judgement:
ISDICTION: Civil Appeal No. 3092 of 1985 etc.
From the Judgment and Order dated 1.2.1985 of the Alla habad High Court in W.P. No. 1535 of 1972.
338 S.N. Kacker, R.B. Mehrotra, Gopal Subramanium, Mrs. section Dixit, section Balakrishnan and Ifran Ahmad for the Appellants.
T.S. Krishnamoorthi Iyer, Mukul Mudgal, section Balakrishnan and Rajesh for the Respondents.
The Judgment of the Court was delivered by KHALID, J.
This appeal by special leave and the connect ed special leave petition and the writ petition directed against the judgment and order of the Allahabad High Court dated February 1, 1985 raise a question of construction of Regulation 7(iv)(b) of the U.P. State Electricity Board Service of Engineers (Integration & Seniority) Regulations, 1976, framed under section 79(c) of the .
By the judgment, a Division Bench of the High Court has disallowed a batch of writ petitions seeking to quash an order of the U.P. Public Services Tribunal, Lucknow dated April 3, 1978.
Allowing a representation made by respondent No. 1, presently working as Superintending Engineer in the U.P. State Electricity Board, the Tribunal held that in terms of Regulation 7(iv)(b) of the Regulations, respondent No. 1 having been granted seven advance increments was entitled to the benefit of as many years of service as the number of advance increments given to him at the time of his recruitment.
The High Court has upheld the order of the Public Services Tribunal.
As a result, respondent no.1 who figures at serial No. 12 in the integrated seniority list of Assistant Engineers (Civil) i.e. below other Superintending Engineers including the six petitioners in the connected special leave petition No. 8835/85, would take his place at serial no.1 in the seniority list i.e. above them.
The short question involved in this appeal is whether respondent No. 1 on a proper construction was entitled to the benefit of as many years of service as the number of advance increments given to him at the time of his recruit ment, as held by the Public Services Tribunal and the High Court.
That turns on a construction of the amended Regula tion 7(iv)(b) of the Regulations.
Regulation 7(iv)(b) as originally framed provided: "While determining the seniority under clauses (ii) and (iii) above, Engineers directly recruited by the Board before the commencement of these regulations shall be given advantage of as many years of service as is the number of advance increments which were allowed to them at the time 339 of recruitment by the Board.
In doing so, no officer shall however be given advantage beyond the date of his initial regular ap pointment in the Government department or the other organisations.
" On June 19, 1976 the Electricity Board in exercise of the powers under section 79(c) of the amended Regulation 7(iv)(b) to remove certain anomalies and to give effect to the intention or ' the Board in framing the rule of seniority.
It was felt by the Board that the expres sion 'other organisations ' in the unamended Regulation 7(iv)(b) was susceptible of a construction that in the matter of determination of inter se seniority among directly recruited Engineers vis a vis Engineers on deputation with the Board from the Central Government or the State Govern ment, the seniority of the Engineers had to be reckoned by giving them the benefit of as many years of service as the number of advance increments given to them by reason of their special experience or qualifications.
The Board ac cordingly substituted the words 'U.P. or Central Government Department in consideration of the service for which advance increments were so allowed ' for the words 'Government de partment or other organisations ' in Regulation 7(iv)(b).
The amended Regulation 7(iv)(b) now provides: "While determining the seniority under clauses (ii) and (iii) above, Engineers directly recruited by the Board before the commencement of these regulations shall be given advantage of as many years of service as is the number of advance increments which were allowed to them at the time of recruitment by the Board.
In doing so, no officer shall however be given advantage beyond the date of his initial regular appointment in the U.P. or Central Government Department in consideration of the service for which advance increments were so allowed.
" Put very briefly, the essential facts are these.
By a Government resolution dated March 30, 1959 all the officers of State Government i.e. Civil Engineers and the Electrical and Mechanical Engineers of the Irrigation & Power Depart ment were transferred to the U.P. State Electricity Board constituted under section 5 of the which came into existence on April 1, 1959.
The services of these officers were placed on deputation with the Board.
In 1964, the Electricity Board issued an advertisement calling for applications for appointment to 20 posts of Assistant Engineers (Civil).
It was indicated that a higher start would be allowed to candidates with special qualifi 340 cations or experience and that the selected candidates were to become permanent on completion of three years ' probation.
Among those selected was respondent No. 1 P.L. Kelkar who by reason of his previous experience was given a higher start of Rs. 490 in the scale of Rs. 250 850 which meant that he was given nine advance increments as against two increments given to others.
Prior to his joining the Electricity Board, respondent no.1 had varied experience in different govern mental and other organisations.
After obtaining his degree in Bachelor of Engineering in the year 1957, he was recruit ed as a Junior Engineer, Public Works Department (Building) of the State of Madhya Pradesh on a scale of Rs. 150 300.
In 1959 he was promoted as Assistant Engineer, Department of Housing, Madhya Pradesh on a scale of Rs. 250 600.
Thereaf ter on June 9, 1960 he accepted appointment as Engineering Assistant Grade I in the Indian Refinery Limited, Guwahati, a Government of India undertaking, on a scale of Rs.300525 after leaving the services of the State Government of Madhya Pradesh.
On May 10, 1961, he left Government service to take up employment in the private sector as Assistant Civil Engineer with the Associated Cement Company Limited, Bombay on an initial salary of Rs. 305 per month with annual incre ments.
After the interviews of the candidates held on August 17, 1964, the Board in its letter of appointment dated August 22, 1964 offered respondent No. 1 two advance incre ments and stated that his seniority vis a vis the other candidates selected for appointment would be determined later.
It seems that respondent No. 1 declined the offer and accordingly the Board by its letter dated August 29, 1964 decided to grant him a higher initial pay of Rs.490 i.e. nine advance increments because of his previous experience.
It may be mentioned here that the Board also granted a higher initial pay of Rs.490 i.e. nine advance increments to Prakash Chandra Jain and Rs.430 i.e. seven advance incre ments to Naresh Chandra Gupta.
As against respondent No. 1 who had been directly re cruited by the Board w.e.f. October 7, 1964 and is now working as a Superintending Engineer in the Electricity Board, the six petitioners in the connected special leave petition No. 8835/85 namely, V.N. Mathur, Mohd. Wasi Ahmad, Madan Mohan, Brajesh Sahai, Amba Prasad and O.P. Sharma who are also now working as Superintending Engineers in the Electricity Board were Assistant Engineers in the Irrigation & Power Department, were placed on deputation with the Board by the State Government from the year 1960 onwards.
They were in due course confirmed as Assistant Engineers in the Irrigation & Power Department.
It seems that respondent No. 1 as well as the petitioners were 341 confirmed as Assistant Engineer w.e.f. April 1, 1975.
