judgement:
Appeal No.155 of 1953.
Appeal by special leave from the Judgment and Order dated the 15th July, 1953, of the Election Tribunal, Nagpur, in Election Petition No. 3 of 1952.B. Sen and T. P. Naik for the appellant.
Veda Vyas (section K. Kapur with him) for respondent No. 1. 1954.
February 15.
The Judgment of the Court was delivered by Bose J.
This is an appeal against a decision of the Nagpur Election "Trbunal.
The contest before the tribunal was about two seats in the Bhandara Parliamentary Constituency.
The elections were held on five days 'in December, 1951, and January, 1952.
819 Thirteen candidates filed nomination papers, among them the petitioner.
Of these, six contested the seat reserved for the Scheduled Castes.
One of these was Gangaram Thaware who has since died.
The Scheduled Caste in question is the Mahar caste.
Objection was taken to Thaware 's nomination for the reserved seat on the ground that he was not a Mahar.
It is admitted that he was born a Mahar, but later in life he joined the Mabanubhava Panth.
This, according to the appellant, is a sect which does not believe in caste, and alternatively that it forms a separate caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste ' The objection succeeded and his nomination was rejected.
The nomination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner.
That left six candidates of whom three were eligible for the reserved seat.
The two who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, nor the general seat.
Jasani 's election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act (Act XLIII of 1951) as he was interested in a contract for the supply of goods to the Central Government.
The Election Tribunal held that the rejection of Gangaram Thaware 's nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava.
Panth.
It also held that Chaturbhuj Jasani had a contract with the Central Government, so he was disqualified.
Accordingly it set aside the whole election.
We will deal with Chaturbhuj Jasani 's election first.
Section 7(d) is in these terms : "A person shall be disqualified for being chosen as, and for being, a member etc.
* * * * 820 (d)if by himself he has any share or interest in a contract for the supply of goods to the appropriate Government." Chaturbhuj Jasani was, and still is, a partner in the firm of Moolji Sicka & Company, and it is said that at all material times the firm had a contract for the supply of bidis to the Government for the troops.
Moolji Sicka & Company is a firm of bidi manufacturers.
The Central Government was interested in stocking and purchasing bidis for sale to its troops through its canteens.
Accordingly, it placed two of the brands of bidis manufactured by this firm on its approved list and entered into an arrangement with the firm under which the firm was to sell, and the Government was to buy from the firm, from time to time, these two brands of bidis.
It was argued that this amounted to a contract for the supply of goods within the meaning of the section.
It was said that the contract was embodied in four letters.
We do not intend to analyse these letters in detail.
It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales.
This, in our opinion, constituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the commission on all orders placed and accepted in accordance with the arrangement ; and in fact the Canteen Stores did obtain a sum of Rs. 7,500 'in satisfaction of a claim of this kind.
This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and 'that it was a continuing one.
In our opinion, it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive.
But except for this, the; letters merely set out the terms on which the parties were ready to do business with 821 each other if and when orders were placed and executed.
As soon as an order was placed and accepted a contract arose.
It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract.
Also, each separate order and acceptance constituted a different and distinct contract: see Rose and Frank Co. vs J. R. Crompton & Bros. Ltd.(1) The crucial dates with which we are concerned are 15th November, 1951, the last date for putting in the nominations, and 14th February, 1952, the date on which the results were declared.
The section runs "A person shall be disqualified for being chosen as.
The words which follow, "and for being", need not be considered as it is enough for our purposes to use only the former.
Now the words of the section are "shall be disqualified for being chosen.
" The choice is made by a series of steps starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen.
The disqualification alleged in this case is that Chaturbhuj Jasani had an interest in a contract, or a series of contracts, for the supply of goods to the Central Government.
He had this interest because the contracts were made with Moolji Sicka & Company a firm of which Jasani is one of the partners.
The fact of partnership is admitted but the other facts are denied.
We have therefore to see whether any contract for the supply of goods to Government by Moolji Sicka & Company existed at any 'time on or between the relevant dates.
Exhibit C is a tabular statement which sets out the dealings between the parties during certain months.
It is accepted as correct by both sides.
The following extracts from this statement show that Moolji Sicka & Company had an interest in a series of contracts for the sale of bidis to the Canteen Stores at and between the relevant dates.
(1) ; 822 Date of order Date of invoice Price of Date of by and goods pay Canteen Stores Despatch.
supplied.ment. 8 10 1951 18 10 1951Rs.
1,684 13 919 12 1951.
8 10 195119 10 19513,373 9 3do 17 8;195126 10 195112,602 8 0do 12 9 195126 10 195111,426 14 6do 11 10 195126 10 19518,411 14 0do 21 10 195130 11 195110,125, 2 9do 9 8 195129 8 195125,812 12 024 12 1951 8 10 195118 10 19514,793 4 9do 14 11 195122 11 1951:1,887 9 95 I .1952 17 10 19518 11 195116,534 2 022 1 1952 12 11 195120 11 19514,205 15 0do 13 12 195110 1 195213,97,079 7 912. 2 1952 14 1 195222 1 19521,691 11 9do 21 12 195110 1 195216,983 8 018 2 1952 12 11 195122 11 19518,411 14 013 3 1952 9 1 195216 1 19525,888 4 9do 23 1 195228 1 19528,411 ,14 020 3 1952 This statement reveals that various contracts aggregating Rs. 15,39,345 6 0 less some small sums for railway freight, were outstanding at one time or another between the two crucial dates and that payments in discharge of these liabilities were made at various dates between 15th November, 1951, and 20th March, 1952.
It also shows that orders were placed and accepted for goods priced at Rs. 84,659 14 3 before 15th November, 1951, and that payment was not made till after that date.
Therefore, on 15th November, 1951, goods worth Rs. 84,659 14 3 had still to be paid for.
Then between 15th November, 1951, and 14th.
February, 1952, further orders for goods valued at Rs. 39,695 8 9 were placed And accepted and they were not paid for till after 14th February, 1952.
It was argued that there is nothing to show that.
the goods were, not supplied before 15th November, 1951, and before 14th February, 1952.
It was said on behalf of 'the appellant that these are the only dates which are crucial, so if Moolji Sicka.
& Company hid.
fully 823 executed their part of the contracts before the two crucial dates the disqualification would not apply.
That raises these questions: (1) Does a person who has fully executed his part of a contract continue to have an interest in it till the goods are paid for ?; and (2) were these contracts fully executed so far as Moolji Sicka & Company 's part was concerned? The parties are not agreed about this, so it will now be necessary to examine their letters in detail to determine the terms of the various contracts.
The correspondence discloses that the Canteen Stores and Moolji Sicka & Company dealt with each other from time to time under various arrangements which they called " systems.
The earliest letter we have about the transactions between these parties is one dated 30th March, 1951.
It shows that the "system" which they called the " Direct Supply System " was in use at that time.
The details of the " system " are set out in an order dated 17th April, 1951.
Under it Moolji Sicka & Company had to send supplies of bidis direct to the Canteen Stores contractors as and when ordered.
The value of the goods so supplied was to be recovered from the contractors direct and the Canteen Stores were to be informed of the sales and were to be paid a certain commission.
This led to some friction and in their letter of 30th March, 1951, the Canteen Stores complain that information about some of the sales to the contractors had been suppressed with the result that the Canteen Stores lost their commission.
