judgement:
Appeal No. 1046 of 1963.
Appeal from the judgment and decree dated November 17, 1959 of the Bombay High Court in First Appeal No. 484 of 1957 from Original Decree.
section T. Desai, and J. B. Dadachanji, for the appellant.
Sarjoo Prasad, B. P. Singh and Naunit Lal, for respondents Nos.1 and 2.
Ganpat Rai, for respondent No. 4.
SARKAR, C. J. delivered a separate Opinion.
The Judgment of MUDHOLKAR and BACHAWAT JJ. was delivered by BACHAWAT, J. Sarkar C.J.
This appeal arises but of a suit filed by the respondent Vijay Kumar against the appellant on February 9, 1954 to enforce a mortgage.
The plaint stated that the appellant executed the mortgage on December 13, 1934 in favour of Tarabai, the proprietor of the firm of Narayandas Chunilal, and that the amount secured on it became due on December 13, 1943.
Vijay Kumar claimed that he was adopted by Tarabai on July 16, 1948 as a son to her deceased husband Motilal Hirakhanwala and became entitled to enforce the mortgage as her sole heir on her death on April 23, 1952.
After setting out the particulars of the mortgage, Vijay Kumar asked for a decree for foreclosure.
In his written statement the appellant admitted the mortgage but denied that Vijay Kumar had been adopted by Tarabai and stated that she had died leaving as her heirs three daughters, Rajkumari, Premkumari and Mahabalkumari, the mother of Vijay Kumar Besides denying Vijay Kumar 's right to enforce the mortgage.
the appellant took various other defenses to the action to which it is unnecessary for the purpose of this appeal to refer.
190 The learned District Judge who heard the suit, held that the adoption of Vijay Kumar had not been established and on that ground alone he dismissed it, having rejected the other defenses raised by the appellant.
Vijay Kumar appealed against that judgment to the High Court of Hyderabad but that appeal was, on a subsequent reorganisation of States, transferred to the High Court of Bombay.
Thereafter on November 3, 1958, Vijay Kumar made an application in the appeal for an order adding his mother Mahabalkumari as a co plaintiff with him as she was willing to be so added, and her sisters Rajkumari and Premkumari "who were not available for joining in the suit as plaintiffs", as defendants.
He also sought permission to add a new paragraph to the plaint, in which after reiterating his right to enforce the mortgage as the adopted son of Motilal and Tarabai, he stated.
"In case, however, the plaintiff 's adoption is held not to be proved or not to be valid, the estate of Motilal and Tarabai Hirakhanwala and of M/s Narayandas Chunilal will vest in Tarabai 's three daughters, viz., Rajkumari, Premkumari and Mahabalkumari".
The prayers in the plaint were also sought to be amended by asking that the decree sought might be passed in favour of Vijaykumar and Mahabalkumari.
The appellant opposed this application but it was allowed by the High Court.
The records of the appeal were, thereafter, reconstituted by adding Mahabalkumari as an appellant and Rajkumari and Premkumari as respondents and amending the plaint a,.
sought.
Premkumari filed a written statement denying the adoption of Vijay Kumar and his right to enforce the mortgage.
Rajkumari never appeared in the proceedings arising out of the suit.
The appeal was thereafter heard by the High Court and allowed.
The High Court refused to go into the question of adoption and passed a preliminary mortgage decree for foreclosure in favour of Mahabalkumari, Rajkumari and Premkumari and further directed that the suit as brought by Vijay Kumar would stand dismissed.
The present appeal has been brought by the original defendant against this judgment of the High Court under a certificate granted by it.
I think that Mr. section T. Desai for the appellant was right when he said that the order adding parties could not be supported.
The High Court purported to make the order under sub r.
(1) of 0. 1, r. (10) of the Code of Civil Procedure.
We were not called upon by counsel to consider any other provision.
That sub rule, however, cannot justify the order, for it only permits addition of a plaintiff and does not provide for the addition of a defendant while the order directs addition of both a plaintiff and two defendants.
Was it then properly made in solar as it added a plaintiff ? I do not think so.
The addition of Mahabalkumari as a plaintiff could not be made under the sub rule unless it was necessary for the determination of the real matter in dispute.
Now, adding her 191 as a plaintiff would have availed nothing unless Rajkumari and Premkumari were also added as defendants, and that could not be done under the sub rule.
No decree could have been passed in her favour alone if the case of adoption failed, for she would then be entitled to the mortgagee 's right along with her sisters.
The addition of Mahabalkumari as plaintiff only would have been futile; it would not have helped in the decision of any matter in dispute.
Now, sub r.
(2) of 0. 1, r. (10) permits the addition of both plaintiffs and defendants in certain circumstances.
The order however was not sought to be justified under that provision and there was good reason for it.
It was conceded and in my opinion rightly that in view of section 22 of the Limitation Act.
the suit as regards the parties added under this sub rule had to be deemed to have been instituted when they were added.
This was also the view expressed by the High Court.
Now it is not in dispute that a suit filed on the date when the three sisters were added, to enforce the mortgage would have been barred.
We may add that there is authority for the view that even the addition of defendants alone may attract the bar of limitation: see Ramdoyal vs Junmenjoy(1).
Guravayya vs Dattairayaa(2).
I think that the addition of Rajkumari and Premkumari as defendants was of the kind considered in these cases.
Therefore, it would have been futile to add any of the parties under this sub rule.
In view of the bar of limitation, such addition would not have resulted in any decree being passed and, therefore, the addition should not have been ordered.
I am, however, not to be understood as holding that apart from the difficulty created by section 22 the order could have been properly passed under the sub rule.
I have the gravest doubts if it could.
It is unnecessary to discuss the matter further.
The High Court, relying on Ravji vs Mahadev,(3) expressed the view that when a party is added under sub r.
(1) of 0. 1, r. (10), section 22 of the Limitation Act does not apply and no bar of limitation arises.
No other reason was given by the High Court or suggested by counsel in this Court to avoid the bar of limitation imposed by section 22.
If the bar operated, no addition of parties could, of course, be made.
As I am of opinion that the order could not be justified by the terms of that sub rule, it is not really, necessary for me to consider this question of limitation.
I wish however to observe that, as at present advised, I am not at all sure that section 22 does not apply to an addition of parties under sub r.
(1) of r. (10) of 0. 1.
There is no principle to support such a view.
Nor do I think that Ravji 's case(1) clearly expresses it.
All that is held and that too in the judgment of one of the learned Judges only was that when in a suit by a benamidar the real owner is (1) Cal.
(2) (1904) I.L.E. (3) Bom.
192 added, it was really the original suit that was continued.
Obviously, the learned Judge thought that he was dealing with a case where there was no real addition of parties.
It would seem that is not the case where an order under the sub rule is made.
That would be a case like that of a correction of a misdescription of a party for which a resort to the sub rule would not be necessary: Purshotam Umedbhai & Co. vs Manilal & Sons.(1).
Then again Ravji 's case(1) does not seem to have been approved in later Bombay cases: see e.g. Krishnaji, vs Hanmaraddi(2).
Further Ravi 's case(1) would not support the order in hand if my reading of it is correct.
The present is not a case of a continuation of the Original suit.
Here parties were added to press their own rights which are in conflict with and antagonistic to those which were being pressed in the suit as originally framed.
I do not consider it necessary to pursue this matter further on the present occasion.
It was then said that in the present case there was no sub stantial addition of parties as the original suit was in the capacity of a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors.
This was said in order to get out of the bar of limitation by showing that it was the original suit that was continued in spite of the addition of parties.
