judgement:
Civil Appeal No. 1280 of 1969.
Appeal from the Judgment and Order dated 7 9 1968 of the Bombay High Court in L.P.A. No. 117 of 1968.
588 U. R. Lalit, Nanjul Kumar and K. J. John for the Appellant.
R. B. Datar and Lalit Bhardwaj for Respondents 1 5 (d).
The Judgment of the Court was delivered by DESAI, J.
This appeal by certificate arises out of Special Civil Suit No. 39/66 filed by the appellant original plaintiff for specific performance of a contract dated 15th December 1965 for sale of land admeasuring 45 acres 5 gunthas bearing Survey No. 25 situated in Sholapur Mouje Dongaon in Maharashtra State for a consideration of Rs. 42,000/ out of which Rs. 5,000/ were paid as earnest money and a further amount of Rs. 5,000/ was paid on 22nd April 1966 when the period for performance of the contract for sale was extended by six months, which suit was dismissed by the trial Court and the plaintiff 's First Appeal No. 117/68 was dismissed by the Bombay High Court Plaintiff claimed specific performance of a contract dated 15th December 1965 coupled with supplementary agreement dated 26th April 1966 for sale of agricultural land.
This suit was resisted by the defendant, inter alia, contending that the land which was the subject matter of contract was covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ( 'Tenancy Act ', for short) and as the intending purchaser, the plaintiff was not an agriculturist within the meaning of the Act, section 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as the agreement was contrary to the provisions of, the Tenancy Act the same cannot be specifically enforced.
The plaintiff sought to repel the contention by producing a certificate Ext.
78 issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar imposed by section 63 of the Tenancy Act would not operate.
Plaintiff also contended that if the Court does not take note of Ext 78, an issue on the pleadings would arise whether the plaintiff is an agriculturist and in view of the provisions contained in section 70(a) read with sections 85 and 85A of the Tenancy Act the issue would have to be referred to the Memlatdar for decision and the Civil Court would have no jurisdiction to decide the issue.
The trial Court held that the certificate Ext.
78 had no evidentiary value and was not valid.
On the question of the plaintiff being an agriculturist the trial Court itself recorded a finding that the plaintiff was not an agriculturist.
On the question of jurisdiction to decide the issue whether the plaintiff is an agriculturist, the trial Court was of the opinion that it being an incidental issue in a suit for specific performance of contract, which suit the Civil Court has jurisdiction to try, it will also have jurisdiction to decide the incidental or subsidiary issue 589 and recorded a finding that the plaintiff was not an agriculturist.
In accordance with these findings the plaintiff 's suit was dismissed.
In appeal by the plaintiff, the High Court agreed with the finding of the trial Court with regard to the validity of certificate Ext.
On the question of jurisdiction of the trial Court to decide the issue about the plaintiff being an agriculturist, the High Court agreed with the trial Court observing that Civil Court has undoubtedly jurisdiction to entertain a suit for specific performance, and while considering the main issue whether specific performance should be granted or not, civil Court will have to consider whether there are prima facie any facts on account of which granting of specific performance would result into a transaction forbidden by law and, therefore, civil Court will have jurisdiction to decide the subsidiary issue whether the plaintiff is an agriculturist.
The High Court accordingly dismissed the appeal while agreeing with the trial Court that the plaintiff had failed to prove that he was an agriculturist and specific performance of contract for sale of agricultural land cannot be granted in his favour.
Mr. Lalit for the appellant did not invite us to determine the validity of certificate Ext.
78 certifying that plaintiff is an agricultural labourer.
Therefore, the question which must engage our attention is whether Civil Court will have jurisdiction to decide an issue arising in a suit for specific performance of contract for sale of agricultural land governed by the provisions of the Tenancy Act that the person seeking specific performance was or was not an agriculturist and, therefore, ineligible to purchase the land in view of the bar imposed by section 63 of the Tenancy Act.
This necessitates examination of the relevant provisions of the Tenancy Act.
Section 2(2) of the Tenancy Act defines agriculturist to mean a person who cultivates land personally.
The expression 'land ' is defined in section 2(8) to mean; (a land which is used for agricultural purposes or which is so used but is left fallow and includes the sites of farm buildings appurtenant to such land; and (b) for purposes of sections including sections 63, 64 and 84C (i) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses; (ii) the sites of structures used by agriculturists for allied pursuits.
Section 63 which forbids transfer of agricultural land to non agriculturists, reads as under: "63.
(1) Save as provided in this Act (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or 590 for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist will after such sale, gift, exchange lease or mortgage, hold land exceeding two thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, or who is not an agricultural labourer; Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed".
The next important section in this context is section 70 which defines duties and prescribes function of the Mamlatdar, the relevant portion of which reads as under: "70.
For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar: (a) to decide whether a person is an agriculturist; x x x (mb) to issue a certificate under section 84A, and decide under section 84B or 84C whether a transfer or acquisition of land is invalid and to dispose of land as provided in section 84C".
Section 85 bars jurisdiction of the civil Courts to decide certain issues and section 85A provides for reference of issues required to be decided under the Tenancy Act to the competent authority set up under the Tenancy Act.
They are very material for decision of the point herein raised and they may be reproduced in extenso: "85.
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question (including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decided or dealt with by the 591 Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation For the purposes of this Section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act.
1906".
"85A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act, (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act, 1906".
There is no controversy that the land purported to be sold by the contracts for sale of land Exts.
82 and 83 is land used for agricultural purposes and is covered by the definition of the expression 'land ' in section 2(8) (a).
The plaintiff thus by the contracts for sale of land Exts.
82 and 83 purports to purchase agricultural land.
Section 63 prohibits sale of land inter alia, in favour of a person who is not an agriculturist.
If, therefore, the plaintiff wants to enforce a contract for sale of agricultural land in his favour he has of necessity to be an agriculturist.
The defendant intending vendor has specifically contended that the plaintiff not being an agriculturist he is not entitled to specific performance of the contract.
Therefore, in a suit filed by the plaintiff for Specific performance of contract on rival contentions a specific issue would arise whether the plaintiff is an agriculturist because if he is not, the Civil Count would be precluded from enforcing the contract 592 as it would be in violation of a statutory prohibition and the contract would be unenforceable as being prohibited by law and, therefore, opposed to public policy.
The focal point of controversy is where in a suit for specific performance an issue arises whether the plaintiff is an agriculturist or not, would the Civil Court have jurisdiction to decide the issue or the Civil Court would have to refer the issue under section 85A of the Tenancy Act to the authority constituted under the Act, viz., Mamlatdar.
Uninhibited by the decisions to which our attention was invited, the matter may be examined purely in the light of the relevant pro visions of the statute.
Section 70(a) constitutes the Mamlatdar a forum for performing the functions and discharging the duties therein specifically enumerated.
One such function of the Mamlatdar is to decide whether a person is an agriculturist.
The issue arising before the Civil Court is whether the plaintiff is an agriculturist within the meaning of the Tenancy Act.
It may be that jurisdiction may be conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act but it does not ipso facto oust the jurisdiction, of the civil Court to decide that issue if it arises before it in a civil suit.
Unless the Mamlatdar is constituted an exclusive forum to decide the question hereinabove mentioned conferment of such jurisdiction would not oust the jurisdiction of the civil Court.
It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied (see Secretary of State vs Mask) (1).
However, by an express provision contained in section 85 the jurisdiction of the Civil Court to settle, decided or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt by the competent authority is ousted.
The Court must give effect to the policy underlying the statute set out in express terms in the statute.
There is, therefore, no escape from the fact that the legislature has expressly ousted the jurisdiction of the civil Court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by any of the authorities therein mentioned and in this specific case the authority would be the Mamlatdar as provided in section 70(a).
When the Tenancy Act of 1948 was put on the statute book, section 85A did not find its place therein.
A question arose while giving effect to the provisions contained in sections 70 and 85 as to what should be done where in a suit in a civil Court an issue arises to settle, decide or (1) 67 I.A. 222.
593 deal with which the jurisdiction of the civil Court is ousted under section 85.
The Bombay High Court which had initially to deal with this problem, resolved the problem by holding that in such a situation the civil suit should be stayed and the parties should be referred to the competent authority under the Tenancy Act to get the question decided by the authority and on such decision being brought before the Civil Court, it will be binding on the civil Court and the civil Court will have to dispose of the suit in accordion therewith.
While so resolving the problem immediately facing the Court, an observation was made that provision should be introduced in the Tenancy Act for enabling the civil Court to transfer the proceeding to the competent authority under the Tenancy Act having jurisdiction to decide the issue and in respect of which the jurisdiction of the Civil Court is barred (see Dhondi Tukaram Mali vs Dadoo Piraji Adgale) (1).
The Legislature took note of this suggestion and promptly introduced section 85A in the Tenancy Act by Bombay Act XIII of 1956.
The legislative scheme that emerges from a combined reading of sections 70, 85 and 85A appears to be that when in a civil suit properly brought before the Civil Court an issue arises on rival contentions between the parties which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the Civil Court is statutorily required to stay the suit and refer such issue or issues to such competent authority under the Tenancy Act for determination.
On receipt of such reference from the civil Court the competent authority shall deal with and decide such issues in accordance with the provisions of the Tenancy Act and shall communicate its decision to the civil Court and such errata shall; thereupon dispose of the suit in accordance with the procedure applicable thereto.