There was no seniority list of Assistant Engineers in the Board nor any rules of seniority at the time when respondent No. 1 joined service.
On April 29, 1976 the Board in exercise of the powers under section 79(c) of the framed the U.P. State Electricity Board Service of Engineers (Integration & Seniority) Regulations, 1976.
As already stated, the unamended Regulation 7(iv)(b) provided that while determining seniority, Engineers directly re cruited by the Board before the commencement of the Regula tions shall be given advantage of as many years of service as was the number of advance increments which were allowed to them at the time of their recruitment i.e. although respondent No. 1 was recruited on October 7, 1964, it should be deemed that he joined service of the Board on October 7, 1957.
As a result of this representation the Board was constrained to amend Regulation 7(iv)(b) as indicated above.
On May 19, 1977 the Board rejected the representation made by respondent No. 1.
A few months thereafter i.e. on Septem ber 28, 1977 the Board in acccordance with the amended Regulation 7(iv)(b) published the integrated seniority list in which the name of respondent No. 1 figures at serial No. 12 i.e. below other officers at present working as Superin tending Engineers including the aforesaid petitioners in the connected special leave petition.
We however wish to mention that there is a controversy as to whether the petitioners in the connected special leave petition applied for and were not selected by the Board as Assistant Engineers (Civil) in 1968.
Respondent No. 1 P.L. Kelkar has averred in paragraphs 7, 8 and 9 of the counter affidavit that the aforesaid petitioners who were working on deputation with the Electricity Board did not consider it beneficial to leave their parent department viz. Irrigation & Power Department and join the services of the Board at the relevant time although the Board had again advertised the posts of Assistant Engineer (Civil) in the year 1965.
He then goes on to aver in paragraph 9 that in order to build up the Civil Engineering cadre of the Board the Electricity Board readvertised the posts of Assistant Engineer (Civil) in the year 1968 and asserts that most of the petitioners applied for the post and the selection was made by a Selec tion Board on the basis of interview and record of past service and adds: "However, all the petitioners except petition ers nos.
4 and 5 Panba Prasad and O.P. Sharma were not selected for the post of Assistant Engineer (Civil) as per the selection list published by the Board.
The reason for the non selection 342 was obviously that they were not found fit for the post on the basis of their record and interview.
" When this averment was brought to our notice by learned counsel for respondent No. 1 we called upon the Electricity Board to place before us the relevant records relating to the interviews held in the year 1968 and also to file a detailed affidavit.
Learned counsel for the Electricity Board assured us that the Board will comply with the direc tion and place before the Court the relevant records and also file an affidavit.
Learned counsel for the petitioners in the connected special leave petition however was baffled at the suggestion that the petitioners should have at all applied for the post of Assistant Engineer (Civil) adver tised in the year 1968 when they were for a number of years actually functioning as officiating Executive Engineers in the Irrigation and Power Department.
To set the matter at rest, we asked the parties to exchange affidavits on the subject although the hearing concluded on March 24, 1987 and the case was reserved for judgment.
On April 3, 1987 M.S. Rizvi, Deputy Secretary, U.P. State Electricity Board has sworn an affidavit bringing the relevant facts on record.
It is averted in paragraph 2 that the records in possession of the Board revealed that in July 1968 applications for the posts of Assistant Engineer (Civil) in the service of the U.P. State Electricity Board were invited and that inter views of the candidates who had applied in pursuance of the said advertisement were conducted during December 1968 and January 1969.
In paragraph 3 the respective dates of promo tion of the petitioners as Executive Engineers are given.
In paragraph 4 however it is stated that the records relating to the applications in the interviews are not traceable inspite of the best efforts made by the senior officers of the Electricity Board.
In his rejoinder, respondent No. 1 P.L. Kelkar contro verts the facts alleged.
He submits that the affidavit filed by the Electricity Board does not state the facts correctly.
It is then stated: "In fact in Petition No. 4888 (F) III/77 filed by Shri N.P. Malik & Ors.
vs U.P. State Elec tricity Board it was averted in para 11 as follows: "That respondents Nos. 2 to 15 applied against advertisement for selection of direct recruits as Civil Engineers in 1968.
After an interview they were found to be unfit and were not selected for the substantive post.
The list of 343 persons selected under section 3.0.
No. 2208 A/SEB/159 A/1968 dated 1.4.69 shows that they were not selected. "In reply to the above submission in paragraph 11, it was averred by the Board before the Public Services Tribunal that the 'contents of paragraph 11 are admitted.
" In view of the above reply, respondent No. 1 submits that it is wholly irrelevant whether the records are now available or not because the above affidavit in the Public Services Tribunal was made after perusing the records.
We are rather surprised that the Electricity Board should file an affidavit by the Deputy Secretary stating that the rele vant records of the interviews held in the year 1968 are not available unless they have been done away with.
We have given above the necessary back ground facts for appreciating the dispute involved in these cases.
A decision in these cases depends upon the correct interpretation of Regulation 7(iv)(b) before and after its amendment.
The regulation comprises of two parts.
The first part refers to the advantage of advance increments.
This advantage is based on special qualification and past experience and its conse quent effect on seniority.
The grant of subsequent incre ments by the Board after joining its service is not governed by,this regulation.
It is the second part of the regulation that gives a little difficulty and it was on this that considerable arguments were addressed before us.
Special reliance was placed upon the expression 'in doing so ' occurring in the regulation.
What is contended is that this expression indi cates the manner in which the first part is to be construed.
The regulation, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to 'in the U.P. or Central Government Depart ment '.
This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government departments.
We do not think that it would be either just or fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other departments or corporations etc.
It is necessary to note that the first part of the regulation does not speak of Engineers in the U.P. or the Central Government Departments.
It speaks only of Engineers directly recruited by the Board before the commencement of this regulation, which expression takes in, Engineers who came into the service of the 344 Board from all sources.
That being so, it would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a re stricted meaning to the expression 'in doing so '.
It is useful to note.
that the Board 's advertisement inviting applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them.
The second part of the regulation has therefore to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government and not to affect the generality as contemplated in the first part.
The injustice that will be meted out to the Engineers who came from outside if the restricted meaning is given to the second part of the regulation, can be best illustrated by referring to the case of Shri P.L. Kelkar.
He was ap pointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20, 1959.
On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, after leaving the services of the M.P. Government.
Thereafter, he was appointed as Assistant Engineer on May 10, 1961, in Associated Cement Company Limited, Bombay.
It was while working in that company that he came across the advertisement made by he U.P. State Electricity Board.
He applied pursuant to such advertisement.
He was selected by the Board and appointed as per order dated August 22, 1964.
He joined service on October 7, 1964.
