judgement:
Civil Appeal No. 504 of 1979.
Appeal by Special Leave from the Judgment and Order dated 22 12 1978 of the High Court of Madras at Madras in Appeal No. 408/72.
K. Rajendra Chaudhary for the Appellant.
A. T. M. Sampath for the Respondent.
A. V. Rangam for the Intervener.
The Judgment of the Court was delivered by KAILASAM, J.
Special Leave Petition (Civil) No. 1021 of 1979 is filed by the plaintiff in the suit O.S. No. 83 of 1969 on the file of the Subordinate Judge, Devakottai, against the two orders passed by the High Court of Judicature at Madras in Appeal No. 408 of 1972 holding that the suit had not been properly valued for court fee and directing the petitioner to pay court fee on the valuation of Rs. 9,74,598.35 and requiring that the deficit court fee both on the plaint and the memorandum of appeal be paid within six weeks from the date of the order.
On hearing the petitioner we directed notice to the respondents calling upon them to show cause why special leave should not be granted and the appeal allowed and remitted to the High Court for disposal of all the issues.
On hearing the respondents we granted Special Leave Petition and the appeal is thus heard.
The appellant filed the suit praying for a decree against the respondent/defendant to render true and correct account of all the transactions of the respondent as the petitioner 's agent from 22nd January, 1965 and also of all the amounts received by him as the agent of the petitioner including the amount recovered by him from Alagappa Chettiar and pay to the petitioner the amount found due on such rendition of accounts.
In the written statement filed by the defendant it was con 387 tended that the suit is not properly valued and proper court fee has not been paid.
The trial court framed an issue as to whether the suit had been properly valued and proper court fee had been paid.
It answered the issue holding that the plaint has been properly valued and proper court fee has been paid.
The suit was dismissed by the trial court on the ground that the plaintiff has not proved that the defendant is liable to account and that the suit was barred by limitation, On an appeal by the plaintiff to the High Court, the High Court found that the plaint made it clear that apart from the money which the defendant is liable to pay to the plaintiff as his agent, the plaintiff has quantified the amount at Rs. 9,74,598.35 as payable by the defendant to him which is made clear in allegations in paragraphs 6,7,8 and 9 of the plaint and therefore the plaintiff ought to have valued the suit at Rs. 9,74,598.35.
As the appeal was disposed of on the ground that the plaint had not been properly valued we are concerned in this petition in determining whether the conclusion arrived at by the High Court is correct.
The High Court has passed its conclusion on a reference to paragraph 6,7,8 and 9 of the plaint.
We will now consider the pleadings in the case.
In paragraph 5 it is stated that on 22nd January, 1965, the plaintiff executed a General Power of Attorney at Karaikudi authorising the defendant to transact all his business, sell his properties, receive the sale price and other monies etc.
This paragraph refers to the General Power of Attorney executed by the plaintiff in favour of the defendant on 22nd January, 1965.
The terms of the power of attorney will be referred to in due course.
Paragraphs 6, 7, 8 and 9 of the plaint which have been relied on by the High Court may be set out : "6.
On 27 3 1963, the Plaintiff and the Defendant retired from the said partnership and the other two brothers continued the business under the same name, Alagappa taking on the shares of the plaintiff and Defendant and all their assets in the firm for a consideration of his paying $ 6,50,000/ equivalent to Rs. 16,12,000/ at the rate of Rs. 248/ per 100 Dollars to each of them, so that Alagappa became entitled to 3/4 share and Annamalai to 1/4 share in the continuing firm.
As the Plaintiff 's agent and on behalf of the Plaintiff, the Defendant on or about 13 4 1965 received from Alagappa $ 6,50,000/ equivalent to Rs. 16,12,000/ at the rate of 248 rupees per 100 Dollars for the 1/4th share of the Plaintiff in the said firm taken over by Alagappa.
The Defendant from Madras has sent to the Plaintiff at Kottaiyer Rs. 25,000/ on 25 10 1965, Rs. 1,30,750/ on 388 7 2 1966, Rs. 25,311.65 on 7 2 1965 (Rs. 25,000/ plus Rs. 311.65 for interest) and Rs. 4,36,340/ on 11 8 1967.
The Defendant as Plaintiff 's agent is bound to render true and correct account to the Plaintiff of all the amounts received by him in the course of the agency, to wit, from 22 1 1965 the amounts received from Alagappa.
In paragraphs 6 and 7 the plaint refers to the plaintiff and the defendant retiring from the partnership and Alagappa taking the shares of the plaintiff and the defendant for a consideration of his paying equivalent to Rs. 16,12,000/ to each of the plaintiff and the defendant.
In paragraph 7 it is stated that the defendant as plaintiff 's agent received Rs. 16,12,000/ .
Paragraph 8 refers to certain payments which the plaintiff received from the defendant.
Paragraph 9 of the plaint states that the defendant as plaintiff 's agent is bound to render true and correct account to the plaintiff of all the amounts received by him in the course of agency, to wit, from 22nd January, 1965 the amounts received from Alagappa.
It may be noted that the reliefs sought for is for rendering true and correct account to the plaintiff of all the amounts received by him in the course of the agency.
The Power of Attorney was given on 22nd January, 1965 and thus the relief is not confined to the amount payable by Alagappa alone.
In paragraph 10 which is not taken note of by the High Court the plaintiff alleged that on 2nd September, 1967 and 4th October, 1967, the plaintiff wrote to the defendant requiring him to send the accounts of the agency.
These letters were refused.
Again on 5th December, 1967, the plaintiff issued a lawyer 's notice to render accounts and for payment of the amounts due from him.
This notice was also returned.
The defendant did not render any accounts.
At this stage reference may be made to the Power of Attorney executed by the plaintiff in favour of the defendant on 22nd January, 1965.
The plaintiff by the Power of Attorney dated 22nd January, 1965, constituted the defendant as his Attorney and authorised the defendant to act for the plaintiff.
It is sufficient to state that the power authorises in general the defendant to manage all the affairs of the plaintiff.
Paragraph 3 of the Power of Attorney empowers the defendant to pay and settle all the debts of the plaintiff and obtain full and effectual receipts and releases for the same.
Paragraph 5 empowers the defendant amongst other things to sign and execute any discharge or release in connection with Charges or Bills of Sale.
Paragraph 10 gives the power to the defendant to charge or mortgage any of the plaintiff 's property and paragraph 11 to borrow such sums of money and upon such terms as the Attorney shall deem expedient.
Paragraph 19 confers the power 389 on the defendant to invest moneys upon mortgages or charges of land etc.
In short there can be no dispute that complete power of management is given to the defendant and the defendant could, in exercising this power, discharge debts, invest moneys on behalf of the plaintiff etc.
When the plaintiff in paragraph 7 of the plaint demanded the agent to render true and correct account to the plaintiff of all the amounts received by him in the course of agency i.e. by virtue of the power conferred on 22nd January, 1965, the plaintiff is entitled to know as to what amounts the defendant received during the course of his management and what amounts he had invested or otherwise dealt with.
At the date of the plaint the plaintiff was not aware as to the amount of moneys that were due by the defendant to him.
The letters and the lawyer 's notice sent by the plaintiff to the defendant were unanswered.
If the defendant had invested or otherwise dealt with moneys according to the power conferred on him nothing would be due to the plaintiff on accounts being taken.
The relief claimed for in the plaint in paragraph 14(a) of the plaint is for directing the defendant to render true and correct account of all transactions made by the defendant as the plaintiff 's agent from 22nd January, 1965 and also for all the amounts received by the defendant on the plaintiff 's behalf as his agent including the amount recovered by him from Alagappa and pay the plaintiff what may be found due to him.
This paragraph makes it clear that what was required was not only an account of the amount recovered by the defendant from Alagappa but also an account of all the transactions of the defendant as the plaintiff 's agent from 22nd January, 1965.
A reading of the written statement also makes it clear that the plaint was understood by the defendant as a suit for accounting of his management as a power of attorney agent.
In paragraph 7 of the written statement the defendant states that out of 6,50,000 dollars got for the plaintiff 's one fourth share, 40,000 dollars were invested in fixed deposit in plaintiff 's name with the Indian Overseas Bank, Kuala Lumpur and 10,000 dollars in plantiff 's V. CT.
M. Accounts on 10th April, 1965.
On the same day the remaining 6,00,000 dollars were invested with Alagappa Chettiar himself who had credited the amount in plantiff 's name in his accounts.
If the defendant was able to prove these contentions the accounts as required by the plaintiff would have been satisfactorily rendered and very little would have been due by the defendant to the plaintiff on accounting.
The High Court was in error in coming to the conclusion that the plaint is clear that apart from the money which the defendant is liable to pay to him as his agent the plaintiff has quantified the amount at Rs. 9,74,598.35 as payable by the defendant to him.
In our view, the plaint has been misread.