To avoid any conflict of decision arising out of multiplicity of jurisdiction by civil Court taking one view of the matter and the competent authority under the Tenancy Act taking a contrary or different view, an express provision is made in section 85(2) that no order of the competent authority made under the Act shall be questioned in any civil Court.
To complete the scheme.
sub section
(2) of section 85A provides that when upon a reference a decision is recorded by the competent authority under the provisions of the Tenancy Act and the derision is communicated to the civil Court, such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Thus, the finding of the competent authority under the Tenancy Act is made binding on the civil Court.
It would thus appear that the jurisdiction of the civil Court to settle, decided, or deal with any issue which is required to be settled, decided or dealt with by any competent authority under the Tenancy Act is totally ousted.
This would lead to inescapable conclusion that the (1) 594 Mamlatdar while performing the function and discharging duties as are conferred upon him by section 70, would constitute an exclusive forum, to the exclusion of the civil Court, to decide any of the questions that may arise under any of the sub clauses of section 70.
Section 70(a) requires the Mamlatdar to decide whether a person is an agriculturist.
Therefore, it an issue arises in a civil Court whether a person is an agriculturist within the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive jurisdiction under the Tenancy Act to decide the same and the jurisdiction of the Civil Court is ousted.
The Civil Court as required by a statutory provision contained in section 85A, will have to frame the issue and refer it to the Mamlatdar and on the reference being answered back, to dispose of the suit in accordance with the decision recorded by the competent authority on the relevant issue.
To translate it into action, if the Mamlatdar were to hold that the plaintiff is not an agriculturist, obviously his suit for specific performance in the Civil Court would fail because he is ineligible to purchase agricultural land and enforcement of such a contract would be violative of statute and, therefore, opposed to public policy.
The High Court was of the view that the jurisdiction of the Civil Court to settle, decide or deal with any question which arises under the Tenancy Act and which is required to be settled, decided or dealt with by the competent authority under the Tenancy Act would alone be barred under section 85.
Proceeding therefrom, the High Court was of the opinion that if an issue arises in a properly constituted civil suit which the civil Court is competent to entertain, an incidental or subsidiary issue which may arise with reference to provisions of the Tenancy Act, the jurisdiction of the Civil Court to decide the same would not be ousted because the issue is not required to be decided or dealt with under the Tenancy Act.
This view overlooks and ignores the provision contained in section 85 A.
There can be a civil suit properly constituted which the Civil Court will have jurisdiction to entertain but therein an issue may arise upon a contest when contentions are raised by the party against whom the civil suit is filed.
Upon such contest, issues will have to be framed on points on which parties are at variance and which have to be determined to finally dispose of the suit.
if any such issue arises which is required to be settled, decide or dealt with by the competent authority under the Tenancy Act, even if it arises In a civil suit, the jurisdiction of the civil Court to settle, decide and deal with the same would be barred by the provision contained in section 85 and the civil Court will have to take recourse to the provision contained in section 85A for reference of the issue to the competent authority under the Tenancy Act.
Upon a proper construction the expression "any issues which are required to be settled, decided or dealt with by any authority 595 competent to settle, decide or deal with such issues under this Act" in section 85A would only mean that if upon assertion and denial and consequent contest an issue arises in the context of the provisions of the Tenancy Act and which is required to be settled, decided and dealt with by the competent authority under the Tenancy Act, then notwithstanding the fact that such an issue arises in a properly constituted civil suit cognizable by the Civil Court, it would have o be referred to the competent authority under the Tenancy Act.
Any other view of the matter would render the scheme of sections 85 and 85A infructuous and defeat the legislative policy (see Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi & Anr.)(1) The construction suggested by the respondent that the bar would only operate if such an issue arises only in a proceeding under the Tenancy Act, could render section 85A infructuous or inoperative or otiose.
Neither the Contract Act nor the Transfer of Property Act nor any other statute except the Tenancy Act prohibits a non agriculturist from buying agricultural land.
The prohibition was enacted in section 63 of the Tenancy Act.
Therefore, if a person intending to purchase agricultural land files a suit for enforcing a con tract entered into by him and if tile suit is resisted on the ground that the plaintiff is ineligible to buy agricultural land, not for my other reason except that it is prohibited by section 63 of the Tenancy Act, an issue whether plaintiff is an agriculturist would directly and substantially arise in view of the provisions of the Tenancy Act.
Such an issue would indisputably arise under the Tenancy Act though not in a proceeding under the Tenancy Act.
Now, if, section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if section 85A, imposes an obligation on the civil Court to, refer such issue to the competent authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a civil Court having jurisdiction to entertain the same.
In fact section 85A comprehends civil suits which civil Courts are competent to decide but takes note of the situation where upon a contest an issue may arise therein which would be required to be settled, decided or dealt with by the competent authority under the Tenancy Act, and, therefore, it is made obligatory for the civil Court not only not to arrogate jurisdiction to itself to decide the same treating it as a subsidiary or incidental issue, but to refer the same to the competent authority under the Tenancy Act.
This is an inescapable legal position that emerges from a combined reading of sections 85 and 85A.
This can be clearly demonstrated by an illustration.
Plaintiff may file a suit on title against a defendant for possession of land on the allegation that defendant is a trespasser.
The (1) [1966]1 S.C.R. 145 at 150.
596 defendant may appear and contend that the land is agricultural land and he is a tenant.
The suit on title for possession is clearly within l he jurisdiction of the civil Court.
Therefore, the civil Court would be competent to entertain the suit.
But upon the defendant 's contest the issue would be whether he is a tenant of agricultural land.
Section 70(a)(ii) read with sections 85 and 85A would preclude the civil Court from dealing with or deciding the issue.
In a civil Suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief.
Further, sections 85 and 35A oust jurisdiction of civil Court not in respect of civil suit but in respect of questions and issues arising therein and section 85A mandates the reference of such issues as are within the competence of the competent authority.
If there is an issue which had to be settled, decided or dealt with by competent authority under the Tenancy Act, the jurisdiction of the civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it, will have to be referred to the competent authority under the Tenancy Act.
By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, civil Court cannot arrogate to itself jurisdiction which is statutorily ousted.
This unassailable legal position emerges from the relevant provisions of the Tenancy Act.
Turning to some of the precedents to which our attention Was invited, it would be advantageous to refer to the earliest decision of the Bombay High Court which had the opportunity to deal with the scheme of law under discussion in Trimbak Sopana Girime vs Gangaram Mhatarba Yadav(1).
In that case plaintiff filed a suit against the defendant for actual possession on the allegation that the defendant was a trespasser and the defendant contested the suit contending that he was a protected tenant within the meaning of the Tenancy Act. 'the trial Court came to the conclusion that an issue would arise whether the defendant was a protected tenant and such an issue was triable by the Mamlatdar under section 70(b) of the Tenancy Act, and the trial Court had no jurisdiction to try the issue.
Accordingly the trial Court ordered the plaintiff to present the suit to the proper court.
It may be noticed that at the relevant time section 85A was not introduced in the Tenancy Act.
In an appeal by the plaintiff the appellate court reversed the finding that a suit on title for possession alleging that the defendant was a trespasser was a properly constituted civil suit and if in such a suit defendant raises a contention that he is a protected tenant it would be a subsidiary issue and would not oust the jurisdiction of the (1) 597 Court because if the civil Court proceeding with the suit comes to the conclusion that the defendant is a trespasser it would be fully competent to dispose of the suit.
The defendant carried the matter to the High Court and Chagla, C.J., analysing the scheme of sections 70 and 85 of the Tenancy Act, held that in order to avoid the conflict of jurisdiction and looking to the scheme of the sections, the legislature has left to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not and it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or protected tenant, and that he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant, and even while strictly construing the provisions of a statute ousting the jurisdiction of the civil Court, the conclusion is inescapable that all questions with regard to the status of a party, when the party claims the status of a protected tenant, are left to be determined by the Revenue Court and the jurisdiction of the Civil Court is ousted.
This very contention kept on figuring before the Bombay High Court and J. C. Shah, J. in one of the Second Appeals before him analysed some conflicting decisions bearing on the interpretation of sections 70 and 85 specifically with regard to the ouster of jurisdiction of civil court to settle, decide or deal with those questions which are required to be settled, decided or dealt with by the competent authority under the Tenancy Act, and referred the matter to a Division Bench.
The Division Bench in Dhondi Tukaram Mali, (supra) while affirming the ratio in Trimbak Sopana Girme, (supra) further observed that the legislature should by specific provision provide for transfer of such suits where issues arise in respect one which the competent authority under the Tenancy Act is constituted a forum of exclusive jurisdiction so as to avoid the dismissal of the suit by the civil Court or being kept pending for a long time till the competent authority disposes of the issue which it alone is competent to determine.
The legislature took note of this decision of the Bombay High Court and introduced section 85A by Bombay Act XIII of 1956 which came into force from 23rd March 1956.
In Bhimaji Shanker Kulkarni, (supra) this very question arose in a suit filed by the plaintiff for possession of the suit property on redemption of a mortgage and taking of accounts on the allegation that defendant No. 1 was a usufructuary mortgagee under a mortgage deed, dated 28th June 1945.
The defendants pleaded that the transaction of June 28, 1945 was an advance lease and not a mortgage, and they were protected tenants within the meaning of the Tenancy Act.
The trial Court passed a decree holding that the transaction evidenced 598 by the deed is a composite document comprising of a mortgage and a lease and on taking accounts of the mortgage debt it is found that plaintiff owed nothing to the defendants on the date of the suit and the mortgage stood fully redeemed.