He was given nine increments taking into consideration his special qualifica tion and experience.
Two increments were common to all.
Thus, the extra increments given to him were seven.
It is apparent that if this extra increment on the basis of his experience and special qualification did not carry with it, seniority in the Board, he would not have either applied or accepted the job.
It cannot be assumed that he would have joined the Board willingly as a new entrant.
Under these circumstances, the Tribunal was justified in holding that he should be deemed to have been appointed w.e.f. October 7, 1957, instead of October 7, 1964, when he joined the service of the Board.
The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7(iv)(b).
In our view, the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either U.P. or the Central Government Departments and who had been given ad vance increments in consideration of such service.
The High Court considered the question in detail with refer ence 345 to the regulation under consideration and agreed with the Tribunal in the construction put by it regarding the second part of the regulation.
We have also given our anxious consideration to the regulation before and after the amend ment.
We also come to the conclusion that the interest of justice will be advanced by agreeing with the High Court and the Tribunal in the construction given by them to this regulation.
In our judgment, therefore, seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the U.P. and the Central Government Departments and from other sources.
We do not think it necessary to answer other aspects of the case for this judgment.
We do not think any interference is called for with the judgment of the High Court.
We confirm the judg ment, dismiss the appeal, writ petition and the special leave petition, with no order as to costs.
N.P.V. Appeal and Petitions dis missed.

dataset_name: IN-Abs

summary:
The first respondent in the Appeal, a Superintending Engineer, was directly recruited by the U.P. Electricity Board as an Assistant Engineer on October 7, 1964.
He was given nine advance increments by reason of his varied expe rience in different governmental and other organisations, as against two advance increments given to others.
The peti tioners in the connected special leave petition also working as Superintending Engineers were Assistant Engineers in the Irrigation and Power Department and were placed on deputa tion with the Electricity Board by the State Government from the year 1960 onwards, and were confirmed as Assistant Engineers with effect from April 1, 1975.
There was no seniority list of Assistant Engineers in the Board nor were there any rules of seniority at the time when the first respondent joined service.
The Electricity Board, in exercise of the power con ferred under section 79(c) of the framed the U.P. Electricity Board Service of Engineers (Integration and Seniority) Regulations 1976.
Regulation 7(iv)(b) provided that ' 'while determining the seniority under clauses (ii) and (iii), Engineers directly recruited by the Board before the commencement of these regulations shall be given advantage of as many years of service as was the number of advance increments which were allowed to them at the time of recruitment by the Board.
" It also provided that "in doing so, no officer shall, however, be given advantage beyond the date of his initial regular appointment in the Government department or the other organisations.
" The Board amended the regulation to remove certain anomalies and to give effect to the intention of the Board in framing the rule of seniority.
The amended regulation substituted the words "U.P. 336 C.R. Government or Central Government Department in consideration of the service for which advance increments were so allowed." The Board, in accordance with the amended regulation, published the integrated seniority list in which the name of the first respondent figured at SI.
No. 12 below other officers working as Superintending Engineers including the petitioners in the connected special leave petition.
The first respondent made a representation to the U.P. Services Tribunal challenging the amended regulation which was allowed.
The Tribunal held that in terms of Regulation 7(iv)(b) of the Regulations, the first respondent having been granted seven advance increments was entitled to the benefit of as many years of service as the number of advance increments given to him at the time of his recruitment.
A batch of writ petitions seeking to quash the order of the Tribunal was filed in the High Court, which upheld the order of the Tribunal.
The Appeal by special leave by the Electricity Board, the connected Special Leave Petition of the aggrieved peti tioners and the Writ Petition challenged the construction and application of Regulation 7(iv)(b).
Dismissing the Appeal, the Special Leave Petition and the Writ Petition, the Court HELD: (1) Regulation 7(iv)(b) of the U.P. State Elec tricity Board of Service of Engineers (Integration and Seniority) Regulations, 1976 comprises of two parts.
The first part referred to the advantage of advance increments.
This advantage is based on special qualification and past experience and its consequent effect on seniority.
The Regulation before its amendment, mentioned 'Government departments or other organisations ' but after its amendment it was changed to 'in the U.P. or Central Government Depart ment. ' This change showed a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government Departments.
It would be neither just nor fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other depart ments or corporations etc.
[343D F; 344B] 2.
The first part of the regulation does not speak of Engineers in the U.P. or Central Government Departments.
It speaks only of Engineers 337 directly recruited by the Board before the commencement of the regulation, which expression takes in, Engineers who came into the service of the Board from all sources.
It would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a restricted meaning to the expression 'in doing so '.
[343H; 344A] 3.
The Board 's advertisement in the instant case, invit ing applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them.
The second part of the regulation has, therefore, to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government Departments and not to affect the generality as contemplated in the first part.
[344B] 4.
The Tribunal was right in holding, and the High Court in agreeing with it, that the second part was in the nature of proviso limited to persons who had been in service of either U.P. or other Central Government Departments and who had been given advance increments in consideration of such service.
[344G H] 5.
In the instant case, the first respondent was given nine increments taking into consideration his special quali fication and experience as against two increments common to all, and thus, giving him seven extra increments.
It is apparent that if these extra increments on the basis of his experience and special qualification did not carry with it seniority in the Board, he would not have either applied or accepted the job.
It cannot be assumed that he would have joined the Board willingly as a new entrant.
Under these circumstances.
the Tribunal was right in holding that the first respondent should be deemed to have been appointed with effect from October 7, 1957, giving him the advantage of extra increments under the second part of Regulation 7(iv)(b).
The seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from U.P. and the Central Government Departments and from other sources.
[344E G; 345B]


judgement:
ivil Appeal Nos. 116117 of 1987.
309 From the Judgment and Order dated 28.11.1986 of the Bombay High Court in Civil Writ Petition Nos.
5391 And 55 15 of 1985.
F.S. Nariman, R.F. Nariman, Ashok Goel, Rajan Karanjawa la and Ejaz Mazbool for the Appellant.
H.C. Tunara, M.N. Shroff, A.G. Parekh and K.M.K. Khan for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is by the tenant from the judgment and order of the High Court of Bombay dated 28th of November, 1986.
The only question involved in this appeal is what is the period of limitation for the recovery of possession of the demised premises.
The premises in question is located on the Municipal Street No. 16 in Fanaswadi area of Bombay.
The tenant was inducted as a monthly tenant in respect of the said premises at a monthly rent of Rs. 105.60 for the purpose of conducting ice cream business which was being carried on by her husband who was the holder of the power of attorney on her behalf.
The premises consisted of the entire structure on the ground floor with a loft covering the entire area with corrugated iron sheets.
The letting was done on an agreement dated 29th of December, 1975 which was to become effective from the 1st of January, 1976.