Moolji Sicka & Company replied to this on 24th April, 1951, and suggested a slight change in the system, namely that all orders for the goods should in future be placed through the Canteen Stores and that there should be no dealings with the contractors direct except to supply them with the goods ordered by the Canteen Stores; then, ' they said, there would be no complaint about their having been kept in the dark.
This appears to have been agreed to because such of the subsequent order& as are on record were placed by the Canteen Stores.
824 The order dated 17th April, 1951, to which we have referred above is a sample.
This was considered unsatisfactory and it was felt that a change was called for.
Moolji Sicka & Company 's letter of 24th April, 1951, shows that their complaint was that the Canteen Stores did not keep a sufficient stock of bidis on hand.
They said " We feel that you can stock more of our bidis.
And that will mean an added profit to you; since the rebate you get on supplies made under the Direct Supply System is Rs. 4 only, whereas on supplies made to you we have now offered a much higher rebate. . .
We have therefore to request you to kindly 8stock more of our bidis.
" In view of this, two representatives of Moolji Sicka & Company, met the Chairman of the Board of Administration, who was in charge of the Canteen Stores Department, on 10th July, 1951.
They reached certain tentative conclusions which were reduced to writing by the Canteen Stores on 11th July, 1951.
Their letter of that date shows that the Canteen Stores proposed to abolish the Direct Supply System in the near future but so far as Moolji Sicka & Company were.
concerned they said that the system could be abolished.
at once (" forthwith " is the word used) provided Moolji Sicka & Company would agree to supply bidis for the Bombay, Calcutta and Delhi Depots of the Canteen Stores under a new system which they called the " Consignment System ".
Under this the Canteen Stores were to pay as they sold.
But the new system was intended only for the Bombay, Calcutta and Delhi Depots of the Canteen Stores.
The letter goes on to say that for the Pathankot and Srinagar Depots the supplies would have to be made on the " Outright Purchase Basis ".
These proposals were embodied under the heading " Future Business RelationsThen there was a provision for what was called theTransition Period ".
That said that Untilstocks could be placed in our depots, it was agreed that you would supply your bidis direct against our orders and on such supplies you would allow us rebate as at present.
825 These proposals were sent to Moolji Sicka & Company for confirmation.
It will be seen that the ' letter makes four proposals: (1)That so far as Moolji Sicka & Company were concerned, " The Direct Supply System " should be terminated at once though, so far as other manufacturers were concerned, it should continue in force for some time longer; (2)That in its place the Calcutta, Bombay and Delhi Depots were to be supplied under a new system called the " Consignment System "; (3)That the Pathankot and Srinagar Depots were to be supplied under another new system called the Outright Purchase System "; (4)That during the "transition period" the "Direct Supply System" was to continue in operation " as at present " even with Moolji Sicka and Company.
Moolji Sicka & Company replied on 16th July, 1951, saying that they were prepared to accept these terms provided the Canteen Stores confirmed certain modificatioins which Moolji Sicka & Company proposed.
They were as follows: (1)Regarding the " Transition Period " they said" "We are pleased to note that you will soon be abolishing the Direct Supply System.
But it should be applied to all suppliers at the same time.
Till then we should be allowed to supply any orders received from the Canteen Contractors.
You should inform us of the date on which Direct Supply System will be discontinued.
(2) Regarding the new proposals under the heading Future Business Relations Moolji Sicka & Company said "Goods sent to your depot on consignment basis must be either returned to us or paid for fully within three months of the date of supply.
We understand that the system.
of supplying goods on consignment basis will be discontinued in about six months ' time.
" 107 826 (3) They said " And for this purpose we have agreed to offer you Rs. 7,500 in full and final settlement of all your claims to date and upon the understanding of your acceptance of the terms for future business.
They concluded " Upon receiving your confirmation we shall instruct our Bombay office to send you the cheque for the amount stated above.
" The Rs. 7,500 was what the Canteen Stores claimed from Moolji Sicka & Company as compensation for breach of the agreement under which Moolji Sicka & Company had agreed not to sell to the Canteen Contractors without paying the Canteen Stores a commission.
Neither side was able to produce exact figures but this was the estimate made by the Canteen Stores of the loss suffered by them by reason of that breach.
It will be seen that the proposal about the " Consignment System " which the Canteen Stores made was that they would pay Moolji Sicka & Company only when they sold the stocks with which Moolji Sicka & Company were to supply them for stocking their depots at Calcutta, Bombay and Delhi.
Moolji Sicka & Company were not satisfied with this and said that the Canteen Stores must either return or pay for all stocks supplied, within three months from the date of supply.
The Canteen Stores replied on 19th July, 1951, as follows: (1) They accepted Moolji Sicka & Company 's suggestion that when the Direct Supply System was abolished the abolition would apply to all suppliers of bidis.
(2) As regards the " Consignment Account System they did not turn down the proposals but observed that they were thinking of doing away with that too in favour of the " Outright Purchase System" and warned Moolji Sicka & Company that in view of that it might not be necessary to place any of Moolji Sicka & Company 's stocks in their depots.
827 (3) They wanted a six months ' guarantee period in place of three months.
The letter concludes "Although under the system of provisioning,adopted by us, and as explained to you during our discussions, it may not be that we shall at any time have any stocks surplus to our requirements or stocks which have not been disposed of within the guarantee period, but should there be any solitary occasions will you please confirm that you will replace Such stock with fresh stock without any cost to us? We await your agreement by return.
" They also said, "We now await your cheque for Rs. 7,500.
Moolji Sicka & Company replied on 26th July, 1951, and commenced by saying " We agree to all you have said in page one of your letter under reply.
" Regarding the guarantee they said they could not agree to six months but would agree to three provided the guarantee was limited to goods found to be defective because of faults in manufacture.
They concluded "We have also to pay you Rs. 7,500 as per our ' letter, dated 16th July, 1951," and asked how the Canteen Stores would like the payment to be made.
The Canteen Stores replied on 31st July, 1951, and explained what they meant by the " guarantee period ".
Bidis deteriorate by keeping, so the idea was to have a system under which they could be returned within six months to prevent their deterioration.
They explain that this is in the interests of the 'manufacturer because (1) it will not bring their brands into disrepute, for that would, be the inevitable result if stale bidis which had deteriorated were sold in the canteens and (2) if the period is made too short, then "the goods will not stay in our depots and in the stalls of our canteens and contractors long enough to sell and hence our depots will always be,, anxious to 828 return these stocks.
The result will be obvious.
Your sales will be, lower.
They continue " We therefore consider that the period of six months should be the least before the expiry of which goods may be taken back by you and replaced. . .
The period of three months within which you expect us to return your stocks, should we find them not moving, will be too short.
" They conclude by saying that they hope Moolji Sicka & Company will agree to the six months.
Now it will be seen that all this correspondence related to the proposals about the " Consignment System " which were first mooted on 11th July, 1951.
Moolji Sicka & Company complained on 24th April, 1951, that the Canteen Stores were not keeping large enough stocks of their bidis and they asked the Canteen Stores to stop the Direct Supply System and purchase stocks direct.
The Canteen Stores were naturally reluctant to keep large stocks on hand because bidis 'deteriorate and become unsaleable in course of time.
Therefore they proposed the " pay as we sell " system, that is, they would keep stocks of bidis and pay for whatever they sold.
But the problem of unsold stocks deteriorating still remained.