There seems to be authority for the view that when a suit is filed in a representative capacity, if it turns out to) be doubtful whether that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred.
I will assume that these cases lay down the law correctly, but they do not, in my view, afford any assistance in the present case.
First, a suit by a person claiming to be the sole owner of the properties of a business carried on in a firm name, as Vijay Kumar 's suit was, is not a suit in a representative capacity; he represents no one but himself.
A firm is not a legal entity which could or had to be represented by any one else.
As is well known, a firm means only the partners taken together.
There is no such thing as the capacity of a proprietor of a firm; the capacity of a proprietor of a firm is only the proprietor 's individual capacity.
Secondly, no authority has been brought to our notice which shows that if parties are added with a claim which is antagonistic to the claim of the original plaintiff in the suit, as has happened here, that would still be a case where the original suit should be deemed to have been continued.
It may be that if the suit had initially been filed in the form in which it stood after the amendment, it would have been a good suit, as to which however I do not say anything on the present occasion.
If it were so, that would have been under the other (1) [1961] I S.C.R. 982.
(2) Bom.
(3) (1963)I.L.R. 193 provisions of the Code permitting joinder of parties and perhaps also of causes of action when instituting a suit, none of which was or could be pressed for our consideration.
These provisions are "merely permissive and relate to what the plaintiff might do if he is so minded": Sri Mahant Prayaga Doss vs The Board of Commissioners for Hindu Religious Endowments, Madras.(1) That is not the case where addition of parties is sought under 0. 1, r. (10), sub rr.
(1) and (2); such additions can only be made under the provisions of these sub rules only.
For these reasons, I think that the order adding parties is insupportable.
If that order goes, as it should, the decree which is in favour of the added parties cannot stand, for they are then strangers to the suit.
As there is no decree in favour of Vijay Kumar and as in fact the suit considered as brought by him has been dismissed by both the courts below by the High Court with the tacit approval and there is no appeal by him, this appeal must be allowed.
In this view of the matter, I do not feel called upon to deal with the other grounds advanced by Mr. Desai.
I would allow the appeal and set aside the judgment of the High Court and restore that of the trial Court.
The appellant will not get the costs in any of the courts below or this Court.
Bachawat, J. On December 13, 1934 the appellant executed a mortgage in favour of one Tarabai, widow of Motilal Harakhanwala.
Tarabai had three daughters, Mahabalkumari, Rajkumari and Premkumari.
On July 16, 1948, Tarabai is said to have adopted Vijay Kumar as a son to her deceased husband.
Vijay Kumar is the natural son of Mababalkumari.
On April 23.
1952, Tarabai died.
On February 10, 1954, Vijya Kumar claiming to be the adopted son and heir of Tarabai, instituted a suit for foreclosure of the mortgage executed in her favour.
The appellant contested the suit.
On December 30, 1955, the District Judge, Aurangabad dismissed the suit, holding that Vijay Kumar was not the adopted son and heir of Tarabai.
Vijav Kumar preferred an appeal to the former High Court of Hyderabad.
After the reorganisation of States, the appeal was transferred to the Bombay High Court.
On an application made by Vijay Kumar on November 3, 1958, the High Court on November 4, 1958 made an order for addition of Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the suit and for consequential amendments of the plaint.
After the addition of the parties, the appeal came up for final disposal before the High Court.
At the hearing of the appeal, the respondents submitted that the question whether Vijay Kumar was the adopted son of Tarabai should not be decided in this litigation and a decree should be passed in favour of the added parties on the footing that they were the heirs of Tarabai.
The High Court accepted this submission, set aside the finding of the trial Court on the question of the adoption of (1) Mad.41.
194 Vijay Kumar, dismissed the suit as brought by him and directed the trial Court to pass the usual preliminary decree in favour of Mahabalkumari, Rajkumari and Premkumari.
The High Court held that the mortgage money fell due on February 9, 1943 and the suit being instituted within 12 years from this date, was not barred by limitation.
The appellant now appeals to this Court on a certificate granted by the High Court.
The main question in this appeal is whether the claim of Mahabalkumari, Rajkumari and Premkumari to enforce the mortgage is barred by limitation.
The mortgage deed dated December 13, 1934 provided that the mortgage money would be payable in annual installments within a period of nine Fasli years, and in the event of non payment of five installments, the mortgagee would be entitled to recover the entire mortgage money.
The appellant did not pay any of the installments.
The High Court rightly held that the deed gave the mortgagee an option to enforce the mortgage in the event of non payment of five instalments.
It was open to the mortgagee not to exercise this option.
As the mortgagee did not exercise the option, the mortgage money fell due on the expiry of nine years, that is to say, on February 9, 1943, and limitation commenced to run from this date.
On December 13, 1934 when the mortgage was executed and on February 9, 1943 when the mortgage money fell due, the Hyderabad Limitation Act was in force.
By article 133 of the Hyderabad Limitation Act, the period of limitation for a suit by a mortgagee for foreclosure was thirty years from the date when the money secured by the mortgage became due.
But as from April 1, 1951, the Hyderabad Limitation Act was repealed and the Indian Limitation Act, 1908 was extended to the State of Hyderabad by the Part B States (Laws) Act (Act III of 1951), Prima facie, the Indian Limitation Act, 1908 which was in force on the date of the institution of the suit was the law of limitation applicable to the suit.
On behalf of the respondents, it was argued that by reason of the proviso to section 6 of the Part B States (Laws) Act, 1951, article 133 of the Hyderabad Limitation Act continued to apply to the suit.
There is no substance in this contention.
The respondents had no vested right in the law of procedure for enforcement of the mortgage.
They did not acquire under article 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to section 6 of the Part B States (Laws) Act, 1951.
No doubt, article 132 of the Indian Limitation Act, 1908 abridged the period of limitation for the enforcement of the mortgage.
But this abridgment did not impair or take away any vested right.
Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Laws) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previously in force in the Part B State.
195 It was argued on behalf of the respondents that article 147 of the Indian Limitation Act applied to the suit.
We are unable to accept this contention.
In Vasudeva Mudaliar vs K. section Shriniwas Pillai,(1) the Privy Council held that article 147 applied only to an English mortgage as defined in the Transfer of Property Act before its amendment in 1929, as, in respect of such a mortgage only, the mortgagee could sue for "foreclosure or sale.
" That decision has never been questioned and we see no ground for differing from it.
The deed dated December 13, 1934 created an anomalous mortgage and conferred a right of foreclosure only upon the mortgagee.
The mortgagee had no right to sue for sale in the alternative.
The present suit was for foreclosure only, and was governed by article 132 and not article 147.
The suit would be barred by limitation if it were instituted on November 4, 1958 when Mahabalkumari, Rajkumari and Premkumari were added as parties to the suit.
The question is whether the suit should be regarded as having been instituted on November 4, 1958 having regard to section 22(1) of the Indian Limitation Act, 1908.
Section 22(1) reads: "Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
" Admittedly, the name of the original plaintiff is not a mis description of the names of Tarabai 's daughters.
This is also not a case where a wrong defendant has been sued as representing the estate of a deceased person and subsequently the real representative is added as a defendant.
Nor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff.
This is a case where the original plaintiff sued in his own right and on his own behalf.
No doubt, Vijay Kumar claimed the right to enforce the mortgage as the legal representa tive of Tarabai.
But he made this claim on his own behalf and not as representing the daughters of Tarabai.
Mahabalkumari must be regarded as a new plaintiff and Rajkumari and Premkumari must be regarded as new defendents and by reason of section 22(1) the suit must as regards them be deemed to have been instituted when they were made parties.