It is the case of the landlord, the re spondent herein, that in breach of the agreement and the terms of tenancy as also in violation of.
the prohibition prescribed under section 13(1) of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 (hereinafter re ferred to as the Rent Act), the tenant had indulged in several acts of commission by which not only there has been permanent alterations of major nature but the entire struc ture was completely changed so much so that even the height of the structure was increased and thus, the loft lost its initial character and became almost as a first floor which was the creation of the appellant tenant herein.
Several other breaches were alleged to have been committed in re spect of the terms of tenancy.
It was alleged that the tenant had indulged in the acts of waste and damage to the property and that further she had changed the user of the suit premises when some of the employees started residing there.
On the basis of those and other allied allegations on the 20th of September, 1978 the landlord, respondent herein, gave a notice to quit to the tenant, the appellant herein, on the ground that the tenant had (1) made alterations of permanent nature in respect of the demised premises, (2) committed 310 acts of waste and damage and (3) changed the user of the premises.
In 1979 the landlord filed R.A.E. Suit No. 1326/4557 of 1979 against the tenant in the Small Causes Court, Bombay for possession of the demised premises.
The Trial Court on 11th November.
1982 decreed the suit uphold ing, inter alia, that the tenant had made alterations of permanent nature in the demised premises and had committed acts of waste and damage.
Aggrieved by the said decision Appeal No. 667 of 1982 was filed by the tenant against the decree of the Trial court.
The same was allowed by the Appellate Bench of the Small Causes Court on 28th September, 1985 and the respondent 's suit for eviction was dismissed on the ground that the suit was barred by lapse of time under article 113 of the (hereinafter called the ).
The High Court of Bombay on 28th of November, 1986 allowed the writ petition being Writ Petition No. 5391 of 1985 filed by the landlord under Article 227 of the Constitution against the judgment of the Appellate Bench of the Small Causes Court.
The High Court allowed the said Writ Petition filed by the landlord and dismissed the Writ Petition being Writ Petition No. 5515 of 1985 filed by the tenant.
In the premises the High Court 's judgment and order dated 28th of November, 1986 impugned in this appeal re stored the judgment of the Trial Court decreeing the re spondent 's suit for possession.
All the three courts have held that the tenant, appel lant herein, had made alterations of permanent nature and had committed acts of waste and damage.
The Appellate Bench of the Small Causes Court and the High Court, however, differed on the question of limitation.
The Appellate Bench of the Small Causes Court had held that the suit was barred under article 113 of the which prescribed a period of 3 years while the High Court held that articles 66 or 67 was applicable which prescribed a period of 12 years.
According to the landlord respondent, the suit though filed after 3 years was filed within 12 years of the accrual of the cause of action.
The only question which was argued in this appeal was the question of limitation.
No factual aspect was agitated before this Court.
This appeal must therefore, decide the question which article of the Limita tion Act would be applicable, that is to say, whether arti cle 113 or either of the article 66 or 67 and what would be the date of the accrual of cause or ' action.
On behalf of the appellant, it was submitted by Mr. Nariman that on the facts of this case, article 113 of the would alone apply because according to him neither article 66 nor article 67 would have any applica tion.
It may not be inappropriate to set out article 66 and article 67 of the Schedule of the .
The said articles 311 appear in of the Schedule First Division dealing with suits relating to immovable property.
The first column gives the description of suit, the second column gives the period of limitation and the third column deals with time from which period begins to run.
Articles 66 and 67 read as follows: "66.
For possession Twelve When the forfeiture of immovable property years is incurred or the when the plaintiff condition is has become entitled broken.
to possession by reason of any forfeiture or breach of condition.
By a landlord to Twelve When the recover possession years tenancy is from a tenant.
determined.
" Article 113 on the other hand which is in dealing with suits provides that for any suit for which no period of limitation is provided elsewhere in the Schedule the period would be three years from the date when the right to sue accrues.
It was submitted by Shri Tunara, learned counsel for the respondent landlord that for any suit by a landlord against a tenant for recovery of possession under the Rent Act, the was inherently inapplicable.
We are, however, unable to accept this argument.
Recovery of possession is by a suit and there is no section in the scheme of the Limita tion Act to indicate that was inherently inapplicable.
In the scheme of the Rent Act or in the var ious contingencies contemplated under the Rent Act, there is nothing to indicate or warrant that there would be no limi tation of any period.
Article 67 of the which has been set out hereinbefore indicates that time begins to run only when the tenancy is determined.
It comprehends suit by a landlord and deals with fight to recover possession from the tenant.
Therefore, it deals with landlord and tenant.
We are therefore unable to accept the argument of the respondent that limitation was inapplicable to eject ment.
On behalf of the appellant it was however submitted that article 67 of the had no application inasmuch as time begins to run only when the tenancy is determined.
A determination of tenancy which takes place under the Trans fer of Property Act is wholly irrele 312 vant for cause of action in ejectment.
It is an act in law and not an act of law because under the scheme a determina tion of tenancy which takes place under the Transfer of Property Act, according to the appellant, is wholly irrele vant for rounding a cause of action in ejectment because the provisions of the Transfer of Property Act are superseded by the provisions of the Rent Act and according to the appel lant a cause of action for eviction is to be rounded only on one of the grounds mentioned in Section 13 of the Rent Act.
For this reliance was placed on V. Dhanpal Chettiar vs Yesodai Ammal; , where this Court held that a lease between a lessor and a lessee comes into exist ence by way of contract when the parties to the contract agree on the rent, duration of tenancy and other relevant terms.
Section 111 of the Transfer of Property Act provides various methods by which a lease of immovable property can be determined.
Under clause (h) of section 111 a lease determines on the expiry of a notice to determine the lease given by the landlord to the tenant.
But a notice is not compulsory or obligatory nor must it fulfil all the techni cal requirements of section 106 of the Transfer of Property Act, because as a result of the various State Rent Acts the liability to be evicted if incurred by the tenant, he cannot turn round and say that the contractual tenancy had not been determined.
It was further reiterated that the action of the landlord in instituting a suit for eviction on the ground mentioned in the State Rent Act would tantamount to an expression of the intention of the landlord that he does not want the tenant to continue as his lessee and the jural relationship between the lessor and the lessee would come to an end on the passing of an order or a decree for eviction.
Until then, under the extended definition of 'tenant ' under the various State Rent Acts, the tenant continued to be a tenant even though the contractual tenancy had been deter mined by giving a valid notice under section 106 of the Transfer of Property Act.
Therefore notice under section 106 of the Transfer of Property Act terminating the tenancy is no longer necessary.