Though paragraphs 6, 7 and 8 refer to the transactions in which the 390 plaintiff is entitled to Rs. 16,12,000, paragraphs 10,11 and 14(a) make it clear that the suit was for accounting not only regarding Rs. 16,12,000 but also for the management by the defendant as power of attorney agent.
The power, as already noted, confers a right on the defendant to invest moneys.
If the defendant has shown in the written statement itself is able to establish that in the course of his management he had invested moneys according to the power conferred on him, he would have properly accounted for his management.
In the written statement the defendant himself had pleaded that the moneys which he received from Alagappa have been remitted to the plaintiff by investment and otherwise.
The conclusion arrived at by the High Court is, therefore, unsupportable.
The provision relating to the levy of court fee for a suit on accounts is found in section 7(iv) (f) of the Court Fees ' Act, 1870 which runs as follows: "7.
The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (i) x x x (ii) x x x (iii) x x x (iv) In suits (a) x x x (b) x x x (c) x x x (d) x x x (e) x x x (f) for accounts According to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought.
" Reading this provision by itself the amount of court fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
The plaintiff is required to state the amount at which he values the relief sought.
In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know the state of affairs of the defendant 's management and the amount to which he would be entitled to on accounting.
But it is necessary that the amount at which he 391 values the relief sought for should be a reasonable estimate.
Section 35(1) of the Tamil Nadu Court Fees and Suits Valuation Act, XIV, of 1955, is as follows: "In a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint.
" Sub section (2) of section 35 provides: "Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit, comprised the whole of the amount as ascertained, is paid.
If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the account to which the fee paid extends.
" While section 35(1) permits the plaintiff to pay the court fee on the amount estimated by him sub section (2) safeguards against the loss of revenue for it requires that no decree for any amount in excess of the amount as estimated in the plaint shall be passed unless the difference between the fee actually paid and the fees that would have been payable had the suit comprised the whole of the amount as ascertained, is paid.
But here again it is necessary that the plaintiff should give a fair estimate of the amount for which he sues.
Order 7, Rule 11, of the Civil Procedure Code, requires the court to return the plaint if the relief claimed is undervalued.
Order 7, Rule 11, runs thus: "11.
The plaint shall be rejected in the following cases: (a) x x x (b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;" (c) x x x (d) x x x This section casts a duty on the Court to reject the plaint when the relief claimed is undervalued.
If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected.
It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case.
In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for 392 accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts.
If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable.
The plaintiff cannot arbitrarily and deliberately undervalue the relief.
A full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chenchurami Reddy vs Kanupuru Chenchurami Reddy, after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under estimation.
On a consideration of the entire circumstances of the case we are not satisfied that the estimate of the relief as given by the plaintiff is inadequate or unreasonable or a deliberate under estimation.
In the result, we allow the appeal set aside the judgment of the Madras High Court and remit it back to the High Court for disposal of all the issues arising in the appeal.
The cost will abide by the result.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The power of attorney by which the plaintiff constituted the defendant as his agent, authorised the defendant amongst other things to discharge debts and invest moneys on behalf of the plaintiff.
In the suit filed by the plaintiff, the relief claimed was for directing the defendant to render true and correct accounts of all transactions entered into by him and for amounts received by him on behalf of the plaintiff.
In his written statement the defendant gave details of amounts invested by him in banks and other relevant details.
An issue whether the suit had been properly valued and proper court fee had been paid was answered by the trial court in favour of the plaintiff.
On appeal by the plaintiff, the High Court held that since the plaintiff had quantified the amount payable by the defendant, the suit should have been valued on the basis of amount quantified and that not having been done, the suit had not been properly valued.
Allowing the appeal, ^ HELD: (1) The estimate of the relief as given by the plaintiff was adequate and reasonable and was not an under estimate.
[392C] (2) The High Court was in error in holding that the plaint was clear, that apart from the money which the defendant was liable to pay to him as his agent the plaintiff had quantified the amount payable by the defendant.
The suit was not only for accounting of the amounts received but also for an account of the transactions of the defendant as power of attorney agent.
Had the defendant been able to establish that in the course of his management he had invested moneys according to the power of attorney, he would have properly accounted for his management.
The defendant himself had stated that the suit was for accounting of his management as power of attorney agent.
He pleaded that the moneys had been remitted to the plaintiff by investment or otherwise.
[389H 390B] (3) The amount of the court fee payable in suits for accounts as provided for in section 7(iv)(f) of the Court Fees Act, 1870 is according to the amount at which relief sought is valued in the plaint or memorandum of appeal.
In a suit for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to because in a suit in which the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendant 's management and the amount to which he would be entitled to on accounting.
[390G H] 386 (4) Even where section 35 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is applicable, it is necessary that the plaintiff should give a fair estimate of the amount for which he seeks relief.
Order VII R. 11 CPC casts a duty on the court to reject a plaint when the relief claimed is under valued.
[391 D E] Chillakuru Chenchurami Reddy vs Kanupuru Chenchurami Reddy, I.L.R. , approved.
(5) Before coming to the conclusion that the suit is under valued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after taking all the account.
If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable.
The plaintiff cannot arbitrarily and deliberately under value the relief.
All that is required is that there must be a genuine effort on the part of the plaintiff to estimate his relief and the estimate should not be a deliberate under estimation.
[391 H 392 B]


judgement:
Civil Appeal No. 1626 of 1973.
Appeal by Special Leave from the Judgment and Order dated 16 9 1971 of the Calcutta High Court in Appeal from Original Decree No. 209/66.
section N. Andley, K. C. Sharma, Prem Malhotra and Uma Datta for the appellant.
342 L. N. Sinha, G. section Chatterjee, D. N. Mukherjee and D. P. Mukherjee for the Respondent.
The Judgment and Order of the Court was delivered by KAILASAM, J.
This appeal is by plaintiff 1, legal representatives of plaintiff 2 and plaintiff 3 by certificate granted by the High Court Calcutta against its judgment dismissing the suit.
The suit was filed by the plaintiffs for the declaration of each of the plaintiffs ' title to the extent of 1/4th share each and in all 3/4th for all the plaintiffs of the suit property and the premises with the findings that the suit property and the premises were purchased in co ownership awarding the plaintiffs and the defendants equal 1/4th share each in terms of the agreement dated 2.4.1960 and for partition of the suit property and premises in equal 1/4th share each and for a decree of Rs. 45,000 with further accruals by way of receipt of further rent till full realisation of the claim.
In the alternative a decree for accounts of the dissolved partnership on declaration of dissolution of the same and partition of the suit property and premises in equal 1/4th share to each of the plaintiffs and the defendant by metes and bounds.
The defendant in his written statement denied the claim of the plaintiff and contended that the suit property was never purchased in co ownership or that the plaintiffs were entitled to 3/4th share.
He contended that plaintiffs 2 and 3 advanced Rs. 10,000 each as loan and that they had no claim to the property he having purchased the property in court auction as the absolute owner.
The trial court decreed the suit.
The defendant preferred an appeal to the High Court which accepted the appeal and dismissed the suit.
The facts of the case may be shortly stated.
The suit property in Darjeeling belonged to one Harbhajan Singh Wesal.
He executed a mortgage in favour of the Calcutta National Bank Ltd. The bank instituted a suit against Harbhajan Singh Wesal for recovery of Rs. 1,82,403 11 3 and for enforcement of the mortgage.
Pending suit the Calcutta National Bank was wound up and the High Court of Calcutta passed a decree against Harbhajan Singh and appointed the Official Liquidator of the Calcutta National Bank as Receiver of the mortgaged property including the suit properties.
On 5 9 1959 a final decree was passed directing the sale of the mortgaged property including the suit properties at Darjeeling by public auction subject to confirmation by the Court.
The defendant Prafulla Kumar Chatterjee was interested in buying the property in Darjeeling.
He was negotiating with the Receiver for 343 the purchase of Darjeeling properties.
On 10.6.1959 he received a letter from D. N. Mukherjee advocate advising him to give an offer to the Receiver and on 22.6.59 the defendant obtained an engineering estimate and made an offer to the Receiver to purchase the property for Rs. 32,000.
On 20.11.59 an advertisement appeared in the newspaper by P.W. 1, K. K. Kshetry, Solicitor of the bank, for auction of the suit property.
The property was auctioned on 15th December, 1959 and the defendant offered the highest bid for Rs. 30,000.
On the same day the defendant deposited Rs. 7,500/ .
While the sale was awaiting confirmation by the High Court a higher offer was made by one Baidyanath Garsi and thereupon the defendant offered Rs. 40,000 which was accepted by the court and the sale in favour of the defendant was confirmed by the the High Court for a sum of Rs.40,000 on 19.1.60.
The defendant deposited a sum of Rs. 2,500 in addition to Rs. 7,500 that had already been deposited.
The defendent was granted three months ' time for depositing the balance sum of Rs. 30,000.