In Moyappa Chetty vs Supramanian Chetty(2), the Privy Council had occasion to consider the similar provisions of section 22 of the Straits Settlements Ordinance No. 6 of 1896, which read: "When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as (1) L.R 34 I.A. 186 (2) (1)1916) LR, 43 1 A. 113,121.
196 regards him be deemed to have been instituted when he was so made a party. " Construing this section, Lord Parker of Waddington observed: "Their Lordships are of opinion that section 22 contemplates cases in which a suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the Court.
Section 133 of the Civil Procedure Code provides against the defence of a suit on this ground and enables the proper party to be added or substituted.
If A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance, to take advantage of a suit improperly instituted by B." Similarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limitation Act, take advantage of the suit improperly instituted by Vijay Kumar.
In Subodini Devi vs Cumar Ganoda Kant Roy, Bahadur(1), the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under section 27 of the Code of Civil Procedure, 1882 and the addition of a new person as defendant under section 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation.
This decision was followed by Parsons, J. in Ravji vs Mahadev(2).
But the learned Judges deciding those cases did not refer to section 22 of the Indian Limitation Act, 1877 and they a, ')pear to have completely overlooked that section.
Section 22 males no distinction between sub r.
(1) and sub r.
(2) of 0. 1, r. 10.
The section in express terms applies whenever a new plaintiff or a new defendant is substituted after the institution of a suit.
The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like section 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted.
But the policy of section 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk vs Ramlall Koondoo(3).
The rigorous of this law has been mitigated by the proviso to section 21 (1) of the Indian , which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
Unfortunately, the proviso to section 21(1) of the Indian has no application to this case, and we have no (1) (1887) I.J,.
R. 14 caL. 400.
(2) (1897) I.L.R. (3) (1881) I.T,.
R. , 823 824.
197 power to direct that the suit should be deemed to have instituted On a date earlier than November 4, 1958.
It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, 1958.
As far as they are concerned, the suit is barred by limitation and no decree can be passed in their favour.
The decree passed by the High Court in their favour cannot be sustained and must be set aside.
We think that the High Court had power to join Mahabalkumari as a party plaintiff under 0. 1, r. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under 0. 1, r. 10(2) and to allow consequential amendments of the plaint under 0. 6, r. 17.
But having regard to the bar of limitation, the added parties are not entitled to obtain any relief.
So far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court.
There is no appeal by him.
On his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, r. 33 of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai.
Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0.
41, r. 33 and to set aside the decree of the High Court as to the dismissal of the suit against him.
In the result, the appeal is allowed, the decree passed by the High Court in favour of respondents Nos. 2,3 and 4, Mahabalkumari, Rajkumari and Premkumari, is set aside and the decree of the trial Court dismissing the suit is restored.
The suit is dismissed.
We direct that the parties will pay and bear their own costs in this Court and in the Courts below.
Appeal allowed.

summary:
The appellant executed a mortgage in 1934 in favour of the proprietrix of a firm in the State of Hyderabad.
The mortgage amount became due in 1943.
The first respondent, who was the daughter 's son of the mortgagee, claiming to be her adopted son.
filed a suit for foreclosure of the mortgage, in 1954, after the death of the mortgagee.
The trial Court dismissed the suit on the ground that the adop tion was not established.
The first respondent appealed to the High Court and, pending the appeal, applied for adding his natural mother as a co plaintiff and her two sisters as defendants as they were not willing to join as plaintiffs, and sought consequential amendments in the plaint.
The High Court granted the application under 0. 1, r. 10(1), Civil Procedure Code, on 4th November, 1958 and thereafter, disposed of the appeal by passing a preliminary decree for foreclosure in favour of the added parties.
The High Court did not go into the question of adoption but dismissed the first respondent 's suit.
HELD: (Per Sarkar, C.J.): The order adding parties cannot be supported under either sub r.(1) of sub r.
(2) of 0. 1, r. 10.
Sub r.
(1) provided for addition of plaintiffs and could not therefore justify the addition of defendants.
In the case of addition of parties under sub r.
(2), the provisions of section 22 of the Limitation Act admittedly apply and under it in the present case, a suit by the added parties, on the date they were added, would have been barred.
It would have been futile, therefore, to make an order under sub r.
[190 G H; 191 D E] Ravji vs Mahadev 's case (I.L.R. doubted.
There is no reason to think that section 22 of the Limitation Act does not apply to O.1, r. 10, sub r.
[191 G] A person suing as the proprietor of a firm does not sue in a representative capacity.
He sues in his personal capacity.
[192 E F] Per Mudholkar and Bachawat JJ: The High Court bad power to join the co plaintiff under 0. 1, r. 10(1) and to join her sisters as defendants under 0. 1, r. (2), and to allow onsequential amendments of the plaint under 0.
VI, r. 17, but, as regards the added parties, by reason of section 22(1) of the Indian Limitation Act, 1908.
the suit must be regarded as instituted on the date on which they were added and was therefore barred by limitation.
[197 C] In 1951, the Hyderabad Limitation Act was repealed and the Indian Limitation Act was extended to the State.
The Indian Act abridged the period of limitation for the enforcement of the mortgage, 189 but did not impair or take away any vested right.
Therefore, on the date of the institution of the suit, the law of limitation applicable was the Indian Act.
[194 E F] The respondent, as the original plaintiff, sued in his own right and on his own behalf.
Therefore, the parties added must be regarded as a new plaintiff and new defendant respectively.
Section 22 of the Limitation Act in express terms applies whenever a new plaintiff or a new defendant is substituted under 0. 1, r. 10(1) or (2).
The effect of the section is that the suit must be deemed to have been instituted by the new plaintiff when he was made a party.
[196 E G] Ravji vs Mahadev, Bom.
672, disapproved.
Since the suit in the instant case was for foreclosure only it was governed by article 132 of the Limitation Act and must be regarded as instituted in November 1958, beyond 12 years from the date when the mortgage money was due.
[195 C] Vasudeva Mudaliar vs K. section Shriniwas Pillai I.L.R, 34 I.A. 186, applied.


judgement:
Appeal No. 193 of 1964.
Appeal from the judgment and decree dated May 13, 1960 of the Patna High Court in Appeal from Original Decree No. 132 of 1955 and order dated February 15, 1962 in M. J. C. No. 2 of 196 1.
Sarjoo Prasad, section C. Sinha and B. P. Jha, for the appellants.
section T. Desai and R. C. Prasad, for the respondents.
The Judgment of the Court was delivered by Mudholkar, J.
This is an appeal by certificate from a judg ment of the Patna High Court reversing that of the trial court dismissing the plaintiffs ' suit for partition and separate possession of their half share in a house and for payment of compensation from May 2, 1947 to September 11, 1951 at the rate of Rs. 200/p.m. with interest and for payment of compensation at the same rate from the date of suit till the recovery of possession of their, share in the house.
The facts which are not disputed before us are these: The property in dispute which is situate within the limits of the municipality of Bhagalpur was purchased jointly by five persons, Juri Mal, Gajanand, Ramasahai Sah, Jahuri Sah and Ramgali Sah.
The first two of these are father and son (and were members of a joint Hindu family).
Both of them are dead.
Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No. 5 is the widow of Jurimal.
Jurimal, Gajanand (constituted a joint Hindu family) and plaintiffs 1 to 4 constituted a joint Hindu family.
Ramsahai, Jahauri Sah and Ramgali were brothers and were members of a joint Hindu family.
