judgement:
Appeals Nos.
966 958 of 1964.
Appeals from the judgment and decree dated September 23.
1959, of the Calcutta High Court in Appeals from Original Decrees Nos.
268 to 270 of 1957.
S.V. Gupte, Solicitor General, A.K. Sen, and D.N. Mukherji, for the appellants (in all the appeals).
A.V. Viswanatha Sastri and S.C. Majumdar, for respondent No. 1.
The Judgment of SUBBA RAO and SHAH JJ. was delivered by SHAH, J. BACHAWAT, J. partially dissented.
Shah, J.
This group of appeals arises out of suits Nos. 79 and 80 of 1954 and 67 of 1955 filed by the first respondent Balai Chand Ghose (who will hereinafter be called "Balai") in the Court of the Eighth Subordinate Judge, Alipore, District 24 Parganas, West Bengal.
In Suits Nos. 79 and 80 of 1954 Balai prayed that he be declared owner of the properties described in the schedules annexed to the respective plaints.
In suit No. 67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the deed of dedication dated September 15, 1944 did not amount to an absolute dedication of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities.
The Trial 552 Court decreed suits Nos.
79 & 80 of 1954 holding that the plaintiff was the owner of the disputed properties and the deed of endowment Ext.
11 (a) executed on March 8, 1939 by Nirmala was "sham and colourable".
In suit No. 67 of 1955 the Subordinate Judge declared that Nirmala was a benamidar of Balai of the properties in suit and the deed of endowment dated September 15, 1944, Ext.
11, did not amount to absolute dedication of the properties to the deities Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu.
The High Court of Judicature at Calcutta, in exercise of its appellate jurisdiction, modified the decrees passed by the Trial Court.
The High Court held that the deed Ext.
11(a) was not sham, but it amounted to a partial dedication in favour of the deity Sri Gopal Jiu i.e. it created a charge on the properties endowed for the purposes of the deity mentioned in the deed.
The decree passed in suit No. 67 of 1955 from which appeal No. 269 of 1957 arose was dismissed subject to the "clarification or clarifications" that it created only a charge in favour of the city or deities for the purposes recited therein and that subject to the charge, the properties belonged to Balai.
With certificates of fitness granted by the High Court, these three appeals have been preferred.
[After stating the facts which gave rise to the appeals His Lordship proceeded] We may briefly set out the terms of the deed Ext.
II(a).
It is described as a deed of dedication in respect of immovable properties valued at Rs. 20,000 for the Seba of the deity.
After describing the properties it is recited that the settlor was in possession and enjoyment of the properties and that she dedicated the properties for Deb Seba.
The deed then recites that the settlor had been carrying on the Seba of Sri Gopal Jiu installed by her husband, and that the properties dedicated by her husband were not sufficient for satisfactorily carrying on the Seba of Sri GopaI Jiu for ever and for perpetuating the names of her father in law and mother in law and for carrying on the work of worship of the deity of Sri Gopal Jiu regularly for ever, the provisions then set out were made.
The deed proceeds ,to state: "I dedicate the above mentioned two properties more fully described in the schedule below in order that the daily and periodical Seba etc.
of the said Sri Sri Gopal Thakur installed by my husband may go on regularly.
From this day the said two properties become the Debuttar properties of the said 'deity Sri Sri Gopal Jiu Thakur and they vest in it in a state absolutely free from encumbrances and defects.
The said deity Sri Sri Gopal Jiu becomes the full owner of the said two properties.
As to this neither I nor any of my heirs and legal representatives in ' succession shall raise or be 553 entitled to lay any claim or demand at any time and even if it be done it shall be wholly void and rejected".
Then the deed directs that "one good temple and ornaments worth approximately Rs. 500/ for Sri Gopal Jiu Thakur will be made out of the income of the Debuttar properties of Sri Gopal Jiu Thakur and on the temple being constructed, the deity will be installed and established therein and the expenses for worship etc.
and entertaining Brahmins and other expenses in connection with the ceremony shall be met out of the income of the Debuttar properties of Sri Gopal Jiu Thakur".
To meet the expenses for the worship of the deity the properties described in the schedule, it was directed, will be let out on rent and all the expenses of the deity will be derrayed out of the rents, that the Shebait shall maintain proper accounts of the income and expenditure and deposit in the deity 's fund any surplus, repair the houses yearly, pay municipal taxes etc., and out of the accumulations from the surplus income purchase immovable properties in the name of the deity and with the income erect a house at 153, Beliaghata Main Road and deposit the rent from that house in the Debuttar fund.
The deed gives detailed directions with regard to succession to the Shebaitship.
By the deed Nirmala and her husband Balai were constituted joint Shebaits and it was directed that after Nirmala 's death Balai shall be the Shebait, and after his death his two sons Paresh and Naresh will become Shebaits of the deity.
The settlor expressed the hope that the two Shebaits and their lineal descendants will live in the same mess as members of the family and directed that any one who separated in mess will not be entitled to be a Shebait of the deity but if they separated in mess for want of accommodation "out of their own accord and being unanimous", and all the properties remain joint, they shall be entitled to remain Shebaits.
On the death of the two sons, Paresh and, Naresh, their sons will become Shebaits in accordance with the shares of their respective fathers in the Shebaitship, and if any of the sons have more than one son then all such sons will together get their father 's turn of worship and will act in accordance with the terms of the deed and carry on the worship of the deity and that in the absence of sons, the settlor 's great grandsons will be appointed Shebaits, and they will protect the Debuttar property.
The deed then directs that the daily Seba will be carried on in the same manner prescribed in the deed of dedication relating to the Debuttar created by Balai and the daily and periodical expenses for the worship of the deity will be met out of the Debuttar properties dedicated by Balai.
Provision was then made that on the occasion of each of the festivals of Janmastami.
Rasjatra and of Sri Gopal Jiu Thakur a sum of Rs. 101/ will be spent by the Shebaits for entertaining Brahmins and the poor.
A monthly remuneration of Rs. 25/ is provided for the person who acts as a Shebart and it is directed that so long as the sons shall remain Shebaits in joint mess, they will get, for the 554 expenses of their common family expenses four maunds of rice, two maunds of flour per month and Rs. 2/ per day "for daily expenses".
An additional amount of Rs. 10/ per month is directed to be spent on the Sankranti day i.e. on the last day of each month and Rs. 51/~ on the occasion of Sivaratri out of the Debuttar estate.
All these expenses, it is directed, are to be met out of the house rents and the monthly Ticca rent of the lands of the Bustee of the Debuttar properties, but the Shebaits are not entitled to let out the house or land in permanent rights to any one nor are they entitled to mortgage, make a gift of, sell, encumber or transfer the same in any other manner, and if there be no tenant in the house or the rent of the Bustee be not realised, the expenses of the deities will be reduced and the Shebaits will get reduced remuneration proportionately.
Provision is made for the devolution of the office of Shebait.
Descendants in the female line are excluded from Shebaitship, until the entire male line is extinct.
Provision is also made for application of the compensation received for Debuttar property: it is directed that out of the amount of compensation immovable properties will be purchased by the Shebaits in the name of the deity or the amount will be invested in Government paper in the name of the deity, and out of the interest thereof disbursements directed in the deed will be made.
The deed then directs that the surplus amount remaining after meeting the cost of worship will be accumulated.
The Shebaits are prohibited from residing in or otherwise using the houses appertaining to the Debuttar estate and it is directed that if any one resides or uses it, he will remain bound to pay proper rent.
Paragraph 12 of the deed then provides: "If in future the Shebaits be in want of rooms for their residence then each of them will take three Cottahs of land within the Bustee No. 153, Beliaghata Main Road beginning from the southern extremity and after erecting houses thereon at his own expense will continue to enjoy and possess the same down to his sons, sons and other heirs in succession on payment of a rent of Rs. 2/ per Cottah per month to the Debuttar estate and will pay for taxes, rents and repairs etc.
of the said house from their respective funds".
In the event of any Shebait dying sonless after constructing a house, his widow will be entitled during her lifetime to reside in the house and will also be entitled to get food and Rs. 5/ per month as expenses.
The deed then again states: "Be it stated that no one will at any time be entitled to make gift, sale or transfer in respect of the house built in the said Bustee.
The said house will form a part of the Debuttar estate and the Shebait will only remain in possession of the same".
555 Finally, the deed states that to the effect stated in the deed the settlor gives to Sri Iswar Gopal Jiu Thakur installed by her husband "the properties etc.
mentioned in the schedule below".