The defendant did not have funds to pay the balance of Rs. 30,000 and had to raise the amount.
On 2.4.1960 an agreement was entered into between the three plaintiffs and the defendant.
The suit by the plaintiffs is mainly based on this agreement P 45 dated 2.4.60.
The agreement is signed by the three plaintiffs as well as by the defendant.
According to the recital in the agreement the parties after learning from the notification in the newspaper of the sale of the suit property agreed between themselves to call the bid jointly in co ownership in the name of the defendant and that in pursuance of the agreement the defendant was deputed to call the bid.
The agreement further states that accordingly the defendant was sent to Calcutta and the bid at the auction which was finally knocked down on 19.1.60 for a sum of Rs. 40,000 in the name of the defendant.
The agreement also provided that the plaintiffs and the defendants would be entitled to equal shares in the property.
Another term of the agreement provided that the conveyance shall be drawn in the joint names of the parties by obtaining leave from the High Court.
On 7.4.60 the defendant executed two receipts Exs. 22 and 22A in favour of the second and the third plaintiffs respectively.
It is recited in the receipt that the defendant received a sum of Rs. 10,000 as the share of the purchase price of the property sold in public auction by the Official Liquidator in pursuance of the agreement amongst themselves.
Though the receipt was typed in Darjeeling on 7.4.60 the defendant signed the receipt at Calcutta on 11 4 60.
In the meantime on 8.4.60 the defendant filed an application in the High Court of Calcutta praying that the time for completion of the sale be extended by three months from 19 4 60 and the conveyance be executed in 344 favour of the three plaintiffs and himself.
On 11 4 60 a sum of Rs. 30,000 was paid to M.R. Kshetry.
The request for the conveyance to be made in favour of the three plaintiffs and the defendant was given up and the court directed the execution of the conveyance in favour of the defendant alone.
On 17 6 60 a conveyance was executed by the Registrar of the High Court and the Receiver in favour of the defendant alone in pursuance of the order of the court dated 11 4 60.
On 2 1 61 the plaintiffs served a notice on the defendant calling upon him to partition the property and deliver their shares and render accounts.
On 3 6 61 the plaint in the suit was filed.
The plaintiffs apart from oral evidence very strongly rely on three documents to prove that they are joint owners and are entitled to 3/4th share in the suit property.
The first document is the agreement between the parties dated 2.4.60.
The second are two receipts dated 7.4.60 issued by the defendant in favour of plaintiffs 2 and 3.
The third document is the application filed by the defendant on 8 4 60 in the High Court praying that the conveyance may be effected in favour of the three plaintiffs and himself.
The case for the plaintiffs is that between 20th and 23rd November, 1959 there was an advertisement in the newspapers by the Official Receiver announcing the sale of the suit property.
According to the plaintiffs the three plaintiffs and the defendant mutually agreed to call the bid jointly in co ownership in the name of the defendant and to purchase the property in equal shares contributing equally the bid money and the other costs as might be incurred for the conveyance of the property.
It was further agreed that the plaintiffs and defendant would have equal share in the property.
According to the plaintiffs in pursuance of the agreement the defendant was sent to Calcutta where he bid on 15.12.59 for Rs. 30,000 and the bid was confirmed by the High Court on 19.1.60 for a sum of Rs. 40,000.
Out of the bid money a sum of Rs. 7,500 was paid to the Receiver on 15.12.59 and a sum of Rs. 2,500 on 19 1 60 and the balance of Rs. 30,000 on 11 4 60.
In the meantime it is stated that the plaintiffs and the defendants considered it advisable to have the verbal agreement between them reduced to writing and thus the agreement dated 2.4.60 came into existence.
After the full bid money was paid, the plaintiffs contributing equally, a deed of conveyance was executed on 17 6 60 and registered at Darjeeling.
According to the mutual agreement the parties were entitled as co sharers to enjoy and occupy the suit property in co ownership and were also entitled to income from them.
It was further agreed that the defendant would manage the joint property for the co owners of the property and the defendant would realise the rents for and on behalf of the parties with liability to pay the respective shares 345 to each of the plaintiffs.
The defendant, on the other hand, submitted that he was trying to purchase the suit property from the previous owner Harbhajan Singh by private negotiations before the proceeding was started for auction sale.
The defendants efforts to purchase the property from the owner proved abortive and he decided to purchase the suit property in the auction sale when the property was advertised for sale.
As the defendant was not acquainted with the procedure of court 's sale he approached the first plaintiff for legal service and the first plaintiff gave directions as to how the defendant should proceed.
The defendant denied that he was sent by the plaintiffs to Calcutta for calling the bid.
According to him he went of his own accord, attended the public auction on 15.12.59 and offered Rs. 30,000 for purchasing the property and when the bid was accepted he paid Rs. 7,500 and that money belonged to him alone.
Eventually, the sale was confirmed in favour of the defendant for Rs. 40,000 and he paid a sum of Rs. 2,500 in court to make up Rs. 10,000 i.e. One fourth of the bid amount all by himself As the defendant had to pay the balance of Rs. 30,000 and as he was in short of funds he approached the first plaintiff who was his lawyer and asked for his advice.
As the time for payment of balance amount was fast approaching the defendant frantically tried to find a person who could advance him temporary loan of Rs. 20,000 which amount he needed for completing the purchase.
As he was not successful he requested the first plaintiff to find from amongst his clients persons who could make temporary advance of the amount.
According to the defendant in the first week of April, 1960 the first plaintiff informed the defendant that two of his clients, namely plaintiff Nos. 2 and 3, were agreeable to advance the requisite amount but in view of the provisions of Bengal Money Lenders ' Act they were not willing to advance the amount unless some sort of safeguards were provided for and the transaction was not described as loan.
The first plaintiff drafted a document in the form of an agreement and the defendant signed it under the advice and suggestion of the first plaintiff on the understanding that the document was not intended to be acted upon and was only to remain as a security for the loan and that the recitals in the said document do not represent the real nature of the transaction.
The defendant admitted that plaintiffs 2 and 3 advanced to the defendant a sum of Rs. 10,000 each by way of loan and the defendant had to sign in their favour the documents acknowledging the receipt of the loan.
The defendant denied that the plaintiffs and the defendant contributed equally for payment of the bid money or in defraying the incidental costs in equal shares.
The defendant asserted that he alone paid the entire bid money and bore all the incidental expenses and that there was never any co ownership or co 346 partnership.
He submitted that as the conveyance was executed exclusively in his favour the plaintiffs had no right to the property.
The plaintiffs have sought to prove that the parties after learning from the notification in the newspaper of the sale of the property agreed between themselves to call the bid jointly in co ownership in the name of the defendant and in pursuance of that agreement the defendant paid the deposit.
Further it is the plaintiffs ' case that in pursuance of the agreement the defendant was sent to Calcutta where he bid at the auction which was finally knocked down for the benefit of all.
The plaintiffs ' claim that they contributed 1/4th of the price of the property and the expenses i.e. Rs. 13,500 each.
Further, it was contended by the plaintiffs that the bid by the defendant was for the benefit of the three plaintiffs and the defendant and that it was agreed that the conveyance should also be in favour of all of them.
It is seen from the evidence that the defendant was interested in buying the property alone before the advertisement appeared in the newspapers on 20 11 59 and 23 11 59.
The defendant received exhibit V a letter dated 10 6 59 from D. N. Mukherjee advocate, advising him to give an offer to the Receiver so that he can place the matter to the court for an order for sale by private negotiation.
Soon after, the defendant obtained an engineering estimate of the value of the property under exhibit M and in accordance with the valuation wrote exhibit L on 22.6.59 to K. K. Kshetry offering Rs. 32,000 for the property.
On 15 12 79 the defendant went to Calcutta by himself and made a bid for Rs. 30,000 and deposited Rs. 7,500 of his money.
The plaintiffs admit that the entire deposit was made by the defendant but pleaded that it was agreed that on accounts being taken the expenses will be shared by the plaintiffs.
Due to a third party making a higher offer the defendant had to raise the bid for Rs. 40,000.
It is also not in dispute that the defendant by himself paid Rs. 2,500 over Rs. 7,500 already paid to make 1/4th of the bid amount.
The bid for Rs. 40,000 was made by the defendant alone.
On behalf of the plaintiffs it is stated that 2 or 3 days after the advertisement appeared the defendant went to the first plaintiff and told him that he did not have sufficient funds and requested the first plaintiff to join him to purchase the property and that 2 or 3 days later plaintiff 3 and son of plaintiff 2 came to first plaintiff and expressed their desire to purchase the property and the plaintiff advised them to purchase the property jointly with the defendant in shares.
Plaintiff 3, Daluram Agarwala, deposing as P.W. 5 does not support this case.
In cross examination P.W. 5 stated that on November 24 or 25, 1959 he and one N. K. Aggarwala, who is the son of plaintiff No. 2, went to see the first 347 plaintiff.
