judgement:
ion No. 211 of 1963.
Petition under article 32 of the Constitution of India for the enforcement of the Fundamental Rights.
R. K. Garg, for the petitioner.
C. K. Daphtary, Attorney General, B. R. L. Iyengar and B.R. G. K. Achar, for the respondents.
March 31, 1964.
The Judgment of the Court was delivered by SIKRI, J.
This is a petition under article 32 of the Consti tution for enforcing the fundamental rights of the petitioner under articles 14, 16 and 19 of the Constitution.
Although the petition raises various points, before us only two points have been argued by Mr. Garg, on behalf of the petitioner.
We are grateful to Mr. Garg, who has argued as amicus curiae, for the assistance he has given.
The two points may be formulated as follows: (1) That the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959, were not made with the previous approval of the Central Government under section 115(7) of the State 551 Re organisation Act, and, therefore, do not govern the petitioner insofar as the conditions of service have been varied to his disadvantage; (2) That the Madras Government had, prior to, November 1, 1956, by various orders, reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16.
In order to appreciate the arguments addressed to us, it is necessary to give a few facts.
The petitioner was selected by the Madras Public Service Commission as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was allotted to the Revenue Department and posted in South Kanara District.
He was promoted as Upper Division Clerk on April 2, 1956.
According to the petitioner, he should have been promoted much earlier as he had rendered outstanding and meritorious service.
According to the State, the petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit.
The State admits that he was promoted as Upper Division Clerk with effect from April 2, 1956, but alleges that this was on a temporary basis.
He was later reverted and then again posted as a temporary Upper Division Clerk.
In August 1957, the petitioner was considered and included in the eligibility list at Serial No. 14.
This list was regularised on December 12, 1957, in accordance with Rules 39(e) and 35 of the Madras State and Subordinate Service Rules, with effect from October 19, 1957.
According to the petitioner this resulted in the loss of benefit of service and increments.
In the meantime, reorganisation of States took place under the State Reorganisation Act (XXXVII of 1956) South Kanara District, except Kasaragod Taluk, went to the new Mysore State and the petitioner was allotted to it.
On May 11, 1957, the Government of India addressed a memorandum (No. S.O. SRDI 1. APM 57) to all State Governments.
Broadly speaking, the Central Government said that some conditions of service should be protected, e.g., substantive pay of permanent employees, certain type of special pay, lave rules unless the Government servant opts for new leave rules, etc.
But in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, pro bation and departmental promotion was also considered.
The Government of India agree with the view expressed on behalf of the State representatives that it would not be appropriate 552 to provide for any protection in the matter of these condi tions.
" Therefore, it is evident from this memorandum that the Central Government had told the State Government that they might, if they so desire, change service rules as indi cated in the memorandum.
But Mr. Garg argues that even so this does not amount to previous approval within section 115(7) of the to the making of the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959.
What then is the true meaning of the expression "previous approval" in the proviso to section 115(7).
Sub section (7) of section II 5 provides that: Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State; Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) of subsection (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.
" The effect of this sub section is, inter alia, to preserve the power of the State to make rules under article 309 of the Constitution, but the proviso imposes a limitation on the exercise of this power, and the limitation is that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub ss (1) and (2) of section 115.
It is not disputed that the petitioner is one of those persons.
Mr. Garg has submitted that the very fact that the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959, as framed, were not sent to the Central Government for approval before being promulgated shows that previous approval has not been obtained.
The memorandum, he says, is not approval but an abdication of the powers of the Central Government.
In this connection he relies on the decision of the Court of Appeal in the case of In re Bosworth and Corporation of Gravesend(1), but this, decision has no bearing on the point under discussion.
An Order in Council had been made under the provisions of the Burial Act, 1853, whereby it was ordered that no new burial ground shall be opened in (amongst other places) Gravesend, without the previous approval of one of Her Majesty 's Principal Secretaries of State.
Permission was sought of the Secre tary of State to add additional land to an existing cemetery (1) [19051 2 K.B. 426.
553 The Secretary of State replied that his sanction to the pro posed addition was not required.
It is this reply which was characterised by Collins, M. R., as renouncing of jurisdiction.
We cannot appreciate how this assists us in interpreting the proviso to section 115(7).
He further relied on the unreported ' judgment of the High Court of Mysore in C. K. Appanna vs State of Mysore(1), but this proceeds on a concession made by the Government Pleader and does not advance petitioner 's case.