Who was to be responsible? The obvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh consignments for sale on the " pay as we sell " basis.
We say "obvious" because the manufacturers could use the stale tobacco by re curing and blending it, or could use it for other purposes provided it was not too far gone.
The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka & Company 's bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months.
Moolji Sicka & Company were then to replace them with fresh stocks which would be paid for when sold.
This was agreed to in the main but the point at which they were at issue was the six months.
Mooli Sicka & Company proposed three months while the 829 Canteen Stores wanted six months.
We think 'the argument used in the letter of 31st July, 1951, that " the result will be obvious.
Your sales will be lower " can only have reference to an arrangement of this kind, otherwise no question of the sales being lower could arise.
In the case of an outright sale, the sale would be complete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them.
The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case, it certainly includes this system.
Moolji Sicka & Company 's reply is dated 9th August, 1951.
They say "We are in receipt of your letter No. 7B/29/ 17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months.
We are sure this will now enable you to keep adequate stocks of our bidis.
Awaiting your esteemed orders.
" This is an acceptance of the interpretation of the " guarantee period " as given by the Canteen Stores in their letter of 31st July, 1951.
The words "now" and "adequate" relate to the dispute which started on 24th April, 1951, when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots.
The ,subsequent correspondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides.
It all ended by Moolji Sicka & Company accepting the terms set out in the letter of 31st July, 1951.
We are accordingly of opinion, that Moolji Sick& & Company accepted the " Consignment System " on 9th August, 1951.
That imported a "pay as we sell" arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold.
in the "transition period " the Direct Supply System was also to continue.
That meant that there would be two systems in force for a time in certain depots: the "Consignment 830 System " regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the " Direct Supply System " till such time as the depots were stocked.
The third system of " Outright Purchase " was limited for the time being to the Pathankot and Srinagar depots.
Both the "Direct Supply" and the "Consignment" systems were abolished together on list November, 1951 (see the Canteen Stores ' letter dated 24th November, 1951).
But the obligation to take back unsold stocks within the six months ' period continued to attach to all contracts for consignment to the Calcutta, Bombay and Delhi depots made between 9th August, 1951, and 31st October, 1951.
The tabular statement shows that the following contracts for consignment to one or other of these three depots were made during that period.
The date of the invoice is the date of the execution of the order and thus of the acceptance of the proposal contained in the order.
Date of Invoice Depot Price of goodsd date & despatch supplied payment.
1 10 1951 Bombay.
Rs. 5,056 2 0 15 11 1951 13 10 1951 do.
13,536 4, 6 do 18 10 1951 Delhi 1,684 13 919 12 1951 19 10 1951 Calcutta 3,373 9 3 do 18 10 1951 Bombay 4,793 4 924 12 1951 The value of these orders comes to Rs. 28,444 2 3.
The obligations under these several contracts continued from 1st April, 1952 to 18th April, 1952.
It was argued that assuming that to be the case then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under the guarantee clause.
We are unable to accept such a narrow construction.
This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods.
When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part.
The consideration for each 831 condition in a case like this is the consideration for the contract taken as a whole.
It is not split up into several considerations apportioned between each term separately.
But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods.
It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements.
But even if all that be disregarded and it be assumed that Moolji Sicka & Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fully discharged.
The words of the sections are "if. he has any share or interest in a contract for the supply of goods to. . the appropriate Government.
" There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of the goods.
Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently.
But we have no doubt that they were contracts for the supply of goods.
The question then is, does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides 9 We are of opinion that it continues in being till it is fully discharged by performance on both sides.
It was contended, on the strength.
of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place.
With the utmost respect we are unable to agree.
There is always a possibility of the liability being disputed before actual payment is made and the vendor may 832 have to bring an action to establish his claim to payment.
The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract.
It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis.
In any case, as we are not bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by both sides: see the observations of Gibson J. in O 'Carroll vs Hasting8(1).
To use the language of O 'Brien L.C.J. in that case at page 599, these contracts have not been "merged, abandoned, rescinded, extinguished or satisfied; and if any demur was made as to payment before payment was actually made, he could have sued upon the contract specially; or if he sued for work done at the request of the defendants the contract would have been.
a part of his necessary proofs" We agree with the learned Lord Chief Justice in thinking that "it is far fetched to contend that a man is not concerned in the contract or security by which he can enforce payment.
" The same view was taken, by Costello J. in an Indian case in Satyendrakumar Das vs Chairman of the Municipal Commissioners8 of Dacca(2).
Counsel for the appellant relied strongly on certain English cases.
They were all examined and distinguished in the above decisions.
They either turned on special facts or on the words of a statute which are not the same as ours.
The leading case appears to be Royse vs Birley(3 ).
But the decision turned on the language of the English statute which the learned Judges construed to mean that the contract must be executory on the contractor 's part before the English Act can apply.
Tranton vs Astor(4) follows the earlier ruling.
The statute with which Darling J. was dealing (1) at 608.
(2) I.L.R. from p. 193 onwards.
(3) (4) 833 in Cox vs Truscott(1) is nearer the language of our Act.
He hesitatingly proceeded on the debtor and creditor basis.
We need not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ.
We hold therefore that these contracts which Moolji Sicka & Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucial dates.
That brings us to article 299 (1) of the Constitution.
It states: "All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President . and all such contracts. made in the exercise of that power shall be executed on behalf of the President . by such persons and in such manner as he may direct or authorise." The contention was that as these contracts were not expressed to be made by the President they are void.
Cages were cited tons under the Government of India Acts of 1919 and 1935.
Certain sections in these Acts were said to be similar to article 299.
We do not think that they are, but in any case the rulings ,under section 30 (2) of the Government of India Act, 1915, as amended by the Government of India Act of 1919 disclose a difference of opinion.
Thus, Krihsnaji Nilkant vs Secrtary of State(2) ruled that contracts with the Secretary of State must be by a deed executed on behalf of the Secretary of State for India and in his name.
They cannot be made by correspondence or orally.
Secretary of State vs Bhagwandas(3) and Devi Prasad Sri Krihhna Prasad Ltd. vs Secretary of State(1) held they could be made by correspondence.
Secretary of State V. O.T. Sarin & Company(1) took an intermediate vie,* and held that though contracts in the prescribed form could not be enforced by either side, (1) (4) A.I.R. 1941 All. 377.
(2) A.I.R. 1937 Bom.
449,451.
(5) I.L.R. 11 Lah.
(3) A.I.R. 1938 Bom.
108 834 a claim for compensation under section 70 of the Indian Contract Act would lie.
Province of Bengal vs section L. Puri(1) took a strict view and held that even letters headed "Government of India" did not comply with, the rule in section 175 (3) of the Government of India Act, 1935.
The Federal Court was called upon to construe section 40 (1) of the Ninth Schedule of the Government of India Act, 1935.
It held that the directions in it were only directory and not mandatory, and the same view was taken of article 166 (1) of the present Constitution by this court in Dattatreya Moreshwar Pangarkar vs State of Bombay(2).
None of these provisions is quite the same as article 299.
For example, in article 166, as also in section 40(1) of the Government of India Act of 1935, there is a clause which says that "orders" and "instruments" and "other proceedings" "Made" and "expressed" in the name of the Governor or Governor General in Council and "authenticated" in the manner prescribed shall not be, called in question on the ground that it is not an "order" or "instrument" etc. 'made" or "executed" by the Governor or Governor General in Council.