A further direction in the decree was that the plaintiff is at liberty to seek his remedy for possession of the suit lands in the revenue courts.
The plaintiff carried the matter in appeal to the appellate court who partly allowed tile appeal affirming that the mortgage is satisfied and nothing is due under the mortgage and the direction of the trial Court that plaintiff was at liberty to seek his remedy for possession of the suit lands in the revenue courts was confirmed and the rest of the decree, namely, that the document Ext.
43 evidencing the transaction was a composite document showing a mortgage and a lease was set aside and a direction was given that the record and proceedings do go back to the trial court who should give three months ' time to the plaintiff for filing, proper proceedings in the Tenancy Court for determining as to whether defendant 1 is a tenant.
Some consequential order was also made.
The plaintiff carried the matter in second appeal to the High Court of Mysore which, while dismissing the appeal observed that the civil court had no jurisdiction to determine the nature of the transaction when the contention was that it evidenced advance lease followed by the tenancy of defendant No. 1 and, therefore, the only proper direction is the one given by the trial Court to refer the issue to the Mamlatdar as to whether the defendant is a lessee under Ext.
43 and Of the reference being answered back, the suit should be disposed of in accordance therewith.
the plaintiff brought the matter before this Court.
This Court in terms approved the decision of the Bombay High Court in Dhondi Tukaram Mali (supra) observing as under: "In Dhondi Tukaram 's case the Court expressed the hope that the legislature would make suitable amendments in the Act.
The Bombay Legislature approved of the decision, and gave effect to it by introducing section 85A by the amending Bombay Act III of 1956.
Section 85A proceeds upon the assumption that though the Civil Court has otherwise jurisdiction to try a suit, it will have no jurisdiction to try an issue is rising in the suit, if the issue is required to be settled, decided or dealt with by the Mamlatdar or other competent authority under the Act, and on that assumption, section 85A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision.
Now, the Mamlatdar has jurisdiction under section 70 to decide the several issues specified therein "for the purposes of this Act", and before the intro diction of section 85A, it was a debatable point whether the 599 expression "for the purposes of this Act" meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act, or whether he had jurisdiction to decide those issues even though they arose for decision in a suit property cognisable by a Civil Court, so that the jurisdiction of the Civil Court to try those issues in the suit was taken away by section 85 read with section 70, Dhondi Tukaram 's case settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court.
The result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it.
But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram 's case and gave effect to it by introducing section 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of section 85A.
It follows that independently of section 85A and under the law as it stood before section 85A come into force, the Courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant".
It would thus appear that even when a properly constituted suit is brought to the civil Court having jurisdiction to try the same, prima facie on a contention being raised by the defendant an issue may arise which the Civil Court would not be competent to try and the legislature stepped in to avoid the conflict of jurisdiction by introducing section 85A making it obligatory upon the Civil Court to refer such an issue to the competent authority under the Tenancy Act.
Any controversy that such an issue is a primary issue or a subsidiary issue and hence triable by Civil Court must be said to have been resolved by laying down that the Civil Court will have, no jurisdiction to try the same even if such are issue arose in a properly constituted civil suit cognisable by the civil Court.
And the ratio of the decision is that a contention raised by the defendant may have the necessary effect to oust the jurisdiction Or the civil Court in respect of the contention which is to be disposed of before the suit can be disposed of one way or the other.
In Ishverlal Tha Thkorelal Almaula vs Motibhai Nagjibhai, (1) the plaintiff appellant had filed a suit against the defendant respondent in the civil Court for possession of agricultural land and mesne profits.
The defendant contended that he was a tenant who was entitled to the protection of the Tenancy Act in view of the proviso to section 43C of the Tenancy Act (1) [1966] 1 S.C.R. 367.
600 despite the fact that at the relevant time the suit land was not governed by the provisions of the Tenancy Act.
The trial Court decreed the suit but in first appeal the District Judge reversed the decree of the trial Court and dismissed the suit as in his view under the proviso to section 43C incorporated in the Tenancy Act by Bombay Act XIII of 1956 the respondent continued to enjoy the protection of the Tenancy Act and the civil Court had no jurisdiction to grant a decree for possession of the land in dispute.
A second appeal to the High Court by the original plaintiff was dismissed in limine and the matter came up before this Court by special leave.
This Court first affirmed that whatever may have been the position before Act XIII of 1956, the legislature has unequivocally expressed an intention that even in a suit properly instituted in a civil Court, if any issue arises which is required to be decided by the revenue Court, the issue shall be referred for trial to that Court and the suit shall be disposed of in the light of the decision.
The Legislature has clearly expressed itself that issues required under Act 67 of 1948, viz., Tenancy Act, to be decided by a revenue court, even if arising in a civil suit, must be decided by the revenue Court and not by the Civil Court.
The view expressed by the Bombay High Court in Pandurang Hari vs Shanker Maruti(1), and the Gujarat High Court in Kalicharan Bhayya, vs Rai Mahallaxmi & Anr.(2), that in such suit the civil Court is competent to adjudicate upon the issues which are by Act 67 of 1948 required to be decided by the revenue Court, was disapproved.
This Court held that the question whether the defendant being a tenant on the day on which the Tenancy Act was put into operation and whether he retained the, protection in view of the proviso to section 43C was within the exclusive jurisdiction of the Mamlatdar under the Tenancy Act and, therefore, the District Judge was in error in dismissing the suit.
It was necessary for him to refer the very question for determination to the competent authority under the Tenancy Act and it was not open to him to dispose of the suit.
Accordingly the appeal was allowed and the matter was remanded to the District Court with a direction that it should restore the appeal to its original number and proceed according to law.
This decision does not depart from the ratio in Bhimji Shanker Kulkarni 's case (supra).
It was, however, said that a suit for specific performance of a con tract for sale of land is cognizable by the Civil Court and its jurisdiction would not be ousted merely because contract, if enforced, would violate some provisions of the Tenancy Act.
If contract when enforced would (1) (2) 601 violate some provisions of the Tenancy Act it may be that the competent authority under the Tenancy Act may proceed to take action as permissible under the law but the Court cannot refuse to enforce the contract.
And while so enforcing the contract the Court need not refer any subsidiary issue to the competent authority under the Tenancy Act because if there is any violation of the Tenancy Act the same would be taken care of by the competent authority under the Tenancy Act in view of the power conferred upon the Mamlatdar under section 84C of the Tenancy Act.
In this connection reference was made to Naminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri.
We need not examine this decision in detail because an appeal against the decision of Mysore High Court granting decree for specific performance was brought to this Court.
A brief resume of the fact in Jambu Rai Satappa Kocheri vs Neminath Appayya Hanammannaver, is necessary to grasp the ratio of this decision.
In a suit for specific performance the defendant contended that if the contract is enforced it would violate section 35 of the Tenancy Act in that the plaintiff 's holding after the appointed day would exceed the ceiling and the acquisition in excess of the ceiling is invalid.
A contention appears to have been raised that the question whether an acquisition in excess of the ceiling would be invalid would be within the exclusive jurisdiction of the Mamlatdar under section 70(mb) and that the Civil Court cannot decide or deal with this question and a reference ought to have been made to the Mamlatdar.
Negativing this contention it was observed that the Civil Court had jurisdiction to entertain and decree a suit for specific performance of agreement to sell land.
If upon the sale being completed it would violate some provision of the Tenancy Act an enquiry has to be made under section 84C and s.84C provides that if an acquisition of any land is or becomes invalid under any of the provisions of the Tenancy Act, the Mamlatdar may suo motu inquire into the question and decide whether the transfer or acquisition is or is not valid.
This inquiry has to be made after the acquisition of title pursuant to a decree for specific performance.
It is in the context of these facts that it was held that even though civil Court has no jurisdiction to determine whether the acquisition would become invalid but there is nothing in section 70 or any other provision of the Act which excludes the Civil Court 's jurisdiction to decree specific performance of a contract to transfer land which would be anterior to the acquisition.
While disposing of this contention this Court took note of the fact that the transfer may not be invalid at all because the purchaser may have already disposed of his prior holding and it was further observed that 602 when the scheme of the Act is examined it becomes clear that the legislature has not declared the transfer or acquisition invalid, for section 84C provides that the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar.
The invalidity of the acquisition is, therefore, only to the extent to which the holding exceeds the ceiling prescribed by law and involves the consequence that the land shall vest in the Government.
lt would thus transpire that after the acquisition is completed, the question may arise whether ceiling has been exceeded and in that event the Mamlatdar in a suo motu inquiry can declare the transfer invalid to the extent the holding exceeds the ceiling.
The distinguishing feature of the present case is that section 63 bars purchase of agricultural land by one who is not an agriculturist and, therefore, the disqualification is at the threshold and unless it is crossed the Court cannot decree a suit for specific performance of contract for sale of agricultural land and in order to dispose of the contention which stands in the forefront a reference to the Mamlatdar under section 70 read with sections 85 and 85A is enevitable.
Therefore, there is no conflict between the decision in Kulkarni 's case and Jamburao 's case (supra) nor the latter decision, overrules the earlier one.
In fact, Kulkarni 's case (supra) was not referred to in Jamburao 's case (supra) because the question before the Court was entirely different from the one in Kulkarni 's case (supra).
In Mussamiya Imam Haider Bax Razvi vs Rabari Govindbhai Ratnabhai & Ors.