It was decided among them that the property would be purchased in the names of all the four of them, the plaintiffs and the defendant.
He would further say that the defendant on return from Calcutta towards the end of December, 1959 stated that the property had been purchased in the names of three plaintiffs and the defendant.
It is thus the case of P.W. 5 that the defendant was sent by all the three plaintiffs to bid on their behalf and that the defendant bid on behalf of all of them.
P.W. 7, the son of the second plaintiff, would state that it was agreed that the property would be bought in the name of the defendant and that there was no talk that it would be purchased in the names of all the four of them.
It is rather inexplicable as to how plaintiffs 2 and 3 who wanted to buy the property separately for themselves agreed to purchase jointly for the benefit of all of them.
It is also difficult to accept the plea that palintiffs 2 and 3 went to the first plaintiff who is an advocate and there agreed to purchase the property in equal shares between the defendant, first plaintiff and themselves.
The second plaintiff had an office in Calcutta and the Calcutta office had a Munim and three other partners in whom they had complete confidence.
In the circumstances it is strange that they wanted the first plaintiff to be a co sharer so that he could attend to all the legal questions.
There is no explanation as to why plaintiffs 2 and 3 who were independant businessmen would join to purchase the property.
The explanation that the agreement was arrived at to keep the bid low is purile.
The evidence discloses that the plaintiffs were taking active part in the transaction after 2.4.1960 while between November, 1959 when the advertisement appeared and the date of agreement, there was comparative quiet, which fact probablises that the plaintiffs were not taking any part in the activities of the defendant regarding the bid in the court auction of the property.
The dealings of plaintiffs 2 and 3 show that they were dealing with the defendant at arms ' length insisting on passing of a receipt for their payment of Rs. 20,000 and accompanying the defendant and paying the money to the Receiver themselves.
It is highly improbable that they would have deputed the first defendant to go and bid on their behalf.
There is no explanation as to why their share of the bid of Rs. 30,000 or the subsequent bid for Rs. 40,000 was not paid by them.
The story that before the defendant bid for the property for Rs. 30,000 there was an agreement between the plaintiffs and the defendant that the bid should be on behalf of all of them cannot be accepted.
The next question that arises is whether the plaintiffs have proved their case that plaintiffs 1, 2 and 3 each of them paid Rs. 13,500, Rs. 10,000 being their share of the bid money and Rs. 3,500 towards expenses.
The two receipts Exs.
22 and 22A are acknowledgements by 348 the defendant of receipt of Rs. 10,000 from each of the plaintiffs 2 and 3.
The defendant admits that he did receive Rs. 10,000 from each of the plaintiffs 2 and 3 but his case is that it is a loan.
There can be no doubt that the defendant was paid Rs. 10,000 by each of the plaintiffs 2 and 3.
The case of the plaintiffs is that they paid in addition Rs. 3,500 each towards expenses.
There is no receipt for this extra payment.
But the plea on behalf of plaintiffs 2 and 3 is that the son of the second plaintiff paid Rs. 27,000 to the Receiver Kshetry personally representing the share of plaintiffs 2 and 3 of Rs. 13,500 each.
We find it difficult to accept the story for plaintiffs 2 and 3 were reluctant to part with Rs. 10,000 each without receipt even though the first plaintiff assured that there was no need for a receipt.
In fact the money was not parted with by them till the second plaintiff 's son accompanied the defendant to Calcutta and paid it in person to the Receiver.
In such circumstances, it is not possible to accept the plea of plaintiffs 2 and 3 that they did not insist on a receipt for payment of Rs. 3,500 each.
In this connection, the evidence of P.W. 1 Kshetry that out of the sum of Rs. 30,000 paid in cash Rs. 27,000 was handed over to him by Narendra Kumar Aggarwal and only the balance was paid by the defendant was relied on by the plaintiffs to show that the share of plaintiffs 2 and 3 of Rs. 13,500 each was paid.
According to the defendant second plaintiff 's son Narendra gave him Rs. 20,000 and he had Rs. 10,000 and he and Narendra counted Rs. 30,000 and handed over the sum of Rs. 30,000 to Kshetry, in the presence of the Judge.
On the evidence the High Court came to the conclusion that the money was counted by Narendra and the defendant before it was paid to Kshetry and if Narendra handed to the Solicitor a sum of Rs. 27,000 after counting, the inference that Rs. 27,000 belonged to plaintiffs is not justified.
We agree with the view taken by the High Court.
We therefore find that plaintiffs 2 and 3 have not proved that they paid Rs. 3,500 each towards the expenses.
The evidence relating to payment by the first plaintiff is even worse.
According to the first plaintiff, who examined himself as P.W. 2, on 2nd April, 1960 when the agreement was signed he paid Rs. 10,000 as his share of purchase price and Rs. 2,500 towards cost, Rs. 12,500 in all in cash to the defendant.
He did not consider it necessary to take a receipt in view of the signed agreement which he thought was sufficient acknowledgment of the liability by the defendant.
The first plaintiff was cross examined about the availability of the sum with him.
He admitted that he had no accounts and that the payment of Rs. 12,500 is not recorded any where.
The first plaintiff would add that he paid another Rs. 1,000 by issuing a cheque in favour of the third plaintiff with a direction that the third plaintiff should pay the 349 sum of Rs. 1,000 to the defendant towards expenses.
A cheque was no doubt drawn by the first plaintiff in favour of the third plaintiff but there is nothing to indicate that this amount was to be paid to the defendant.
The third plaintiff did not obtain any receipt from the defendant.
The High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant.
On the record there is hardly any acceptable evidence for establishing the payment of Rs. 13,500 by the first plaintiff to the defendant or the payment of Rs. 3,500 each by the plaintiffs 2 and 3 to the defendant.
There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs and the defendant jointly.
The agreement contemplated taking of the conveyance in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names.
But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone.
There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names.
Equally on the side of the defendant there is no explanation as to why the signed the agreement which povided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them.
Neither has the defendant denied receipt of Rs. 10,000 from each of the plaintiffs 2 and 3.
There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced.
If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest.
On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth.
The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs. 30,000 and later for Rs. 40,000 and paid the deposits amounting to Rs. 10,000 by himself.
Plaintiffs 2 and 3 have failed to prove that they have paid Rs. 3,500 each towards expenses in addition to payment of Rs. 10,000 by each of them which is admitted.
The first plaintiff has totally failed in proving that he had paid any part of the consideration.
On the side of the defendant there is no explanation as to why he subscribed to the 350 agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them.
Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs. 20,000 without interest.
Taking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount.
In trying to find the money he sought the help of the plaintiffs and received payment of Rs. 20,000 from plaintiffs 2 and 3.
The crucial question is whether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each.
The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount.
Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them.
It is clear that the money was not advanced as a loan.
It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it.
The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influence.
The relief to which the plaintiffs are entitled to under the agreement cannot be denied.
The High Court after observing that plaintiffs 2 and 3 who are businessmen would not have lent a large sum of money without charging interest and that it is not likely that the plaintiffs would have been so charitable towards the defendant who was a stranger was of the view that it was not necessary to examine the defendant 's financial position and record a finding on the point for the purpose of appeal.
While holding that the defendant 's version also does not disclose the entire truth the High Court held that would not help the plaintiffs who have to prove the case they set up in the plaint.
On the short ground that the agreement dated 2nd April, 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail.
We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be denied.
In the circumstances, the plaintiffs 2 and 3 are entitled to 1/4th share each in the property on their payment of their share of the expenses i.e. Rs. 3,500 each.
The defendant has been in possession of the property ever since the purchase and the plaintiffs are entitled to their share of the rents collected by the defendant.
We estimate the share of the rents collected for each of the plaintiffs at Rs. 25,000.
The result is the appeal is allowed to the extent that there will be a decree for partition and separate possession of 1/4th share 351 each of plaintiffs 2 and 3.
Plaintiffs 2 and 3 will pay to the defendant Rs. 3,500 each and interest at 10 per cent per annum from the date of the conveyance and receive Rs. 25,000 each from the defendant towards their share of the rent collected upto date.
The first plaintiff will not be entitled to any relief and the suit so far as he is concerned is dismissed.
There will be no order as to costs.
Before we conclude we will shortly refer to the question of law raised by Mr. L. N. Sinha on behalf of the defendant.
He submitted that as the title in the property vested in the defendant by confirmation of the court sale and later by a registered conveyance, the plaintiffs cannot seek relief on the unregistered agreement exhibit 4 as conveying any title to them.
This point was not taken in any of the courts below but learned counsel submitted that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the point to be taken.