It was held that the provisions had to be read as a whole and when that was done it became evident that the intention of the legislature and the Constitution was to dispense with proof of the due "making" and "execution" when the form prescribed was followed but not to invalidate orders and instruments otherwise valid.
Article 299(1) does not contain a similar clause, so we are unable to apply the same reasoning here.
In our opinion, this is a type of contract to which section 236(3) of the Indian Contract Act would apply.
This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co., Ltd. vs The King.
Emperor (3)and at the same time protects Government.
We feel that some reasonable meaning must (1) (2) ; at 632, 633.
(3) at 156, 157, 835 be attached to article 299(1).
We do not think the provisions were inserted for the sake of mere form.
We feel they are there to safeguard Government against unauthorised contracts.
If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded.
On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form.
In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form.
It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility.
If not, its interests are safeguarded as we think the Constitution intended that they should be.
In the present case, there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned.
There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops.
The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued.
But that is just the kind of case that section 230(3) of the Indian Contract Act is designed to meet.
It would, in our opinion, be disastrous,to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect ed by a ponderous legal document couched in a particular form.
it may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect.
It only means "that the principal cannot be sued ; but we take it there would 836 be nothing to prevent ratification, especially if that was for the benefit of Government.
There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam vs Cavaly Venkata Narrainapah(1).
We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been,sued on them by reason of article 299(1).
Now section 7(d) of the Representation of the People Act does not require that the contracts at which it strikes should be enforceable against the Government; all it requires.
is that the contracts should be for the supply of goods to the Government.
The contracts in question are just that and so are hit by the section.
The purpose of the Act is to maintain the purity of the legislatures and to avoid a conflict between duty and interest.
It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government (for example, if Government were to choose not to ratify the contracts) as when there is none.
In our opinion, the Election Tribunal was right in disqualifying Chatturbhuj Jasani.
We now turn to Gangaram Thaware.
He stood as a Scheduled Caste candidate and his nomination was rejected on the ground that he did not belong to the Scheduled Caste in question, namely the Mahars.
The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth.
This gave rise to much controversy and we have been presented with many conflicting opinions.
Thus, the Imperial Gazetteer of India, Voluime XXI, page 3012 states that the founder of the sect repudiated the caste system as also a multiplicity of God7f3 and insisted on the monotheistic principle.
At the same time it ,says that he taught his disciples to eat with none but (1) 8 M.I.A. 529 at 554.
837 the initiated and to break off all former ties of caste and religion.
Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos (Mahanubhau) is a religious sect,or order which has " now" (1911) become a caste.
The Central Provinces Ethnographic Survey, Volume IX, says the same thing at page 107 and at page 110 and adds that members of the sect often act as priests or gurus to the Mahars.
As against this, the Election Tribunal has quoted a number of opinions which tend the other way.
Thus, V. B. Kolte says at page 247 of his Shri Chandradhar Charitra that no serious attempt has been made by them to abolish caste, and Ketkar says at page 76, Volume XVIII of the 1926 edition of his Maharashtriya Dhnyankosh that there are two divisions among the Mahanubhavas, one of Sanyasig who renounce the world and the other a secular one.
The latter observe the caste system and follow the rituals of their own caste and carry on social contacts with their caste people and marry among them.
Similar views are expressed by Bal Krishna Mohanubhav Shastri.
But we are not really concerned 'with their theology.
What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.
Conversion brings many complexities in its train, for it imports a complex composite composed of 'many ingredients.
Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances.
The exact proportions of the mixture vary from person to person.
At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal.
There is no clear out dividing line and it is not a matter which can be viewed from only one angle.
838 Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order.
If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter.
The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters, which concern the political rights of the old body when neither the dld body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage.
On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order.
In our opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlying principle.
In Abraham vs Abraham(1), their Lordships say: " He " (the convert) " may renounce the old law by which he was bound, as he has renounced his old religion, or, if he thinks fit, he may abide by the old law, notwithstanding he has renounced the old religion.
" The only modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has (1) 9 M.I.A. 199 at 242, 243, and 244.
839 renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament.
But with that modification the observations which follow.
apply in their broad outline.
"The profession of Christianity releases the convert from the trammels of the Hindu law, but it does not of necessity involve any change of the rights or relations of the ' convert in matters with which Christianity has no concern, such as his rights and interests in, and his powers over, property.
The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters.
He may have done so either by attaching himself to a class which as to these matters has adopted and acted.
upon some particular law, or by having himself observed some family usage or custom; and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which he has adopted, or the rules which he has observed.
" Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been no rigid adherence to them among his followers in later years.
They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties.
We need not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present day Mahanubhavas admit to their fold persons who elect to retain their old caste customs.
That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status.
840 Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case.
No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate.
Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non Mahanubhavas belonging to their own caste.
Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar 'convert does not lose his caste on conversion.
He is admitted to all caste functions and can marry in the community.
Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars.
There is no evidence to rebut this.
The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas.
Harendra (R. W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter dinings and inter marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.
Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold.
In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry.
When pinned down in cross exami nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas.
Chudaman (R. W. 3) evades the issue in the same way.
He is a Mahanubhava Pujari and so is 841 another person who ought to have special knowledge.
Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth.
When further pressed he said the question did not arise as a man lost his caste on conversion.
On this evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the convert 's caste status, at any rate,, so far as the householder section of the Panth is concerned.
So much for the caste consciousness on both sides.
Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages.
His first wife was never converted.
His second wife was converted after her marriage.
The witnesses say ' he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste.
No one on the other side denies this.
As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava.
If he was not, then he must have continued a Mahar even on their view.
The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste.
In 1936 he contested the election for the Provincial Assembly as a Mahar candidate.
No one appears to have questioned his competency.
And lastly, he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination.
The 'Returning Officer described that as a "cleverly, worded document.
" We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham vs Abraham(1), we hold that despite his (1) 9 M.I.A. 199.
109 842 conversion he continued to be a Mahar and so his nomination form was wrongly rejected.
That affects the whole election.
The other points argued before the Election Tribunal were not pressed before us.
We therefore uphold the decision of the Tribunal and dismiss the appeal with costs.
Appeal dismissed.

summary:
A contract for the supply of goods does not terminate when the goods are supplied, it continues into being till payment is made and the contract is fully discharged by performance on both sides.
O 'Carroll vs Hastings ( [1905] 2 I.H. 590) and Satyendrakumar Das vs Chairman of the Municipal Commissioners of Dacca (I.L.R.58 Cal.
180) relied upon.
The firm Moolji Sicka and Company of which the candidate was a partner had entered into contracts with the Central 106 818 Government for the supply of goods.
The contracts subsisted on ;he crucial dstes, November 15, 1951, and February 14, 1952.
November 15, 1951, was the last date for putting in, nominations and February 14, 1952, was the date on which results were declared : Held, that the candidate had both a share and an interest in the contracts for the supply of goods to the appropriate Government on the crucial dates and was thus disqualified for being chosen as a member of Parliament by virtue of the disqualification set out in section 7(d) of the Representation of the People Act (XLIII of 1951).
Held further, that the contention that the contracts in question were void because the Union Government could not be sued by reason of article 299(1) of the Constitution as the contracts were not expressed to be made by the President was without force because this was the type of case to which a. 230(3) of the Indian Contract Act would apply.