,the question that came up for consideration of this Court was whether when in a suit in the civil Court for possession of agricultural land a contention is raised that defendant has become a statutory owner on the tillers 'day under section 32 of the Tenancy Act implying that he was a tenant on 1st April 1957, would the civil Court have jurisdiction to decide the question of past tenancy in the context of section 70 of the Tenancy Act ? The contention was negatived observing that section 70 imposes a duty on the Mamlatdar to decide whether a person is a tenant but the sub section does not cast a duty upon him to decide whether a person was or was not a tenant in the past, whether recent or remote.
Approaching from this angle, it was held that the contention whether a defendant has become a statutory owner on the tillers ' day involving the question of past tenancy was not within the exclusive jurisdiction of the Mamlatdar and, therefore, the civil Court has jurisdiction to decide the question.
In the context of the language employed in section 70(b) which, as it then stood, did not confer jurisdiction on the Mamlatdar to decide the question of past tenancy, it can be said that the civil Court 's jurisdiction to decide the same was not ousted.
It appears that the question 603 was argued in the context of section 70 only and has been answered in the context of the language employed in section 70(b) only.
Otherwise, the question whether a person has become a statutory owner on the tillers ' day, i.e. on 1st April 1957 which would imply whether the person so contending was a tenant of the land on 1st April 1957 and hence would become the owner of the land by operation of law, was exclusively with in the purview of the Tribunal set up under section 67 in chapter VI of the Tenancy Act.
Section 67 imposes a duty on the State Government to set up Agricultural Land Tribunal for each taluka or mail or for such area as the State Government may think fit.
Section 68 prescribes the duties of the Tribunal which inter alia include the duty to decide any dispute under sections 32 to 32R (both inclusive).
A dispute under section 32 would comprehend whether the plaintiff was the owner of the land on the tillers ' day i.e. 1st April 1957 and the person claiming to have become a statutory owner by operation of law on that day should of necessity be a tenant and that this question would be within the exclusive jurisdiction of the Tribunal as provided by section 68.
Section 85 refers to the Tribunal meaning Agricultural Land Tribunal to be a competent authority to settle, decide and deal with the question set out in section 68 and it would have exclusive jurisdiction to settle, decide and deal with the same.
No submission was made in Mussamiya 's case (supra) with reference to the provisions contained in chapter VI and especially section 68 and, therefore, that decision cannot lend support to the submission that past enancy being a subsidiary issue, as such was within the competence of the Civil Court.
A question similar to the one under discussion in the context of provisions contained in sections 132, 133 and 142(1)(a) of Mysore Land Reforms Act,1961, came up before this Court very recently in Noor Mohd. Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalii & Ors.
The majority decision, after approving Kulkarni, (supra) and distinguishing Mussamiya, (supra) and referring to Dhondi Tukaran, (supra) held that a question arose during the pendency of the suit and the execution proceeding whether by the final allotment of the land to the appellant, respondent No. 1 had ceased to be a tenant in view of section 52 of the Transfer of Property Act.
This question according to the opinion of the majority fell squarely and exclusively within the jurisdiction of the revenue authorities and the civil Court had no jurisdiction to decide it and a reference to the competent authority was inevitable, and no discretion was left in the Civil Court in this behalf.
So observing, the majority upheld the decision of High Court which had 604 set aside the decree of the trial Court awarding possession because in the opinion of the High Court no actual delivery of possession can be given against the person claiming to be a tenant unless the requirements of the Mysore Land Reforms Act, 1961, were satisfied.
It may be noticed that the scheme of the provisions in Mysore Land Reforms Act, 1961, under discussion in the decision were in pari materia with the scheme of ss.70, 85 and 85A of the Tenancy Act.
Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted but the civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
If plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in section 63 of the Tenancy Act the plaintiff being not an agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an agriculturist.
Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act and the civil Court has no jurisdiction to decide or deal with the same.
That issue arises in the suit from which the present appeal arises and both the trial Court and the High Court were in error in clutching at a jurisdiction which did not vest in them and, therefore, on this ground alone this appeal will succeed.
Accordingly this appeal is allowed and the decree of the trial Court dismissing the suit, affirmed by the High Court, is set aside and the suit is remanded to the trial Court to proceed further according to law in the light of the observations made in this judgment.
Costs would abide the final outcome of the suit in the trial Court.
As the case is very old one, the trial Court and the competent authority to which a reference would be made pursuant to the direction in this judgment, should give top priority to the matter and dispose it of as expeditiously as possible.
N.V.K. Appeal allowed.

summary:
Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 prohibits the sale of agricultural land to a person who is not an agriculturist.
One of the duties of the Mamlatdar, under section 70, of the Act, is to decide whether a person is an agriculturist and whether a transfer or acquisition of land is invalid being in contravention of the Act.
Section 85 bars the jurisdiction of a civil court to settle, decide or deal with any question which is by or under the Act is required to be settled, decided or dealt with by the Mamlatdar, or the authority mentioned in the section The Bombay High Court in a case coming before it on the interpretation of section 85 held that where in a suit in a civil court an issue arises which has to be decided under the provisions of section 70, the civil court should refer the parties to the competent authority under the Tenancy Act to get the question decided and such decision would be binding on the civil court.
Taking note of this decision section 85A was added to the Tenancy Act, enabling the civil court to refer the issue to the competent authority to decide which the jurisdiction of the civil court is barred under section 85.
The plaintiff 's suit for specific performance of a contract for sale of land was resisted by the defendant alleging that since he (the plaintiff), was not an agriculturist, he was prohibited by section 63 of the Tenancy Act from purchasing agricultural land and the contract being contrary to the provisions of the Act is not capable of being specifically enforced.
The trial court dismissed the plaintiff 's suit on the ground that he was not an agriculturist.
It held that the issue whether or not the plaintiff was an agriculturist being incidental in a suit for specific performance of a contract the civil court had jurisdiction to decide such incidental issues.
On appeal the High Court held that the civil court which had jurisdiction to entertain a suit for specific performance, it would have jurisdiction to decide the incidental issue whether the plaintiff was an agriculturist or not.
The question before the Supreme Court was where in a suit for specific performance, an issue arose whether the plaintiff was an agriculturist or not on the date of agreement whether the civil court would have jurisdiction to decide the issue or it is required to refer it to the Mamlatdar under section 70 read with section 85A.
Allowing the appeal and remitting the case to the trial court for disposal.
587 ^ HELD: 1.
The Legislature having expressly ousted the jurisdiction of the civil court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by any of the authorities therein mentioned the authority to decide the issue whether the vendee was an agriculturist would be the Mamlatdar as provided in section 70(a).
[592 G] 2 .
The expression "any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act" in section 85A would only mean that, if upon contest an issue which is required to be settled, decided and dealt with by the competent authority under the Tenancy Act arises, notwithstanding the fact that such an issue arises in a properly constituted civil suit cognizable by the civil court, it would have to be referred to the competent authority under the Tenancy Act.
[594H 595 B] 3.
Mere because jurisdiction is conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act, it does not ipso facto oust the jurisdiction of the civil court to decide that issue if it arises before it in a civil suit.
Unless the Mamlatdar is constituted an exclusive forum to decide the question, conferment of such jurisdiction would not oust the jurisdiction of the civil court.
It is settled law that exclusion of jurisdiction of the civil court is not to be readily inferred but that such exclusion must either be explicity expressed or clearly implied.
[592 D E] Secretary of State vs Mask, 67 IA 222: referred to.
The finding of the competent authority under the Tenancy Act is made binding on the civil court.
The jurisdiction of the civil court to settle, decide or deal with any issue which is required to be settled, decided or dealt with by any competent authority under the Act is totally ousted.
This would lead to the conclusion that the Mamlatdar while performing the function and discharging his duties conferred on him by section 70 would constitute an exclusive forum.
Section 70(a) requires the Mamlatdar to decide whether a person is an, agriculturist.
Therefore, if an issue arises in a civil court whether a person is an agriculturist within the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive jurisdiction under the Act to decide the same and the jurisdiction of the civil court is ousted.
The civil court, as required by section 85A, will have to frame an issue and refer it to the Mamlatdar and on the reference being answered back, to dispose of the suit in accordance with the decision recorded by the competent authority.
[593G, 594 C] Dhondi Tukaram Mali vs Dadoo Piraji Adgale, , Trimbak Sopana Girme vs Gangaram Mhataraba Yadav, ; approved.
Mussamiya Imam Haider Bax Razvi vs Rabari Govindbhai Ratnabhai & Ors. ; , explained.
Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi ,& Anr.
, ; at 150; Ishverlal Thakorelal, Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367; Jambu Rao Satappa Kocheri vs Neminath Appayya Hanammannaver, ; ; and Noor Mohd. Khan Ghouse Khan Soudagar vs Eakirappa Bharmappa Machenahalli & Ors., ; ; referred to


judgement:
Civil Appeal Nos. 722, 1016 and 1221 of 1967.
Appeal from the Judgment and Decree dated 9 8 1966 of the Bombay High Court in Appeal Nos. 31 and 34 of 1963.
K. D. Mehta and D. N. Mishra for the Appellant In CA 722/67.
section T. Desai, R. B. Datar and Girish Chandra for RR 3 and 65 in CA 722/67.
I. N. Shroff and H. section Parihar for R 48 in CA 722/67.
section T. Desai, R. B. Datar for the Appellant and Respondent 40 in 1016/67.