Jahuri Sah is defendant No. and Ramgali Sah is defendant No. 2.
They, along with the remaining defendants, are members of a joint Hindu family of which Jahauri Sah is the karta.
The property in question was purchased by the two joint families, each family having half interest therein.
The date of the transaction was June 26, 1942.
At the time of the purchase of the property it was in the possession of Mohanlal Marwari as a tenant.
He was evicted therefrom by a decree of the court and hereafter it was let out to Government, the compensation having been settled at Rs. 100/ per mensem.
The Government vacated he house after some time whereafter the defendants occupied the 120(a) 282 house excepting a portion thereof which was in the occupation of Isri Sah and Shib Charan Sah as tenants paying a monthly rent of Rs. 30 Half of this rent was being realised by each family.
According to the plaintiffs when the defendants entered into possession of the property they agreed to pay Rs. 200/ per mensem as compensation to the plaintiffs ' family with respect to their half share in the property.
They, however, did not pay any compensation to the plaintiffs despite the agreement.
On these allegations the plaintiffs instituted their suit.
In the plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreelal, P. W. 6 and he was, therefore, not joined as party to the suit.
The defendants denied the claim and stated that the suit was barred by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter referred to as the Act) as well ' as by the rule of estopping.
They also raised the plea that under the contract entered into between the two families Rs. 501 p.m. was payable as compensation and not Rs. 200/ p.m. as alleged by the plaintiffs.
According to them the suit was barred by the rule of estoppel.
They contended that the claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time.
They also raised some other contentions in the written statement but it is unnecessary to refer to them inasmuch as we must confine ourselves to the points urged before us by Mr. Sarjoo Prasad on their behalf.
The points are: (1) that the suit for partition and separate possession was not maintainable , and (2) that the contract under which the plaintiffs claimed compensation is not enforceable.
The, suit is said to be not maintainable because (a) one of the co owners of the property was not joined as a party to the suit and, (b) also because it was barred by the Act.
The contract for payment of compensation was said to be not.
enforceable as there was no ouster of the plaintiffs by the defendants.
The trial court held that the provisions of the Act applied and by virtue of those provisions the plaintiffs were not entitled to a decree for eviction of the defendants nor were they entitled to a decree for, compensation and that the adoption of Shankarlal not having been proved the suit as constituted was not maintainable.
On this point, the High Court arrived at different conclu sions.
The view, taken by the High Court was that the provisions of the Act did not apply to this cage, that the defendants not having specifically denied the fact of adoption and no issues thereon having been raised the trial court erred in holding that the adoption was not proved and that non joinder of Shankarlal was not an impediment to the institution of the suit.
Further 283 according to the High Court the contract to pay compensation at the rate of Rs. 200/ p.m. was duly established and that as it was competent to a civil court to enforce the contract the suit for recovery of arrears of compensation was maintainable.
The High Court accepted the defendants ' contention that the claim for arrears must be limited to a period of three years prior to the institution of the suit.
It allowed interest on the arrears at 6% p.a. and decreed the claim of the plaintiffs for partition and for arrears of compensation.
The plaintiffs then moved the High Court under section 151 read with O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with respect to their claim for compensation, for use and occupation of the house from the date of suit till delivery of possession of their share after passing the final decree.
The High Court allowed this application and directed that the plaintiffs shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree, whichever event first occurs.
It also made an appropriate order regarding costs.
Aggrieved by this decree of the High Court as amended by its subsequent order upon the plaintiffs ' application under section 151 read with O.XX, r. 18, C.P.C. the defendants have come up to this Court.
In our opinion the High Court was right in holding that the Act is inapplicable to this case.
The plaintiffs and defendants were admittedly co owners of the property.
As the property had not been partitioned it was open to either or both the parties to occupy it.
The defendants occupied the property except a small portion which was in possession of the tenants.
The plaintiffs acquiesced in it because of an agreement between the parties that the defendants would pay Rs. 200/ p.m. as compensation to them.
The defendants did not dispute that there was an agreement about payment of compensation between the parties but their plea was that the amount agreed to was Rs. 501 p.m. and not Rs. 200/ p.m.
Their contention in this behalf was rejected by the High Court which accepted the plaintiffs ' contention that the amount was Rs. 200/ p.m.
This part of the High Court 's judgment is not challenged before us by Mr. Sarjoo Prasad.
He, however, challenged the finding of the High Court that the claim to compensation was enforceable.
But before we deal with this matter it would be appropriate to deal with the reasons given by him in support of the contention that the suit was not maintainable.
He reiterated the argument urged before the trial court based upon the non joinder of Shankarlal as a party to the suit.
According to him, as Shankarlal 's adoption his not been established by the plaintiffs he was also a co owner of the property 284 and his non joinder as a party to the suit rendered the suit incompetent.
The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankarlal had been, given in adoption to Sreelal.
In neither of the two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied.
Instead, What is stated in both these written statements is that the defendants have no knowledge of the allegations made in para 1 of the plaint.
Bearing in mind that O.VIII, r. 5, C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial.
No specific issue on the question of adoption was, therefore, raised.
In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any envidence on the point.
However, Sreelal who was examined as a witness on behalf of the plaintiffs has spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption.
It is true that he admits the existence of a deed of adoption and of its non production in the court.
This admission, however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected.
A deed of adoption merely records the fact that an adoption had taken place and nothing more.
Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence.
It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible.
We, therefore, agree with the High Court that the plaintiffs ' suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto.
We will now deal with the other ground urged by Mr. Sarjoo Prasad in support of his contention that the suit is not maintainable.
Under sub section
(2) of section II of the Act as it stood on the date of the suit a claim for eviction of a tenant or a claim for recovery of possession of a building and claim for rent thereof had to be made before the Rent Controller alone and consequently the jurisdiction of the civil court for the enforcement of such claims was ousted.
But, for the provisions of this section to apply, the relationship between the plaintiff and the defendant should be that of a landlord and tenant.
If they are co owners of the property and the property is held by them as tenants in common no question of relationship of landlord and tenant comes into being as between them.
The common case of the parties is that they are in fact co owners of the property and the respective 285 shares of the two families have not been demarcated.
They, therefore, continue to be tenants in common.
It is true that the entire property (save a small portion which was in possession of tenants) is in the actual occupation of the defendants which means that they are in occupation not only of their share in the property but also of the plaintiffs ' share.
That fact, however, would not make them tenants of the plaintiffs.
Under the law each tenantin common is entitled to the possession of the entire property, that is, to every part of it though its right to possession is limited to the extent of the share in the property.
The mere fact that the defendants agreed to pay compensation to the plaintiffs for their occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship of landlord and tenant.
By this agreement, the parties never intended to constitute a relationship of landlord and tenant between the defendants and their co owners.
The provisions of the Act are, therefore, inapplicable.
The second ground urged by Mr. Sarjoo Prasad, therefore, fails.
What we have to consider then is whether the contract for payment of compensation is not enforceable.
It is no doubt true that under the law every co owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co owners who have not chosen to enjoy the property.
It is also true that liability to pay compensation arises against a co owner who deliberately excludes the other co .owners from the enjoyment of the property.
It does not, however, follow that the liability to pay compensation arises only in such a case and no other.
Co owners are legally competent to come to any kind of arrangement for the enjoyment of their un divided property and are free to lay down any terms concerning the enjoyment of the property.
There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co owners compensation.
No authority was cited by learned counsel in support of his contention that ouster of a co owner is a sine qua non for enabling him to claim com pensation from the co owner who is in occupation and enjoy ment of common property.