In support of his contention that a pure question of law in the circumstances can be taken for the first time in this Court he relied on the decisions of this Court in Yaswant Deorao Deshmukh vs Walchand Ramchand Kothari(1), Raja Sri Sailendra Narayan Bhanja Deo vs The State of Orissa (2), Seth Badri Prasad and others vs Seth Nagarmal and others(3), State of Uttar Pradesh & Anr.
vs Anand Swarup(4) and T. G. Appanda Mudaliar vs State of Madras(5).
As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question.
The plea of the learned counsel is that as the title has vested in him by virtue of the confirmation of the sale and the registered conveyance the plaintiff cannot rely on the unregistered agreement.
In support of his contention the learned counsel relied on the decision of the Privy Council in G. H. C. Ariff vs Jadunath Majumdar Bahadur(6) and Maritime Electric Co. Ltd. vs General Dairies Ltd.(7).
In G. H. C. Ariff vs Jadunath Majumdar Bahadur it was doubted whether the English equitable doctrine can be applied so as to modify the effect of an Indian statute.
The court expressed itself thus:". .but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only 352 be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible".
The Court further observed: "Their Lordships do not understand the dicta to mean that equity will hold people bound as if a contract existed, where no contract was in fact made: nor do they understand them to mean that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts shall be conferred only by a registered instrument." In Meritime Electric Co. Ltd. vs General Dairies Ltd. (supra) the court observed: ". where as here the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it".
The decisions are clear that the plaintiffs cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement.
But this will not help the defendant as the suit is based on the plea that the suit property and the premises were purchased in co ownership i.e. on a claim that the plaintiffs were the real owners of the property.
The claims of the plaintiffs as a real owner is not based on the unregistered agreement alone.
On the pleadings in the case the question of law raised cannot result in the suit being dismissed as not maintainable.
The second question the learned counsel raised was that the suit is barred under section 66 of the Civil Procedure Code.
The trial court overruled the plea on the ground that although the sale in question is a court sale it is not according to the rules prescribed by the Civil Procedure Code but only according to the Rules of the Calcutta High Court on the original Side.
The learned counsel submitted that the purpose of section 66, Civil Procedure Code, applies equally to court sales conducted under Rules of Civil Procedure Code as well as those conducted under the High Court Rules.
Reliance was placed on a decision of the Privy Council in Bishun Dayal vs Kesho Prasad and Anr.(1) where the only case pleaded by the plaintiff was that the person through whom he claimed derived his right to half of the village from the auction purchase having been made in part on his behalf by the auction purchaser, it was held that the claim was barred by section 66, Civil Procedure Code, inasmuch as no case independent of auction purchase and basing title upon subsequent possession was put forward in the plaint.
Section 66 of the Civil Procedure Code runs as follows: "66(1).
No suit shall be maintained against any person claiming title under a purchase certified by the Court in such 353 manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims." (2).
x x x x x section 66 prohibits any person claiming that a purchase certified by the court in such manner as may be prescribed in favour of a person was made on behalf of the plaintiff.
In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintained is a person claiming title under a purchase certified by the court in such manner as may be prescribed.
A certificate by the court for the purchase in the manner prescribed is therefore essential.
The word "prescribed" is defined under section 2(16) of the Civil Procedure Code as meaning prescribed by Rules.
The provisions as to grant of a certificate by a court under a purchase is prescribed in Order 21.
Order 21, Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 108 prescribe the procedure relating to sale of immovable property.
When the court makes an order confirming the sale under order 21, Rule 92, the sale becomes absolute.
After the sale becomes absolute under Rule 94 the court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale is declared to be the purchaser.
Such certificate is required to bear the day and the date on which the sale became absolute.
The certificate by the court referred to in sec.
66 is a certificate under order 21, Rule 94.
The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction.
Sale by a court through the Receiver appointed by court is not contemplated under these provisions.
In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, is not given by the Court.
Therefore, the prohibition under sec.
66 cannot be invoked in the case of a sale by the Receiver.
A Receiver is appointed under Order 40, Rule 1, and a property can be sold by the Receiver on the directions of the court even by private negotiations.
The requirement of section 66 of the C.P.C. is a certificate by the court as prescribed.
In this case the conveyance exhibit 5 was in accordance with the original side Rules of the High Court.
In the view we have taken that section 66 is not applicable to sale by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of section 66.
Section 66 refers to execution of sales only and has no application to a sale held by a Receiver.
In this view the objection raised by the learned counsel for the defendant has to be rejected.
354 ORDER When the Judgment was delivered in Court on 16th January, 1979, allowing the appeal to the extent that there will be a decree for partition and separate possession of one fourth share each of plaintiffs 2 and 3, the parties expressed their desire to agree amongst themselves and divide the properties finally and report a settlement to that effect and prayed that the Court may be pleased to pass a decree in terms of the compromise.
Leave was granted to the parties to enter into a compromise and report the matter to the Court for the passing of the decree in terms of the compromise.
Accordingly the parties have entered into a compromise and have filed the compromise memo along with plans for passing of the final decree.
Accordingly we direct that a decree be passed in terms of the compromise.
S.R. Appeal allowed.

summary:
The plaintiffs appellants filed a suit against the defendants respondents claiming their title on an unregistered document to the suit property and premises purchased by the latter through a sale by the Receiver under the orders of the Court, on the ground that they were co owners thereof by virtue of the said document.
The trial court decreed the suit but the High Court, on appeal, accepted the appeal and dismissed the suit.
Allowing the appeal by certificate, the Court ^ HELD: 1.
A pure question of law on the facts and circumstances of a case can be taken for the first time in the Supreme Court.
[351 B C] (a) In the instant case, the plea that "as the title has vested in the respondent by virtue of the confirmation of sale and the registered conveyance, the plaintiffs appellants cannot rely on an unregistered document" is a pure question of law not involving any investigation of the facts.
[351C E] Yaswant Deorao Deshmukh vs
Walchand Ramchand Kothari; , @ 861; Raja Sri Sailendra Narayan Bhanja Rao vs State of orissa ; ; Seth Badri Prasad and ors v Seth Nagarmal and ors.
, [1959] Suppl.
1 S.C.R. 769 @ 773; State of U.P and Anr v Anand Swarup ; ; T. A A Appanda Mudaliar vs State of Madras ; ; applied.
In a suit against the purchaser on the ground that the purchase was made on behalf of plaintiff or on behalf of some one through whom the plaintiff claims, the plaintiff cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement,[352 C] on the pleadings, in the instant case, the question of law raised cannot result in the suit being dismissed as not maintainable.
The claim of the appellant as a real owner was not based on the unregistered agreement alone.
341 The suit was based on the plea that the suit property and the premises were purchased in ownership (i.e.) on the claim that the appellants plaintiffs were the real owners of the property.[352 C D] G. H. C. Ariff vs Jadunath Mazumdar Bahadur, A.I.R. , Meritime Electric Co. Ltd. vs Genral Dairies Ltd., A.I.R. 1937 PC 114; referred to.
Section 66 of the Civil Procedure Code prohibits any person claiming that a purchase certified by the Court in such manner as may be prescribed in favour of a person was made on behalf of the plaintiff.
In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintained is a person claiming title under a purchase certified by the Court in such manner as may be prescribed.
A certificate by the Court for the purchase in the manner prescribed is, therefor, essential.
[353 B C] The word "prescribed" is defined under section 2(16) of the Civil Procedure Code, as meaning prescribed by Rules.
The provision as to grant of a certificate by a court under a purchase is prescribed in Order 21.
Order 21, Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 103 prescribe the procedure relating to sale of immovable property.
When the Court makes an order confirming the sale under Order 21, Rule 92, the sale becomes absolute.
After the sale becomes absolute under Rule 94 the Court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale is declared to be the purchaser.
Such certificate is required to bear the day and the date on which the sale became absolute.
[353 C E] The certificate by the Court referred to in Section 66 C.P.C. is a certificate under Order 21, Rule 94.
The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction.
Sale by a Court through the Receiver appointed by Court is not contemplated under these provisions.
In a sale by a Receiver a certificate to the purchaser under Order 21, Rule 94, is not given by the Court.
Therefore, the prohibition under Sec. 66 cannot be invoked in the case of a sale by the Receiver.
A Receiver is appointed under Order 40 Rule 1, and a property can be sold by the Receiver on the directions of the Court even by private negotiations.
The requirement of Sec. 66 of the C.P.C., is a certificate by the Court as prescribed.
Since Section 66 is not applicable to sales by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of section 66.
Section 66 refers to execution of sales only and has no application to a sale held by a Receiver.
In this case, the conveyance exhibit 5 was in accordance with the original side Rule of the High Court.
[353 E G]


judgement:
Civil Appeal Nos.
1806 1808 of 1969.
From the Judgment and Order dated 30 5 1969 of the Punjab and Haryana High Court in Executive Second Appeals Nos.
1131 1133 of 1968.
H.K. Puri and V.K. Bahl for the Appellant.
Janardhan Sharma and Jitendra Sharma for the Respondent The Judgment of the Court was delivered by DESAI, J.