When a Government officer acts in excess of authority Government is bound if it ratified the excess.
The Collector of Masulipatam vs Cavaly Venkata Narrainapah (8 M.I.A. 529) reliecl upon.
A member of the Mahar caste which is one of the Scheduled Castes continues to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava Panth as such conversion imports little beyond @ an intellectual ' acceptance of certain ideological tenets and does not alter the convert 's caste status.
Abraham vs Abraham (9 M.I.A. 199) relied upon.


judgement:
Appeal No. 852 of 1964.
Appeal by special leave from the judgment and decree dated August 24, 1962 of the Punjab High Court in Regular Second Appeal No. 843 of 1956.
Bishan Narain and A. G. Ratnaparkhi, for the appellant.
K. C. Nayyar and Mohana Behar Lal, for respondent No. 1.
790 The Judgment of the Court was delivered by Bhargava, J.
This appeal has come up as a result of a dis pute relating to succession to the property of one Sunder Singh.
Sunder Singh, on 4th November, 1950, executed a will in respect of his property in favour of his niece, Udham Kaur.
Subsequently, on 27th October, 1951, one Tarlok Singh executed a document divorcing his wife, Mst.
Angrez Kaur, respondent No. 1 in this appeal, on the ground that she frequently went away from his house without his consent and whenever he made enquiries from her, she became furious with him.
In the document, he recited that Mst.
Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh.
According to respondent No. 1 on this divorce being granted to her by her first husband, Tarlok Singh, she was married to Sunder Singh by a custom, known as 'Chadar Andazi '.
On 7th June, 1952, Sunder Singh revoked his previous will and, in that document, acknowledged Mst.
Ang rez Kaur as his wife and left the property to her.
Sunder Singh died in 1953.
Thereafter, the appellant, Gurdit Singh, who was a collateral of Sunder Singh in the third degree, applied for mutation.
On 12th December, 1954, mutation of the property left by Sunder Singh was sanctioned in favour of Gurdit Singh by the authorities.
Thereupon, Mst.
Angrez Kaur filed a suit on 17th March, 1955, claiming the property as widow of Sunder Singh.
The trial Court decreed the suit, holding that respondent No. I had married Sunder Singh by 'Chadar Andazi ' and the marriage was valid.
On appeal, the Additional District Judge set aside the decree of the trial Court and held that the marriage of Mst.
Angrez Kaur with Sunder Singh during the life time of her first husband, Tarlok Singh, was invalid and was not justified by any custom and, consequently, she could not be treated as the widow of Sunder Singh.
Respondent No. 1, there on, appeale to the High Court of Punjab and the learned Judge, who heard the appeal, felt that the question of custom had not properly tried by the trial Court and the first appellate Court.
Consequently he framed the following issue : "Is there any custom amongst the tribes of the parties according to which the divorce given by Tarlok Singh 'to Mst.
Angrez Kaur is recognised enabling her to enter into a valid marriage by Chadar Andazi with Sunder Singh?" This issue was remitted to the trial Court for recording a finding after giving the parties an opportunity to lead further evidence.
Further evidence was led in the trial Court which answered this issue in the negative and against respondent No. 1.
The District Judge, in his report, endorsed the view of the trial Court.
The High Court, however, held that the 7 91 custom was proved under which Mst.
Angrez Kaur could validly marry Sunder Singh, even though her first husband, Tarlok Singh, was alive, and, consequently decreed the suit.
Gurdit Singh appellant has now come up to this Court against this decree of the High Court by special leave.
As is clear from the facts narrated above, the, only issue that arose in this case was whether respondent No. 1, Mst.
Angrez Kaur, had succeeded in proving the existence of a custom in the community to which she belonged, according to which Tarlok Singh, her first husband, could divorce her, whereupon she was at liberty to enter into a valid marriage by Chadar Andazi with Sunder Singh, whose property is now under dispute.
The parties are residents of the District of Jullundur where, according to Gurdit Singh appellant, no such custom, as claimed by respondent No. 1 exists amongst the Jats, which is the caste to which the parties belong.
To urge this point, learned counsel for the appellant relied before us on 'The Digest of Customary Law ' by Sir W. H. Rattigan, and on the 'Riwaj i am ' recorded at the time of the settlement in 1885 and 1914 15.
It was argued that Rattigan 's Digest of Customary Law in the Punjab had always been treated as an authoritative exposition of the customs prevailing in the Punjab and had been accepted as such by the Privy Council as well as other Courts in India.
Reliance was placed on para 72 at page 471 of the 14th Edition of Rattigan 's, 'Digest of Customary Law ', where it is stated that "amongst Muhammadans of all classes a man may divorce a wife without assigning any reason; but this power, in the absence of a special custom, is not allowed to Hindus nor to females of any class".
In paragraph 74, he proceeds to lay down that "until the former marriage is validly set aside, a woman cannot marry a second husband in the life time of her first husband;" and in paragraph 75, it is stated that "A 'Karewa ' marriage with the brother or some other male relative of the deceased husband requires no religious ceremonies, and confers all the rights of a valid marriage.
" The marriage claimed by respondent No. 1 with Sunder Singh was described as a 'karewa ' marriage.
On the basis of the principles laid down in the above paragraphs, it was urged that it should be held that respondent No. I could not have entered into a valid marriage with Sunder Singh, while her first husband, Tarlok Singh, was alive.
It is, however, to be noted that in paragraph 72, Rattigan himself makes an exception to the general rule, and recognises the fact that, if there be a special custom, divorce can be resorted to even by Hindus.
In earlier paragraphs of his book, Rattigan has dealt with existence of special customs in the Punjab and, in dealing with L Sup.
CI/67 7 792 the Jats, he expressed the view that, as regards Jats, and specially Sikh Jats who hold very liberal views on questions relating to marriage and whose notions of sexual morality are lax, it will be difficult to enunciate any general principles as are opposed to public policy.
Then, he goes on to say that custom in the Punjab is primarily tribal and not local, though the custom of a particular tribe may and often does differ in particular localities.
Rattigon 's conclusion is expressed by saying that it seems to be clear that there is no uniform custom applicable to the whole of the Punjab.
Custom varies from time to time and from place to place.
It is in this background that we have to consider further remarks recorded by Rattigan in paragraph 72 mentioned above, where he says that, in one case, it was doubted whether, in Jullundur District, a Hindu fat can divorce his wife.
He also noticed a number of decisions relating to divorce in the surrounding districts in which it was held that the custom of divorce prevailed in almost identical terms in those districts.
This custom according to him, is that the husband is entitled to turn out his wife and, if he does so, she is entitled to remarry.
It was on the basis of these observations of Rattigan that it was urged before us that the High Court committed an error in relying on the circumstance that, in a number of surrounding districts, it was found that the custom of divorce amongst the Hindu Jats so prevalent could lead to an inference that a similar custom prevailed in the district of Jullundur also.
In Rattigan 's book, by itself, we are unable to find any proposition laying down that, in the district of Jullundur, there is any custom among Hindu fats permitting divorce as claimed by respondent No. 1.
In fact, Rattigan leaves the question open by saying that it has been doubted whether such a custom exists in the Jullundur District.
He also mentions the Riwaj i am of Jullundur District, but does not attach much importance to it on the ground of its being un reliable.
Rattigan 's book on 'Customary Law ', in these circumstances, appears to us to be of little help in arriving at a conclusion about the existence of a custom on divorce amongst the Jats in Jullundur District.