I. N. Shroff and H. section Parihar for RR 27 28 in CA 1016/67 and also for the appellant in CA 1221/67.
section T. Desai and Girish Chandra for Respondent No. 63 in CA 1221/67.
The Judgment of the Court was delivered by PATHAK, J.
These appeals, on certificate granted by the High Court of Judicature at Bombay, are directed against the judgment and order 703 dated August 9, 1966 passed by the High Court in its appellate jurisdiction against orders and directions issued by a learned Single Judge of the High Court on a petition filed by the Official Trustee of Maharashtra in regard to the properties of the former Sir Currimbhoy Ebrahim Baronetcy Trust.
On July 21, 1911, His Majesty King George V issued Letters Patent conferring the "dignity, state and degree" of a Baronet of the United Kingdom of Great Britain and Ireland on Sir Currimbhoy Ebrahim of Bombay and the heirs male of his body lawfully begotten and to be begotten.
In order to provide for the upkeep and dignity of the Baronetey, the then Governor General of India in Council enacted the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 (hereinafter referred to simply as "the Baronetcy Act") by virtue of which considerable properties belonging to Sir Currimbhoy Ebrahim were settled upon the trustee, and for the purposes, declared in the Act.
The Trust was created by statute at the instance of Sir Currimbhoy Ebrahim.
The Trustees who included the Baronet for the time being and three officials of the Government of Bombay designated by their office, were constituted as a Corporation with perpetual succession and a common seal for the purpose of executing the trusts, powers and purposes of the Act.
By virtue of section 8 of the Baronetcy Act, the residue of the income from the properties settled under trust, after payment to the credit of a Sinking Fund and a Repairs Fund, and payment of rates, taxes and cost of ordinary repairs in respect of buildings comprising the trust properties was to be paid to the First Baronet and the heir male of his body who would for the time being have succeeded to the title of Baronet.
The successive Baronets were also entitled in the circumstances mentioned in section 10 to the use and benefit of additional hereditaments vesting in the Corporation.
Section 27 provided for the vesting of the trust properties and funds "upon failure and in default of heirs male of the body of the last Baronet".
The First Baronet, Sir Currimbhoy Ebrahim, died on May 29, 1924 leaving behind a Will dated October 22, 1916 in respect of certain other properties.
His oldest son, Mohamedbhoy, assumed the title and became the Second Baronet.
Mohamedhoy died on March 31, 1928.
He was succeeded by his son, Hussainbhoy, who became the Third Baronet.
The third Beronet migrated to Pakistan some time between 1947 and September, 1949.
On September 29, 1949 he was declared an evacuee under the Bombay Evacuees (Administration of Property) Act, 1949, and certain properties belonging to him were declared vested in the Custodian of Evacuee Property by an order of that date.
704 On November 15, 1949, a notification was issued under sub.s.(1) of s.7 of the Administration of Evacuee Properties Ordinance, 1949 notifying two further immovable properties as well as the right, title and interest of the Third Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust as evacuee property vesting in the Custodian of Evacuee Property.
An appeal by the Third Baronet against the orders dated September 29, 1949 and November 15, 1949 was dismissed by the Custodian of Evacuee Property on February 13, 1950.
Two years later, on March 4, 1952, the Third Baronet died in Pakistan.
He was succeeded by his son, Mohamedbhoy, as the Fourth Baronet.
It seems that Mohamedbhoy was at the time residing in India, but shortly thereafter he left for Pakistan.
On June 10, 1952, the Deputy Custodian of Evacuee Property made an order declaring the Fourth Baronet an evacuee under the and directing that his beneficial interest in the Sir Currimbhoy Ebrahim Baronetcy trust be notified as evacuee property.
Therefore, on June 16, 1952, a notification was issued under sub s.(3) of s.7 of the declaring that the beneficial interest of the Fourth Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust was evacuee property vesting in the Custodian of Evacuee Property The Fourth Baronet preferred an appeal to the Custodian General of Evacuee Property, Delhi, but the appeal was dismissed on August 26, 1960 on the ground that it was barred by time.
Meanwhile, the Fourth Baronet having migrated to Pakistan alongwith his son Zoolfikar Ali, the Bombay Legislature passed an Act titled the Sir Currimbhoy Ebrahim Baronetcy (Repealing & Distribution of Trust Properties) Act, 1959, which we shall refer to as "the Repealing Act)" The Act, as its name shows, repealed the Baronetcy Act and, inter alia, revoked and extinguished "the trusts, powers, provisions, declaration and purposes" declared and expressed in that Act.
It provided for the vesting of the properties and funds in the Official Trustee, Bombay for the purpose of distributing them "amongst the persons rightfully entitled thereto according to law".
Acting under the Repealing Act, the Official Trustee called upon persons claiming interest in the "trust properties", an expression which includes the properties and funds settled and created under the Baronetcy Act, to submit their claims.
As he found that the claims were contested and was unable to say which of them were justified, he applied to the Bombay High Court under sub section(2) of section 7 of the Repealing Act for orders and directions as regards the distribution of 705 the trust properties amongst the several claimants.
The properties were valued at Rs. 30 lakhs for the purposes of court fees.
The petition was entertained in the High Court under its general and inherent jurisdiction and was registered as Trust Petition No. 3 of 1962.
It was disposed of by Tarkunde, J.On December 20, 1962.
A contention raised by some of the claimants that the Repealing Act was ultra vires was rejected.
As regards the claim of the Custodian of Evacuee Property, the learned Judge took the view that the beneficial interest of the Fourth Baronet, which had vested in the Custodian, came to an end on the extinction of the trust and the Custodian was not entitled to the share of the Fourth Baronet in the trust properties.
He ordered, however, that so much of the net income of the trust properties accruing upto March 15, 1960, as had remained unpaid be transferred to the Custodian.
He rejected the claim to maintenance made by the Third Baronet 's widow, the Dowagar Lady Amine Currimbhoy Ebrahim.
On the material before him the learned Single Judge held that the Repealing Act had the effect of giving rise to a resulting trust in favour of the Settlor, the First Baronet, that the trust properties reverted to his estate as on his death on May 29, 1924 and that they must be deemed to pass by inheritance according to the Muslim personal law as on an intestacy occurring on the death of the First Baronet.
He observed that the residuary clause in the will dated October 22, 1916 executed by the First Baronet did not cover the rust properties.
On those findings, he directed the Official Trustee to distribute the net trust properties amongst the several claimants according to the shares mentioned in an agreed statement subscribed to by the claimants.
Against the order of Tarkunde, J., two appeals were filed in he High Court.
Appeal No.31 of 1963 was filed by the Dowagar Lady Amine Currimbhoy Ebrahim, the Fourth Baronet, Sir Currimbhoy Ebrahim, and his son, Zoolfikar Ali Currimbhoy Ebrahim, and Appeal No. 34 of 1963 was filed by the Custodian of Evacuee Property.
The appeals were heard by a Division Bench of two learned Judges, Kotval, C.J. and Mody, J. The Division Bench rejected the challenge to the constitutional validity of the Repealing Act, but on the point whether a resulting trust had come into existence the learned Judges held that in view of the surrounding circumstances, particularly the terms of the will executed by the First Baronet on October 22, 1916, it must be taken that contrary intention had been manifested by the First Baronet that in the event of the failure of the trust, the trust properties should after his life time be held for the benefit of the Baronet for the time being.
Accordingly, the learned 706 Judges laid down that the Fourth Baronet was entitled to the trust properties absolutely in his own right.
On the claim of the Dowager Lady Amine Currimbhoy Ebrahim, they pointed out that her son, the Fourth Baronet, had made a statement through counsel in court that the would pay the amount to her out of the corpus received by him.
Appeal No.31 of 1963 was allowed in part.
In regard to the appeal filed by the Custodian of Evacuee Property, the learned Judges rejected his claim to the corpus of the trust properties, holding him entitled to a sum of Rs. 1,334.06 only, representing the unpaid amount of the net income of the trust properties upto March 14, 1960.
Appeal No.34 of 1963 was dismissed.
Three appeals have been filed in this Court.
Civil Appeal No.722 of 1967 has been filed by Sir Fazalbhoy Currimbhoy, Civil Appeal No. 1016 of 1967 has been filed by the Custodian of Evacuee Property and Civil Appeal No.1221 of 1967 has been filed by Munira Fazal Chinoy and Mumtaz Mohamed Rahimtoola, daughters of the Third Baronet.
The case of Sir Fazalbhoy Currimbhoy, the appellant in Civil Appeal No.722 of 1967 is that the effect of the Repealing Act on the trusts created by the Baronetcy Act is to revoke and extinguish those trusts and to give rise to a resulting trust in favour of the estate of the First Baronet as on the date of his death, and that the estate would devolve as on an intestacy under the Muslim personal law.
The case of Munria Fazal Chinoy and Mumtaz Mohamed Rahimtoola, the appellants in Civil Appeal No.1221 of 1967 is that no resulting trust comes into existence consequent on the repeal because a contrary intention must be presumed in the First Baronet that the trust properties should go to the Fourth Baronet.
It is also contended by these appellants that alternatively the trust must be deemed to have extinguished on the death of the Third Baronet and that the trust properties devolved on them, their mother the Dowager Lady Amine Currimbhoy and the Fourth Baronet as the heirs of the Third Baronet.