In the preamble as well as in the operative part of the deed, it is stated that the settlor has dedicated the properties described in the schedule to the deed for the purpose of carrying on the worship of Sri Gopal Jiu Thakur.
The deed expressly recites that the properties have, by the deed of dedication, become the properties of the deity and they vest in the deity absolutely free from all encumbrances, and that no other person has any right therein.
The deed undoubtedly contains some inconsistent directions, but the predominant theme of the dedication is that the estate belongs to the deity Sri Gopal Jiu and that no one else has any beneficial interest therein.
The plea raised by Balai in the two suits was that the deed of dedication Ext.
11 (a) was "a mere colourable one and was never acted upon" and that by the deed a cloud was "cast on" his title.
The Trial Court accepted the plea.
The High Court held that the deed was valid, but thereby only a partial dedication was intended.
That there is a genuine endowment in favour of the deity Sri Gopal Jiu is now no longer in dispute.
The only question canvassed at the Bar is whether the dedication is partial or complete.
Balai contends that it is partial: the deity represented by Nirmala contends that it is absolute.
Where there is a deed of dedication, the question whether it creates an absolute or partial dedication must be settled by a conspectus of all the provisions of the deed.
If the property is wholly dedicated to the worship of the idol and no beneficial interest is reserved to the settlor, his descendants or other persons, the dedication is complete: if by the deed what is intended to create is a charge in favour of the deity and the residue vests in the settlor, the dedication is partial.
Counsel for Balai contends that notwithstanding the repeated assertions in the deed of dedication that the property was endowed in favour of Sri Gopal Jiu and that it was of the ownership of the idol, the deed contained diverse directions which indicated that the dedication was intended to be partial.
Counsel relied upon the following indications in the deed in support of the contention: (1) A hereditary right was granted to the lineal descendants of the settlor in the male line to act as Shebaits, and provision was made for their residence, maintenance and expenses.
This was not restricted to the Shebaits only, but enured for the benefit of the members of the Shebaits ' families.
(2) The income of the endowed property was in excess of the amounts required for the expenses of the deity.
Expenses of the deity were, it was contended, static, whereas the income was expanding, leaving a large 556 surplus undisposed of.
Provision was made for reducing the expenses of the deity in the event of the income of the property contracting.
(3) The deed was supplementary to another deed executed by Balai for the benefit of the deity, and the expenses of the deity were primarily to come out of the property endowed under that deed.
(4) Direction for accumulation of income of the property endowed, and other properties which may be acquired, without any provision for disposal of the accumulation disclosed an intention on the part of the settlor to tie up the property in perpetuity for the benefit of the male descendants subject to a fixed charge in favour of the deity.
We do not propose to express any opinion on the validity or otherwise of the directions, under which provision for accumulation of income is made or benefit is given to persons other than the Shebaits are concerned.
This enquiry is only directed to the question whether on the assumption that the directional are valid, they indicate an intention on the part of the settlor to create merely a charge on the estate endowed, reserving the beneficial interest in the settlor or her heirs.
A reasonable provision for remuneration, maintenance and residence of the Shebaits does not make an endowment bad, for even when property is dedicated absolutely to an idol, and no beneficial interest is reserved to the settlor, the property is held by the deity in an ideal sense.
The possession and management of the property must, in the very nature of things, be entrusted to a Shebait or manager and nomination of the settlor himself and his heirs with reasonable remuneration out of the endowed property with right of residence in the property will not invalidate the endowment.
A provision for the benefit of persons other than the Shebait may not be valid, if it infringes the rule against perpetuities or accumulations, or rules against impermeable restrictions, but that does not affect the validity of the endowment.
The beneficial interest in the provision found invalid reverts to the deity or the settlor according as the endowment is absolute or partial.
If the endowment is absolute, and a charge created in favour of other persons is invalid the benefit will enure to the deity, and not revert to the settlor or his heirs.
Evidence about the income of the endowment in favour of Sri GopaI Jiu is somewhat vague and indefinite.
The deed of endowment executed by Balai for the deity to which the present deed Ext.
11 (a) is supplementary is not before the Court, and there is on the record no evidence about the income from that endowment and the directions made thereunder.
The defect in the record is directly traceable to the nature of the plea raised by Balai in the 557 Court of First Instance.
He had pleaded that the endowment Ext.
11 (a) made by his wife Nirmala was a "sham transaction" and was not intended to create any interest in the deity: it was not the case of Balai that the endowment though valid was partial and created a mere charge upon the property in favour of the deity.
Suits Nos.
79 & 80 of 1954 were tried with suit No. 67 of 1955 and the question whether the endowment in favour of Sri GopaI Liu was partial or absolute appears to have been raised without any pleading in the former suits.
There is, however, some evidence on this part of the case, to which our attention has been invited, and on which the argument to support the decree passed by the High Court is rounded by counsel for Balai.
Under the deed of dedication Ext.
11(a) "one good temple and ornaments worth apapproximately Rs. 500" are to be provided for out of the property endowed.
Janamashtami, Rasjatra and other festivals are to be annually celebrated and in respect of each of these festivals Rs. 101/ are to be expended.
The Shebait 's remuneration is fixed at Rs. 25/ per month and for the benefit of the family of the Shebait four maunds of rice, two maunds of Atta and a sum of Rs. 2/per day for the daily expenses are provided.
For performing the Seba of Sri Satyanarayan Jiu on Sankranti day every month Rs. 10/ have to be spent, and Rs. 51/ have to be spent on the Sivaratri day.
Provision has been made for paying Rs. 2/ per month to a pious widow of the family for helping in the Puja and to a widow of a Shebait expenses at the rate of Rs. 5/ per month have to be paid.
In the aggregate, these would amount to Rs. 2,400/per annum at the rates prevailing in 1939.
Income at the date of the endowment from the Bustee land 153/1 was estimated by Nirmala to be Rs. 50/ per month, and income from the house Nos. 155 & 154/2 was estimated at Rs. 200/ .
There is no clear evidence about the Municipal or other taxes, rent collection expenses and repairs.
But on the materials found on the record, the plea that the income of the properties was largely in excess of the total expenses to be incurred cannot be accepted.
The settlor had provided that if a Shebait is unable to reside in the house, he will be entitled to get a plot of land out of premises No. 153 at the rate of Rs. 2/ per month: whether this rent was nominal or real, need not be investigated.
If provision for residence of the Shebait can be made under a deed of endowment without affecting its validity, a provision whereby the Shebait will be entitled to use the land belonging to the deity at specially low rates may not by itself amount to an impermissible reservation by the settlor.
The plea that this was a simulate endowment has been abandoned by Balai.
Assuming therefore that the charge for rent to be levied from the Shebaits as monthly rental was nominal, the validity of the deed of dedication will not on that ground be affected.
Use of land in future by the Shebaits for erecting houses will undoubtedly reduce the land available for letting out at market P(N4SCI 9 558 rates.
If the annual income of the deity was Rs. 3,000/ per annum, and some income under the deed of endowment executed by Balai, and the outgoing were Rs. 2,400/ beside taxes, collection charges for rents and the expenses for repairs, it would be reasonable to hold that there was not much disparity between the total income which the deity received in 1939 and the estimated outgoing.
The fact that on account of the pressure on land increasing in the town of Calcutta, the rentals of immovable property may have gone up later, will be irrelevant in deciding whether a substantial residue was not disposed of by the deed.
The direction in paragraph 6 of the deed that in the event of the rent not being realised, the expenses of the deity will be proportionately reduced and there will be proportionate reduction in the remuneration to be paid to the Shebaits also acquires significance.
Whether the provision for accumulation of income of the endowment is valid, does not call for determination in this case.
If there is an absolute dedication, but the direction for accumulation is invalid, the benefit of the income will enure for the benefit of the deity without restriction: the income will not revert to the settlor.
The High Court observed that the deed commenced with what purported to be an absolute dedication to the deity, but it was clear that the expenses for the Seba Puja and other expenses of the deities under the deed were not of an expanding character, there being specific recitals in the deed which indicated that the dedication was merely supplementary to the earlier deed of endowment by Balai for the Seba Puja etc.
of the deity.
The High Court observed: "As a matter of fact there was specific recital in the deed itself, which indicated that it was merely to be supplementary to the earlier Debuttar deed of the husband Balai Chand Ghose, for the purpose of enabling the said Sheba Puja etc.
to be carried on regularly and in a satisfactory manner.
The expenses are practically all mentioned in the deed itself and however elaborate they may be, having regard to the nature of the properties and the estimate of the income, as appearing in the evidence before us, it is difficult to hold that any large part of said income would be spent on those expenses.