These appeals by certificate under Article 133(1) (c) of the Constitution granted by the High Court of Punjab & Haryana arise from three Execution Petitions filed by the present appellants for executing three decrees obtained by one Neki (since deceased) in three 224 suits bearing Nos. 313, 360 and 369 of 1961 filed by him for pre emption, to recover physical possession of the lands involved in the suits.
The decrees in favour of Neki were confirmed finally by this Court in Civil Appeals Nos.
1148, 1656 and 2341 of 1966 decided on 25th January 1968.
The Judgment of this Court is reported in Hazari & Ors.
vs Neki & Ors.(1) The facts which ultimately resulted in decrees for pre emption in favour of Neki are fully set out at pages 834 835 of the reported judgment and repeating the same would merely add to the length of this judgment.
Suffice to state that there is no dispute that decrees for pre emption were passed in favour of Neki against the original vendor Dhara Singh and his vendees Hazari and others and the satisfaction of the condition in the decrees of pre emption for payment or deposit of the amounts as directed by the Court within the stipulated time is not questioned in the present proceedings.
It appears that the trial court decreed the suits for pre emption in favour of Neki on 7th November 1962 simultaneously imposing the condition to deposit certain amounts in the three suits by or before 3rd December 1962.
The various amounts were duly deposited in the three decrees by Neki, the decree holder, on 3rd December 1962.
Soon thereafter, on 5th December 1962 Neki sold the lands in respect of which he got the decrees to Zila Singh and others, the present appellants.
The present appellants are subsequent vendees but they will be referred to as the appellants in this judgment.
The former vendees would be referred to as 'first vendees ', the sale in whose favour gave rise to the cause of action for pre emption in favour of Neki against the original vendor Dhara Singh.
After the sale in favour of the present appellants, they applied to be joined as parties to the appeals preferred by the first vendees against the decrees for pre emption which were then pending in the High Court and the Court directed by its order dated 13th July, 1963 that the present appellants be joined as parties to the appeals subject to just legal exceptions.
The appellants then filed Execution Applications Nos. 295, 296, 297/64 seeking to execute the decrees to recover actual possession of the lands purchased by them from Neki.
Original Vendor Dhara Singh and the first vendees filed their objections challenging the right of the present vendees to execute the decrees.
Principal contention raised was that the sale deed of lands in favour of the appellants did not envisage assignment of the decrees and that the right of pre emption being a personal right, the decrees could not be assigned and, therefore, the present appellants who were subsequent vendees from pre emptor Neki, were not entitled and had no locus standi to execute 225 the decrees granted in favour of Neki.
The executing court after examining the relevant provisions contained in section 47 and Order XXI, Rule 16, of the Code of Civil Procedure rejected the objections raised by the first vendees and held that the present appellants were entitled to execute the decrees and directed warrant for possession to be issued.
The first vendees preferred three appeals being Nos.
25/14, 26/14 and 27/14 of 1968 to the District Court at Rohtak.
The learned Additional District Judge who heard these appeals, by a common order rejected the appeals and confirmed the order of the trial Court observing that the pre emptor having deposited the purchase price as directed by the Court, in accordance with the terms of the decrees, his title to the lands was perfected from the date of deposit as provided in Order XX, Rule 14 (1)(b), C.P.C., the appellants as purchasers of lands from the pre emptor in whose favour the decrees for pre emption including the one for possession had become final, were entitled to recover possession under section 146 C.P.C. Hazari, Amar Singh and Bhan Singh the first vendees preferred three Execution Second Appeals Nos.
1131,1132 and 1133/68 to the High Court of Punjab & Haryana.
When these appeals came up before a learned single Judge of the High Court it was contended that in view of the decision in Ram Singh & Ors.
vs Gainda Ram & Ors, The assignee of a holder of a decree for pre emption cannot seek the assistance of the Court for executing the decree for pre emption because the decree is a personal one and, therefore, non assignable.
On behalf of the present appellants who were respondents before the High Court, reliance was placed on the decision in Satyanarayana vs Arun Naik and Ravi Parkash and Anr.
vs Chunilal & Ors.
The learned single Judge had certain reservations about the correctness of the decision in Ram Singh 's case and, therefore, he considered it prudent to refer the matter to a Division Bench.
The matter ultimately had to be referred to a Full Bench because there was another decision in Mehrkhan and Shah Din vs Ghulam Rasul, which also required reconsideration.
That is how the matter came before a Full Bench.
The Full Bench formulated the question for its consideration as under: "Whether the purchaser of land from a pre emptor of which the pre emptor has become the owner in pursuance of a pre emption decree after complying with the 226 provisions of Order XX, Rule 14 Civil Procedure Code could execute the decree in order to obtain possession of the land purchased by him.
" All the three Judges of the Full Bench wrote separate opinions.
D. K. Mahajan, J. was of the opinion that assuming that a decree of pre emption is a personal decree, the transferees of the land from the pre emptor whose title was perfected by deposit as envisaged in O. XX, Rule 14 (1) (b) were entitled to execute the decree granted by the Court in favour of the pre emptor and can seek assistance of the Court for recovering actual possession from the first vendees who had no right to continue in possession, apart from O. XX, Rule 16 under section 146 C.P.C. P. C. Pandit, J. and H. R. Sodhi, J., the other two members of the Full Bench were of the opinion that the right of pre emption being a personal right, a decree for pre emption will be a personal decree and is not assignable and even if title to the land passed to the vendees who purchased the land from the pre emptor after the pre emptor complied with the provisions contained in Order XX, Rule 14 yet they would not be entitled to execute the decree for possession because decree is not assigned and section 146 would not help the present appellants.
In accordance with this majority opinion, the appeals preferred by the first vendees were allowed and the applications for execution filed by the present appellants were dismissed.
The High Court granted a certificate under Article 133 (1) (c) of the Constitution because in its opinion the question involved in the appeals was of considerable importance and was likely to arise frequently and that it deserved to be decided finally by the Supreme Court.
Mr. Janardan Sharma, learned counsel for the respondents urged that looking to the scheme of sections 4, 6 and 15 of the Punjab Pre emption Act, 1930, it is incontrovertible that foundation of the right of pre emption being close personal relationship, it is a personal right and can be exercised only by the person in whom it vests under the law and if in exercise of such right such a qualified person seeks to pre empt a sale by instituting an action in a Court of law, the resultant decree would be a personal decree.
Urged Mr. Sharma further that if the decree is a personal one, obviously it cannot be assigned and the assignee gets no interest in a decree so as to enable him to execute the decree.
The question whether the right of pre emption conferred by the provisions of Punjab Pre emption Act, 1913, is a personal right or it creates an interest in the property is 227 no more res integra and is concluded by a decision of this Court between the very parties who are parties to the present appeals, in an earlier round of litigation wherein the first vendees, the present respondents had challenged the right of Neki deceased pre emptor to obtain a decree for pre emption.
Apart from the fact that the point is concluded by a decision of a Bench of three Judges of the Court, it is inter partes and, therefore, binding on the respondents whom Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re opened or re examined.
As the matter calls for no examination at the hands of the Court it would suffice to quote what has been held in Hazari & Ors.
vs Neki & Ors.
Ramaswami, J. speaking for the Court, observed as under: "In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre emption.
The argument was that the statutory right of pre emption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki.
We are unable to accept the argument put forward by the appellants.
It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same.
It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land.
The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute.
In other words, the statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre empt." Mr. Janardan Sharma, however, sought to distinguish the position under a voluntary inter vivos transfer and an involuntary 228 transfer such as by way of inheritance and urged that in this case Neki having sold the lands to the present appellants by sale inter vivos they cannot enjoy the fruits of the decree.
This distinction is immaterial as far as the present case is concerned because the question in terms disposed of by the Court is that Neki having complied with Order XX, Rule 14, had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings.
The contention, therefore, that decree in a suit for pre emption is a personal decree and creates no interest in land, the subject matter of pre emption, must accordingly fail.
The next contention is that the deed evidencing the sale of lands Ext.
D 1 dated 15th February, 1963 merely transferred the lands but does not purport to assign the decree, then in the absence of such an assignment the purported assignee cannot execute the decree in view of the provision contained in Order XXI, Rule 16, and therefore, the execution applications at the instance of the present appellants are not maintainable.
The Additional District Judge did not decide the contention whether the Execution Applications at the instance of the present appellants, namely, subsequent transferees were maintainable under O. XXI, Rule 16, because in his opinion the present appellants were entitled to execute the decree under section 146 of the Code of Civil Procedure.
The majority view of the High Court is that the subsequent transferees, the present appellants, were not entitled to execute the decree under O. XXI, Rule 16 because the decree for pre emption being a personal one cannot be assigned and alternatively if it could be assigned, as a matter of fact, it has not been assigned and therefore the applications for execution at their instance are not maintainable.