The case of the Custodian of Evacuee Property, the appellant in Civil Appeal No. 1016 of 1967 is that the trust properties would ordinarily have passed to the Fourth Baronet but because of sub s.(4) of s.7 of the Repealing Act the Official Trustee is required to transfer and vest the trust properties in the Custodian.
It is contended on behalf of Sir Fazlbhoy Currimbhoy that the trust having been created by the Baronetcy Trust Act, a legislative statute, it must be regarded as a statutory trust and, thereafter, when the Baronetcy Act was repealed and the trust was revoked and 707 extinguished by the Repealing Act, another legislative enactment, the necessary and only result was that the trust properties reverted to the estate of the settler, the First Baronet.
Now, no doubt the trust was created by statute.
But it was created at the instance of the First Baronet.
It had to be a trust in perpetuity in order that the upkeep of the dignity and title of the Baronetcy should always be ensured.
A trust such as this has been regarded as a private trust.
Indeed, throughout the trial before the learned Single Judge and during the hearing of the appeals before the Division Bench of the High Court the case proceeded on the footing that the trust created by the Baronetcy Act was governed by the law relating to a private trust.
The parties proceeded as if the trust was a private trust created directly by the First Baronet himself, and it was assumed throughout that the repeal by the legislature was a repeal effected by him.
We must, therefore, proceed in this case as if we are dealing with a private trust.
The contention on behalf of Sir Fazalbhoy Currimbhoy that a resulting trust follows the revocation and extinction of the trust created by the Baronetcy Act rests on the provisions of section 83 of the Indian Trusts Act.
Section 83 provides: "83.Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust property, the trustee, in the absence of a direction to the contrary, must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.
" The section incorporates in codified form the concept of what is known as a resulting trust.
On the terms of section 83, a resulting trust can arise only "in the absence of a direction to the contrary".
It is not disputed that if there is no direction to the contrary the trust properties must be held for the benefit of the estate of the First Baronet.
Can an intention to the contrary be inferred?
Scott on Trusts declares: "If an owner of property transfers it inter vivos upon a trust which fails either at the outset or subsequently, and he has not indicated what disposition should be made of the property in the event of the failure of the trust, the trustee cannot retain it but will be compelled in equity to 708 restore it to the settlor.
In such a case the trustee holds the property upon a resulting trust for the settlor.
Since the trustee was not intended to have the beneficial interest, and since the beneficial interest was not otherwise disposed of, it reverts or results to the settlor.
On the failure of the trust the court will put the parties in status quo by restoring the property to the settlor.
But if the settlor properly manifested an intention that no resulting trust should arise in the event of the failure of the trust, it will not arise, but the property will be disposed of in accordance with his intention, whether that intention is expressed in specific language or not.
No resulting trust arises if it appears by evidence properly admissible that in the event of the failure of the trust the property should be transferred by the trustee to a third person, or held upon a different trust, or that it should be retained by the trustee free of trust.
" And further it is said: "The resulting trust is rebutted when it is shown that the settlor intended that in the event of the failure of the trust the property should be held in trust for other purposes."
In Cock vs Hutchinson Lord Longdale, M. R. Observed: "Upon this deed a question is made, whether there is or is not a resulting trust to the grantor as to the surplus, with respect to which there is no declaration of trust; and for the purpose of determining that question, it is necessary to look carefully to the language of the deed, and to the circumstances of the particular case.
In general, where an estate or fund is given in trust for a particular purpose, the remainder, after that purpose is satisfied, will result to the grantor; but that resulting trust may be rebutted even by parole evidence, and certainly cannot take effect where a contrary intention to be collected from the whole instrument, is indicated by the grantor.
The distinctions applicable to cases of this kind are pointed out in the case of King vs Dinison (1 V. & D. 260) by Lord Eldon, who adopts the principles laid down by Lord Hardwicks in Hill vs The Bishop of London ; The conclusion to which Lord Hardwicks comes is, that the question whether there 709 is or is not a resulting trust must depend upon me intention of the grantor. ."
Now, it appears clearly from clause 2 of the will dated October 22, 1916 executed by the First Baronet that a substantially large sum of Rs.47,50,000/ was gifted by the First Baronet in equal shares to each of his sons excepting the eldest son, Mohamedbhoy.
The gift was made inter vivos in respect of the major sons and under the will in respect of the minor son, Ismail.
Clause 18 of the will, which constitutes the general residuary clause, discloses that the residue of the property was bequeathed by the First Baronet to all his sons, except Mohamedbhoy.
Mohamedbhoy was apparently not included in those dispositions because he would succeed as Baronet to the benefit of the trusts constituted under the Baronetcy Act.
He was the eldest son, and there is no reason to suppose that the First Baronet intended to exclude Mohamedbhoy from the benefit of his bounty.
The First Baronet planned to provide for all his sons.
Had he intended to exclude Mohamedbhoy for any reason, he would not have provided by clause 15 of the will that each one of his sons, including Mohamedbhoy, would enjoy an equal share in the mercantile business in Bombay and Calcutta in India, Hongkong and Shanghai in China and at Kobe in Japan.
The benefit of the trusts created under the Baronetcy Act, according to the terms of that enactment, were to devolve on the male heir of the body of the First Baronet who took the name "Currimbhoy Ebrahim", and when executing the Will the First Baronet had that benefit in mind for Mohamedbhoy as is apparent from clause 21 of the will, wherein he declared: "Lastly it is my special desire that my son Mohamedbhoy on succeeding to the title of Baronet and every succeeding Baronet shall forthwith on such succession adopt the names of Currimbhoy Ebrahim and continue to do so as long as he holds the title.
" The First Baronet had the line of Mohamedbhoy in mind for supplying the line of future Baronets.
He gave a special position to him, his eldest son.
By clause 7 of the Will, he bequeathed to Mohamedbhoy all the addresses, testimonials and caskets presented to him, symbols of the high status and dignity of the family, to be retained and passed down as heirlooms.
It is true that under section 4 of the Baronetcy Act the possibility could be envisaged that in the event of an existing descendant of Mohamedbhoy not using the name "Currimbhoy Ebrahim" the Baronetcy would pass to a descendant of 710 the next son of the First Baronet.
But that envisions a very remote possibility.
It is difficult to presume in reason that any male heir in the line of Mohamedbhoy would refuse to use the name "Currimbhoy Ebrahim" and deprive himself of the very real and substantial benefits of the Baronetcy.
Therefore, the only conclusion can be that the trust properties created under the Baronetcy Act were intended by the First Baronet to vest in Mohamedbhoy and his heirs.
In that light, section 27 of the Baronetcy Act assumes material importance in relation to the controversies before us.
Section 27 reads: "Upon failure and in default of heirs male of the body of the said Sir Currimbhoy Ebrahim to whom the same title of Baronet may descend the said Corporation shall stand possessed of the said hereditaments and premises particularly described in the first Schedule hereunder written and of any other hereditaments of a freehold tenure and of the funds which may then be vested in them by virtue and operation of this Act upon trust for the heirs of the last Baronet absolutely and shall also stand possessed of the said hereditaments and premises particularly described in the Second Schedule hereunder written or such of them as may be still vested in the said Corporation and any other hereditaments of a leasehold tenure which may then be vested in the said Corporation by virtue of this Act upon trust for the heirs of the last Baronet for all the then residues of the terms granted by the lessees by which the same are demised.
" Although section 27 can come into play only "upon failure and in default of heirs male of the body of the said Sir Currimbhoy Ebrahim" and that condition is absent in the present case the provision provides evidence, in the light of what has been said above, of the intention of the First Baronet that the trust properties and funds should be confined even ultimately to the line of Mohamedbhoy.
They would go to the heirs of the last Baronet, and not be distributed among his own heirs.
We are of opinion that upon the provisions of the Baronetcy Act and of the Will, a direction by the first Baronet must be necessarily presumed that if the trust created by the Baronetcy Act fails or is revoked, the trust properties and funds must go to the last Baronet.
The Division Bench of the High Court has found that the Fourth Baronet is entitled to the trust properties and funds, and a resulting trust does not come into existence.
For the reasons which have prevailed with us, we hold that such a conclusion should ordinarily follow.
However, the ultimate determination must turn on the validity of the claim made by 711 the Custodian of Evacuee Property that by virtue of sub section(4) of section 7 of the Repealing Act the trust properties and funds to which the Fourth Baronet would be entitled must vest in the Custodian.
In understanding the import of sub section(4) section 7 of the Repealing Act it is imperative to note that it is a part of the scheme embodied in section 7 providing for the distribution of trust properties by the Official Trustee to "the persons rightfully entitled thereto".
It comes into play as a step in the proceedings taken for that purpose.
It is considered for application when the Official Trustee under sub section(1) or the High Court under sub section(2) is determining who are the persons entitled to the trust properties on distribution.
Sub section(1) declares that if the claims received by the Official Trustee are justified and uncontested he must distribute the trust properties in accordance with such claims.
Sub section(2) provides that if the Official Trustee is of the opinion that the claims are not justified, or if they are contested, he may apply to the High Court for orders and directions as regards the distribution of the trust properties amongst the several claimants.
Sub section(3) provides that on obtaining such orders and directions, he must distribute the trust properties amongst the persons rightfully entitled thereto in accordance with the final decree or order passed in that behalf.