This, undoubtedly, is a strong test in favour of holding that what was merely the creation of a charge for those expenses out of the properties, mentioned in the Schedule to the deed.
Moreover under this deed (Ext.
II(a)) (Vide clause 3) so far as the daily and periodical Shebas were concerned their expenses, or at least, the daily Sheba expenses, both fixed and occasional, were to be met out of the husband 's (Balai Chand 's) ' earlier Debuttar 559 thus leaving practically not much pressure upon the properties covered by this deed, Ext. 11 (a).
It is true that in several places of this deed (Ext. 11 (a), reference has been made to the income of the Debuttar estate or advantages to the Debuttar estate or investment, in the Debuttar estate, but they all, in the context, can be read as referring to the Debuttar estate, which was created by the dedication in question, namely, the partial Debuttar or the charge which was created in favour of the particular deity.
Where a charge is created and a dedication is made, it will not be inappropriate to refer to the dedicated properties as Debuttar, though only for the limited purpose of providing for that charge.
That, indeed, is the meaning of partial dedication, as understood in H indu Law.
The mere use of the word 'Debuttar ' would not necessarily constitute a particular endowment an absolute Debuttar.
On the same principle and in same context, the payment of rent by the Shebaits, occupying particular portion of the dedicated properties for purposes of their residence, may also be explained.
As a matter of fact on a reading of the entire deed, in the light of the circumstances of this case and upon a full consideration of the same, we are inclined to hold this deed, Ext.
11(a).
upon its true construction, did not create an absolute Debuttar, but created only a charge in favour of the deity Sri Sri Gopal Jiu, named therein, for the various services and other necessities, referred to in several paragraphs of the said deed, Ext.
11(a)".
The High Court opined that because the income of the endowed properties was large and was capable of continuous expansion, and the expenses for the purposes of the deity were fixed, it may be inferred that the settlor intended to create a mere charge and not an absolute dedication in favour of the deity.
In support of this proposition, the High Court placed strong reliance upon the judgment of the Judicial Committee in Surendrakeshav Roy vs Doorgasundan Dassee and Another(1).
In that case Rajah Bijoykeshav Roy bequeathed by his will property to a Thakur, to secure proper performance of the Sheba and other ceremonies and directed his two widows each to adopt a son, both of such sons being appointed Shebaits, subject to the control of the widows during their minority, with monthly allowance from the surplus income.
The residue was not disposed of.
Before the Judicial Committee it was urged that all the property had been devised under the will of the Raja to the deity and the heirs of the settlor had become Shebaits and were merely entitled to manage the property in the usual way.
In dealing with that contention the Judicial Committee observed at p. 127: (1) L.R. 19 I.A. 108, 560 "It is true that by the first sentence of the will all is given to the Thakoor; and though in the plaint the question is mooted whether the gift is made bona fide (and of course such gifts may be a mere scheme for making the family property inalienable), it has not been really disputed.
Nor indeed could it well be disputed in this case.
For the last part of the will shews clearly enough that the income was to be applied first in performing the sheba of the Thakoor who is mentioned as the object of the gift, and of other family Thakoors, and in meeting the prescribed monthly allowances, and in performing the daily and fixed rites and ceremonies 'as they are now performed and met '.
The testator must have been well aware that after all these charges had been met there would be a very large surplus.
In fact he directs that out of the surplus each adopted son shall receive Rs. 1,000/ monthly; but of the residue after that he says nothing.
There is no indication that the testator intended any extension of the worship of the family Thakoors.
He does not, as is sometimes done, admit others to the benefit of the worship.
He does not direct any additional ceremonies.
He shews no intention save that which may be reasonably attributed to a devout Hindu gentleman, viz. to secure that this family worship shall be conducted in the accustomed way.
by giving his property to one of the Thakoors whom he venerates most.
But the effect of that, when the estate is large, is to leave some beneficial interest undisposed of, and that interest must be subject to the legal incidents of property".
But the judgment does not lay down any rule that where the income is expanding and the expenses are static, leaving a substantial residue, it must be presumed, notwithstanding the comprehensive and unrestricted nature of the disposition, that the settlor intended to create only a charge in favour of the deity.
The question is always one of intention of the settlor to be determined from a review of all the dispositions under the deed of settlement.
In Sri Sri Iswari Bhubaneshwari Thakurani vs Brojonath Dey and Others(1) certain properties were dedicated by two brothers to a domestic deity and it was directed that the right of Shebait should go to their male heirs by primogeniture.
In dealing with a dispute whether under the deed of settlement, there was an absolute dedication to the deity, the Judicial Committee observed at p. 211: "The dedication is not invalidated by reason of the fact that members of the settlor 's family are nominated as (1) L.R. 64 I.A 203, 561 Shebaits and given reasonable remuneration out of the endowment and also rights of residence in the dedicated property.
In view of the privileges attached to dedicated property it has not infrequently happened, as the Law Reports show, that simulate dedications have been made, and a close scrutiny of any challenged deed of dedication is necessary in order to ascertain whether there has been a genuine divestiture by the settlor in favour of the idol.
The dedication, moreover, may be either absolute or partial.
The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. 'The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives, of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will ', Pande Har Narayan vs Surju Kanwari (L.R. 43 1.A. 143).
It is also of importance to consider the extent of the property alleged to be dedicated in relation to the expense to be incurred and the ceremonies to be observed in the worship of the idol.
The purposes of the ,dedication may be directed to expand as the income increases, or the purposes may be prescribed in limiting terms so that if the income increases beyond what is required for the fulfilment of these purposes it may not be protected by the dedication".
In a recent judgment of this Court in Sree Ishwar Sridhar Jew vs Sushila Bala Dasi and Others(1) it was observed.
that the question whether the idol itself is the true beneficiary subject to a charge in favour of the heirs of the testator, or the heirs are the true beneficiaries subject to a charge for the upkeep, worship and expenses of the idol, has to be determined by a conspectus of the entire deed or will by which the properties are dedicated and that a provision giving a right to the Shebaits to reside in the premises dedicated to the idol for the purpose of carrying on the daily and periodical worship and festivals does not detract from the absolute character of a dedication to the idol.
It is inexpedient to construe the terms of one deed by reference to the terms of another, or to lay down general rules applicable to the construction of settlements varying in terms.
In construing a deed, the Court has to ascertain the intention of the settlor, and for that purpose to take into consideration all the (1) ; 562 terms thereof.
If, on a review of all the terms, it appears that after endowing property in favour of a religious institution or a deity, the surplus is either expressly or by implication retained with the settlor or given to his heirs, a partial dedication may readily be inferred, apparently comprehensive words of the disposition in favour of the religious.
endowment notwithstanding.
The terms of Ext.
11 (a) however disclose a clear intention that the entire property was to belong to the deity and no one else had beneficial interest or title thereto.
The Shebaits and their descendants are given a certain interest in tile property, but that direction does not cut down the absolute interest conveyed to the deity, nor can it be interpreted as reserving a beneficial interest in favour of the settlor or his heirs.
The direction operates to create a charge upon the estate of the deity, and not to reduce the estate itself to a charge.
To recapitulate, therefore, the property is dedicated absolutely for the deb seba of the deity: no beneficial interest is reserved to the settlor or his heirs: and the direction for accumulation of the income does not affect the validity of that dedication.
Provision for maintenance and residence of the Shebaits being an ordinary incident of such a dedication cannot be interpreted as restrictive of the estate of the deity.
It is unnecessary to decide whether the directions for appropriation of a part of the income for persons other than the Shebails may be valid; if it be invalid, the interest will revert to the deity and not to the settlor.
It must, therefore, be held that Ext.
11 (a) creates an endowment for the benefit of the deity absolutely, subject to certain charges in favour of the Shebaits and the descendants of the settlor.
It is unnecessary, in view of the course which the proceedings in suit No. 67 of 1955 have taken, to set out the terms of Ext.
11 executed by Balai and Nirmala on September 15, 1944.
Suit No. 67 of 1955 was filed originally by Balai against the two deities Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu and Nirmala, and Balai sought to represent the two deities.
On an objection raised to the constitution of the action by Nirmala, Sunil Sekhar Bhattacharjee was appointed guardian of the two deities for the action.
Bhattacharjee filed a written statement denying the claim made by Balai and submitted mat the dedication in favour of the deity was absolute.
An issue was raised about the nature of the endowment and the Trial Court declared that the endowment was partial and the beneficial interest remained vested in Balai.
The Trial Court had rejected the case of the deities that there was an absolute dedication, and the guardian for the suit did not challenge that decree on behalf of the two deities.