At page 353 of the said report, the Court was of the view that making out a case under the Rent Act for eviction of the tenant by itself was sufficient and it was not obligatory to the proceeding on the basis of the determination of the lease by issue of a notice in accord ance with section 106 of the Transfer of Property Act.
This view was also reiterated again in Pradesh Kumar Bajpai vs Binod Behari Sarkar; , where this Court observed that once the requirements of Rent Act were satis fied, the tenant could not claim the double protection of invoking the provisions of the Transfer of Property Act or the terms of the contract.
Therefore, in the case before this Court the question of termination of lease by forfei ture did not arise on the facts of that case 313 and after the Rent Act came into force, the landlord could not avail himself of clause 12 which provided for forfei ture, in that case, even if the tenant had neglected to pay the rent for over two months and further the landlord could not enter into possession forthwith without notice.
The only remedy for him is to seek eviction under the provisions of the Rent Act.
See also in this connection the observations in Gian DeviAnandv.
Jeevan Kumar & others, [1985] 2 S.C.C. 683.
It was further submitted on behalf of the appellant that columns 1 and 3 of the Schedule of the should be read together and if a case does not fall within either column 1 or column 3 the residuary article must apply.
Reference may be made to the observations in Kripal Shah Sant Singh vs Shri Harkishan Das Narsingh Das, at 275; M/s. Swastik Agency, Madras vs The Madras Port Trust and another, A.I.R. 1966 Madras 130 at 135 and Mulla Vittil Seeti, Kutti and others vs K.M.K. Kunhi Pathum ma and others, A.I.R. 1919 Madras 972.
Mr. Nariman, learned counsel for the appellant submitted that the expression "determination" appears in section 111 of the Transfer of Property Act.
Under section 14 of the Bombay Rent Act, the same expression was used in the context of a sub tenant becoming a direct tenant of the landlord.
This expression however, according to the appellant, is not to be found in section 13.
of the Act.
This Court has held that this expression contained in section 14 of the Rent Act is different from the expression contained in section 111 of the Transfer of Property Act inasmuch as the tenancy only determines under the Rent Act for a decree only for eviction is passed, and not before.
Reliance was placed in support of this argument on the observation of this Court in Hiralal Vallabhram vs Kastorbhai Lalbhai & Ors., ; at 349 and 350.
It was further urged therefore that article 67 of the would not apply.
Article 66, according to the appellant, contemplates an immediate fight to recover possession.
Breach of a condition must lead to an immediate right to possession without more.
This would not be a determination in law according to the appellant.
Section 13 of the Rent Act contemplated, however, two conditions being fulfilled one is a ground for ejectment subsisting and the other is the Court 's satisfaction which is a condition precedent before which there is a no immedi ate right to possession.
Reliance in support of this propo sition was placed on Sharoop Dass Mondal vs Joggessur Roy Chowdhry, I.L.R. 26 Calcutta 564 at 568; Annamalai Pathar vs Sri la sri 314 Vythilinga Pandara Sannadhi A vergal and another, A.I.R. 1937 Madras 295 at 297; Mahalinga Bandappa Lakhannavar vs Venkatesh Waman Karnataki, 59 B.L.R. 227 at 233; Bahadur Singh & Anr.
vs Muni Subrat Dass & Anr., at 436; Kaushalaya Devi & Ors.
vs Shri K.L. Bansal, ; at 1050 and Ferozi Lal Jain vs Man Mal and another, at 795 and 796.
Under section 13 of the Rent Act, possession is not recoverable only for breach of a condition, and it is recoverable on fulfilment and not breach of a condition precedent to the Court 's satisfaction, according to counsel for the appellant.
It was further submitted on behalf of the appellant that section 13(1) of the Rent Act was to be contrasted with section 12(1) recovery of possession under section 13(1) was not directly upon a breach of condition of tenancy, but only upon the Court 's satisfaction that a ground for recovery of possession was made out.
Under section 12(1), however, a landlord is not entitled to recover possession so long as the tenant observed the "conditions of tenancy".
It was further submitted that section 13 is subject to sections 15 and 15A of the Rent Act if the landlord and the tenant respectively have fulfilled (not breached) according to the counsel, the provisions of these two sections, no suit for ejectment will lie.
It was urged that again showed that section 13(1) of the Rent Act contained conditions that were to be fulfilled before a landlord can recover possession for a tenant 's breach of condition.
Section 13(1) contained grounds for eviction of a tenant which need not be for breach of any condition.
According to the appellant only one article for recovery of possession is reserved under the by a landlord from a tenant, that is article 139 of the Limitation Act, 1908.
This article is the exact predecessor of article 67.
Article 66 is a general article, says the appellant, which does not apply to landlord or tenant and it was further submitted that when a specific article applied, a general article should not be applied specially when it was not free from doubt.
Some authorities were referred to in this behalf.
We accept this submission on the principle of construc tion.
It is further reiterated that a strained construction to give a more favourable limitation period is to be avoid ed considerations of equity were out of place in construing the articles under the Limitation Act.
It was submitted before us that section 12(1) of the Rent Act did not apply to the facts of the present case.
The decree for eviction was grounded upon section 13(i)(b) of the Rent Act and not on section 12(1).
It was further reiterated that the non obstante clause of section 13 made it clear that where a condition of tenancy coincided with a ground for eviction, the ground for eviction alone is to be looked at and to that 315 extent, any breach of the condition of tenancy was supersed ed by the ground for eviction.
Also in the instant case, clause 3 of the agreement dated 29th December, 1975 is inconsistent with the provisions of the Act inasmuch as even temporary structures were not allowed to be erected and there is no provision for the written consent of the land lord.
It was further submitted without prejudice to the aforesaid submission that section 12(1) of the Rent Act was a section that was designed to afford protection to a tenant if his lease was determined under the Transfer of Property Act and it was thus designed to be a shield but not a word.
It was submitted that the decision in Haji Suleman Haji Ayub Bhiwandiwala vs Narayan Sadashiv Ogale, [1967] 84 Bombay LaW Report p. 122 is against the current of modern rent juris prudence.
Haji Suleman Haji Ayub Bhiwandiwala vs Narayan Sadashiv Ogale, (supra) which is a decision of the Bench of three judges and as such binding on this Court held that sections 12 and 13 of the Bombay Rent Act dealt with different topics and have different objects.
It was held that section 12(1) clothed a tenant with the cloak of statutory protection against eviction so long as he performs the conditions of tenancy.
Section 13 provides that notwithstanding that protection the landlord can sue for eviction provided he established any one of the circumstances set out in that section.
This Court further observed that it was impossible to say that it was only when circumstances set out in sec tion 13 arose that a landlord could evict and that eviction on the ground of the failure to perform the conditions of tenancy would not deprive the tenant of the protection under section 12(1) of the Rent Act.