We, therefore, reject the contention.
In the circumstances, therefore, we dismiss the appeal with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
Two Hindu undivided families one of them being represented by the appellants and the other by the respondents were co owners of a house which was Purchased by them jointly.
The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter 's share occupied by them.
On the compensation not being paid as agreed, the respondents filed a suit for its recovery, as well as for partition.
In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded.
The appellants resisted the suit on the grounds that: (i) S had not been impleaded although a co owner, (ii) the suit was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), and (iii) the contract for payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents.
The trial court decided in favour of the appellants but the High Court held against them.
They came to this Court by special leave.
HELD: (i) The suit was not incompetent because S was not made a party thereto.
The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements.
No specific issue on the question of adoption was raised and it could not be therefore argued that S 's adoption had not been established.
[284 A B, F] Oral evidence of the fact of adoption did not become inadmissible merely because the existence of a deed of adoption was admitted.
A deed of adoption merely records the fact that an adoption had taken place and nothing more.
Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence.
[284 D E] (ii) The mere fact that the defendants agreed to pay compensation to the Plaintiffs for their occupation of the plaintiff 's share would not bring into existence a relationship of landlord and tenant.
By this agreement the parties never intended to Constitute a relationship of landlord and tenant between the defendants and their co owners.
Bihar Act 3 of 1947 was therefore inapplicable and the suit could not be said to be barred under its provisions, [285 C] 281 (iii) Co owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property.
Ouster of a co owner is not a sine qua non for enabling him to claim compensation from the co owner who is in occupation and enjoyment of common property.
[285 E F]


judgement:
Appeal No. 265 of 1964.
Appeal from the judgment and order dated August 7, 1962 of the Andhra Pradesh High Court in Appeal Suit No. 312 of 57.
F. Babula Reddy, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellants.
P. Rama Reddy and A. V. V. Nair, for respondent No. 1.
T.V. R. Tatachari, for respondent No. 2.
In the village of Varagali, in the district of Nellore, there is a temple in which is enshrined the idol of Sri Kodandaramaswami.
The temple was built in the middle of the last century by one Burla Rangareddi who managed the affairs of the temple and its properties during his life time.
After his death his son, Venkata Subbareddi is in management.
By a deed dated August 19 1898 Venkata Subbareddi relinquished his interest in ' the properties in favour of one Vemareddi Rangareddi whose family members are defendants 1 to 5.
The plaintiff filed a petition before the Assistant Commissioner , for Hindu Religious Endowments, Nellore, alleging mismanagement of the temple and its properties by the first defendant.
Notice was issued to the 1st defendant to show cause why the temple properties ghould not be leased out in public auction and the first, defendant contested the application alleging that the properties were not the properties of the temple but they belonged to his family.
After enquiry, the Assistant Commissioner submitted a report to the Hindu Religious Endowments Board, Madras, recommending that a scheme of 'Management may be framed for the administration of the. temple and its properties.
The Board thereafter commenced I proceedings for settling a scheme and issued notice to the 1st defendant to state his objections.
The 1st defendant reiterated his plea that the temple was not a public temple.
The Board held an enquiry and by its order dated October section 1949 held that the temple was a public one.
On January 18, 1950 the 1 st defendant filed O.P. No. 3 of 1950 on the file of the District Judge; Nellore (1) for setting aside the order of the Board 'dated 272 October 5, 1949 declaring the temple of Sri Kodandaramaswamiwari as a temple defined in section 6, cl. 17 of the Act, (2) for a declaration that the temple was a private temple and (3) for a declaration that the properties set out in the schedule annexed to the petition were the personal properties of his family and they did not constitute the temple properties.
Originally, the Commissioner.
Hindu Religious Endowment Board, Madras was impleaded as the sole respondent in the petition.
The present plaintiff later on got himself impleaded as the 2nd respondent therein.
Both the respondent$ contested the petition on the ground that the temple was a public temple and that the properties mentioned in the schedule were the properties of the temple and not the personal properties of the 1st defendant.
For reasons which are not apparent on the record the petition was not disposed of for a number of years.
In the meantime Madras Act II of 1927 was repealed and the Hindu Religious and Charitable Endowments Act of 1951 was enacted.
Then came the formation of the State of Andhra Pradesh.
By reason of these changes the Commissioner of Hindu Religious Endowments in the State of Andhra Pradesh was impleaded as the 1st respondent to the petition.
Thereafter, there was a compromise between the petitioners 1 to 5 on the one, hand and the Commissioner, the 1st respondent on the other.
The District Judge, Nellore recorded the compromise and passed a decree in terms thereof by his order dated October 28, 1954, The material clauses of the compromise decree, exhibit B 11 are as follows '.
That Sri kodandaramaswami temple, Varagali, be and hereby is declared as a temple as defined in section 6.
clause 17 of the Hindu Religious and Charitable Endowments Act; 2.
That petitioners 1 to 4 be and hereby are, declared as the present hereditary trustees of the said temple.
That the properties set out in schedule A filed herewith be and hereby are, declared as the person proper.
ties of the family of the petitioners subject to a charge as slow below; 4.
That petitioners 1 to 4 their heirs, successors administrators and assignees do pay to the said temple for its maintenance 12 1/2 putties of good Mologolukulu paddy 6001 every year by the 31st of March; 5.
That the said 121 putties of good Mologolukulu paddy and Rs. 600/ due every year be a charge on the lands mentioned in Schedule A given hereunder; 6.
That the petitioners 1 to 4 and their heirs and assignees be liable to pay 12 1/2 putties of Molo 273 golukulu paddy and Rs. 600 every year whether the lands yield any income or not.
That the H. R. & C. E. Commissioner be.
entitled to associate non hereditary trustees not exceeding two.
.whenever they consider that such appointment is necessary and in the interests of the management.
That the Managing trustee shall be one of the four hereditary trustees or their successors in title only and not the non hereditary trustees; 15.
That the right of the 2nd respondent to agitate the matter by separate proceedings will be unaffected by the terms of this compromise to which he is not a party.
" It is apparent from the terms of the compromise decree that the temple was declared to be a public temple as defined in section 6, cl,.
17 of the Hindu Religious and Charitable Endowments Act and that the properties set out in Sch.
A annexed to the compromise petition were declared, to, be the personal properties of defendants 1 to.
section The, decree created a liability on their part to deliver to the temple for its maintenance 121 putties of paddy and pay Rs. 600/ cash every year.
The Present suit was instituted on October 3 1. 1955 for a declaration that the provision in the compromise. decree that the lands mentioned in the schedule were the personal properties of defendants 1 to 5 and not the absolute properties of the temple, was not valid.
and binding on the temple.
Defendants 1 to 5 objected, to the suit on the ground that it was not open to the plaintiff to seek a declaration that a Part of the decree was not binding but the plaintiff should have directed his attack against the ,entirety of the decree.
The trial court dismissed the suit on the ground that the suit was defective and that section 93 of.
the Hindu Religious and, Charitable Endowments Act of 1951 was a bar to the institution of the suit.
Against the decree of the trial court the plaintiff preferred an appeal A S, 312 of 1957 to the High Court of Andhra Pradesh.
plaintiff also filed C.M.P. no; 6422 of 1962 praying for amendment of the plaint the effect that the compromise decree in O. P. No. 3 of 1950 was not valid and binding on the temple.
After hearing defendants 1 to.5 the High Court allowed the amendment sought for: by the plaintiff and held that the amendment cured the defect with regard to the prayer for a declaration to have the compromise decree set aside partially.
