In the preamble attached to.
the provisional list the principles (which were already approved by the Central Government) on the basis of which the lists were prepared, were set out.
But there was a proviso to cl.
(2) of the preamble which said that "where a service or cadre consists of compartments/grades and where the normal method of recruitment to a higher compartment/grade is by promotion from a lower compartment/grade, continuous service will ordinarily be reckoned from the date of commencement of service in the lowest compartment/grade, on a salary not below such limit as may be specified in this behalf".
Representations were received from several officers including respondents 1 to 4, 6 & 7.
These representations were sent by the State Government to the Central Government for being dealt with in consultation with the Advisory Committee it had constituted.
Thereafter a reference was made by the State Government to the Central Government seeking its directions regarding publication of the final lists.
In reply thereto the Central Government conveyed its decision by a letter dated November 11, 1959 to the following effect: "1.
The State Government should publish the final common gradation list in its official gazette following the prescribed procedure; 2.
The State Government will prefix to the notification publishing a common gradation list, a preamble on the lines drafted by the Central Government; 3.
The State Government was to be satisfied: (a) that the provisional gradation list was prepared after following the principles laid down by the Central Government; (b) that it was published in the official gazette; (c) that an opportunity was afforded to the service personnel to make representations; (d) that the representations, if any, had been decided by the Central Government in consultation with the Central Advisory Committee; (e) that the decisions of the Central Government were correctly incorporated in the final common gradation list.
" 193 In their letter dated August 29, 1960 the Central Government pointed out that the State Government had prepared the provisional gradation list not on the basis of continuous service in the equated grade but on the basis of length of total service including service in the lower grades.
The State Government was therefore directed to prepare an alternative gradation list on the basis of the conventional formula of continuous service in the equated grade subject to maintenance of inter se seniority.
The State Government complied with this direction.
In their letter dated September 16, 1961 the Central Government said that the procedure adopted by the State Government for determining inter se seniority on the basis of length of total service in gazetted posts could not be approved.
On the contrary, the decision of the Central Government was that inter se seniority should be determined on the basis of continuous length of service, whether in a temporary or permanent capacity in the equated grade, and the second list prepared by the State Government on that basis was approved subject to two modifications, (i) The ranking of the officers from Bhopal region (Serial Nos.
60 to 70) should be rearranged as per rankings given by the Union Public Service Commission.
(ii) In the case of officers from Mahakoshal region (Serial Nos. 59 onwards) it was pointed out that the then State of Madhya Pradesh had not passed orders fixing the ranking of the said officers and hence the ranking should be done by the State Government keeping in view the normal rule of fixing ranks with reference to date of appointment on a substantive vacancy, whether on probation or as confirmed officer.
It was further directed that as the rearrangement as per modifications suggested was likely to affect the ranks of officers of other regions the entire list should be reviewed in the light of directions given by the Central Government.
On this direction of the Central Government, the inter se seniority of the officers of Mahakoshal region was refixed by the State Government by its 1otter No. 1086/6216/XIX/E dated February 20. 1962.
In the light of this list the provisional gradation list was also revised.
As already directed by the Central Government in its letter dated November 11, 1959, the State Government published the final gradation list with the preamble attached to it stating that the final list was being published by the Governor in exercise of powers conferred by the proviso to article 309 of the Constitution and in accordance with the decisions of the Government of India under the provisions of section 115(5) of the said Act.
The final gradation list was published by the State Government on April 6, 1962.
The respondents thereafter moved the High Court of Madhya Pradesh for grant of a writ under article 226 of the Constitution.
The validity of the final gradation list was challenged on the ground that it was not made in accordance with the provisions of section 115 (5 ) 194 of the said Act but in contravention of that provision.
It was also alleged that in so far as the State Government, in drawing up the final gradation list, followed a principle different from the one followed in preparing the provisional gradation list on the: basis of which representations were invited, the State Government had in effect denied the right of representation to the persons affected thereby.
The writ petition was allowed by the High Court which quashed the notification dated April 6, 1962 (Annexure 1 to the writ petition) publishing the final gradation list of the establishment of "Buildings, Roads and Irrigation" in the Public Works Department and further directed the Central Government "to complete the work of the integration of the services in the aforesaid Department in conformity with the provisions of sub section
(5) of section 115 of the ".
The first question to be considered in this appeal is whether the High Court was right in taking the view ' that the work of integration was exclusively entrusted to the Central Government by section 1 l 5 (5) of the said Act and that the final gradation list published on April 6, 1962 was illegal and ultra rites as the delegation of 'its powers and duties by the.