They were further of the view that section 146 would not assist the appellants as provisions contained in O. XXI, Rule 16 being a specific contrary provisions, section 146 cannot be invoked.
Order XXI, Rule 16 permits an execution of a decree at the instance of an assignee by transfer of a decree, the assignment may be in writing or by operation of law and if such an application is made, the court to which an application is made shall issue a notice to the transferor of the decree and the judgment debtor and the decree cannot be executed until the Court heard their objections, if any, to its execution.
Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.
Explanation appended to 229 section 47 provides that for the purposes of that section amongst others a purchaser at a sale in execution of the decree is deemed to be a party to the suit.
It would have been interesting to examine the question whether the purchaser of land from a pre emptor in whose favour a decree for pre emption has been passed and who subsequent to the decree complied with the requirement of Order XX, Rule 14 and thereby perfected his title would be, on the analogy of a purchaser at a sale in execution of a decree, a party to the suit or at any rate the representative of the decree holder or a successor in interest of the decree holder, but as we are of the opinion that the applications for execution filed by the present appellants are maintainable under section 146 C.P.C. the larger question need not be decided in these appeals.
Section 146 reads as under: "Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." Shorn of unessentials the section provides that where some proceeding could be taken or application could be made by a person under the Code of Civil Procedure any other person claiming under him is entitled to make and maintain such an application.
The limitation on the exercise of this right is to be found in the expression, 'save as otherwise provided by this Code '.
It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in the absence of a provision to the contrary, section 146 would enable any one claiming under such person as well to make the same application.
The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right to maintain an application is beyond dispute.
Section 146 came in for consideration in Jugal kishore Saraf vs Raw Cotton Co. Ltd. In that case the facts were that the plaintiffs in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit.
The transferees did not apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree.
Subsequently the 230 transferees as decree holders applied for execution of the decree against the judgment debtor and upon a notice being issued, a contention was raised that the application was not maintainable under Order XXI, Rule 16.
One submission was that even if the application for execution was not maintainable under O. XXI, Rule 16, it would certainly be maintainable at the instance of the transferees of the original debt under section 146.
Accepting this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law.
In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree holder.
It was further held in that case that the transferees of the debt derived their title to the debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to make an application for execution under section 146 of the Code of Civil Procedure.
Bhagwati, J. in a separate and concurring judgment on this point observed that the only meaning that can be assigned to the expression 'save as otherwise provided by this Code ' in sec.
146 is that if a transferee of the decree can avail himself of the provision contained under Order XXI, Rule 16 by establishing that he is such a transferee he must only avail himself of that provision.
But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of O. XXI, Rule 16 there is nothing in that provision which prohibits him from availing himself of section 146 if the provision of that section can be availed of by him.
It would thus appear that if the sale deed in respect of land on its proper construction would show that the decree itself was assigned obviously the application for execution would be maintainable under O. XXI, Rule 16.
But if the appellants do not fall within the four corners of O. XXI, Rule 16 and they appear not to fall within the four corners of it, because though the land, the subject matter of the decree is sold to appellants, the decree itself is not assigned, they would nonetheless be able to maintain application for execution under section 146 as persons claiming under the decree holder.
The respondents cannot have both the ways.
If the deed evidenced transfer of decree by assignment then O. XXI, Rule 16 would be attracted but if, as it appears, there is no transfer of decree by assignment, the lands having been sold by the decree holder after perfecting his title and purchased by the present appellants they would be persons claiming under the original pre emptor decree holder Neki and if Neki could have made an application for 231 execution of the decree as decree holder, the present appellants, as purchasers of land from Neki would certainly be claiming under Neki and, therefore, their application for execution would certainly be maintainable under section 146.
In this connection it would be advantageous to refer to Smt.
Saila Bala Dassi vs Smt.
Nirmala Sundari Dassi and Another(1) wherein it has been in terms held that section 146 was introduced for the first time in Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense.
Viewed from this angle the present appellants must succeed because they purchased land from pre emptor Neki and the validity of sale being now beyond dispute, they are persons claiming under Neki whose right to execute the decree was never disputed and, therefore, appellants claiming under the vendor Neki would be able to maintain an application for execution under section 146 of the Code of Civil Procedure.
Appellants are thus entitled to execute the decree for possession.
Accordingly these three appeals are allowed and the decision of the High Court dated 30th May, 1969 in Execution Appeals Nos. 1131, 1132 and 1133 of 1968 is set aside and the decision of the Additional District Judge dated 15th July, 1968 is restored, but in the circumstances of the case there would be no order as to costs.
N.V.K Appeals allowed.

summary:
The original vendor of the lands in dispute sold them to the first vendee.
In the meantime three decrees for pre emption were passed in favour of the pre emptor and against the vendor and his vendees.
After satisfying the conditions imposed in the decrees regarding deposit of certain sums of money the pre emptor sold the lands to the appellants.
In the execution petition filed by the appellants the original vendor as well as the first vendees filed their objections challenging the right of the appellants to execute the decrees on the ground that the right of pre emption being a personal right of the pre emptor, the decrees could not be assigned and that the present appellants being subsequent vendees from the pre emptor were not entitled to execute the decrees granted in his favour.
Rejecting the objections of the first vendees the executing court held that the appellants were entitled to execute the decrees.
On appeal the Additional District Judge held that the pre emptor having complied with the directions contained in the decree his title to the lands was perfected and that the appellants were entitled to recover possession under section 146, CPC.
In execution second appeals of the first vendees the High Court held that the right of pre emption being a personal right, the decree for pre emption would be a personal decree and was not assignable and even if the pre emptor had complied with the provisions of Or.
XX r. 14 CPC, the appellants would not be entitled to execute the decree for possession because the decree was not assigned and section 146 would not help the present appellants.
Allowing the appeals, ^ HELD: 1(i) The question whether the right of pre emption was a personal right or it created an interest in property was concluded by the decision of this Court between the same parties in an earlier round of litigation.
The earlier litigation being inter partes and, therefore, binding on the respondents, it cannot be reopened or re examined at the instance of the respondents.
[226 H 227 B] (ii) The contention that decree in a suit for pre emption is a personal decree and creates no interest in land must fail.
[228 B] (iii) The distinction between a voluntary inter vivos transfer and an involuntary transfer such as by way of inheritance is immaterial as for as the present case is concerned because the question in terms disposed of by 223 this Court in the earlier case is that the pre emptor having complied with O. XX, r. 14 had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings.
[227 H 228 A] Hazari & Ors.
vs Neki & Ors.
, ; ; referred to.
Section 146 CPC provides that where some proceedings could be taken or application could be made by a person under the Code of Civil Procedure any other person claiming under him is entitled to make and maintain such an application.
The only limitation on the exercise of this right is in the expression, 'save as otherwise provided by this Code, ' occurring in the section.
[229 E] 3.
If the assignee of a decree can avail himself of the provisions contained under Or.
XXI R. 16 by establishing that he is such an assignee he must only avail himself of that provision.
But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of Or.
XXI r. 16, there is nothing in that provision which prohibits him from availing himself of section 146 if the provision of that section can be availed of by him.
[230 E] Jugal Kishore Saraf vs Raw Cotton Co. Ltd., ; ; referred to.
In the instant case though the sale deed in respect of land would show that the decree itself was not assigned, the lands having been sold by the decree holder after perfecting his title and purchased by the present appellants, they would be persons claiming under the original pre emptor decree holder and if he could have made an application for execution of the decree as decree holder, the applications for execution by the present appellants would be maintainable under section 146, and they are therefore entitled to execute the decrees for possession.
[231 C D] Smt.
Saila Bala Dassi vs Smt.
Nirmala Sundari Dassi & Anr., ; ; referred to.


judgement:
ition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners.
Lal Narain Sinha, U. P. Singh and section N. Jha for the Respondent.
section V. Gupte, Attorney General, R. N. Sachthey for the Attorney General.
The Order of the Court was delivered by BHAGWATI, J. The Government of Bihar has filed before us a note containing the proposed clarification of paragraph 2(e) of the Government Order dated 9th February, 1979, pursuant to the suggestion made by us in our order dated 19th February, 1979.
This clarification states in paragraph one that where the police investigation in a case has been delayed by over two years, the Superintendent of Police will see to it that the investigation is completed expeditiously and final report or charge sheet is submitted by the police as quickly as possible and the responsibility to ensure this has been laid personally on the Superintendent of Police.
We are glad to note that the State Government has responded to our suggestion but we are not at all sure whether it is enough merely to provide that the investigation would be completed expeditiously and the final report or charge sheet submitted as quickly as possible.
We are of the view that a reasonable time limit should be set by the State Government within which these steps should be taken, so that no further delay is occasioned in the submission of the final report or charge sheet.
We fail to see how any police investigation can take so long as two years and if police investigation cannot be completed within two years, then there must be something radically wrong with the police force in the State of Bihar.