Nirmala appealed and contended that there was an absolute dedication in favour of the deity, but she did not represent the deities and could not raise that claim, unless she got herself formally appointed guardian of the deity by order of the Court.
The High Court confirmed the decree passed 563 by the Trial Court, subject to certain modifications which are not material.
In this appeal, the two deities are also impleaded as party respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court.
The decree against the two.
deities has become final, no appeal having been preferred to the High Court by the deities.
It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities.
The rights conferred by the deed Ext.
11 upon Nirmala are not affected by the decree of the Trial Court.
She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require reexamination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities.
It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under O. 41 r. 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities.
Order 41 r. 313, insofar as it is material, provides: "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection:" The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties.
Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 r. 33 may properly be invoked.
The rule however does not confer an unrestricted right to re open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.
The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct.
Against the deities it was claimed that the property was partially dedicated in their favour; against Nirmala it was 564 claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement.
The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed.
There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court.
In considering the personal rights claimed by Nirmala under the deed Ext.
11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest.
There were therefore two sets of defendants in the suits and in substance two decrees though related were passed.
One of the decrees can stand apart from the other.
When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under O. 41 r. 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed.
Order 41 r. 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders.
We do not think that power under O. 41 r. 33 of the Code of Civil Procedure can be exercised in this case in favour of the deities.
Appeals Nos. 966 and 968 of 1964 must therefore be allowed with costs throughout.
It is declared that the properties in deed Ext.
11(a) were absolutely dedicated in favour of the deity Sri Gopal Jiu.
Suits Nos. 79 & 80 of 1954 will therefore stand dismissed.
This will, however, be without prejudice to the concession made on behalf of Nirmala that she was a benamidar of her husband Balai in respect of the properties settled by the deed Ext.
11 (a).
Appeal No. 967 of 1964 will stand dismissed with costs in favour of Balai.
Bachawat, J. I agree entirely with what has fallen from my learned brother, Shah, J. with regard to the deed, Ext.
1 1(a), and 1 agree that the deed creates an endowment for the benefit of the deity absolutely, subject to certain charges in favour of the Shebaits and the descendants of the settlor.
With regard to exhibit 11, my learned brother has held that it is not open to Nirmala Bala to challenge the decree passed in Suit No. 67 of 1955.
With the greatest respect for my learned brother, I am unable to agree with this conclusion.
The trial Court decreed that the dedication under exhibit 11 is partial and not absolute, and I think it was open to Nirmala Bala to challenge the decree in the 565 High Court, and on the appeal to the High Court being dismissed, it is open to her to challenge the decree of both the Courts by an appeal to this Court.
It is true that the deities were represented by independent guardians ad litem for the purposes of this litigation.
But Nirmala Bala is one of the joint Shebaits of the deity, and as such, she has a right to assail the decree.
In Maharaja Jagadindra Nath Roy Bahadur vs Rani Hemanta Kumari Deb(1), Sir Arthur Wilson observed: "But assuming the religious dedication to have been of the strictest character, it shall remain that the possession and management of the dedicated property belong to the shebait.
And this carries with it the right to bring whatever suits are necessary for the protection of the property.
Every such right of suit is vested in the shebait, not in the idol".
As a joint Shebait of the deity, Nirmala Bala has the right to file this appeal against the decree which declares that the dedication is partial and not absolute.
Such an appeal is necessary for the protection of the property of the deity.
The other Shebait and the deities are parties to the appeal, and I am unable to hold that the appeal is not maintainable at the instance of Nirmala Bala.
Moreover, it is well settled that a Shebaiti right is a right of property.
In The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(3), B.K. Mukherjea, J. observed: "It was held by a Full Bench of the Calcutta High Court [Monahai vs Bhupendra(3)], that Shebaitship itself is property, and this decision was approved of by the Judicial Committee in Ganesh vs Lal Behary(4), and again in Bhabatarini vs Ashalata(5).
The effect of the first two decisions as the Privy Council pointed out in the last case, was to emphasis the proprietary element in the Shebaiti right and to show that though in some respects an anomaly it was an anomaly to be accepted as having been admitted into Hindu Law from an early date.
This view was adopted in its entirety by this Court in Angurbala vs Debabrata(6) .
It follows that the shebaiti right of Nirmala Bala under the deed, exhibit 11 (a) is a right of property.
This right is affected by the declaration that the deed, exhibit 11(a) created a partial and not absolute debuttar.
The shebaiti right is an absolute debuttar is certainly different from the shebaiti right in a partial debuttar.
The decree (1) [1904] L.R. 31 I.A. 203, 210 (2) ; , 1018.
(3) (4) 63 I.A. 448.
(5) 70 I.A. 57.
(6) 566 under appeal therefore affects the shebaiti right of Nirmala Bala.
She is aggrieved by the decree, and is entitled to challenge it in appeal.
In this view of the matter, I hold that the appeal by Nirmala Bala from the decree in Suit No. 67 of 1955 is maintainable.
I would, therefore, have examined the contention of the appellant with regard to exhibit 11 on the merits, and then disposed of the appeal.
But as the majority view is that the appeal is not maintainable, no useful purpose will be served by an examination of the merits of the appellant 's case with regard to exhibit 11.
ORDER Following the judgment of the majority, Appeals Nos. 966 and 968 of 1964 are allowed with costs throughout.
It is declared that the properties in deed Ext.
11(a) were absolutely dedicated in favour of the deity Sri Gopal Jiu.
Suits Nos. 79 & 80 of 1954 will therefore stand dismissed.
This will, however, be without prejudice to the concession made on behalf of Nirmala that she was benamidar of her husband Balai in respect of the properties settled by the deed Ext.
11(a).
Appeal No. 967 of 1964 is dismissed with costs in favour of Balai.

summary:
HELD: (i) The question whether a deed of dedication creates an abosulte or partial dedication must be settled by a conspectus of all the provisions of the deed.
If the property is wholly dedicated to the worship of the idol and no beneficial interest is reserved to the settlor, his descendants or other persons, the dedication is complete: if by the deed it is intended to create a charge in favour of the deity and the residue vests in the settlor, the dedication is partial.
(ii) A reasonable provision for remuneration maintenance and residence of the Shebaits does not make an endowment bad, for even when property is dedicated absolutely to an idol, and no beneficial interest is reserved to the settlor, the property is held by the deity in an ideal sense.
The possession and management of the property must, in the very nature of things, be entrusted to Sitebait or ' manager and nomination of the settlor himself and his heirs with reasonable remuneration out of the endowed property with right of residence in the property will not invalidate the endowment.
[556E G] (iii) A provision for the benefit of persons other than the Shebait may not be valid, if it infringes the rule against perpetuities or accumulations, or rules against impermissible restrictions, but that does not affect the validity of the endowment.
The beneficial interest in the provision found invalid reverts to the deity or the settlor according as the endowment is absolute or partial.
If the endowment absolute and a charge created in favour of other persons is invalid, the benefit will enure to the deity, and will not revert to the settlor or his heirs.
[556G H] (iv) There is no rule that when the income is expanding and the expenses are static, leaving a substantial residue, it must be presumed, notwithstanding the comprehensive and unrestricted nature of the disposition, that the settlor intended to create only a charge in favour of the deity.
The question is always one of intention of the settlor to be determined from a review of all the dispositions under the deed of settlement.
[560G] Surendrakeshav Roy vs Doorgasundari Dassee and Anr.
L.R. 19 I.A. 108, explained.
Sri Sri Iswari Bhubaneshwari Thakurani vs Brojonath Der and Ors.
L.R. 64 I.A. 203 and Sree Ishwar Sridhar Jew vs Sushila Bala Desi and Ors. ; , relied on.
551 Per Subba Rao and Shah, JJ.
When the guardian of the deities did not appeal against the finding of the trial court that there was a partial dedication, it was not open to a joint Shebait who was not a guardian, to appeal against the decree and contend that the dedication was absolute.
When a party allows a decree of the court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate court under o. 41 r. 33 to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed.
[564D] Per Bachawat, J. (Partially dissenting) When the trial court decrees that the endowment in favour of the deities was not absolute, and the guardian ad litem of the deities does not appeal, it open to a joint shebait even when he is not a guardian to assail the decree in appeal.
[565A] Maharaja Jagadindra Nath Roy Bahadur vs Rani Hemanta Kumari Debi, (1904) L.R. 31 I.A. 203, relied on.
Sihebaiti right is a right to property.
This right is affected by a declaration that the dedication in favour of the deities is partial and not absolute.
The shebaiti right in an absolute debutter is different from the shebaiti right in a partial debutter.