Central Government to the State Government in regard to integration was not in accordance with law.
Under article 162 of the Constitution it is provided as follows: "162.
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to.
which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shaft be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
" As regards the matters in respect of which the Legislature of a State has the power to make laws, item 42 in List II of the Seventh Schedule to the Constitution specifies "State Public Services", and under the provisions of article 162, the executive power of the State extends to State Public Services.
This power is, however, subject to the other provisions of the Constitution.
Article 309 states: "Subject to the provisions of this Constitution Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: 195 Provided that it shall be competent for the.
President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the.
State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
" Under this Article, the Governor of a State is empowered in the case of services and posts in connection with the affairs of the State, to make.
rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made.
by or under an Act of an appropriate Legislature.
Article 2 of the Constitution enacts that Parliament may by law admit into the Union or establish, new States on such terms and conditions as it thinks fit.
Article 3 of the Constitution states that Parliament may by law (a) form a new State by separation.n of territory from any State or by uniting two or more States or parts.
of States or by uniting.
any territory to.
a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State.
Article 4 provides as follows: "(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. . . . . . . . . " By virtue of the power under article 4 the said Act was.
enacted.
On behalf of the appellants the Solicitor General put forward the argument that the Dower of integration is not exclusively conferred upon the Central Government under section 115 (5) of the said Act but the power of the State Government in the matter of integration under article 162 read with Entry 42, List 11 remains unaffected except to the extent that the State Government must carry out the directions of Central Government in the matter of integration.
The opposite view point was presented by Mr. Asoke Sen on behalf of the respondents.
It was contended that under section 115(5) of the 196 said Act the Central Government was given, by necessary implication, the exclusive power to integrate and the word "allotment" in section 115(3) & (4) carries with it the necessary power of fusion and integration.
We do not propose, for the purpose of the present case, to decide which of these view points as to the interpretation of section 115(3), section 115(4) and section 115(5) of the said Act is correct.
We shall assume in favour of the respondents that section 115 ( 3 ), section 115(4) and section 115(5) read together confer exclusive power on the Central Government in regard to integration.
Even on that assumption we do not agree with the finding of the High Court that there was improper delegation of its statutory powers and duties by the Central Government, that there has been a violation of the provisions of section 115(5) of the said Act or that the final gradation list published by the notification dated April 6, 1962 is illegal and ultra vires.
Generally speaking, the work of integration requires the formulation of principles on which the work has to be carried out, the actual preparation of preliminary gradation lists in accordance with the principles so settled, the publication of the lists together with the principles upon which they have been compiled, the invitation of representations by the persons affected thereby, the consideration of representations and decisions upon those representations, and the publication of the final gradation list incorporating the decisions of the Central Government on the representations submitted.
In the present case, there is no dispute that the Central Government laid down in their letter dated April 3, 1957 the principles with regard to the equation of posts and determination of relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States.
It also appears that the Central Government appointed two advisory committees for dealing with representations from the service personnel affected by the reorganisation.
As directed by the Central Government in their letter dated April 3, 1957, the State Government also appointed two committees for the purpose connected with integration.
Thereafter, the State Government prepared a provisional list fixing the inter se seniority of officers who had come into the cadre from different regions.
The list was published and it was notified that any Government servant feeling aggrieved by the provisional list was entitled to send his representation to the Central Government.
The principle upon which the list was prepared was published and it was notified that the principle was subject to any subsequent modification at the direction of the Central Government.
Representations were thereafter received from officers including respondents 1 to 4, 6 & 7.
The representations were sent to the Central Government to be dealt with in consultation with the advisory committees that were constituted.
On a consideration of these representations the Central Government directed the State Gov 197 ernment to forward the alternative list prepared on the basis of the conventional formula laid down by the Central Government As already observed, the State Government had proposed that seniority should be fixed on the basis of continuous service including that in the lower grade, but the Central Government had directed that continuous service in the equated grade alone should be taken into account for fixing the seniority subject only to the maintenance of inter se seniority of the officers coming from several integrating regions.
The Government of India therefore directed that revised list should be prepared on the basis of this formula.
Accordingly, the State Government sent a second list prepared on the basis of the conventional formula, viz., continuous service in the equated grade subject to maintenance of inter se seniority.
The Central Government thereafter in consultation with the advisory committee examined both the lists and after taking into account the representations made, conveyed to the State Government its decision by its memorandum dated September 16,1961 with regard to the preparation of the final gradation list.