Such a reading would be contrary to the whole scheme underlying the objects of the two sections.
We accept the aforesaid legal position.
It is not against the trend of the principle behind rent legisla tion.
It affords protection to the tenant inasmuch as it says that it was only on the fulfilment of the condition stipulated in the two sections and on satisfaction of the contingencies mentioned in section 12 which would deprive the tenant of the protection that the tenant can be evicted.
Much argument was advanced to the contrary but in our opinion to prevent unreasonable eviction, in balancing and harmonising the rights of the landlords and tenant if the sections are so read as done in Haji Sulernan 's case, it would meet the ends of justice and that would be proper construction.
If that is so then on the strict grammatical meaning article 67 of the Limitation Act would be applicable.
This is indubitably a suit by the landlord against the tenant to recover possession from the tenant.
316 Therefore the suit clearly comes within article 67 of the Limitation Act.
The suit was filed because the tenancy was determined by the combined effect of the operation of sec tions 12 and 13 of the Bombay Rent Act.
In this connection, the terms of sections 12 and 13 of the Bombay Rent Act may be referred to.
At the most it would be within article 66 of the Limitation Act if we hold that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in section 13 of the Bombay Rent Act and on lifting on the embargo against eviction of tenant in terms of section 12 of the said Act.
That being so, either of the two, article 66 or article 67 would be applicable to the facts of this case; there is no scope of the application of article 113 of the Limitation Act in any view of the matter.
Sections 12 and 13 of the Bombay Rent Act co exist and must be harmonised to effect the purpose and intent of the legislature for the purpose of eviction of the tenant.
In that view of the matter article 113 of the Limitation Act has no scope of application.
Large number of authorities were cited.
In the view we have taken on the construction of the provisions of articles 67 and 66 of the Limitation Act and the nature of the cause of action in this case in the light of sections 12 and 13 of the Bombay Rent Act, we are of the opinion that the period of limitation in this case would be 12 years.
There is no dispute that if the period of limitation be 12 years, the suit was not barred.
In that view of the matter, the appeals fail and are accordingly dismissed with costs.
N.V.K. Appeals dis missed.

summary:
The appellant in the appeals was the tenant of the demised premises who was inducted as a monthly tenant for the purpose of conducting the ice cream business carried on by her husband.
The letting was done on an agreement dated December 29, 1975 by the landlord respondent which was to become effective from January 1, 1976.
The landlord alleged that in breach of the agreement and the terms of the tenancy, as also in violation of the prohi bition prescribed under section 13(1) of the Bombay Rents, Hotels & Lodging House Rates (Control) Act, 1947 the tenant had indulged in several acts of commission by which not only there had been permanent alterations of major nature, but the entire structure of the demised premises was completely changed.
it was also alleged that the tenant had indulged in acts of waste and damage to the property, and that she had changed the user of the premises when some of the employees started residing there.
On the basis of the aforesaid allegations the landlord gave a notice to quit dated 20th September, 1978 to the tenant.
Thereafter in 1979 the landlord fried a suit against the tenant in the Small Causes Court for possession of the demised premises.
The Trial Court on 11th November, 1982 decreed the suit upholding the allegation that the tenant had made 307 alterations of permanent nature in the demised premises and had committed acts or waste and damage.
Aggrieved by the aforesaid decision the tenant filed an appeal before the Appellate Bench of the Small Causes Court on 28th September, 1985, and the respondent 's suit for eviction was dismissed on the ground that the suit was barred by lapse of time under Article 113 of the Limitation Act, 1973, which prescribed a period of three The landlord thereafter filed a writ petition under Article 227 which was allowed by the High Court which held that Article 66 or Article 67 was applicable which pre scribed a period of 12 years.
The writ petition filed by the tenant was however dismissed.
In the appeals by the tenant to this Court the only question for consideration was: whether Article 113 or either of Articles 66 or 67 of the Limitation Act would be applicable, and what would he the date of the accrual of the cause of action.
On behalf of the tenant appellant it was contended that on the facts of the case Article 113 of the Limitation Act alone would apply and that neither Article 66 nor Article 67 would have any application.
Article 67 of the Limitation Act had no application inasmuch as time begins to run only when the tenancy is determined and that determination of tenancy which takes place under the Transfer of Property Act is wholly irrelevant for cause of action in ejectment.
That Article 66 contemplates an immediate right to recover pos session.
Breach of a condition only leads to an immediate right to possession without more, and not a determination in law.
That Article 66 is a general article which does not apply to landlord or tenant, and that when a specific Arti cle applied the general Article should not be applied spe cially when it was not free from doubt.
On behalf of the respondent landlord it was however submitted that for any suit by a landlord against the tenant for recovery of possession under the Rent Act the Limitation Act was inherently inapplicable.
Dismissing the Appeals, HELD: 1.
Recovery of possession is by a suit and there is no section in the scheme of the Limitation Act to indicate that the Limitation Act was inherently inapplicable.
In the scheme of the Rent Act or in 308 the various contingencies contemplated under the Rent Act, there is nothing to indicate or warrant that there would be no limitation of any period.
[311E F] 2.
Sections 12 and 13 of the Bombay Rent Act co exist and must be harmonised to effect the purpose and intent of the legislature for the purpose of eviction of the tenant.
In that view of the matter Article 113 of the Limitation Act has no scope of application.
[316C D] 3.
Article 67 indicates that time begins to run only when the tenancy is determined.
It comprehends suit by a landlord and deals with the right to recover possession from the tenant.
Therefore it deals with landlord and tenant.
[31 IF G] 4.
On the strict grammatical meaning Article 67 of the Limitation Act would be applicable.
This is indubitably a suit by the landlord against the tenant to recover posses sion from the tenant.
Therefore, the suit clearly comes within Article 67 of the Limitation Act.
The suit was flied because the tenancy was determined by the combined effect of the operation of Sections 12 and 13 of the B ombay Rent Act.
At the mast it would be within Article 66 of the Limitation Act if it is held that forfeitures have been incurred by the appellant in view of the breach of the conditions mentioned in Section 13 of the Bombay Rent Act, and on lifting of the embargo against eviction of tenant in terms of section 12 of the said Act.
That being so, either of the two, Article 66 or Article 67 would be applicable to the facts of the instant case.
There is no scope for the application of Article 113 of the Limitation Act in any view of the matter.
The period of limitation in this case would therefore be 12 years.
The suit was therefore not barred.