The only other document relating to Jullundur District available was the Riwaj i am of that district and learned counsel for the appellant placed great reliance on it.
He drew our attention to the decision of their Lordships of the Privy Council in Kunwar Basant Singh vs Kinwar Brij Rai Saran Singh(1) where their Lordships held "The value of the riwaj i am as evidence of customary law is well established before this Board; the most recent decision is (1) 62 I.A. 180.
79 3 Vaishno Ditti vs Rameshri(1), in which the judgment of the Board was delivered by Sir John Wallis, who states : "It has been held by this Board that the riwaj i am is a public record prepared by a public officer in discharge of his duties and under Government rules; that it is clearly admissible in evidence to prove the facts entered thereon subject to rebuttal; and that the statements therein may be accepted even if unsupported by instances.
" Reliance was also placed upon the principle laid down by this Court in Mahant Salig Ram vs Musammat Maya Devi(2), where this Court held : "There is no doubt or dispute as to the value of the entries in the Riwaj i am.
It is well settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
" The Court also approved of the principle laid down by the Lahore High Court, indicating the circumstances in which Riwaj i am can be held to prove a custom, and in that connection said : "It has been held in Qamar ud Din vs Mt. Fateh Bano(3) that if the Riwaj i am, oil which reliance is placed, is a reliable and trustworthy document, has been carefully prepared, does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be in those circumstances the Riwaj i am would be a presumptive piece of evidence in proof of the special custom set up therein.
If, on the other hand, the Riwaj i am is not a document of the kind indicated above, then such a Riwaj i am would have no value at all as a presumptive piece of evidence.
" It is in the light of these principles that we have to examine the value to be attached to the Riwaj i am in Jullundur District which has been relied upon by learned counsel for the appellant.
The Riwaj i am of Jullundar District appears in the form of questions and answers and an extract of it has been placed before us.
In answer to the questions about the grounds on which a wife may be divorced, whether change of religion is a sufficient cause and whether,a husband may divorce his wife without (1) [1928] L. R. 55 I.A. 407,421, (2) (3) Lah. 110.
7 94 assigning any cause, the record states that among all Muhammadans except Rajputs the Muhammadan Law is followed; and a husband can divorce his wife without assigning any reason.
Among the Muhammadan Rajputs and all Hindus no divorce is recognised.
But an exception is mentioned that the Kambohs of the Nakodar Tahsil also divorce their wives.
They are not required to assign any cause.
In answer to the question as to what are the formalities which must be observed to constitute a revocable or an irrevocable divorce, is was stated that among Hindus there is no divorce except among Kambohs of the Nakodar Tahsil who give 'talaq ' by executing a written deed.
Reliance is placed on the entry in the Riwaj i am that the custom of divorce among Hindus does not exist in the Jullundur District to urge that the High Court wrongly held that respondent No. 1 could be divorced by her first husband, Tarlok Singh, and could validly marry Sunder Singh by Chadar Andazi.
It, however, appears that the Riwaj i am of Jullundur District is unreliable, and, according to the principle laid down by this Court in the case of Mahant Salig Ram(1), such a Riwaj i am cannot be held to prove that there was no custom of divorce among Hindus in this district.
It does not appear necessary to refer to the various decisions of the Lahore High Court on 'the question of unreliability of the Riwaj i am of Jullundur District.
It is enough to quote the latest decision of the East Punjab High Court in Mohammad Khalil and Another vs Mohammad Bakhsh(2).
In that case., Bhandari J., delivering the judgment of the Bench, reproduced the principle laid down by the Lahore High Court in Qamar ud Din & Others(3), which was later approved by this Court in the case of Mahant Salig Ram(1).
,and then proceeded to hold : "Unfortunately, the Riwaj i am of the Jullundur District cannot be regarded as a reliable or trustworthy document, for, it has been held in a number of decided cases, such as Zakar Hussain vs Ghulam Fatima(1), Ghulam Mohammad vs Balli(5), and Mt. Fatima vs Sharaf Din(1), that it has not been prepared with care and attention.
It seems to me, therefore, that it is impossible to accept the statements appearing therein at their face value." Learned counsel for the appellant, however, urged before us that all these cases, in which the Riwaj i am of Jullundur District ,was held to be unreliable, related either to the custom about the right of succession to property of a daughter against collaterals, (1) (3) A. I. R. (36) 1949 E.Pb.
(5) A. I. R. (1 4) 1927 Lab.
(2) I. I. R. (4) A. 1.
R. (18) (6) A. 1.
R. (33) 79 5 or about the right to execute wills and gifts.
None of these cases related to the custom of divorce and at least, insofar as it records that there is no custom of divorce amongst Hindus in this district, the Riwaj i am should be accepted.
There are two reasons why we must reject this contention.
The first is that the Riwaj i am having been found unreliable in respect of two customs, the inference clearly follows that it was not drawn up carefully and correctly and, consequently it would not be safe to rely even on other aspects of the Riwaj i am.
The second, and which is the more important reason, is that, in this particular case which is 'before us, the evidence tendered by both the parties shows that this Riwaj i am has incorrectly recorded the custom about the right of a Hindu husband of this district to divorce his wife.
Respondent No. 1, in order to prove her case as to the existence of the custom, has primarily relied on two pieces of evidence.
The first piece of evidence consisted of the Riwaj i am of the neighbouring districts where there was a clear record that the custom of divorce among Hindu Jats existed.
The existence of such a custom.
in the neighbouring district, which surround the Jullundur District all around, is certainly a relevant consideration for an inference that such a custom may be prevalent in the Jul lundur District also, particularly in view of Rattigan 's opinion that the custom is primarily tribal though also local.
If the custom existed among the tribes of Hindu Jats in all the districts surrounding the district of Jullundur, it is probable that a similar custom exists in the district of Jullundur also.
The other piece of evidence relied upon was the statements of a number of witnesses examined to prove that not only such a custom existed, but also that instances were available showing that there had been divorces in recent times.
Respondent No. 1 has examined nine witnesses in this behalf.
The learned District Judge, in his report, did not place full reliance on the testimony of these witnesses, but their evidence has been accepted by the High Court.
On behalf of the appellant also, a number of witnesses were examined to prove the non existence of a custom of divorce.
It, however, appears that the appellant 's own witnesses belied his case.
Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife.
Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination in chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life time of her husband.
Ujagar Singh, another witness, in his cross examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband.
He can divorce her both verbally as well as in writing.
Similarly, Niranjan Singh, another 796 witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband.
Gurdit Singh, in his examination in chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband.
In cross examination, he stated that "there is no custom among us for divorcing the wives with mutual consent".
All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life time of her first husband.
They all admit that a custom permitting, a Hindu Jat to divorce his wife does actually exists in the district of Jullundur.
Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there ,could be separation between the husband and the wife, but, at ,other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife.
Thus, the record in the Riwaj i am that there is no such custom of divorce among the Hindus of the Jullundur District, is proved to be incorrect not only by the evidence of the witnesses examined ,on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant.
In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj i am could be held to be reliable insofar as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj i am was found in regard to record of customs relating to other matters.
There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife, have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his lifetime.
This limited custom sought to be proved by these witnesses does not.
find support from the Riwaj i am, nor is it in line with the principles laid down by Rattigan in his book on 'Customary Law '.