The decision thus communicated may be summarised as follows:(1) Inter se seniority should be determined only on the basis of continuous length of service, whether in a temporary or permanent capacity in the equated grade, (2) the second gradation list prepared according to this principle and forwarded to the Central Government was approved subject to certain modifications in the equations and the changes proposed in accordance with the decisions on the individual representations.
As regards inter se seniority of the Mahakoshal officers, the Central Government stated in paras 9 & 10 of the letter: "9.
In ' respect of the Mahakoshal officers shown from serial No. 59 onwards it is seen that no formal orders were issued by the Madhya Pradesh Government prior to 31st October, 1956 fixing the rank of each officers.
While approving the notification confirming an officer, it was customary in old Madhya Pradesh to issue order regarding the rank which he would obtain in the seniority list.
In respect of the confirmation orders issued during October, 1956, it appears that no such orders were issued.
If the present ranks in the Combined Gradation List were to be accepted, it would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953.
The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to a substantive vacancy whether on probation or as a confirmed officer.
198 appointed to substantive vacancies with effect from the same date, the normal practice was to arrange the names on the basis of length of continuous service.
Where a departure from this principle was intended, specific orders were issued or the names arranged in the desired sequence in the confirmation orders itself.
A rearrangement of the names of the Bhopal and Mahakaushal officers in the manner indicated above is a matter concerning the respective parent State seniority lists.
However, a rearrangement of the names of these officers would have repercussions on the ranks of officers from other regions.
It is, therefore suggested that the entire matter may be reviewed by the State Government in the light of the position stated in the two preceding paragraphs and the necessary changes carried out in the Combined Gradation List." In accordance with this direction the State Government prepared the inter se seniority list of Mahakoshal officers (Annexure R 14) dated February 20, 1962.
On the basis of this list the final gradation list was prepared by the State Government and published on April 6, 1962.
In our opinion, the procedure adopted in this case does not contravene the provisions of section 115(5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government.
It is manifest that there has been no delegation by the Central Government of ,my of its essential functions entrusted to it under the statute.
It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government.
But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned.
It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned.
It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by State Government constituted a delegation by the Central Government.
We do not think there is any substance in this argument.
It is not disputed that the provisional and the final gradation lists were prepared by the State Government on the principles laid down by the Central 199 Government itself subject to one change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made by the officers concerned for being dealt with and decided upon by the Central Government.
The principle of the maxim "delegates non protest delegare" has therefore no application to the present case.
The maxim deals with the extent to which a statutory authority may permit another to exercise a discretion entrusted by the statute to itself.
It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself.
If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no "delegation" at all and the maxim "delegatus non potest delegare" does not apply [See Fowler (John) & Co. (Leeds) vs Duncan](1).
In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority 's own.
In the context of the facts found in the present case.
we are of opinion that the High ' Court was in error in holding that there has been an improper delegation of its statutory powers and duties by the Central Government and that the final gradation list dated April 6, 1962 was therefore ultra rites and illegal.
Even on the assumption that the task of integration was exclusively entrusted to the Central Government, we are of the opinion that the steps taken by the Central Government in the present case in the ' matter of integration did not amount to any delegation of its essential statutory functions.
There is nothing in sections 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter of effecting the integration of the services.
So long as the act of ultimate integration is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter.
it cannot be head that there has been any violation of the principle "delegatus non potest delegare".
For instance, it was observed by this Court in Pradvat Kumar Bose vs The Hon 'ble The Chief Justice of Calcutta High Court(2): (1) (2) ; 1345. 200 "It is well recognised that a statutory functionary exercising such a power cannot be said to have, delegated his functions merely by deputing a responsible and competent official to enquire and report.
That is the ordinary mode of exercise of any administrative power.
What cannot be delegated except where the law specifically so.
provides is the ultimate responsibility for the exercise of such power.
" As pointed out by the House of Lords in Board of Education vs Rice(1), a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party "has a fair opportunity to correct or contradict any relevant and prejudicial material".
The same principle was reiterated by Lord Chancellor in Local Government Board vs
Arlidge(2) in the following passage: "My Lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted.
The result of its enquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure.
In the case of the Local Government Board it is not doubtful what this procedure is.
The Minister at the head of the Board is directly respOnsible to Parliament like other Ministers.
He is respOnsible not only for what he him:self does but for all that is done in his department.
The volume of work entrusted to him is very great and he cannot do the great bulk of it himself.
He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly.
To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency.
Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff.