[315H; 316A E] Dhanpal Chettiar vs Yesodai Ammal, ; ; Pradesh Kumar Bajpai vs Binod Behari Sarkar, [1980] 3 S.C.R. 93, Gian Devi Anand vs Jeevan Kumar & Other, [1985] 2 S.C.C. 683; Hiralal Vallabhram vs Kastorbhai Lalbhai & Others, ; at 349 and 350; Bahadur Singh & Anr.
vs Muni Subrat Dass & Anr., at 436, Kau shaiaya Devi & Others vs Shri K.L. Bansal, [1969] 2 S.C.R. 1048 at 1050; Ferozi LaIJain vs Man Mal and another, A.I.R. at 795 aud 796; aud Haji Suleman Haji Ayub Bhiwandiwala vs Narayan Sadashiv Ogale, [1967] 84 Bombay Law Report p. 122, referred to.


judgement:
ivil Appeal No. 258 of 1974 From the Judgment and Order dated 22.9.1972 of the Andhra Pradesh High Court in Appeal No. 549 of 1969.
T.S. Krishnamurthy.
G. Prabhakar and G. Narsimhulu for the Appellant.
P.P. Rao, T.C. Gupta and G.N. Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only point that is involved in this appeal by special leave is whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not.
In order to consider the point it is necessary to state a few relevant facts.
Two brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter being re spondents Nos. 2 to 7 herein, constituted a joint Hindu family governed by the Mitakshara School of Hindu Law.
On May 4, 1959, Rami Reddy executed a deed of settlement (exhibit A 1) in favour of his brother, Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a fife interest to himself and also providing that after his death, his brother should maintain his wife.
Rami Reddy died in January, 1965 and shortly 239 thereafter his brother Veera Reddy also died in March, 1965.
It appears that after the death of Rami Reddy, differences arose between his widow and the respondent No. 1, as a result of which the widow of Rami Reddy (since deceased) demanded a partition of her husband 's share which was gifted by her husband to his brother Veera Reddy.
Thereafter, she file.1 a suit out of which this appeal arises for partition and recovery of her husband 's share after cancelling the deed of settlement (exhibit A 1), inter alia on the ground that it was a void document under the Hindu Law.
The suit was contested by the respondents Nos. 1 to 7.
The respondent No. 3 filed a written statement denying the plaint allegations.
The other respondents adopted the written statement of the Respondent No. 3.
The Trial Court, on a consideration of the evidence adduced on behalf of the parties held, inter alia, that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparceners.
Further, it was held by the Trial Court that even assuming that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property Act, as the plaintiff 's husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit.
In that view of the matter, the Trial Court held that the plaintiff was entitled to a sum of Rs. 1,200 per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint.
The suit was, accordingly, decreed by the Trial Court.
The defendant respondents filed an appeal before the Andhra Pradesh High Court.
The High Court, however, did not agree with the finding of the Trial Court that the deed of settlement was void.
It was held by the High Court that the deed of settlement was valid.
The judgment and decree of the Trial Court was set aside and the suit was dismissed in so far as it related to the cancellation of the deed of settle ment and recovery of possession of the suit properties by way of partition.
But the decree passed by the Trial Court awarding maintenance to the plaintiff at the rate of Rs. 1,200 per annum, that is to say, at the rate of Rs. 100 p.m. from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court.
The appeal was allowed in part.
Hence this appeal by special leave.
During the pendency of this appeal in this Court the plain tiff, the 240 widow of Rami Reddy, died and the present appellant, who is her heir and legal representative, has been substituted in her place.
It is not disputed that the deed of settlement (exhibit A 1) is really a deed of gift.
It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellant, that in holding that the gift in question was legal and valid, the High Court committed an error of law in the face of the legal position particularly prevail ing in the erstwhile State of Madras of which the present State of Andhra Pradesh was a part, as recognised in several judicial decisions that a gift of coparcenary property by a coparcener without the consent of the other coparceners is void.
The parties are admittedly governed by the Mitakshara School of Hindu Law.
The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession.
A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family.
An interest in the coparcenary property accrues to a son from the date of his birth.
His interest will be equal to that of his father.
So far as alienations of coparcenary property are con cerned, it appears that such alienations were permissible in eighteenth century.
Indeed, in Suraj Bunsi Koer vs Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council ob served as follows: " . . it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his sepa rate debt.
. . . . But it appears . . . that, in order to support the alienation by one coparcener of his share in undivided property, the alienation must be for value.
The Madras Courts, on the other hand, seem to have gone so far as to recognise an alienation by gift.
There can be little doubt that all such alienations, whether voluntary or compul sory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, rounded upon the equity which a purchaser for 241 value has to be allowed to stand in his ven dor 's shoes, and to work out his rights by means of a partition.
" Thus, the Privy Council also noticed that in Madras alienations by gift were recognised.
Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family.
It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consid eration even without the consent of other coparceners.
As has been observed by the Privy Council in Suraj Bunsi Koer 's case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor 's shoes and to work out his rights by means of a partition.
After the above Privy Council decision, there has been a gradual growth in Madras of a particular legal position in regard to alienations by way of gift.
Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer 's case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest in coparcenary properties as void.
The leading decision on the point is the case of Baba vs Timma and Ors., ILR FB, where it has been held that a Hindu father, if unseparated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable.
In that case, the gift was made by the father to a stranger to the detriment of the sons ' right in the property gifted.
In Ponnusami vs Thatha and Ors., ILR , the gift was made by a brother to the children of his daughter.
It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text.
Thus, the cumulative effect ,of Ponnusami 's case and Baba 's case (supra) is that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations.
In Ramanna vs Venkata, ILR a Hindu made a gift of certain land which he had purchased with the income of ancestral property, and a suit was brought to recover the land on behalf of his minor son, who was born even seven months after the date of the gift.
It was held that the gift was invalid as against the plaintiff, and that he was enti tled to recover the land from the donee.
Thus, a son, who was born to the family after the gift was made, was held entitled to recover 242 the property from the donee.
In other words, he would not be bound by such an alienation.
Again, in Rottala Runganathan Cheuy v Pulicat Ramasami Chetti, ILR it has been held that it is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; ' and such ,an alienation, if made, is void in toto.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void.
It is not necessary to refer to all these decisions.
Instead, we may refer to the following statement of law in Mayne 's Hindu Law, Eleventh Edition, Article 382: "It is now equally well settled in all the Provinces that a gift or devise by a coparcen er in a Mitakshara family of his undivided interest is wholly invalid . . . . . . . . . . .
A coparcener cannot make a gift of his undi vided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
" We may also refer to a passage from Mulla 's Hindu Law, Fifteenth Edition, Article 258, which is as follows: "Gift of undivided interest. (1) According to the Mitakshara law as applied in all the States, no coparcerer can dispose of his undivided interest in coparcenary pro perty by gift.
Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property.
He may, however, make a gift of his interest with the consent of the other coparceners.
" It is submitted by Mr. P.P. Rao, learned Counsel appear ing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparce nary property by way of gift.