It appears that there are a number of cases where police investigation has not been completed for over two years and persons have been in jail as under trial prisoners for long periods.
This is a shocking state of affairs so far as the administration of law and order is concerned.
We would, therefore, suggest that in those cases where police investigation has been delayed by over two years, the final report or charge sheet must be submitted by the police within a further period of three months and if that is not done, the State Government might well withdraw such cases, because if after a period of over two years plus an additional period of three months, the police is not able to file a charge sheet, one can reasonably assume that there is no case against the arrested persons.
395 The Government of Bihar has also filed a counter affidavit made by Mr. Mrinmaya Choudhry, Assistant Inspector General of Prisons (1), Bihar setting out the particulars in regard to 18 under trial who have been ordered to be released by us on their personal bond.
The particulars given in this counter affidavit make very distressing reading.
It appears from this counter affidavit that there are quite a few women prisoners who are in jail without even being accused of any offence, merely because they happen to be victims of an offence or they are required for the purpose of giving evidence or they are in "protective custody".
The expression 'protective custody ' is a euphemism calculated to disguise what is really and in truth nothing but imprisonment.
It is an expression intended to appease the conscience.
It cannot be gainsaid that women who have been kept in jail under the guise of 'protective custody ' have suffered involuntary deprivation of liberty for long periods without any fault on their part.
We may point out that this so called 'protective custody ' is nothing short of a blatant violation of personal liberty guaranteed under Article 21 of the Constitution, because we are not aware of any provision of law under which a woman can be kept in jail by way of "protective custody" or merely because she is required for the purpose of giving evidence.
The Government in a social welfare state must set up rescue and welfare homes for the purpose of taking care of women and children who have nowhere else to go and who are otherwise uncared for by the society.
It is the duty of government to protect women and children who are homeless or destitute and it is surprising that the Government of Bihar should have come forward with the explanation that they were constrained to keep women in 'protective custody ' in jail because a welfare home maintained by the State was shut down.
We direct that all women and children who are in the jails in the State of Bihar under 'protective custody ' or who are in jail because their presence is required for giving evidence or who are victims of offence should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after.
We also find from the counter affidavit that Bhola Mahto was in jail from 23rd November, 1968 until 16th February, 1979 when he was released on his personal bond pursuant to the directions given by us by our order dated 5th February, 1979.
He is accused in a case under Section 363 & 368 of the Indian Penal Code and he was committed to the court of Sessions on 13th September, 1972 but his sessions trial has not yet commenced.
It is amazing that a sessions 396 trial of a person committed to the court of sessions as far back as 13th September 1972 should not have been commenced for about seven years.
We direct that the Sessions Judge, Patna should forward to this Court through the High Court of Patna an explanation as to why the sessions trial of Bhola Mahto has not yet commenced.
This is also a matter to which we would invite the attention of the High Court of Patna.
The same may be said also of Ram Sagar Mistry who was admitted in jail on 28th March, 1971 and committed to the Court of Sessions on 28th June, 1972 on a charge under section 395 of the Indian Penal Code but whose trial has not yet commenced before the Court of Sessions though a period of more than six years has elapsed since the date of his commitment and a period of eight years since the date of his imprisonment.
The counter affidavit shows that Babloo Rai who is reported to be a Naxalite is in jail since 15th May, 1975.
He is alleged to be involved in five cases which are set out in the counter affidavit.
So far as he is concerned, it will be open to him to make an application to the Magistrate before whom he is produced, for being released on bail or on his personal bond and the Magistrate will deal with his application in accordance with broad guidelines laid down by us in our judgment dated 12th February, 1979.
We are not at all sure on reading the counter affidavit whether the under trial prisoners whose particulars are given there, are being produced periodically before the Magistrate as required by the proviso to Section 167(2) of the Code of Criminal Procedure, 1973.
We should like to know from the Government in a proper affidavit to be filed before us on or before 3rd March, 1979 whether these under trial prisoners were periodically produced before the Magistrate in compliance with the requirement of the proviso to Section 167(2).
The proviso to Section 167(2) says that the Magistrate may authorise the detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so.
We hope and trust that in these cases the Magistrates concerned did not act mechanically but applied their mind and satisfied themselves that adequate grounds existed for remanding these persons to judicial custody from time to time over a period varying from two to ten years, though we fail to see how the Magistrates could possibly have been satisfied about the existence of adequate grounds for remanding these persons to judicial custody for such long periods of time ranging from two to ten years for the purpose of police investigation.
This is also a matter which we would like the High Court of Patna to consider after making a detailed inquiry.
397 The Government of Bihar has also filed before us a list giving particulars of the under trial prisoners who are confined in 17 jails in Bihar for more than 18 months as on 1st February, 1979.
The chart shows that there are under trial prisoners confined in these jails for long periods of time and sometimes even exceeding the maximum punishment which could be awarded to them even if they are found guilty of the offences charged against them.
To take an example, we find at Item 30 one Lambodar Gorain has been in Ranchi Jail since 18th June, 1970 for an offence under Section 25 of the Arms Act for which the maximum punishment is two years, with the result that he has been in jail as an under trial prisoner for 8 1/2 years for an offence for which even if convicted, he could not have been awarded more than two years ' imprisonment.
There are many such cases in the chart, but it is not possible to identify them easily from the chart because the chart contains a large number of names of under trial prisoners.
We would, therefore, direct the Government of Bihar to submit to us on or before 3rd March, 1979 a revised chart showing yearwise break up of the particulars of the under trial prisoners in these jails after dividing them broadly into two categories, one of minor offences and the other of major offences.
Our attention has also been drawn to Section 468 of the Code of Criminal Procedure 1973 which in sub section (1) provides that except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub section (2) after the expiry of the period of limitation and under sub section (2) the period of limitation provided is six months, if the offence is punishable with fine only, one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
It would, therefore, be seen that the under trial prisoners against whom charge sheets have not been filed by the police within the period of limitation provided in sub section (2) of Section 468 cannot be proceeded against at all and they would be entitled to be released forthwith, as their further detention would be unlawful and in violation of their fundamental right under Article 21.
We, therefore, direct the Government of Bihar to scrutinise the cases of under trial prisoners charged with offences which are punishable with fine only or punishable with imprisonment for a term not exceeding one year or punishable with imprisonment for a term exceeding one year but not exceeding three years and release such of them who are not liable to be proceeded against by reason of the period of limitation having expired.
This direction shall be carried out by the Government of Bihar within a 398 period of six weeks from today and compliance reports containing particulars shall be submitted to this Court, first at the end of four weeks and then at the end of the next two weeks.
We also find from section 167(5) of the Code of Criminal Procedure, 1973 that if in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.
We are not at all sure whether this provision has been complied with, because there are quite a few cases where the offences charged against the under trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months.
We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the under trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today.
We would also request the High Court to look into this matter and satisfy itself whether the Magistrates in Bihar have been complying with the provisions of section 167(5).
We adjourn the hearing of the Writ Petition to 5th March, 1979 and on that date, we shall proceed to hear and dispose of the Writ Petition on merits on the various questions arising for determination.

summary:
At the further hearing of the case on release of under trials in the State of Bihar, ^ HELD: (a)(i) The expression 'protective custody ' is an euphemism calculated to disguise what is really and in truth nothing but imprisonment.
It is an expression intended to appease the conscience.
This so called 'protective custody ' is nothing short of a blatant violation of personal liberty guaranteed under article 21 of the Constitution, because there is no provision of law under which a woman can be kept in jail by way of 'protective custody ' or merely because she is required for the purpose of giving evidence.
[395C D] (ii) The Government in a social welfare state must set up rescue and welfare homes for the purpose of taking care of women and children who have nowhere else to go and who are otherwise uncared for by society.
[395E] (b) The under trial prisoners against whom charge sheets have not been filed by the police within the period of limitation provided for in sub section (2) of section 468 cannot be proceeded against at all and they would be entitled to be released forthwith, as their further detention would be unlawful and in violation of their fundamental right under article 21.
[397 G] (c) The provision of section 167(5) of the Code of Criminal Procedure 1973 requiring the investigating officer to satisfy the Magistrate on the necessity of continuation of the investigation beyond a period of six months has not been complied with, because there are quite a few cases where the offences charged against the under trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months.
[398C] And the Court directed that: (a) All women and children in the jails in the State of Bihar under 'protective custody ' should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after.
[395F] (b) The State Government should scrutinise the cases of under trial prisoners and release such of them who are not liable to be proceeded against by reason of the period of limitation provided in section 468 Cr.
P.C. having expired.
[397H] (c) The State Govt.
should inquire into those cases where the investigation has been going on for a period of more than six months without the satisfaction 394 of the Magistrate as envisaged in section 167(5) and to release the under trials unless the necessary orders of the Magistrate are obtained within one month.
[398D E]