" We accordingly reject the argument of Mr. Asoke Sen on this aspect of the case and hold that the High Court was in error in holding that there was an improper delegation of its ' statutory power by the Central Government under section 115(5) of the said Act.
We proceed to consider the next contention raised on behalf the respondents that in any event they should have been given (1) , 182.
(2) , 133.
201 a second opportunity to make a representation regarding: (1) inter se seniority list of the Assistant Engineers of the former Mahakoshal region prepared on February 20, 1962, Annexure R 14, and (2) the final inter se seniority list published on April 6, 1962.
With regard to the inter se seniority list it was pointed out by Mr. Asoke Sen that in paragraphs 9 and 10 of its letter dated September 16, 1961, Annexure R 7, the Central Government noticed that no formal orders were issued by the State of Madhya Pradesh prior to October 31, 1956 fixing the rank of the Mahakoshal officers from serial No. 59 onwards.
It was customary in the old State of Madhya Pradesh that the Government issued orders regarding the rank of the officers while making a notification confirming the officers.
It was pointed out that if the present rank in the combined gradation list was to be accepted it would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953.
The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to substantive vacancy, whether on probation or as confirmed officer.
It was suggested by the Central Government that the entire, matter should be reviewed by the State Government in the light of the procedure stated in paragraphs 9 and 10 of the letter and necessary changes should be carried out in the combined gradation list.
In view of the directions contained in this letter the State Government prepared an inter se seniority list of the Assistant Engineers of the Mahakoshal region in their letter dated February 20, 1962.
It is not disputed on behalf of the respondents that this order of seniority was reflected in the final gradation list published on April 6, 1962; but the contention of the respondents is that no opportunity was given to them to make a representation against the inter se seniority list dated February 20, 1962, though Mr. Asoke Sen conceded that he had no quarrel with the principles upon which the list was prepared.
Learned Counsel, however, said that the principles were wrongly applied in particular cases and the respondents should have been given an opportunity of making a representation with regard to the inter se seniority list dated February 20, 1962.
With regard to the final gradation list published on April 6, 1962 the contention of Mr. Asoke Sen was that the basis upon which the "assumed date" was given in column No. 6 was not set out either in that notification or in the principle specified in the preliminary gradation list.
On this point the Solicitor General said that the final gradation list was prepared and the "assumed date" in column No. 6 was inserted on the principle of "kicking down".
It was also pointed out by the Solicitor General that in the Conference of the Chief Secretaries it had been agreed that in determining inter State seniority the principle to be taken into account was length of 10 Sup.
C.I./67 14 202 continuous service, whether temporary or permanent in a particular grade.
The argument was stressed that the principle could be ,applied only on the basis of "kicking down" and that principle was implicit in the preparation of the final gradation list.
We are, however, not quite sure whether the Solicitor General is right in his contention on this point.
We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief Secretaries both on the method of " 'kicking down" and the 'alternative method of "kicking up".
It iS nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of "kicking down" was adopt in preference to the alternative principle.
It was argued by Mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them further opportunity to make a representation.
Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law.
But the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula.
The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case (See the decision of this Court in Shri Bhagwan and Anr.
vs Ram Chand and Anr.(1).
In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published.
As No. such opportunity was furnished to the respondents with regard to these two matters we hold that the combined final ' gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.
The rest of the notification of the State Government dated April 6, 1962 with regard to other categories will stand unaffected.
So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law.
We accordingly modify the order of the High Court and allow this appeal to the extent indicated above.
There will be no order with regard to costs in this Court.
V.P.S. Appeal allowed in part.

dataset_name: IN-Abs

summary:
Respondents 1 to 13 were Assistant Engineers in the State of Madhya Pradesh before it was reorganised under the .
After the formation of the new State of Madhya Pradesh, they continued to serve in the new State along with officers taken over from the absorbed States and regions, and, it became necessary to integrate the service and to fix the inter se seniority of the officers of the: integrated service.
The Chief Secretaries of the various States that were to be affected by the reorganisation had evolved certain general principles that should be observed with regard to.
the integration work and the Government of India informed the State Governments that the work of integration of services should be dealt with by the State Governments in the light of those principles.
Thereafter, the State Government published a provisional gradation list of the department to which the respondents belonged and notified, that any government servant feeling aggrieved was entitled to send his representation to the Central Government.
Representations were received from respondents 1 to 4, 6 and 7 and some other officers.
and those representations were sent by the State Government to the Central Government for being dealt with in consultation with the Advisory Committee it had constituted for dealing with the representations from officers affected by the reorganisation.