The reason is, however, obvi ous.
It has been already stated that an individual member of the joint Hindu family has no definite share in the coparce nary property.
By an alienation of his undivided interest 19 the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property.
The object of this strict rule against 243 alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has de veloped gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.
The rigor of this rule against alienation by gift has been to some extent relaxed by the .
Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper ty.
The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary proper ty.
The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener.
Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a copar cener can dispose of his undivided interest in the coparce nary property by a will, but he cannot make a gift of such interest.
Again, it may be noticed in this connection that under the proviso to section 6 of the , if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succes sion, as the case may be, under the Act and not by survivor ship.
The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative.
The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a coparcenary property will devolve by survivorship upon the surviving members of the coparcenary and in accordance with the provisions of the Act.
It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con sent of all other coparceners.
Such a gift would be quite legal and valid.
The High Court has noticed most of the above decisions and also legal position that a gift by a coparcener of his undivided interest in 244 the coparcenary property without the consent of the other coparceners is void.
The High Court has also noticed the provisions of sections 6 and 30 of the .
The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryak antara vs G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012.
In that case, it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is not binding on the other coparceners.
No authority has, however, been cited in support of that proposition of law.
On the contrary, there is a long series of decisions since the decision in Baba vs Thimma and Ors., ILR some of which have been referred to above, laying down uniformly that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparceners is void.
In the circumstances, it is very difficult to accept the proposi tion of law laid down in G. Suryakantara vs G. Suryanara yanamurthy (supra) that a gift by a coparcener of his undi vided interest in the joint family property is not void, but is only not binding on the other coparceners.
When a partic ular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances.
It is for the Legislature to consider whether it should change such law or not.
It may be legitimately presumed that before the passing of the Hindu succession Act, 1956, the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided inter est by section 30 of the , altered the law against making of gift by a coparcener of his undivided interest.
While considering whether the strict rule against alienation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the .
In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantarn 's case (supra).
In the instant case, the High Court has also noticed a decision of this court in A. Berumalakkal vs Kumaresan Balakrishnan and Ors., AIR , that a gift of a coparcenary property is not valid under the Hindu Law except for specified purposes.
That case has been distinguished by the High Court on the ground that the question 245 of validity of such a gift on the ground of consent of other coparceners did not arise for consideration.
We do not think that it was a reasonable distinction that could be made of the law laid down by this Court merely because the question of consent of other coparceners did not arise.
This Court, therefore, also has laid down against the validity of a gift of an undivided share in the coparcenary property.
Coming back to the facts of the case, we find that Rami Reddy made the gift for the common benefit of the donee as well as his sons as held by the High Court.
It is submitted on behalf of the respondents that really it is a ,case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons.
It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the coparce nary property to his brother.
There is some force in the contention of the learned Counsel for the respondents that the gift should be construed as relinquishment or renuncia tion of his undivided interest by the donor in favour of the other coparceners.
Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant to relinquish his interest in the coparcenany in favour of Veera Reddy and his sons.
In this connection, we may refer to the following passage from Mulla 's Hindu Law, Fifteenth Edition, Article 264 at page 357: "article 264.
(1)Renunciation ,or relinquishment of his share.
A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them.
If he renounces in favour of one or more of them the renuncia tion enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made.
Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance.
The renuncia tion or relinquishment must, of course, be genuine.
If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed.
" Assuming that it is a renunciation in favour of one of the coparceners, namely, Veera Reddy, such renunciation enures for the benefit of all other coparceners and. not for the sole benefit of the 246 coparcener in whose favour the renunciation was made.
In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners.
The gift was, therefore, valid construing the same as renunciation or relinquishment by Rani Reddy of his interest in the coparcenary and, accord ingly, the consent of other coparceners was immaterial.
In the result, the conclusion arrived at by the High Court is affirmed though on a different ground.
The appeal is dismissed.
There will, however, be no order as to costs.
H.S.K. Appeal dis missed.

summary:
A coparcener in a Joint Hindu Family governed by the Mitakshara school in Hindu Law executed a deed of settlement (which indisputably was really a deed of gift) in favour of another coparcener (his brother) conveying his entire undi vided interest in the coparcenary but reserving a life interest to himself and also providing that after his death the other coparcener should maintain his wife.
In a suit for partition and recovery of the property filed by the widow of the coparcener who executed a deed of settlement on the ground that the gift deed was a void document under the Hindu Law, the Trial Court held that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparcener.
On appeal the High Court held that the deed of settlement was valid.
In this appeal by special leave the question for consideration was whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not.
The argument of the respondent was that it was a case of renunciation or relin quishment of a coparcener 's interest in favour of his broth er and his sons.
Dismissing the appeal, this Court.
HELD: 1.
A gift made by the coparcener to his brother should he construed as renunciation of his undivided inter est in the coparcenary in favour of his brother and his sons, who were the remaining coparceners.
A gift was, there fore, valid and consent of other coparceners was immaterial.
[246A B] Mulla 's Hindu Law, Fifteenth Edition, Article 264 at page 357, referred to.
237 2.
It is, however, settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners.
Such recognition of alienations of copar cenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor 's shoes and to work out his rights by means of a partition.
[244B C] Suraj Bunsi Koer vs Sheo Proshad Singh and Ors.
, ILR 6 IA 88, referred to.
The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that a coparcener can dispose of his undivided interest in the coparcenary property by a will but he cannot make a girt of such interest.
[243D] Ponnusami vs Thatha and Ors.
, ILR 9 Madras, 273; Ramanna vs Venkata, ILR 11 Madras 246; Rottala Rungunatham Chetty vs Pulicat Ramasami Chetti, ILR 27 Madras, 162; Mayne 's Hindu Law, Eleventh Edition, Article 382 and Mulla 's Hindu Law, Fiteenth Edition, Article 258, referred to. 4.
It is a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of other coparceners.
Such a gift will be quite legal and valid.
[243G] 5.
When a particular state of law has been prevailing for decades in a particular area and the people of that are having adjusted themselves with that law in their daily life.
it is not desirable that the court should upset such law except under compelling circumstances.
It is for the Legislature to consider whether it should change such law or not.
It may be legitimately presumed that before the passing of the , the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided interest by section 30 of the , altered the law against making of gift by a coparcener of his undivided interest.
While considering whether the strict rule against alienation by girt should he interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the Hindu Succes sion Act.
[244D G] 238 G. Suryakantam vs
G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012, differed.
A. Perumalakkal vs Kumaresan Balakrishnan and Ors., , referred to.
That an individual member of the joint Hindu family has no definite share in the coparcenary property.
By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property.
The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is lot the purpose of preventing a joint Hindu family from being disin tegrated.
[242G H; 243A B]