All that he stated in paragraph 74 of his book was that " until the former marriage is validly set aside, a woman cannot marry a second husband in the life time of her first husband.
" We have already held that, even according to the witnesses exa mined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage.
On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second 797 husband in the life time of her first husband.
It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living.
In these circumstances, the High Court committee no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitted divorce, but also recognised the validity of second marriage of the divorced wife even in the life time of her first husband.
The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life time of the in husbands and these, marriages were recognised as valid marriages by the members of 'their community.
The appeal, consequently, fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
S married A after the latter had been divorced by her husband T.
The parties were Jats of Jullundur District in the Punjab.
After the death of S a collateral of his got the lands of S mutated in his favour.
A then filed a suit claiming the land as widow of section Her marriage to S was challenged on the ground that there was no custom among the Jats of Jullundur District permitting a divorced woman to remar ry in the life time of her first husband, The, entries in the Rattilgan 's digest and the Riwaj i am of Jullundur District came up for consideration.
HELD : Rattigan 's digest was not of help in arriving at a conclusion about the existence of such a custom of divorce among the Jats in Jullundur District. 'Me Riwaj i Am of Jullundur District was unreliable as it had been so held by courts.
[792 F G; 795 A C] On the basis of the existence of a custom of divorce among the Jats of districts surrounding Jullundur District and on the basis of oral evidence adduced in the case, the High Court rightly held that a custom of divorce existed among the Jats of Jullundur District, and the custom permits the divorced women to marry in the life time of her first hus band.
The divorce of A by T being valid her subsequent marriage to S was also valid, and accordingly she was entitled to succeed to S 's property.
L797 B C] Basant Singh vs Kunwar Brij Rai Saran Singh, 62 I.A. 180, Vaishnoo Ditt vs Rameshri, (1928) L.R. 55 I.A, 407, Mahant Salig Ram vs Musammat maya Devi , Qamar ud din vs Mt. Fateh Bano, Lab. 110, Muhammad Khalil vs Mohammad Baksh.
A.I.R. (36) 1949 E. Pb. 252, Zakar Hussain vs Ghulam Faima, A.I.R. (14) 1927 Lab. 261, Ghulam Mohammad vs Ball, A.I.R. (18) 1931 Lab. 641 and Mt. Fatima vs Sharaf Din, A.I.R. (33) 1946 Lab. 426, referred to.


judgement:
Appeal No. 1413 of 1966.
822 Appeal by special leave from the judgment and order dated July 31, 1963, of the Allahabad High Court in Special Appeal No. 205 of 1963.
B. Sen, section K. Aiyar and R. N. Sachthey, for the appellant.
A. K. Sen, J. P. Goyal and G. C. Sharma, for the respondent.
The Judgment of the Court was delivered by Shah, J.
A business of manufacture and sale of tents was commenced in 1940 in the name and style of Messrs Jawahar Tent Factory, Agra, in partnership.
There were four partners in the firm Jawahar Lai, Shiam Lal, Radha Raman and Radha Krishan.
Jawahar Lal represented his Hindu undivided family and his share in the profit & loss was /8/ (eight annas) in a rupee.
The share of other partners was /12/8 (two annas eight pies) each.
The firm was registered under section 26A of the Indian Income tax Act, 1922, and tax was assessed on The income of the firm in accordance with section 23 (5) (a) of the Act.
The partnership was, according to the Income tax Officer, dissolved on October 23, 1946.
This appeal relates to the tax liability of Jawahar Lal in respect of the income from the firm for the assessment years 1944 45, 1945 46, 1946 47 and 1947 48.
The tax attributable to the share of Jawahar Lal, which it is claimed could not be recovered from him, is sought to be recovered from his erstwhile partner Radha Krishan.
The following table sets out the share of 'the income of Jawahar Lal and the tax liability not satisfied by him in respect of the four years of assessment : Year of assessment Share of income of Jawahar Lal from the firm Tax liability not satisfied 1944 45 47,717 8,623 56 1945 46 53,864 39,416 23 1946 47 35,167 16,92 59 1947 48 19,466 15,163 87 79,296 25 The manner in which the tax liability is determined requires some elucidation.
The Hindu undivided family of Jawahar Lal had considerable other income.
In accordance with the provisions of section 25(3) (a) of the Indian Income tax Act, the share of Jawahar Lal from the income of the partnership was added to the other income of the family, and the family was assessed to tax on the total income.
For the purpose of computing "the tax liability not satisfied" as shown in the last column of the statement set out herein before, the Income tax Officer determined the average rate of tax on the total income of the Hindu undivided family and then applied that rate to the share of Jawahar Lal from th~e fir~m to determine the tax liability attributable to that share.
Tax collected from Jawahar Lal was credited proportionately to the 823 income under the two heads towards the tax liability so determined, and the tax liability of Jawahar Lal attributable to his share in the income was computed.
The Income tax Officer served Radha Krishan respondent in this appeal on October 3, 1962 with demand notices for the tax remaining unpaid by Jawahar Lal.
Radha Krishan thereupon moved the High Court of Judicature at Allahabad for a writ of certiorari quashing the notices of demand and for an order directing the Income tax Officer to withdraw the notices.
Manchanda, J., allowed the petition filed by Radha Krishan and the order passed by Manchanda, J., was confirmed in appeal by a Division Bench of the High Court.
With special leave, the Income tax Officer, Agra has appealed to this Court.
Section 23(5) of the Income tax Act, as it stood at the material time, read as follows : "(5) Notwithstanding anything contained in the foregoing sub sections, when the assessee is a firm and the total income of the firm has been assessed under sub section (1), sub section (3), or sub section (4) as the case may be. (a) in the case of a registered firm, the sum payable by the firm itself shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined Provided Provided further Provided also (b) in the case of an unregistered firm, the Income tax Officer may instead of determining the sum payable by the firm itself proceed in the manner laid down in clause (a) applicable to a registered firm, if in his opinion, the aggregate amount of the tax including super tax, if any, payable by the partners under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if the firm were assessed as an unregistered firm.
The machinery for assessment to tax the income of a firm in the relevant years of assessment may be noticed.
A firm under the Income tax Act is a unit of assessment; and the income of the firm is computed as that of the unit irrespective of whether the L9SUP.
Cl/67 9 8 24 firm is registered or unregistered, after the income of the firm is computed if the firm is registered under section 26A the share of each partner in the income of the firm is determined and is added to his other income and the total income so computed is brought to tax.
If the firm is unregistered, the tax payable by the firm is, except when the Income tax Officer otherwise directs in the interests of revenue, determined as in the case of any other entity, and demand for tax is made on the firm itself.
The result is that if the firm is registered tax is collected from the partners individually and there is no levy of tax against the firm.
If the firm is unregistered, the tax may, unless other wise directed, be levied against the firm.
In either case, the machinery Set up by section 23 (5) is for assessment of tax payable on the income of the firm.
The income of the firm is computed, but tax is assessed on that income on the partners or the firm, according as the income is of a firm registered or unregistered.
Counsel for the Income tax Officer contended that even though by section 23(5) (a) a provision was made for assessment to tax of the total income of each member of a registered firm by adding to his separate income the share of the profits of the firm, it is the firm which is assessed to tax, and if the tax attributable to the share in the income of the firm of a partner cannot be recovered from him, it may be recovered from his other partners.
Counsel for the Income tax Officer says that this is so because the liability of the partners of a firm in respect of all its obligations including the liability to pay tax is joint and several.