The High Court further held that section 93 of the Hindu.
Religious and Charitable Endowments Act was not a bar to the suit and ' section 42 of the Specific Relief Act ' was not exhaustive and the suit was therefore maintainable.
In the result, the High Court "owed the appeal and remanded the suit to the trial court for disposing the same on the remaining issues.
274 It was contended, in the first place, on behalf of the appellants that declaratory suits are governed exclusively by section 42 of the and if the requirements of that section are not fulfilled no relief can be granted in a suit for a mere declaration.
It was submitted that the plaintiff must satisfy the court, in such a suit, that he is entitled either to any legal character or to any right in any property.
It was argued for the appellants that the plaintiff has brought the suit as a mere worshiper of the temple and that he has no legal or equitable right to the properties of the temple which constitute the subject matter of the suit.
It was pointed out that the plaintiff has not asked for a declaration of his legal character as a worshiper of the temple but he has asked for the setting aside of the compromise decree in O. P. No. 3 of 1950 with regard to the nature of the temple properties.
It was contended that in a suit of this description the conditions of section 42 of the are not satisfied and the suit is, therefore, not maintainable.
The first question to be considered in this appeal is whether the suit is barred by the provisions of section 42 of the which states: "42.
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion 'make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation A trustee of property is a 'person interested to deny ' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
" The legal development of the declaratory action is important.
Formerly it was the practice in the Court of Chancery not to make declaratory orders unaccompanied by any other relief.
But in exceptional cases the Court of Chancery allowed the subject to sue the Crown through the Attorney General and gave declaratory judgments in favour of the subject even in cases where it could not give full effect to its declaration.
In 1852 the Court of Chancery Procedure Act was enacted and it was provided by section 50 of that Act that no suit should be open to objection on the ground that a merely declaratory decree or order was sought thereby, and it would be lawful for the court to make binding declarations of right without granting consequential relief.
By section 19 of Act VI of 1854, section 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts.
With regard to courts other than the courts established by Charters the procedure was codified in India for the first time by the Civil Procedure Code, 275 1859, where the form of remedy under section 19 of Act VI of 1854 was incorporated as section 15 of that Act which stood as follows: "No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief.
" In 1862 the provisions of the Civil Procedure Code of 1859 were extended to the courts established by Charters when the Supreme Courts were abolished and the present High Courts were established.
In 1877 the Civil Procedure Code, 1859 was repealed and the Civil Procedure Code of 1877 was enacted.
The provision regarding declaratory relief was transferred to section 42 of the which was passed in the same year.
This section which is said to be a reproduction of the Scottish action of declaratory, has altered and to some extent widened the provisions of section 15 of the old Code of 1859.
It was argued on behalf of the appellants that, in the present case, the plaintiff was suing as a worshiper of the temple and that he was not suing as a person entitled to any legal character, or to any right as to any property and so the suit was barred by the provisions of section 42 of the .
Upon this argument we think that there is both principle and authority for holding that the present suit is not governed by section 42 of the .
In Fischer vs Secretary of State for India in Council, (1) Lord Macnaghten said of this section: "Now, in the first place it is at least open to doubt whether the present suit is within the purview of section 42 of the .
There can be no doubt as to the origin and purpose of that section.
It was intended to introduce the provisions of section 50 of the Chancery Procedure Act of 1852 (15 & 16 Vict.
c. 86) as interpreted by judicial decision.
Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer.
But the present suit is one to which no objection could have been taken before the Act of 1852.
It is in substance a suit to have the true construction of a statute declared and to have an act done in contravention of the statute rightly understood pronounced void and of no effect.
That is not the sort of declaratory decree which the framers of the Act had in their mind.
" In Pratab Singh vs Bhabuti Singh,(1) the appellants sued for a declaration that a compromise of certain preemption suits and decrees passed thereunder made on their behalf when they were (1) 26 I.A. 16.
(2) 40 I.A. 182.
276 minors were not binding on them, having been obtained by fraud and in proceedings in which they were practically unrepresented.
The Subordinate Judge having decreed the suit on appeal the memo bers of the Court of the Judicial Commissioner differed upon the question whether the declaration sought should be refused as a matter of discretion under section 42 of the .
Before the Judicial Committee it was contended for the, respondent that the suit having been filed for the purpose of obtaining a declaratory decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory decree, the Court had a discretion as to the granting or refusing such a declaration.
The Judicial Committee observed that section 42 of the did not apply to the case and that it was not a question of exercising a discretion under that section; and they gave to the appellant a decree setting aside the decree complained of and declaring that the agreement of compromise and the decree complained of were not binding upon the appellants or either of them and that they were entitled to such rights as they had before the suit was dismissed on December 15, 1899.
It appears to us that a decree of the character which has been sought by the plaintiff in this case is not one as to which the additional powers conferred by the Act of 1852 were required I by the Court of Chancery.
The injury complained of was that the Court has, by recording the compromise in O.P. No. 3 of 1950, deprived the deity of its present title to certain trust properties.
The relieve which the plaintiff seeks is for a declaration that the compromise decree was null and void and if such a declaration is granted the deity will be restored to its present rights in the trust properties.
A declaration of this character, namely, that the compromise decree is not binding upon the deity is in itself a substantial relief and has immediate coercive effect.
A declaration of this kind was the subject matter of appeal in Fischer vs Secretary of State for India in commercil(1) and falls outside the purview of section 42 of the and will be governed by the general provisions of the Civil Procedure Code like section 9 or 0. 7, r. 7.
On behalf of the respondents reliance was placed on the decision of the Judicial Committee in Sheoparsan Singh vs Ramnandan Prasad Singh(1).
In that case, the plaintiffs had prayed for a declaration that a will, probate of which had been granted was not genuine and the Judicial Committee pointed, out that under section 42 a plaintiff has to be entitled to a legal character or to a rig It, as to property and that the plaintiffs could not predicate this of themselves as they described themselves in the plaint as entitled to the estate in case of an intestacy, whereas, as things stood, there was no intestacy, since the will had been affirmed by a Court exercising 26 I.A. Cal.
694 (P.C.) 277 appropriate jurisdiction.
The suit was, indeed, nothing more than an attempt to evade or annul the adjudication in the testamentary suit.
The suit was held to fail at the very outset because the plaintiffs were not clothed with a legal character or title which would authorise them to ask for the declaratory decree sought by their plaint.
There is no reference in this case to the previous decision of the Judicial Committee in Fischer vs Secretary of State for India in Council(1).
In our opinion, the decision of the Judicial Committee in Sheoparsan Singh vs Ramnandan Prasad Singh(1) should be explained on the ground that the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and as the propriety of that decision could not be impeached in subsequent proceedings, the plaintiffs could not sue, not being reversions.
The legal position is also well established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple.
if a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession.
Worshippers of temples are in the position of cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna Thirthaswami vs Vidhyanidhi Thirthanswami (3).
Since the worshippers do.
not exercise the deity 's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity (See for example, Kalyana Venkataramana Ayyangar vs Kasturiranga Ayyangar(4) and Chidambaranatha Thambiran vs Nallasiva Mudaliar)(5).
It has also been decided by the Judicial Committee in Abdur Rahim vs Mahomed Barkat Ali(3) that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate General, and a declaration can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties.
In our opinion, section 42 of the is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section.
It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of section 42 of the .
(1) 20 I.A. 16.
(2) I.L.R.43 Cal.