Sub section (4) declares: "If any person entitled to the trust properties, or any part thereof, has been or is declared an evacuee within the meaning of the , and if any right, title and interest of such person in the trust properties has been or is declared to be evacuee property under that Act, then the Official Trustee shall, subject to any order or direction which the High Court may make or give, transfer and vest in the Custodian the trust properties, or so much thereof as is found to be evacuee property, and the provisions of the law relating to evacuee property shall as far as may apply to such right, title and interest in the trust properties as they apply to any other evacuee property under that law".
An analysis of the provisions of this sub section is necessary.
It applies where: (a) a person is entitled to the trust properties or any part thereof; (b) such person has been or is declared as an evacuee with in the meaning of the and 712 (c) his right, title and interest in the trust properties has been or is declared to be evacuee property under the .
If the three conditions are satisfied, the Official Trustee is required to transfer and vest in the Custodian the trust properties, or so much thereof as is found to be evacuee property.
And the law relating to evacuee property, the sub section says, shall apply to such right, title and interest in the trust properties as they apply to any other evacuee property under that law.
When the sub section speaks of "any person entitled to the trust properties" it refers to the person found entitled to the trust properties by the Official Trustee under sub section(1) of section 7 or by the High Court under sub section(2) of that section.
In the present case, the Fourth Baronet has been found by us to be entitled to Repealing Act has been defined by cl.(d) of section 2 of that Act to mean all the trust properties and funds settled and created under the Baronetcy Act.
The second condition is also satisfied because the Fourth Baronet was declared an evacuee on June 10, 1952 under the .
The third condition is similarly fulfilled.
The right, title and interest of the Fourth Baronet in the trust properties, that is to say, his beneficial interest therein, was declared to be evacuee property on June 16, 1952 under the .
All three conditions being satisfied, sub section(4) takes effect and the direction contained in it must be carried out.
The Official Trustee is required to transfer and vest in the Custodian the trust properties found to be evacuee property.
Now, the expression "evacuee property" has not been defined in the Repealing Act and, therefore, it must take its meaning from the definition in the  Clause (f) of section 2 defines "evacuee property" to mean "any property of an evacuee".
The definition does not require that for property to be evacuee property, there must be a direction under the that it is evacuee property.
A perusal of the relevant provisions of the indicates that the Act contemplates the necessity of a declaration that property is an evacuee property in order that it should vest in the Custodian of Evacuee Property.
Unless that declaration is made the evacuee property, even though it belongs to an evacuee, cannot vest in the Custodian.
But there may be another law under which evacuee property may vest in the Custodian sub section(4) constitutes that law.
It provides for another kind of case where evacuee property may also vest in the Custodian sub section(4) of section 7 of the Repealing Act, in essence, is a law in addition 713 to the for vesting evacuee property in the Custodian.
The provision in sub section(1) that the Official Trustee shall transfer and vest in the Custodian the trust properties found to be evacuee property has the same statutory consequence is a declaration made under section 7 of the ,.
In opposition to the claim of the Custodian, it was pointed out that a declaration that evacuee property is vested in the Custodian is barred after May 7, 1954 by section 7A of the .
The provision in sub section(4) of section 7, on which the Custodian relies, is not a declaration under that Act.
As we have held the Fourth Baronet to be entitled to the trust properties, it must be taken that those properties in virtue of the definition of "evacuee property mentioned above have been found to be evacuee property.
The words "found to be evacuee property" mean found to be evacuee property in proceedings under section 7 of the Repealing Act.
Therefore it is beyond dispute that the Official Trustee must, by virtue of sub section (4), transfer and vest in the Custodian the trust properties.
Sub section(4) of section 7 further declares that the law relating to evacuee property shall apply to such right title and interest in the trust properties as they apply to any other evacuee property under the law.
The words "such right, title and interest in the trust properties" mean the right, title and interest in the trust properties which we have found the evacuee entitled to in this proceeding under section 7, and which now vest in the custodian.
That is distinct from the right, title and interest of the Fourth Baronet in the trust properties which were declared to be evacuee property under the .
It is urged on behalf of Sir Fazalbhoy Currimbhoy that if sub section(4) of section 7 of the Repealing Act is construed as declaring the trust properties to be evacuee property to which the provisions of the law relating to evacuee property would apply, the sub section must be regarded as ultra vires on the ground that the State Legislature is not possessed of legislative competence to declare any property as evacuee property.
The submission is misconceived.
Sub section(4) of section 7 of the Repealing Act can be attributed to the legislative power of the State Legislature in respect of Entry 41 of List III of the Seventh Schedule to the Constitution of India, which speaks of: "41.Custody, management and disposal of property (including agricultural land) declared by law to be evacuee property".
Reference may also be made to Entry 27 of List III of the Seventh Schedule, which speaks of: 714 "27.Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan.
" The Repealing Act received the assent of the President.
In case of any repugnancy between the Repealing Act and the , the former will prevail by reason of Article 254(2) of the Constitution.
On the view taken by us, how ever, the sub section is not repugnant to any provision of the for, as we have pointed out already, it is in the nature of additional legislation on the subject.
It is also submitted on behalf of Sir Fazalbhoy Currimbhoy that as the definition of the expression "the law relating to evacuee property ' in the Repealing Act has been defined by cl.(b) of section 2 of that Act to include the , the Legislature must be taken to have intended that a part of the trust properties would be distributed among the heirs of the First Baronet.
It seems to us that by defining the words "the law relating to evacuee property" in cl.(b) of section 2 of the Repealing Act to mean the , the , the and any other law for the time being in force in relation to evacuees or evacuee property, the Legislature intended to give the same powers to the Custodian in dealing with the trust properties as he enjoys in respect of other evacuee property.
The object in enacting sub section(4) of section 7 of the Repealing Act is apparent.
The Fourth Baronet had been declared an evacuee.
His interest in the trust properties under the Baronetcy Act had been declared evacuee property under the .
With the repeal of the Baronetcy Act and the revocation and extinction of the trust, that interest came to an end and the declaration ceased to have effect.
The Legislature presumed that when the Official Trustee took proceedings for the distribution of the trust properties under section 7 of the Repealing Act, the Fourth Baronet would be found entitled to the trust properties or part thereof.
He had already been declared an evacuee, and consistently with the earlier declaration vesting his interest in the trust properties as evacuee property in the Custodian now lapsed in consequence of the Repealing Act the Legislature intended that the trust properties falling in full ownership to the Fourth Baronet on repeal, should likewise be vested in the Custodian.
That could not be accomplished by a declaration under the , in view of section 7A 715 thereof which prohibited such a declaration after May 7, 1954.
The result could be accomplished under some other law, and sub.section (4) of section 7 was included in the Repealing Act to make provision accordingly.
The trust properties were evacuee property because they belonged to an evacuee, and by the operative clause in sub section(4) of section 7, they were vested in the Custodian.
The law relating to evacuee property was applied to the right, title and interest of the evacuee in the trust properties, even as they applied to any other evacuee property under that law.
The terms in which the law relating to evacuee property has been applied to the trust properties fully confirms the conclusion that the trust properties falling to the Fourth Baronet were to be treated at par with evacuee property generally.
It has been urged on behalf of the appellants in Civil Appeal No. 1221 of 1967 that the trust failed on March 14 1952, on the death of the Third Baronet, even before the Repealing Act was passed, and that the trust properties devolve, therefore on the heirs of the Third Baronet, that is to say his widow, son and two daughters, The submission was made before a Division Bench of the Bombay High Court and was rejected.
We are also of the view that there is no substance in this contention.
On the death of the Third Baronet, the benefit of the trusts created by the Baronetcy Act passed to the Fourth Baronet.
Towards the conclusion of the hearing, it was contended by learned counsel for Sir Fazalbhoy Currimbhoy that by virtue of the Notifications bearing No. 12/2/65 E PTY and No.12/3/65 E PTY dated September 10, 1965 and September 11, 1965 respectively the trust properties which could be rightfully claimed by the Fourth Baronet would stand vested in the Custodian of Enemy property under the Defence of India Rules, 1962.
For that reason, it is said, the Fourth Baronet cannot be held entitled to the trust properties, and therefore they would not vest in the Custodian of Evacuee Property.
The record before us does not show that the Custodian of Enemy Property filed any claim before the Official Trustee under sub section(1) of section 7 of the Repealing Act and, consequently, we consider it inappropriate to enter into this matter.
The Division Bench of the High Court has held that the Custodian of Evacuee Property is entitled to be paid a sum of Rs. 1,334.06 representing the unpaid amount of the net income of the trust properties upto March 14, 1960.
This finding has not been challenged, and we affirm it.
716 The Official Trustee has pointed out that various liabilities on account of Income tax, Wealth tax, House tax and other taxes are outstanding in respect of the trust properties.
He prays for directions that those tax liabilities be allowed to be cleared before the trust properties are transferred by him.
He also points out that there are fees, charges, costs and other expenses to be paid off.
We propose to remand the case to the High Court for making necessary orders in that regard after satisfying itself as to the existence and amount of these liabilities.
In the result, Civil Appeal No. 722 of 1967 and Civil Appeal No. 1221 of 1967 are dismissed, and Civil Appeal No. 1016 of 1967 is allowed.
There is no order as to costs of these appeals in this Court except an order for costs in favour of the Official Trustee, who shall be entitled to recover his costs of these appeals from the trust funds in his hands.
The judgment and order dated August 9, 1966 of the Division Bench of the Bombay High Court are set aside, except in so far as they contain the direction for payment of Rs. 1,334.06 to the Custodian of Evacuee Property and in so far as they direct, and make provision for, the payment of the costs of the Official Trustee and other parties and affirm the order for costs made by the learned Single Judge.