The joint shebait is en titled to defend his right even when the guardian of the deities does not appeal.
[565E, H] The Commissioner of Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt; , , referred to.


judgement:
Civil Appeal No. 422 of 1964 Appeal by special leave from the order dated September 29, 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No. 45 of 1960 in Reference Nos. 40 and 34 of 1960.
section V. Gupte, Solicitor General and 1.
N. Shroff, for the appellant Jitendra Sharma and Janardan Sharma, for the respondent.
The Judgment of the Court was delivered by Gajendragadkar C.J.
The short question of law which arises in this appeal relates to the scope and effect of the provisions contained in s 33(2) of the (No. 14 of 1947) (hereinafter called 'the Act ').
The appellant, the Tata Iron & Steel Co. Ltd., Jamadoba, applied before the Chairman, Central Government Industrial Tribunal, Dhanbad, (hereafter called "the Tribunal") under section 33(2)(b) of the Act for approval of the order passed by it discharging the respondent, its employee section N. Modak, from its service.
In its application, the appellant alleged that the respondent had been appointed as a Grade 11 Clerk in the Chief Mining Engineer 's Office at Jamadoba.
One of the duties assigned to the respondent was to check arithmetical calculations according to sanctioned rate of the bills coming from the Heads of Department.
He was required to bring to the notice of the Deputy Chief Mining Engineer cases of discrepancies or irregularities, and also cases where additions or alterations in the bills had been made, but not initialed.
On rechecking of the bills which had been passed by the respondent, it was discovered that several additions and alterations made in the bills were not noticed by him and were not reported.
This failure constituted misconduct under the Standing Orders of the appellant.
For this misconduct, the respondent was charge sheeted (No. 51 dated 1/5 10 1960); that led to a departmental enquiry, and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 1960.
The present applica tion was drafted on the 17th December and it reached the Tribunal on the 23rd December 1960.
It appears that this application was made by the appellant under section 33(2)(b), because four industrial disputes were pending between the appellant and its employees at that time in References Nos. 27, 34, 40 & 49 of 1960.
After this application was filed, the respondent challenged the propriety of the order passed by the appellant for which approval was sought by it, and several contentions were raised by him in support of his case that the enquiry held against him was invalid and improper and the 'order of dismissal passed against him was the result of mala fides.
Evidence was led by the parties in support of their respective pleas 413 When the matter came to be argued before the Tribunal, it.
was urged by the appellant that the application made by it no longer survived, because all the industrial disputes which were pending between the appellant and its employees and as as a result of the, pendency of which it had made the application under section 33(2)(b) of the Act, had been decided by the Tribunal; Awards had been, made in all the said References and they had been published in the Gazette.
It does appear that the four References which we have already mentiond, ended in Awards made on 31 10 1960, 8 11 1960,.
14 4 1961, and 22 9 1961 respectively.
The award on the present application was made on 29 9 1962, and it is common ground that, the time when the appellant urged its contention that the application made by it did not survive any longer, all the four References had, in fact, been disposed of.
The plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending before it at the time when the appellant moved the Tribunal tinder section 33(2)(b)? If, as a result of the pendency of an industrial dispute, between an employer and his employees, the employer is required to apply for approval of the dismissal of his employee under section 33 (2)(b), does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronounced on it? That is the question which this appeal raises for our decision, aid the answer to this question would depend upon a fair determination of the true scope and effect of the provisions of section 33(2)(b) of the Act.
This question has been answered by the Tribunal against the appellant.
Having held that the application made by the appellant survived the decision of the main industrial disputes, the Tribunal ' has considered the merits of the controversy between the parties.
Airier examining the evidence, the Tribunal has found that the enquiry made by the appellant before passing the impugned order of discharge against the respondent, was invalid.
It has pointed out that the Enquiry Officer, Mr. Watcha, did not in fact record the statement of any witnesses who gave evidence before him, and the only record of the enquiry is the report made by Mr. Watcha.
It has also noticed that the enquiry in question suffered from the serious infirmity that Mr. Watcha who acted as the Enquiry Officer himself gave evidence against the respondent, and the evidence which was actually recorded in the case was taken not by Mr. Watcha, but by Mr. Paravatiyar.
In the result,the conclusion of the Tribunal on the merits was that the enquiry "was a farce, a mere eye wash, biased with pre determined result, and entirely mala fide and not at all fair".
As a result of this conclusion, the Tribunal refused to accord approval to the order of discharge passed by the appellant against the respondent.
It is against this order that the appellant has.
come to this Court by special leave.
Reverting then to the question of construing section 33 of the Act,.
we may refer to some general considerations at the outset.
Broadly.
414 stated.
section 33 provides that the conditions of service, etc.
should remain unchanged under certain circumstances during the pendency of industrial adjudication proceedings.
It is unnecessary to refer to the previous history of this section.
It has undergone many changes , but for the purpose of the present appeal, we need not refer to the ,aid changes.
We are concerned with section 33 as it stands after its final amendment in 1956.
Section 33 consists of five sub sections.
For the purpose of this appeal, it is necessary to read subsections (1) & (2) of section 3 3 : "(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall (a)in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b)for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2)During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b)for any misconduct not connected with the dispute, discharge or punish, whether by dis missal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer".
A reading of the above two sub sections of section 33 makes it clear that its provisions are intended to be applied during the pendency of any proceeding either in the nature of conciliation proceeding or in the 415 nature of proceeding by way of reference made under section 10.
The pendency of the relevant proceeding is thus one of the conditions prescribed for the application of section 33.
Section 33(1) also shows that the provisions of the said subsection protect workmen concerned in the main dispute which is pending conciliation or adjudication.
The effect of sub section
(1) is that where the conditions precedent prescribed by it are satisfied, the employer is prohibited from taking any action in regard to matters specified by clauses (a) & (b) against employees concerned in such dispute without the previous express permission in writing of the authority before which the proceeding is pending.
In other words, in cases falling under sub section
(1), before any action can be taken by the employer to which reference is made by clauses (a) & (b), he must obtain express permission of the specified authority.
Section 33(2) pproceedes to lay down a similar provision and the conditions precedent prescribed by it are the same as those contained in section 33(1.).
The proviso to section 33(2) is important for our purpose.
This proviso shows that where is action is intended to be taken by an employer against any of his employees which falls within the scope of cl.
(b), he can do so, subject to the requirements of the proviso.
If the employee is intended to be discharged or dismissed an order can be passed by the employer against him, provided he has paid such employee the wages for one month, and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him.
The requirements of the proviso have been frequently considered by Industrial Tribunals and have been the subject matter of decisions of this Court as well.
It is now well settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction.
It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval as sought.
If approval is not granted the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim too continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval such an orders is invalid and inoperative in law.
Sub sections (3) & (4) of section 33 deal with cases of protected workmen, but with the provisions contained in these two subsections we are not concerned in the present appeal.
That leaves section 33(3) to be considered.
This sub section requires that where an application is made under the proviso to sub section
(2), the specified authority has to 416 dispose of the application without delay; and indeed, it expressly prescribes that the said proceedings must be dealt with as expeditiously as possible.
This sub section is naturally limited to cases falling under sub section
In regard to cases falling under sub section
(1), the employer can act only with the previous express sanction of the prescribed authority, and, therefore, there is no need to made any provision in regard to an application which the employer may make under sub section
(1) requiring that the said application should be dealt with expeditiously.
That is the general scheme of section 33.
it is quite clear that section 33 imposes a ban on the employer exercising his common law, statutory, or contractual right to terminate the services of his employees according to the contract or the provisions of law governing such service.
In all cases where industrial disputes are pending between the employers and their employees, it was thought necessary that such disputes should be adjudicated upon by the Tribunal in a peaceful atmosphere undisturbed by any subsequent cause for bitterness or unpleasantness.
It was, however, realized that if the adjudication of such disputes takes long the employers cannot be prevented absolutely from taking action which is the subject matter of section 33(1) and (2).
The Legislature, therefore, devised a formula for reconciling the need of the employer to have liberty to take action against his employees, and the necessity for keeping the atmosphere calm and peaceful pending adjudication of industrial disputes.
In regard to actions covered by section 33(1), previous permission has to be obtained by the employer, while in regard to actions falling under section 33(2), he has to obtain subsequent approval, subject to the conditions which we have already considered.
In that sense, it would be correct to say that the pendency of an industrial dispute is in the nature of a condition precedent for the applicability of section 33(1) & (2).
It would, prima facie, seem to follow that as soon as the said condition precedent ceases to exist, section 33(1) and (2) should also cease to apply; and the learned Solicitor General for the appellant has naturally laid considerable emphasis on this basic aspect of the matter.