694 (P.C) (3) I.L.R.27Mad.435, Mad. 212.
(5) I.L.R. (6) 55 I.A. 96.
278 The next question presented for determination in this case is whether the compromise decree is invalid for the reason that the Commissioner did not represent the deity.
High Court has taken the view that the Commissioner could not represent the deity because section 20 of the Hindu Religious & Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner.
Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judicial proceedings.
It is true that under section 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity. ;in proceedings before the District Judge under section 84(2) of the Act.
As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a juridical person capable of holding property, it is only in an ideal sense that property is so held.
The possession, and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties.
It is open.
in such a case, to the deity to file a suit through some person as next, friend for recovery of possession of the property improperly alienated or for other relief.
Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment.
In a case where the Shebait has denied: the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court.
The principle is clearly stated in Pramath Nath vs Pradymna Kumar.(1) That was a suit between con tending shebaits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court.
In , the present case no such action was taken by the District Court in O. P. No. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deity.
It was also contended by Mr. P. Rama Reddy on behalf of respondent No.: I that the compromise decree was beyond the, scope of the proceedings in O.P. No. 3 of 1950 and was, therefore, in.
valid.
In our opinion, this argument is well founded and must prevail.
The proceeding was brought under section 84(2) of the old Act (Act II of 1927) for setting aside the order of the Board dated October 5, 1949 declaring the temple of Sri Kodandaramaswami as a temple (1) I.L.R. C.) 279 defined in section 6.
17 of the Act and for a declaration that the temple was a private temple.
After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioner 's family and not the properties of the temple.
Such a declaration was outside the purview of section 84(2) of Madras Act 11 of 1927 and could not have been granted.
We are, therefore, of the opinion that the contention of respondent No. is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. No. 3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple.
We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in court remanding the matter to the trial court on this question and the matter will be unduly protracted.
For the reasons expressed, we hold that the decree passed by the trial court should be set aside and the plaintiff respondent No. I should be granted a declaratory decree that the compromise decree in O.P. No. 3 of 1950 on the file of the District Court Nellore is not valid and binding on Sri Kodandaramaswami temple.
Subject to this modification, we dismiss this appeal.
The parties will bear their own costs throughout.
Appeal dismissed.

summary:
The appellants filed an original petition in the District Court under section 84(2) of the Madras Hindu Religious Endowments Act, 1927 for setting aside an order of the Endowments Board that a temple was a public temple and for a declaration that it was a private temPle.
The Commissioner of the Endowments 'Board and: a worshippewere the contesting respondents to the petition.
Pending its dispo sat the 1927 Act was repealed by the Hindu Religious and Charles ble Endowments Act of 1951.
After the passing of the new Act the petition was amended by the addition of a prayer for a further dec laration that the properties in dispute were the personal property of the appellants ' family.
Thereafter, a compromise decree between the appellants and the Commissioner wag passed.
by which it was declared that the temple was a public temple, that the properties were the personal properties of the appellants but that the appeal ants were liable to make annual payments in cash and kind to the temple for its maintenance. 'The worshipper, who was not a part, to the compromise decree, filed the present suit for a declaration that the Compromise decree was not binding on the temple.
On the questions whether: (i) the suit was not barred by the provisions of section 42 of the , and (ii) the compromise decree was invalid.
HELD: (i) Section 42 of the is not exhaustive of the cases in which a declaratory decree may be made an courts have power to grant such a decree independently of the requirements of the section.
The relief sought for in the present case ,was for a declaration that the compromise decree was null and voice Such a declaration is in itself a substantial relief and has imme diate coercive effect and the deity would be restored to its right in the trust properties.
The suit fell outside the purview of section 4 and would be governed by the general provisions of the Civil Procedure Code and was therefore maintainable even though the worshiper was not suing as a person entitled to any legal character or the any, right as to any property as required by section 42 of the .
[276 E; 277 F G] Case law referred to.
(ii) The compromise decree was not valid and binding on the, temple, because, the deity was not a party to it through any representative.
271 Though under section 20 of the 1927 Act the Commissioner was ves ted with the power of superintendence and control over the temple, it does not mean that he has authority to represent the deity in proceedings before the District Judge under section 84(2) of the Act.
Further, the compromise decree was beyond the scope of the proceedings, because, a declaration that the properties in dispute were the 'Personal. properties of the appellants ' family and not of the temple, was outside the purview of section 84(2).
[278 A B, F, H]


judgement:
minal Appeal No. 158 of 1965.
Appeal from the judgment and order dated September 15, 1965 of the Bihar High Court in Criminal Revision No. 1326 of 1963.
R. H. Dhebar, V. D. Mahajan and B. R. G. K. Achar, for the appellant.
N. C. Chatterjee, Suprakash Bannerjee and Sukumar Ghose, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
The question of law presented for determina tion in this appeal is whether the respondent section K. Roy is the ,owner of a coal mine ' within the meaning of section 2(b) and 2(e) of the Coal Mines Provident Fund and Bonus Schemes Act, 1948 (Act 46 of 1948), hereinafter called the 'Act '.
The respondent was prosecuted under para 70 of the Coal Mines Provident Fund Scheme (hereinafter called the 'Scheme ') 'for violation of cls.
(a), (d) and (f) of paragraph 70 read with paragraphs 33A, 38, 42 and 69A of the Scheme.
An Inspector appointed under the Act filed a complaint against the respondent alleging that he was the owner of the Bhowra Coke Plant and that he had contravened certain provisions of the Scheme.
It was alleged that the respondent had failed 'to pay the contribution for the Provident, Fund, both employer 's and employees ' from April, 1960 to November, 1960 and had failed to submit returns in Form "H" with corresponding declaration in Form "A" and the statement in Form 'P ' as provided under the Regulations.
The respondent was held guilty by the trying Magistrate and was sentenced to pay a fine of Rs. 500 and, in default, to undergo 3 months ' simple imprisonment under paragraph 70(a).
The respondent went in appeal to the Sessions Judge, who dismissed the appeal and confirmed the sentence imposed by the Magistrate.
The respondent filed a Revision Application in the Patna High Court which allowed the Revision Application and set aside the conviction and sentence imposed on the respondent holding that the Coke Plant owned by the respondent was not a Coal Mine within the meaning of the Scheme and that the Coke plant was not subject to the provisions of the Scheme and the respondent was not the owner of the mine within the meaning of the Act and the Scheme.
The facts found or admitted in this case are: (1) The Bhowra Coke Plant originally belonged to the Bhowra Group of collieries owned by the Eastern Coal Company, but subsequently in or about the years 1945 to 1947 the Coke Plant was transferred by sale to the respondent, (2) The group of Bhowra Collieries was subsequently sold to the Bhowra Kankanee Collieries Limited, (3) The respondent is the owner of the Coke Plant and the lessee of the 261 land on which it stands on payment of certain royalty by way of the ground rent for the land, the lessor, at the relevant time, being the Bhowra Kankanee Collieries Limited owning the coal mine and coal field area, where the Bhowra Coal Mines are and the Coke Plant is situated, (4) The Coke Plant is not only adjacent to the coal mine but is also situated on the surface land, which forms part of the coal fields which and beneath which the coal mine is worked by the Bhowra Kankanee Collieries Ltd., (5) The respondent does not carry on the work of any coal mine therein, he does not excavate any coal by carrying on any operation for the purpose of obtaining coal, (6) The Coke Plant is a bye product coke plant in which hard coke as well as some other bye products are manufactured.
The question to be considered is whether, in this state of facts, the respondent is the owner of a coal mine within the meaning of the Act and the Scheme.