Since the State Government had prepared the list on a basis different from that suggested by the Central Government the latter directed that a revised list should be prepared on the basis of the formula laid down by the Central Government.
Accordingly, the State Government sent a second list prepared on the basis of that formula, and the Central Government, in consultation with the Advisory Committee, examined both the lists and the representations of officers already received and decided that the second gradation list should be approved subject to certain modifications, and certain directions in the ease of officers from the Mahakoshal region.
It was further directed that as the rearrangement as per modifications suggested was likely to affect the ranks of officers of other regions.
the entire list should be reviewed in the light of directions given by the Central Government.
On this direction, the State Government refixed the inter se seniority of officers from the Mahakoshal region, and thereafter, prepared the final gradation list and published it.
The respondents thereupon filed a writ petition in the High Court challenging the validity of the final gradation list on two grounds: (1) the work of integration was exclusively entrusted to the Central Government by section 115(5) of the States Reorganisation Act and that the gradation list as published was illegal and ultra virex because, there improper delegation of its powers and duties by the Central Govern 187 ment to the State Government, and; (2) in the circumstances of the present case the respondents should have been given another opportunity of making a representation before drawing up the final gradation list.
The High Court allowed the petition.
In appeal to this Court.
Held: (1) Even on the assumption that the task of integration was exclusively entrusted to the Central Government, the High Court was in error in holding that there was improper delegation of its statutory power by the Central Government.
[200G] In the present case the steps taken by the Central Government in the matter of integration did not amount to any delegation of its essential statutory functions, because it was the Central Government which laid down the principles for integration.
it was the Central Government which considered the representations and passed final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government.
When the Central Government intimated that the work of integration should be left to the State Government what was meant was that only the preliminary work of preparation of the gradation ' list on the principles decided upon by the Central Government should be left to the State Government concerned.
Such work cannot be done by the Central Government itself as the necessary information regarding the officers can be obtained and tabulated only by the States concerned, and there is nothing in sections 115 or 117 of the Act prohibiting the Central Government in any way, from taking the, aid and assistance of the State Government in the matter of effecting the integration of the services.
The principle delegates non protest delegate, cannot be held ' to have been violated.
if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after has been taken.
In such a case the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority 's own.
[198E H; [99D G] Pradyat Kumar Bose vs The Hon 'ble The Chief Justice of the Calcutta High Court, ; followed.
Board of Education vs Rice, , Local Government Board vs Arlidge and Fowler (John) & Co. (Leeds) vs Duncan referred to.
(2) The doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula and its application depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in a particular case.
In view of the special circumstances of the present case the respondents were entitled to a second opportunity to make a representation with regard to (a) the inter se seniority list of the assistant engineers of the Mahakoshal region prepared as per the directions of the Central Government, and (b) the combined final gradation list.
As no such opportunity was furnished, the final list, so far as the category affected by the directions given by the Central Government was ultra vires and illegal and that part of the notification must be quashed.
[202D G]


judgement:
Appeal No. 1299 of 1967.
Appeal by special leave from the judgment and order dated November 16, 1966 of the Mysore High Court in Writ Petition No. 1464 of 1964.
Shyamala Pappu and Vineet Kumar, for the appellant.
R. D. Datar and section N. Prasad, for the respondent.
In October 1961, he was temporarily promoted to act as statistical superintendent at Hassan.
On July 21, 1964, the General Manager of the Corporation issued a notice inviting applications for appointments to class 11 junior posts of (a) assistant/divisional statisticians and (b) labour welfare officers on a pay of Rs. 220 per month in the pay scale of Rs. 220 15 400 EB 20 500 plus the usual dearness and other allowances admissible under the Rules.
On August 11, 1964, the respondent tiled a writ petition in the High Court at Mysore claiming that the Corporation had no power to issue the notice and praying for an order quashing it.
The High Court allowed the petition and quashed the notice.
The Corporation has filed this appeal by special leave.
For the proper appreciation of the point in issue, it is necessary to read sections 14 19(1)(a), 19(1)(b), 19(1)(c), 34.
45(1) and 45(2)(c) of the Road Transport Corporation Act, 1950 (Act No. 64 of 1950): "14(1).
Every Corporation shall have a Chief Executive Officer or General Manager and a Chief Accounts Officer appointed by the State Government.
(2) A Corporation may appoint such other officers and servants as it considers necessary for the efficient performance of its functions.
(3)The conditions of appointment and service and the scales of pay of the officers and servants of a Corporation shall (a) as respects the Chief Executive Officer or General Manager and the Chief Accounts Officer be such as may be prescribed, and (b) as respects the other officers and servants be such as may, subject to the provisions of section 34, be determined by regulations made under this Act.