It is also true that having regard to the conditions precedent prescribed by section 33(1) and (2), it may be possible to describe the application made by the employer either under section 33(1) or under section 33(2) as incidental to the main industrial dispute pending between the parties.
We have noticed that such applications have to be made before the specified authority which is dealing with the main indus trial dispute; and so, the argument is that an incidental or an interlocutory application which arises from the pendency of the main industrial dispute, cannot survive the decision of the main dispute itself.
That is another aspect of the matter on which the learned Solicitor General relies.
He urges that it is during the pendency of the main industrial dispute that section 33 applies; that it applies in relation to workmen concerned with such main dispute; and that the 417 power conferred by it has to be exercised by the authority before which the main dispute is pending.
These broad features of section 33 impress upon the applications made under section 33(1) and (2) the character of interlocutory proceedings, and thus considered, interlocutory proceedings must be deemed to come to an end as soon as the main dispute has been finally determined.
On the other hand, there are several considerations which do not support the argument of the appellant that as soon as the main industrial dispute is decided, the application made by it for approval under section 33(2) should automatically come to an end.
As we have already indicated, the application of the appellant can., in a sense, be treated as an incidental proceeding; but it is a separate proceeding all the same, and in that sense, it will be governed by the provisions of section 33(2)(b) as an independent proceeding.
It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two parties in respect of a matter not covered by the said main dispute.
It is, therefore, difficult to accept the argument that a proceeding which validly commences by way of an application made by the employer under section 33(2)(b) should automatically come to an end because the main dispute has in the meanwhile been decided.
What is the order that should be passed in such a proceeding, is a question which cannot be satisfactorily answered, unless it is held that the proceed ing in question must proceed according to law and dealt with as such.
In this connection it is significant that though the Legislature has specifically issued by section 33(5) a directive to the specified authorities to dispose of the applications without delay and act as expeditiously as possible, it has not made any provision indicating that if the decision on the applications made under section 33(2) is not reached before the main dispute is decided no order should be passed on such applications.
There is little doubt that the Legislature intends that applications made under section 33(2) should be disposed of well before the main dispute is determined; but failure to provide for the automatic termination of such applications in case the main dispute is decided before such applications are disposed of, indicates that the Legislature intends that the proceedings which begin with an application properly made under section 33(2) must run their own course and must be dealt with in accordance with law.
The direction that the said proceeding should be disposed of as expeditiously as possible emphasises the fact that the legislature intended that proper orders should be passed on such applications without delay, but according to law and on the merits of the applications themselves.
It is, however, urged by the learned Solicitor General that it would be futile to allow the present application to proceed any 418 further, because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question.
This argument, in out opinion, is misconceived.
It cannot be denied that with final determination of the main dispute between the parties, the employer 's right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted.
But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal ' In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the Appellant and the respondent , and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay him his full wages for the period even though the appellant may subsequently proceed to terminate the respondent 's services.
Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless, cannot be accepted.
There is another aspect of this matter to which reference must be made.
Section 33A makes a special provision for adjudication as to whether any employer has contravened the provisions of section 33.
This section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their rights have been violated contrary to the provisions of section 33.
Section 33 A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of section 33(2), he may make a complaint to the specified authorities and such a complaint would be tried as if it was an industrial dispute referred to the Tribunal under section 10 of the Act.
In other words, the complaint is treated as an independent industrial proceeding and an award has to be pronounced on it by the Tribunal concerned.
Now, take the present case and see how the acceptance of the appellants argument would work.
As we have already pointed out, in the present case the Tribunal has considered the met its of the appellant 's prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded.
If the appellant 's argument is accepted and it is held that as soon as the main industrial disputes were finally deter mined, the application made by the appellant under section 33(2) auto magically came to an end, the respondent would not be able to 419 get any relief against the appellant for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in a case like the present, section 33A would be rendered nugatory, because the employer having duly applied under section 33(2)(b), the employee cannot complain that there has been a contravention of section 33 by the employer, even though on the merits the dismissal of the employee may not be justified.
That, in our opinion, could not have been the intention of the Legislature.
This aspect of the matter supports the conclusion that a proceeding validly commenced under section 33(2)(b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined.
It is of course true that under section 33 the authority to grant permission or to accord approval in cases falling under section 33(1) and (2) respectively is vested in the Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because section 33B(2) seems to permit transfers of applications before one Tribunal to another, and in that sense, the argument urged by the appellant that the condition that a specified Tribunal alone can deal with applications made to it is an inflexible condition, cannot be accepted.
We are, therefore, satisfied that the Tribunal was right in over ruling the contention raised by the appellant that the application made by it for approval under section 33(2)(b) ceased to constitute a valid proceeding by reason of the fact that the main industrial disputes, the pendency of which had made the application necessary, had been finally decided.
This question has been considered by several High Courts in this country.
The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor General has contended before us, vide Alkali and Chemical Corporation of India Ltd. vs Seventh Industrial Tribunal, West Bengal and Ors.(1); Mettur Industries Ltd. vs Sundara Naidu and Anr.;(2) and Shah (A.T.) vs State of Mysore and Ors.(3) respectively.
On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Pro duce Company Ltd., Munnar vs Miss Aleyamma Varghese and Anr.;(4) Om Parkash Sharma vs Industrial Tribunal, Punjab and Anr.;(5) and Amrit Bazar Patrika (Private) Ltd. vs Uttar Pradesh State Industrial Tribunal and Ors.(6) respectively.
In our opinion, the former view does not, while the latter does, correctly represent the true legal position under section 33(2)(b).
That takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the (1) [1964] II L.L.J. 568.
(2) [1963] II L.L.J. 303.
(3) [1964] I L.L.J. 237.
(4) [1962] II L.L.J. 158.
(5) [1962] II L.L.J. 272, (6) [1964] II L.L.J. 53, B(N)3SCI 14 420 action proposed to be taken by the appellant against the respondent.
We have already indicated very briefly the nature and effect of the said findings.
The learned Solicitor General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal.
We did not, however, allow the learned Solicitor General to develop this point because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record.
to support them.
Usually, this Court does not under article 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of evidence.
The propriety or the correctness of the findings of fact is not ordinarily allowed to be challenged in such appeals.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant applied under section 33(21)(b) of the to the Industrial Tribunal for the Tribunal 's approval of the order passed by the appellant discharging its employee the respondent.
This application was made because certain industrial disputes were pending between the appellant and its employees, but when the matter came to be argued before the Tribunal, the pending disputes had been disposed of.
Hence, the appellant contended that the application made by it no longer survived '.
which the Tribunal rejected.
In appeal by Special Leave.
HELD:The Tribunal was right in overruling the appellant 's contention.
[419 E].
A proceeding validly commenced under section 33(2)(b) would not automatically come to an end merely because the main industrial dispute had in the meanwhile been finally determined.
[417 D E].
The application of the appellant can in a sense, be treated as an incidental proceeding; but it is a separate proceeding all the same, and in that sense it will be governed by the provisions of section 33(2)(b) as an independent proceeding.
It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two parties in respect of a matter not covered by the main dispute.
[417 B D].
The order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so even if the main industrial dispute was finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay him full wages for the period even though the appellant may subsequently proceed to terminate the respondent 's service.
[418 C E].
Besides, if it were held that with the final determination of the main industrial dispute such application would automatically come to an end, it would mean that section 33 A under which a complaint by the employee is treated as an independent proceeding, would be rendered nugatory.
[419 A].
Alkali and Chemical Corporation of India Ltd. vs Seventh Industrial Tribunal, West Bengal and Ors.
(1964) II L.L.J. 568, Mettur Industries Ltd. vs Sundara Naidu and Anr.
(1963) II L.L.J. 303 and Shah (A.T.) vs State of Mysore and Ors (1964) I LL.J. 237, disapproved Kannan Devan Hill Produce Company Ltd. Munnar vs Miss Aleyamma Varughesa and Anr.
(1962) II L.L.J. 158, Om Prakash Sharma vs Industrial Tribunal, Punjab and Anr.
(1962) II L.L.J. 272 and Amrit Bazar Patrika (Private) Ltd. vs Uttar Pradesh State Industrial Tribunal and Ors.
(1964) II L.L.J. 53, approved.


judgement:
Appeal No. 73 of 1953.
Appeal by special leave against the judgment and Decree dated the 31st January, 1950, of the High Court of judicature at Madras.