Under section 2(e) of the Act the expression "Employer" means "the owner of a coal mine as defined in clause (g) of section 3 of the Indian Mines Act, 1923".
The Indian Mines Act, 1923 has been repealed and substituted by the (Act 35 of 1952).
In the latter Act the word "owner" has been defined in cl.
(1) of section 2.
By virtue of section 8 of the General Clauses Act, the definition of the word "Employer" in cl.
(e) of section 2 of the Act should be construed with reference to the definition of the word "owner" in cl.
(1) of section 2 of Act 35 of 1952, which repealed the earlier Act and reenacted it (See also the decision of this Court in State of Uttar Pradesh vs M.P. Singh etc.(1).) According to section 2(1) of Act 35 of 1952 the word "owner", when used in relation to a mine, means " any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver. . .
The expression "coal mine" is separately defined in cl.
(b) of section 2 of the Act which reads as follows: " 2.
(b) 'Coal mine ' means any excavation where any operation for the purpose of obtaining coal has been or is being carried on, and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a coal mine: Provided that it shall not include any part of the coal mine on which a manufacturing process is being carried on unless such process is a process for coke making or the dressing of minerals .
" As a matter of construction it must be held that all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to a coal mine will come within the scope and ambit of (1) ; 262 the definition only when they belong to the coal mine.
In other words, the word "or" occurring before the expression "belonging to a coal mine" in the main definition has to be read to mean " and".
Any other interpretation would lead to an anomalous and startling consequence.
Any works, machinery, tramways and sidings which do not appertain to the coal mine in the sense of ownership cannot come within the meaning of the expression "coal mine" as given in the first part of cl.
(b) of section 2 of the Act.
They would come by way of subsidiary works, machinery or the like if they appertain to and belong to the coal mine in the sense of carrying on excavation work by doing the operation for the purpose of obtaining coal.
Suppose, for example, in a coal field area, the lessee from the Government is working a mine, but the tramways and sidings have been set up by a railway company only for the purpose of transport of coal.
It cannot be imagined that the owner of the tramways or railway siding is the owner of the coal mine within the meaning of the Act, for the legislature could not have intended that the work of transport of coal will, in itself, constitute the working of a coal mine within the meaning of the Act ' In our opinion, the expression "belonging to a coal mine" is the controlling expression governing all aspects of the activities of the coal mine within the definition of section 2(b) and all subsidiary things such as works, machinery, tramways and sidings are brought within the definition of the "coal mine" only if they appertain to the coal mine, that is to say, if they are under the same ownership.
We are, therefore, of the opinion that in order to carry out the legislative intention it is necessary to substitute the conjunction " and" for the conjunction "or" in the definition of a "coal mine" in section 2(b) of the Act.
It is legitimate, in this connection, to refer to the expanded definition of the word "coal mine" in section 2(b) of the Coal Mines Provident Fund and Bonus Schemes (Amendment) Act, 1965 (Act 45 of 1965) which reads as follows: "(2) for clause (b), the following clause shall be substituted, namely: (b) 'coal mine ' means any excavation where any operation for the purpose of searching for or obtaining coal has been or is being carried on, and includes (i) all borings and bore holes , (ii) all shafts, in or adjacent to and belong to a coal mine, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven: 263 (v) all conveyors or aerial rope ways provided for bringing into or removal from a coal mine of coil or other articles or for the removal of refuse there from; (vi)all adits, levels, planes, machinery, works, railways, tramways and sidings, in or adjacent to and belonging to a coal mine; (vii).all Workshops situated within the precincts of a coal mine 'and under the same management and Used for purposes connected with that coal mine or a number of coal mines under the same management; (ix). all power stations for supplying electricity for the purpose of working the coal mine or a number of coal mines under the same management; (x) any premises for the time being used for depositing refuse from a coal mine, or in which any operation in connection with such refuse is being carried on, being premises exclusively occupied by the employer of the coal mine; (xiii). .any premises in or adjacent to and belonging to a coal mine, on which any plant or other machinery connected with a coal mine is situated or on which any process ancillary to the work of a coal mine is being carried on;" It should be noticed that in sub cl.
(vi) it has been provided that the word "coal mine" includes all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a coal mine.
Similarly, in cl.
(vii) it includes "all workshops situated within the precincts or a coal mine and under the same management and used for purposes connected with that coal mine or a number of coal mines under the same management".
Again, cl.
(ii) of the amended section 2(b) states that the word "coal mine" includes "all shafts, in or adjacent to and belonging to a coal mine, whether in the course of being sunk or not".
Similarly, cl.
(xiii) of section 2(b) provides that the word "coal mine" includes "any premises in or adjacent to and belonging to a coal mine, on which any plant or other machinery connected with a coal mine is situated or on which any process ancillary to the work of a coal mine is being carried on".
In our opinion, the change in the language of section 2(b) of the earlier Act brought about by the amending Act (Act 45 of 1965) was not meant to bring about a change Sup5CI 19 264 of law in this respect but was meant to fix a proper interpretation upon the earlier Act.
It is a well recognised principle in dealing with matters of construction that subsequent legislation may be looked at in orderer to see what is the proper interpretation to be put upon the earlier Act where the earlier Act is obscure or ambiguous or readily capable of more than one interpretation.
(See Ormond Investment Co. Ltd.
Betts(1).
For the reasons expressed, we hold that the respondent is not the owner of a coal mine within the meaning of section 2(b) of the Act and the High Court has rightly acquitted the respondent of the offence alleged against him under the Scheme.
We accordingly dismiss this appeal.
Appeal dismissed.
at p. 166.

summary:
The respondent owned a coke plant which originally belonged to a group of collieries but was later transferred to him.
It was situated adjacent to a coal mine on the surface land which formed part of the coal fields beneath which the coal mine was worked.
The respondent did not mine or excavate coal himself nor carry on any operation for the purpose of obtaining coal.
His coke plant was a bye product Plant in which hard coke as well as some other byeproducts were manufactured.
The respondent was prosecuted under para 70 of the Coal Mines Provident Fund Scheme issued under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 (Act 46 of 1948) on a complaint that as an owner of a coal mine and an employer within the meaning of the Scheme, he had failed to pay certain contributions to the Provident Fund.
Although he was convicted by the trying Magistrate and his appeal to the Sessions Judge dismissed, the High Court allowed a Revision Application and set aside the conviction.
The question for consideration in the appeal to this Court was whether the respondent was an owner of a coal mine within the meaning of section 2 of the and therefore an employer as defined by Section 2(e) of Act 46 of 1948.
The expression "coal mine" in Section 2(b) of the means "any excavation where any operation for the purpose of obtaining coal has been carried on and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a coal mine HELD: The respondent was not the owner of a coal mine within the meaning of Section 2(b) of the and the High Court had rightly acquitted him.
[264 C].
The expression "belonging to a coal mine" is the controlling expression governing all aspects of the activities of the coal mine within the definition of section 2(b) and all subsidiary things such as works, machinery, tramways, and sidings are brought within the definition of the "coal mine" only if they appertain to the coal mine, that is to.
say, if they are under the. same ownership.
In order to carry out the legislative intention it is therefore necessary to substitute the conjunction "and" for the Conjunction "or" in the definition of a "coal mine" in section 2(b) of the Act.
[262 D E].
Section 2(b) of the Coal Mines Provident Fund and Bonus Schemes (Amendment) Act, 1965 and Ormond Investment Co. Li mited vs Betts: , 156; referred to. 260