19(1).
Subject to the provisions of this Act, a Corporation shall have power.
(a) to operate road transport services in the State and in any extended area; (b) to provide for any ancillary service , (c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities.
34(1).
The State Government may, after consultation with a Corporation established by such Government give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the 769 employees, reserves to be maintained by it and disposal of its profits or stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub section (1) except with the previous permission of the State Government.
45(1).
A Corporation may, with the previous sanction of the State Government.
make regulations, not inconsistent with this Act and the rules made "thereunder, for the administration of the affairs of the Corporation.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: (c) the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief, Executive Officer or General Manager and the Chief Accounts Officer;" Admittedly, no regulations were framed by the Corporation under section 45(2)(c) prescribing the conditions of appointment and service and the scales of pay of its officers and servants.
In the affidavit filed on behalf of the Corporation, it was stated that the Corporation was taking necessary steps for the framing of the regulations.
The High Court following its earlier decision in Karnakar Mangesha Desai vs State of Mysore and others(1) held that until regulations were framed by the Corporation under section 45(2)(c) with the previous sanction of the State Government, the Corporation could not appoint officers and servants and lay down their conditions of service.
We think that the judgment of the High Court is erroneous and should be set aside.
In Dundee Harbour Trustees vs D. & J. Nicol(1), Viscount Haldane L. C. said: "The answer to the question whether a cor:)oration created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used.
The question is simply one of construction of language, and lot of presumption.
" Bearing in mind this statement of law, let is consider whether the appellant had the power to appoint officers and servants and to lay down their conditions of service in the absence of regulations framed under section 45(2)(c) of the Road Transport Corporation Act, 1950.
The appellant is an autonomous Cor poration incorporated under the Act for the purpose of operating road transport services in the State and extended areas.
For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants.
Section 14(2) expressly coners upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient per (1) (2) ; , 556.
670 formance of its functions.
Section 19(1)(c) empowers it to provide for its employees suitable conditions of service.
Section 14(3) provides that the conditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of section 34 be determined by regulations made under the Act.
Section 45(2)(c) 'empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants.
If the State Government issues any directions under section 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey those directions.
The conjoint effect of ss.14(3)(b),34 and 45(2)(c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under s.34 and the regulations, if any, framed under s.45(2)(c).
But until such regulations are framed or directions are given.
the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit.
There is necessarily a time lag between the formation of the Corporation and the framing of regulations under section 45(2)(c).
During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants.
In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officers and servants and fix the conditions of service unless the regulations under s.45(2)(c) are framed.
There is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under s.12(c) expressly authorising him to issue it.
In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates, It is not alleged that he made any appointment pursuant to the notice.
The respondent also contended that he had the right to be promoted to a class II junior post.
But there is nothing on the record to show that he has any vested right of promotion to the post.
Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed.
In the order dated August 17, 1967 granting special leave to the appellant, the Court directed that the appellant must pay the costs of the respondent in any event.
In the result, the appeal is allowed, the order of the High Court is set aside and the writ petition is dismissed.
The appellant shall pay the costs of the appeal to the respondent pursuant to the order dated August 17, 1967.
R.K.P.S. Appeal allowed.

summary:
The General Manager of the appellant Corporation issued a notice on July 21, 1964 inviting applications for appointments, to two junior posts in the Corporation.
The respondent, who was an employee of the Corporation and claimed that he had a right to be promoted to one of the posts, filed a writ petition under article 226 of the Constitution challenging the notice on the ground that the Corporation had no power to issue it.
The High Court, following its earlier decision in Karnakar Mangesha Desai vs State of Mysore and other [1960](1) Mysore Law Journal 72), held that until regulations had been framed by the Corporation under section 45(2) (c) with the previous sanction of the State Government and this has admittedly not been done the Corporation could not appoint officers and servants and lay down their conditions of service.
On appeal to this Court by special leave.
HELD: Allowing the Appeal: section 14(2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions and Section 19(1)(c) empowers it to provide for its employees suitable conditions of service.
Although the conjoint effect of ss 14(3)(b), 34 and 45(2)(c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under section 34 and the regulations, if any, framed under section 45(2)(c).
until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit.
[770 H: 771 A, B D].
There was no merit in the contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under section 12(c) expressly authorising him to issue it.
[771 F].
Dundee Harbour Trustees vs D. & J. Nicol, ; , 556, referred to.