(Rao and Nayudu JJ.) in Appeal No. 409 of 1946 arising out of the judgment and Decree dated the 31st January, 1946, of the Court of the Subordinate judge of Bapatla in Original Suit No. 96 of 1944.
(1) 12 Rang.
243 (P.C.) 425 B. Somayya, Senior Advocate (M. Krishna Rao, with him) for the appellant.
D. Munikaniah, Senior Advocate (K. R. Choudhury, with him) for the respondent.
December 8.
The Judgment of the Court was ,delivered by MUKHERJEA J.
This appeal is directed against a Judgment and decree of a Division Bench of the Madras High Court dated the 31st January, 1950, reversing, on appeal, those of the Surbordinate judge, Bapatla, passed in Original Suit No. 96 of 1944.
The suit, out of which the appeal arises, was commenced by the infant plaintiff, now appellant before us, represented by his maternal uncle as next friend, for recovery of possession, on partition, of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint family properties of himself and his father, the defendant No. 1, in which he had an equal share with the latter.
The plaintiff is admittedly the son of defendant No. 2, who is one of the legally married wives of defendant No. 1, but the latter denied that he was the father of the plaintiff and charged the plaintiff 's mother with misconduct.
The defendant No. 3 in the suit, who is the other living wife of defendant No. 1 and has no issue of her own, is alleged to have developed ill feeling and jealousy towards the plaintiff and his mother and poisoned her husband 's mind against them, so much so, that the defendant No. 1 had actually instituted a suit in the Court of the District Munsif at Ongole questioning the legitimacy of the plaintiff.
It was because of such conduct on the part of defendant No. 1 that the present suit had to be instituted.
The defence put forward by defendant No. 1 to the claim of the plaintiff was a denial of his paternity, and the whole controversy in the suit centered round the point as to whether the plaintiff was the legitimate son of defendant No. 1 by defendant No. 2, Ms second wife.
On the admitted facts of the case, there could be no question that the operation of section 112 of the Indian Evidence Act would be attracted and the 426 plaintiff being born during the continuance of a lawful wedlock between his mother and his alleged father, a Conclusive presumption of legitimacy would arise, unless it was proved that the parties to the marriage had no access to each other at any time when he could have been begotten.
The point for determination, therefore, was, whether on the evidence adduced in the case the defendant No. 1, upon whom the burden Of proving non access admittedly lay, had succeeded in discharging that burden.
The trial court decided this point in favour of the plaintiff and against defendant No. 1 and in that view substantially allowed the plaintiff 's claim.
On an appeal being taken against this decision by defendant No. 1 to the Madras High court, the learned Judges, who heard the appeal, came to the opposite conclusion and held that from the facts and circumstances of the case an inference of non access between the husband and the wife could reasonably be drawn.
The result was that the decision of the trial court was reversed and the plaintiff 's suit dismissed.
it is the propriety of this decision of the Madras High Court that is challenged before us on behalf of the plaintiff, to whom special leave to file the appeal in forma pauperis was granted by this court.
It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non access between the parties to the marriage at a time when, according to the ordinary course of nature the husband could have been the father of the child.
Access and non access again connote, as has been held by the Privy Council (1), existence and non existence of opportunities for marital intercourse.
It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by (1) Vide Karapaya vs Mayandy.
12 Rang 243.
427 evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non access must be clear and satisfactory.
Mr. Somayya has also not contended seriously before us that the principle of English common law (1), according to which neither a husband nor a wife is permitted to 'give evidence of non access after marriage to bastardise a child born in lawful wedlock, applies to legitimacy proceeding in India.
No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the old common law doctrine has itself been abrogated in England by the provision of section 7 of the Matrimonial Cause Act, 1950 (2 ).
The position in law being thus made clear, the question for our consideration primarily is whether the learned judges of the High Court came to a correct decision on the facts of the case.
For this purpose, it is necessary to have a clear picture of all the material events as they transpired in evidence, and we will begin with a narrative of the earlier facts about which there is little or no controversyl.
Defendant No. 1 admittedly married three wives.
The first wife died leaving a son aged 2 or 3 years at the time of her death.
The defendant No. I then married the mother if the plaintiff and that was in or about the year 1930.
From the time of this marriage down to about 1940 the couple seemed to have lived quite happily, except that there was no issue of the marriage.
Sometime before June, 1940, the plaintiff 's mother fell ill and was sent to the Government hospital at Guntur for treatment.
Her step son, that is to say, the son of defendant No. 1, by his predeceased wife,.
who was also suffering from certain ailments, at the time, accompanied her to the hospital.
After about a month both of them returned and as defendant No. 2 was medically advised to live separately from her husband for some time she went to her father 's place (1) Vide Russel vs Russel, ; (2)Vide Re Feniot, 428 The son of defendant No. 1 came back to the house ' of his father but his illness grew worse and in June, 1940, he died.
In August, 1940, defendant No. 1 married his third wife who is defendant No. 3 in the suit.
The case of defendant No. 2 is that her husband treated her well for about a year after he married the third defendant but later on grew cold and indifferent and began to neglect her.
She made a grievance of this to her husband, but the latter told her that she might ' go away.
Thereupon the defendant No. 2 did go to her father 's place and on 19th March, 1942, she filed an application in the Court of the District Munsif at Ongole praying for leave to use her husband in forma pauperis for separate maintenance.
There were allegations in the plaint of abandonment and neglect by the husband.
The defendant No. 1 in his answer to this application, which was filed on 7th September, 1942, denied that he neglected his wife, or was in any manner indifferent to her health and comforts.
It was averred that as the petitioner did not bear him any child and the son by his first wife unfortunately died, he had no other alternative but to marry a third wife for the sake of progeny.
It was expressly stated in the counter affidavit that the second wife was living all along in what was described as the mud terraced house and was getting her supply of food and other necessary articles from her husband ; as a matter of fact, after consuming all that she required for herself she was sending the surplus, that remained, to her parents.
It appears that, before this application for leave to 'Sue as a pauper was heard by the court, there was an amicable settlement arrived at between the parties through the mediation of certain well wishers and two documents, namely Exs.
P 5 and P 6, were executed by and between the parties both on the 28th September, 1942.
Exhibit P 5 purports to be a deed of maintenance and under it the husband agreed to pay a sum of Rs. 100 per annum for food and raiment to his second wife during the period of her natural life, the payment to be made by the 30th of Magha Bahula 429 every year.
Certain properties specified in the schedule to this document were kept as security for due payment of these amounts.
The only recitals in this document were that the executant married a third wife as no son was born to him by the second wife, that thereupon the second wife instituted a suit for maintenance against him, and that under the advice of respectable friends the document was executed with the provisions contained therein.
By exhibit P 6, the other document, a residential house, known as the mud terraced house, was given to defendant No. 2 for the purpose of her residence during her lifetime.
The material portion of the document stands as follows : "You are my wife.
Due to the affection I have towards you, I have given to you the property mentioned in the schedule hereunder . and this very day delivered possession of the same to you for your residential purposes for your lifetime.
Hence from now you shall live in the said house and without powers of gift and sale the schedule property shall, after your lifetime, pass to me and my heirs.
" Within a few days after the execution of his document defendant No. 1, on 5th of October, 1942, paid a sum of Rs. 100 to his second wife as maintenance allowance for one year in terms of the maintenance deed exhibit P 5, and the defendant No. 2 acknowledged payment of this money by putting her thumb impression on a receipt which has been marked exhibit D 3 in the suit.
It may be mentioned here that the defendant No. 1 bad sometime before built another house which is described as "tiled house" or "upstair house" and he probably had the intention of removing to that house.
As a matter of fact, however, he did not remove thereto, the ostensible reason assigned being that certain religious ceremonies connected with entering into a new house could not be performed.
It is the case of defendant No. 2 that, after these documents were executed and registered at Addanki, she came back to the mud terraced house and lived there, since then, for several months along with her husband.
During this period she became enceinte and when the 430 time for confinement came, she was taken to the Bayer Hospital at Cherala where on the 16th of October, 1943, she gave birth to the plaintiff.
After delivery, she resided with her child at her father 's house and her husband came there at times to visit them.
When the infant was 7 months old, she ;took him to her husband 's place but her husband asked 'her to remain for some time more with her father.
While staying at her father 's house, she received summons of a suit instituted by her husband (being Suit No. 326 of 1944) in the Court of the District Munsif at Ongole against her praying for cancellation of the maintenance deed and the deed of settlement mentioned above on the ground that she was unchaste and had become pregnant by "immoral ways" and that the son born of her was not his son.
It was after this notice that the present suit was instituted.