Undoubtedly contractual obligations of a firm are enforceable jointly and severally against the partners.
But the liability to pay Incometax is statutory: it does not arise out of any contract, and its incidence must be determined by the statute.
If the statute which imposes liability has not made it enforceable jointly and severally against the partners, no such implication can arise merely because contractual liabilities of a firm may be jointly and severally enforced against 'the partners.
Counsel also relied upon section 44 of the Income tax Act, which, as it stood at the relevant time, read as follows "Where any business, profession or vocation carried on by a firm or association of persons has been discontinued, or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income profits and gains of the firm or association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment.
" 825 Section 44 is enacted with a view to prevent evasion of tax by discontinuance of the business of a firm or dissolution of an association of persons.
On discontinuance of the business of a firm or dissolution of the association of persons, it is declared that every person who was, at the time of such discontinuance or dissolution, a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association be jointly and severally liable to assessment and for the amount of tax payable.
This Court has in Commissioner of Income tax, Madras and Anr.
vs section V. Angidi Chettiar(1) held that the provisions of section 44 of the Income tax Act apply both to registered and unregistered firms.
But there is nothing in section 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered firm individually under section 23(5) (a) of the Act, another partner becomes liable jointly and severally with that first partner to pay tax.
The entire scheme of taxing the income of a registered firm in the hands of individual partners is Inconsistent with any assumption that for payment of tax assessed against a partner, other partners are liable.
The tax assessed against a partner of a registered firm is assessed on his total income inclusive of the share in the firm income and the rate applicable is determined by the quantum of the total income of the partner.
Section 44 contemplates cases of joint and several assessment of income of the business of a firm which is discontinued.
When such an assessment is made, each member of the firm may be liable to pay jointly and severally tax payable by the firm.
But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the firm, the principle of joint and several liability under section 44 has no application.
Counsel for the Commissioner said that this Court had, if not expressly tacitly, accepted the view that the liability of the partners of a firm to pay tax attributable to the share of each partner in the income of the firm is joint and several.
Counsel relied upon the clause "determining the tax payable by registered and unregistered firms respectively" in the judgment of this Court in Commissioner of Income tax.
, Bombay vs Amritlal Bhogilal & Company 2 ) at p. 136; "It is true that the Income tax Officer is empowered to follow the two methods specified in section 23(5) (a) and (b) in determining the tax payable by registered and unregistered firms respectively and making the demand for the tax so found due; but this does not affect the computation of taxable income", (1) (2) 34 1,T.R. 130.
8 2 6 and contended that the tax determined to be payable under section 23 (5) is payable by the firm, and hence by all the partners jointly and severally.
But in Amritlal Bhogilal 's case(1) the Court was called upon to determine whether the Commissioner of Incometax in exercise of his revisional power may cancel registration of the firm granted under section 26A and direct the Income tax Officer to make fresh assessment of the firm as an unregistered firm, when an appeal is pending against the order of assessment before the Appellate Assistant Commissioner.
In making the observa tions relied upon, the Court broadly examined the scheme of assessment of registered firms: it was not stated by the court expressly, nor can it be implied, that for tax attributable to the share of a partner in a registered firm, the other partners are liable, notwithstanding separate assessment under section 23(5) (a).
Reliance was then placed upon the following observations made by this Court in section V. Angidi Chettiar 's case(1) ;it p. 744 "Under section 23 (5) of the Indian Income tax Act, before it was amended in 1956, in the case of a registered firm the tax payable by the firm itself was not required to be determined but the total income of each partner of the firm including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum payable by him on the basis of such assessment was to be determined.
But this was merely a method of collection of tax due from the firm." In section V. Angidi Chettiar 's case (1) it was held that the Incometax Officer has power to make an order under section 28 imposing penalty on a firm even after dissolution of the firm.
There is nothing in the observations relied upon which indicates that under section 23(5) (a) when the income of a registered firm is computed, and the tax liability is imposed by the machinery provided thereunder, the tax is imposed upon the firm or is recoverable jointly and severally from the partners of the firm.
A recent case was also relied upon : Shivram Poddar vs In come tax Officer, Central Circle II, Calcutta and Anr.(3).
In that case it was held that the firm, by the discontinuance of its business, does not cease to be liable to pay tax on the income earned by it; nor can a procedure different from the, one prescribed under Ch.
IV of the Income tax Act, 1922 apply for assessment of the income of such a firm.
The firm, after it has discontinued its business, whether it is dissolved or not, will be assessed either under section 25(1) in the year of account in which it discontinues its business, or in the year of assessment.
In both (1) (2) (3) 827 cases the procedure for assessment is under section 23(3) and (4) supplemented by section 23(5).
The principle of that judgment also has no application to the present case.
Reliance was placed upon the observation made at p. 828.
"On the discontinuance of the business of a firm.
however, by section 44 a joint and several liability of all partners arises to pay tax due by the firm.
" But that obviously means that a joint and several liability arises when the income of a firm which has discontinued its business is assessed under section 44.
It does not mean that where the assessment is made under section 23 (5) (a) of a registered firm and the income of each individual partner is assessed, the partners become jointly and severally liable to pay the aggregate amount of tax attributable to their various shares, in their individual assessments.
The cases relied upon by counsel for the Income Tax Officer do not support the claim made by the Income tax Officer.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary:
The respondent was one of the partners in a partnership firm registered under section 26A of the Indian Income tax Act, 1922.
The Incometax Officer in making assessments for the assessment years 1944 45, 1945 46, and 1946 47 and 1947 48 determined the shares of each of the partners and taxed them according to the provisions of section 25 (3) (a) of the Indian Income tax Act,.
One of the partners defaulted in the payment of tax and the Income tax Officer sought to recover the unpaid tax attributable to the share of the defaulting partner in the firm from the respondent.
The respondent 's petition tinder article 226 challenging the attempted recover was allowed by the single Judge whose order was confirmed by the Division Bench.
The Revenue by special came to this Court.
It was urged on behalf of the Revenue that even though by section 23 (5) (a) the total income of each member of a registered firm is taxed it is the firm which is assessed to tax so that the tax attributable to the share of one partner can be recovered from another, the responsibility of all being joint and several.
Reliance was also placed on section 44 of the Act.
HELD : (i) Undoubtedly contractual obligations of a firm are enforceable jointly and severally against the partners.
But the liability to pay income tax is statutory" it does not arise out of any contract, and its incidence must be determined by the statute.
If the statute which imposes the liability has not made it enforceable jointly and severally against the partners, no such implication can arise merely because contractual liabilities (if a firm may be jointly and severally imposed against the partners.[825E F] (ii) There is nothing in section 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered firm individually under section 23(5)(a) of the Act, another partner becomes liable jointly and severally with the first partner to pay tax.
[825C] The entire scheme of taxing the income of a registered firm in the hands of the individual partner is inconsistent with any assumption that for payment of tax assessed against a partner, other partners are liable.
The tax assessed against a partner of a registered firm is assessed on his total income inclusive of the share in the firm 's income and the rate applicable is determined by the quantum of the total income of the partners[1825D E] Commissioner of Income tax, Madras vs section V. Angidi Chettiar, , Commissioner of Income tax, Bomaby vs Amritlal Bhogilal & Company, and Shivram Poddar vs lncometax Officer, Central Circle II, Calcutta, , distinguished.