The Official Trustee shall transfer to and vest, in the Custodian of Evacuee Property the accumulated trust properties and funds settled and created under the Sir Currimbhoy Ebrahim Baronetcy Act, 1913, subject, however to the aforesaid directions and orders and to the directions and orders by the Bombay High Court for prior payment of the liabilities, if any, on account of Income Tax, Wealth Tax, House tax and other taxes and other charges, expenses, fees and costs incurred by the official Trustee.
The case is remanded to the Bombay High Court for that purpose.
P.B.R. C. A. Nos. 722 & 1221 of 1967 dismissed.
C. A. No. 1016 of 1967 allowed.

dataset_name: IN-Abs

summary:
In 1911 King George V conferred the "dignity, status and degree" of a Baronet on Sir Currimbhoy Ebrahim of Bombay.
To provide for the upkeep and dignity of the Baronetcy the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 was passed by virtue of which considerable properties belonging to Sir Currimbhoy Ebrahim were settled upon the trust.
Section 8 of the Baronetcy Act provided that the residue of income from the properties settled under the trust was to be paid to the first Baronet and the heir male of his body, who would, for the time being succeed to the title of Baronet.
Section 27 provided for the vesting of all properties and funds in the Trust "upon failure and in default of heirs male of the body of the last Baronet.
" The First Baronet left behind a Will in respect of certain other properties.
On the death of the First Baronet his eldest son assumed the title of Second Baronet and on the death of the Second Baronet his eldest son Hussainbhoy became the Third Baronet.
The Third Baronet migrated to Pakistan between the years 1947 and 1949.
He was, therefore, declared an evacuee.
Certain properties belonging to him were declared vested in the Custodian of Evacuee Property.
Two other immovable properties as well as the right, title and interest of the Third Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust were declared as evacuee properties and vested in the Custodian of Evacuee Property.
On the death of the Third Baronet in Pakistan in 1952 his eldest son Mohamedbhoy succeeded as the Fourth Baronet.
At that time the Fourth Baronet was residing in India, but shortly thereafter he migrated to Pakistan.
The Deputy Custodian of Evacuee Property made an order declaring the Fourth Baronet an evacuee and notified his beneficial interest in the Trust as evacuee property vesting in the Custodian of Evacuee Property.
The Fourth Baronet having migrated to Pakistan along with his son, the Bombay Legislature passed the Sir Currimbhoy Ebrahim Baronetcy (Repealing & Distribution of Trust Properties) Act, 1959.
The Repealing Act inter alia revoked and extinguished the trusts, powers, provisions, declaration and purposes declared and expressed in the Sir Currimbhoy Ebrahim Baronetcy Act and vested the properties and funds in the Official Trustee for the purpose of 700 distributing them amongst the persons rightfully entitled thereto, according to law.
The Official Trustee thereupon called upon the persons claiming interest in the trust properties to submit their claims.
On the Official Trustee 's application under section 7(2) of the Repealing Act seeking orders and directions of the High Court as regards distribution of the trust properties amongst the several claimants, a single Judge of the High Court took the view that the Custodian was not entitled to the share of the Fourth Baronet in the Trust properties because the beneficial interest of the Fourth Baronet which had vested in the Custodian came to an end on the extinction of the Trust that the Repealing Act had the effect of giving rise to a resulting trust in favour of the settlor, the first Baronet; that the trust properties reverted to his estate on his death, that they must be deemed to pass by inheritance, according to the Muslim personal law, and that the residuary clause in the will executed by the First Baronet did not cover the trust properties.
A Division Bench of the High Court on appeal held that on the terms of the Will a contrary intention had been manifested by the First Baronet that in the event of the failure of the Trust the trust properties shall, after his life time, be held for the benefit of the Baronet for the time being and therefore the Fourth Baronet was entitled to the trust properties absolutely in his own right.
The claim of the Custodian of Evacuee Property to the corpus of the trust properties was rejected.
^ HELD: 1.
Upon the provisions of the Baronetcy Act and of the Will a direction by the First Baronet must necessarily be presumed that if the trust created by the Baronetcy Act failed or was revoked the trust properties and funds must go to the last Baronet.
[710 G].
(a) Although the trust was created by statute, it was created at the instance of the First Baronet so as to keep the trust in perpetuity for the upkeep of the dignity and title of the Baronetcy at all times.
A trust of this nature has been regarded as a private trust.
[707 B].
(b) Section 83 of the Indian Trusts Act provides that where a trust is incapable of being executed or where the trust is completely executed without exhausting the trust property, the trustee, in the absence of a direction to the contrary, must hold the trust property for the benefit of the author of the trust or his legal representatives.
On the terms of this section, which incorporates in codified form the concept of what is known as a resulting trust, a resulting trust can arise only in the absence of a direction to the contrary.
[707 E F].
(c) In the instant case the various clauses of the will show that substantially large sums of money were gifted by the First Baronet in equal shares to each of the sons except the eldest son.
In all these clauses the eldest son Mohamedbhoy was not included because he would succeed as Baronet to the benefit of the trust constituted under the Act.
There is no reason to suppose that the First Baronet intended to exclude Mohamedbhoy from the benefit of his bounty.
According to the terms of the Act, the benefits of the trust created under the Baronetcy Act were to devolve on the male heirs of 701 the body of the First Baronet who took the name of Currimbhoy Ebrahim, and when executing the will, the First Baronet had that benefit in mind for Mohamedbhoy.
The First Baronet had the line of Mohamedbhoy in mind for supplying future Baronets.
Therefore the only conclusion that can be drawn is that the trust properties created under the Act were intended by the First Baronet to vest in Mohamedbhoy and his heirs.
Although section 27 comes into play only upon the failure and in default of heirs male of the body of the said Currimbhoy Embrahim, the intention of the First Baronet was that the trust properties and funds should be confined even ultimately to the line of Mohamedbhoy his eldest son.
They would go to the heirs of the last Baronet and not be distributed among his own heirs.
[709 B 710F] 2.
While ordinarily the trust properties and funds would have devolved on the Fourth Baronet, the ultimate determination of the case must turn on the validity of the claim made by the Custodian of Evacuee Property under section 7(4) of the Repealing Act.
[710H] (a) The Repealing Act was passed by the State Legislature under Entry 41 of List III of the Seventh Schedule to the Constitution and received the assent of the President.
In case of any repugnancy between the Repealing Act and the the former will prevail by reason of article 254(2) of the Constitution.
Section 7(4) is not repugnant to any provision of the 1950 Act.
It is in the nature of additional legislation on the subject.
[714 B].
(b) Section 7(4) of the Repealing Act was passed because the Fourth Baronet had been declared an evacuee and his interest in the trust properties under the Baronetcy Act had been declared evacuee property under the 1950 Act.
With the repeal of the Baronetcy Act and the revocation and extinction of the trust, that interest came to an end and the declaration ceased to have effect.
The Legislature presumed that when the Official Trustee took proceedings for the distribution of the trust properties under section 7 of the Repealing Act, the Fourth Baronet would be found entitled to the trust properties or part thereof.
He had already been declared an evacuee and consistently with the earlier declaration vesting his interest in the trust properties as evacuee property in the Custodian, the Legislature intended that the trust properties falling in full ownership to the Fourth Baronet on repeal should likewise be vested in the Custodian.
That could not be accomplished by a declaration under the , in view of section 7A thereof which prohibited such a declaration after May 7, 1954.
The result could be accomplished under some other law and section 7(4) of the Repealing Act was passed to make provision accordingly.
The trust properties were evacuee property because they belonged to an evacuee [vide section 2(f) , [1950], and by the operative clause in section 7(4) of the Repealing Act they were vested in the Custodian.
The law relating to evacuee property was applied to the right, title and interest of the evacuee in the trust properties even as they applied to any other evacuee property under that law.
The terms in which the law relating to evacuee properties has been applied to the trust properties fully confirms the conclusion that the trust properties falling to the Fourth Baronet were to be treated at par with evacuee property generally.
[714 F H].
(c) Section 7(4) of the Repealing Act requires three conditions to be satisfied.
They are: (i) that a person is entitled to the trust properties or 702 any part thereof; (ii) that such person has been or is declared as an evacuee within the meaning of the , and (iii) that his right, title and interest in the trust properties has been or is declared to be evacuee property under the .
If these conditions are satisfied the official trustee is required to transfer and vest in the Custodian the trust properties or so much thereof as is found to be evacuee property and the law relating to evacuee property shall apply to such right, title and interest in the trust properties as they apply to any other evacuee property under that law.
[711 G H].
In the present case the first condition is satisfied because the Fourth Baronet had been found to be entitled to all the trust properties and funds settled and created under the Baronetcy Act.
The second condition is satisfied because the Fourth Baronet was declared an evacuee.
Similarly, the third condition is satisfied because the right, title and interest of the Fourth Baronet in the trust properties was declared to be evacuee property.
All three conditions having been satisfied, section 7(4) takes effect and the direction contained in it must be carried out.
The Official Trustee is required to transfer and vest in the Custodian the trust properties count to be evacuee property.
[712 B D].
There is no substance in the contention that on the death of the Third Baronet before the Repealing Act was passed, the trust properties devolved on the heirs of the Third Baronet i.e. his widow, son and two daughters.
On the death of the Third Baronet the benefit of the trust created by the Baronetcy Act passed to the Fourth Baronet.
[715 D].