As the plaintiff was admittedly born on the 16th of October, 1943, he must have been conceived sometime towards the latter part of December, 1942, or the beginning of January, 1943.
The material point for consideration, therefore, is whether the defendant No. 1 has succeeded in showing that there was no opportunity of access between him and defendant No. 2 during this period ? The defendant No. 1 expressly stated in his deposition that his second wife was a perfectly chaste woman up to the time when the documents Exs.
P 5 and P 6 were executed, and, even when she received the maintenance allowance of Rs. 100 from him in October, 1942.
His specific case is that defendant No.2 did never come to reside with him in the mud terraced house after the compromise was arrived at in the maintenance case.
Where she stayed was unknown to him and he heard that she went to Eddanapudi where she was living an immoral life with her paramour, one Cherakuri Venkanna.
This part of the story of defendant No. 1, has not been, belived by either of the courts below and may be rejected as altogether untrustworthy.
The learned judges of the High Court, although they disbelieved the specific allegation of un chastity made against defendant No. 2 by her husband 431 and did not find that &he was at Eddanapudi at the material period, yet relied on two sets of facts to be noticed presently, as establishing conclusively that defendant No. 2 did not live at the mud terraced house at any time after October, 1942, when she received the sum of Rs. 100 as maintenance allowance for one whole year from, her husband.
The learned judges found, therefore, that there was no opportunity for intercourse between defendant No. 2 and her husband at the period when the boy must have been conceived.
In the first place, the High Court takes the documents Exs.
P 5 and P 6 as amounting to a sort Of separation arrangement under which the parties agreed to live separately from each other and this, according to the learned judges, fully bears out the story of the husband that defendant No. 2 never came to reside in the mud terraced house.
The receipt of a sum of Rs. 100 by defendant No. 2 as advance payment of maintenance allowance for one year on 5th of October, 1942, indicates, according to the learned judges, a final confirmation of the separation arrangement and from this time onwards there was a definite cessation of marital relations between the parties.
The second set of circumstances relied upon by the High Court are the events which happened subsequent to 5th of October, 1940, and which fortify the theory of a sepa ration between the husband and the wife.
It is said that the story of defendant No. 2 that her husband accompanied her to the Bayer Hospital at Chirala when she went there for her confinement is incredible.
It is equally incredible that defendant No. 2 did remain in her father 's house for so long a period after delivery with the consent of her husband.
It would be an extremely unnatural conduct on the part of the husband, according to the High Court, if, as the evidence shows, he refused to recognise his own son when he was taken to him seven months after his birth and there is no explanation as to why he would file a suit for cancellation of the maintenance deed and the deed of settlement, by imputing unchastity to his wife and bastardy to his own son if the story of defendant 432 No. 2 about her previous relations with her husband was true.
In our opinion, the learned judges of the High Court approached the facts of the case from a wrong standpoint altogether and their conclusions are based for the most part upon surmises and speculations and not what was actually proved by the evidence.
There is no warrant, we think, for holding that the documents Exs.
P 5 and P 6 were in the nature of a separation agreement.
Such an inference not only goes against the tenor or the express terms of the documents but is not borne out even by the evidence of the mediators through whose mediation the documents were brought into being or of the persons who were admittedly present at the time when the documents were executed and signed the same as attesting witnesses.
Exhibit P 5, as stated already, simply mentions the fact of the third marriage of defendant No. 1 and the institution of a suit for maintenance by his second wife.
There is nothing in this document which even impliedly suggests that in consideration of receiving an allowance of Rs. 100 a year, the wife agreed to reside separately from her husband.
So far as exhibit P 6 is concerned, the gift is expressly stated to be an affec tionate gift by the husband to the wife and it clearly indicates that it was the intention of the parties that the wife should reside there, and delivery of possession of the house was given to the wife on the very same day that the document was executed.
We do not think that there is any justification for holding that these recitals were false and were not intended to be operative.
D. W. 8, who is one of the attesting witnesses to the documents and was examined on behalf of defendant No. 1, says in his deposition that the documents were read over to the executant and he executed them after consenting to the recitals.
P.W. 5, who was one of the mediators, says that defendant No. 2 used to live in the mud terraced house after compromise.
Unless there is cogent evidence to the contrary and apparently there is no such evidence in the present case we should certainly 433 presume that, the document exhibit P 6 was acted upon and that the possession of the mud terraced house was actually given to defendant No. 2 in accordance with its terms.
The High Court, in its judgment, records a rather curious finding on this point.
"It may be," ' thus the judgment runs, "that even down to exhibit D 3 one may presume that in the very house allotted to her by exhibit P 6 she lived, so that up to the date of exhibit D 3 it may be that there is no impossibility of cohabitation between the parties.
The real trouble arises with reference to the state of affairs after exhibit D 3.
We find in exhibit D 1 1 which is the plaint in O.S. No. 326 of 1944 filed by the present first defendant against the present second defendant for a cancellation of Exs.
P 5 and P 6 that he makes a definite allegation therein that from the time that the plaintiff married his third wife there has not been any bodily connection between him and the defendant.
" The learned judges, in our opinion, misdirected themselves in allowing these statements made by the husband himself in the suit instituted by him nearly two years after the material period, to influence their decision in regard to the effect of exhibit P 6.
Defendant No. 1 definitely admits that his second wife was perfectly chaste at the time when the sum of Rs. 100 was given to her on 5th of October, 1942, and the receipt exhibit D 3 was taken.
There is not a scrap of evidence to show that there was any bitterness of feelings between the parties at that time.
There could be no doubt that the feelings of the husband were changed and had become extremely bitter towards the plaintiff 's mother before he filed the suit for cancellation of the deeds in July, 1944; but the statements made by the husband in the plaint in that suit were made long after the dispute arose between the parties, no matter whatever the reason might be which gave rise to the dispute.
In our opinion, the subsequent conduct of defendant No. 1 or the statements made by him in the suit of 1944 could not be regarded as part of the res gestae and were not admissible as evidence against the plaintiff.
The ,defendant No. 1 could not certainly constitute himself an agent of the plaintiff for the purpose of making 434 admissions against the interest of the latter.
If the story.
of defendant No. 1 that the wife went to Eddanapudi and lived there an immoral life is disbelieved, as it has been disbelieved by the High Court, the conclusion becomes irresistible that she did reside at the mud terraced house as alleged by her and this is fully borne out by the terms of the document exhibit P 6.
There is no evidence of any unnatural conduct on the part of defendant No. 1 towards the plaintiffs mother at about the time when the plaintiff was conceived.
We do not consider it unreasonable, much less unnatural, if the father of defendant No. 2 alone took her to the hospital at Chirala at the time of her delivery and himself bore all the hospital expenses; nor is it a matter to be surprised at if defendant No. 2 after delivery stayed for several months with her infant child in her father 's house.
Apparently for some reason or other, the husband took up an unnatural attitude, but this was a subsequent event and whether he had really any grievance against his wife, or his unnatural behaviour was due to the instigation of his third wife, it is not necessary for us to investi gate.
On the evidence, as it stands, we are clearly of opinion that the defendant No. 1 did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 at the time when the plaintiff was conceived.
He rested his whole case upon the allegation of unchastity of the plaintiff 's mother and of the plaintiff being born as the result of fornication.
While rejecting that story, the High Court, in our opinion, erred in holding that there was no opportunity for access between the parties at the material period, relying mainly upon what the husband himself said and did much after the estrangement of feelings took place between the parties, no matter whatever that was due to.
In our opinion, on the evidence in the record thefindings of the High Court cannot possibly stand.
The result is that the appeal 'is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored.
The plaintiff will have his costs of all the 'courts.
435 The court fees payable to the Government will come out of defendant No. 1 in this case.
We certify for two counsel and an agent in this appeal.
Appeal allowed.

summary:
The presumption under section 112 of the Indian Evidence Act is a conclusive presumption of law which can be displaced only by non access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child.
Access and non access connote existence and non existence of opportunities for marital intercourse.
Karapaya vs Mayandy referred to.
Non access can be proved by evidence direct or circumstantial though the proof of non access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law.
The principle of English common law according to which neither a husband nor a wife is permitted to give evidence of non access after marriage to bastardize a child born in lawful wedlock, does not apply to legitimacy proceedings in India as no such rule is to be found anywhere in the Indian Evidence Act and the old common law doctrine itself has been abrogated in England by the provisions of section 7 of the Matrimonial Cause Act, 1950.
That by the evidence on the record the defendant No. 1 (husband) did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 (his wife) at the time when the infant plaintiff was conceived and the High Court erred in holding that there was no opportunity for access between the parties at the material period.