In our opinion, in the setting in which the proviso to section 115(7) is placed, the expression "previous approval" would include a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government.
It has to be remembered that article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules.
The proviso to section 115(7) limits that power, but that limitation is removable by the Central Government by giving its previous approval.
In this context, we think that it could not have been the intention of Parliament that Service Rules made by States would be scrutinised in the minutest detail by the Central Government.
Conditions vary from State to State and the details must be filled by each State according to its re quirements.
The broad purpose underlying the proviso to section 115(7) of the Act was to ensure that the conditions of ser vice should not be changed except with the prior approval of the Central Government.
In other words, before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government.
In the memorandum mentioned above, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion.
In our opinion, this amounted to previous approval within the proviso to section 115(7).
It may be mentioned that by this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information.
Therefore ' in our opinion, there is no force in the first contention of the learned counsel for the petitioner, and we hold that the ruler, were validly made.
There are two preliminary hurdles in the way of the petitioner regarding the second point taken on his behalf.
Firstly, the State of Madras has not been made a party to this petition.
Secondly, he never raised these points while he was serving under the State of Madras.
It is difficult at this stage to challenge orders, which if quashed, would affect the rights of other civil servants who are not (1) W.P.
No 88 of 1962 ; judgement dated January 13,1964.
554 parties to this petition.
At any rate, the petitioner has not been able to show how article 16 was infringed before he was allotted to the new Mysore State.
The State in its reply has asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion.
It was for the competent authorities to judge the merits of the petitioner.
We find no force in this contention and hold that no infringement of article 16 has been established.
Accordingly, in the result, the petition fails.
In the circumstances of the case we order that the parties will bear their own costs in this Court.
Petition dismissed.

dataset_name: IN-Abs

summary:
The petitioner was selected as a Lower Division Clerk under the Madras Ministerial Service Rules in 1949, and was posted in South Kanara District.
He was promoted as upper division clerk on April 2, 1956 and according to him, he should have teen promoted much earlier.
According to the State, the Petitioner was considered for inclusion in the eligibility list from 1955 onwards, but was not selected as he was not considered fit.
The State admitted that he was promoted as Upper Division clerk with effect from April 2, 1956, but alleged that this was on a temporary basis.
He was later reverted and then again posted as temporary Upper Division clerk.
In August, 1957, the petitioner was considered and included in the eligibility list at serial No. 14.
This list was regularised on December 12, 1957, in accordance with Madras State and Subordinate Service Rules, with effect from October 19, 1957.
According to the petitioner this resulted in the loss of benefit of service and increments.
In the meantime, reorganisati;on of States took place under the and South Kanara District went to the new Mysore and the petitioner was allotted to it.
On May 11, 1957, the Government of India addressed a memorandum to all State Governments and in respect of departmental promotion it said that "the question whether any protection should be given in respect of rules and conditions applicable to Government Servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered.
The Government of India agree with the view expressed on behalf of the State res presentatives that it would not be appropriate to provide for any protection in the matter of these conditions.
It was urged on behalf of the petitioner (i) that the Mysore General Services Recruitment Rules, 1959, were not made with the previous approval of the Central Government under section 115(7) of the States Re organisation Act, and, therefore, do not govern the petitioner in so far as the conditions of service have teen varied to his disadvantage and (ii) that the Madras Government had, prior to November 1, 1956, by varoius orders, reduced the petitioner in rank in violation of article 311(2) of the Constitution and article 16.
550 Held: (i) In the setting in which the proviso to section 115(7) of the Act is placed, the expression "previous approval" would in clude a general approval to the variation in the conditions of service within certain limits, indicated by the Union Government.
article 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules.
The proviso to section 115(7) of the Act limits that power, but that limitation is removable by the Central Government by giving its previous approval.
The broad purpose underlying the Proviso to section 115(7) of the Act was to ensure that the conditions of service should not be changed except with the prior approval of the Central Government.
In the memorandum, the Central Government, after examining various aspects, came to the conclusion that it would not be appropriate to provide for any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion.
This amounted to previous approval within the proviso to section 115(7).
By this memorandum the State Governments were required to send copies of all new rules to the Central Government for its information.
Therefore, it must be held that the rules were validly made.
In re Bosworth and Corporation of Gravesend, [1905] 2 K.B. 426 and C. K. Appamna vs State of Mysore, W.P. No. 88 of 1962, held inapplicable.
(ii) The petitioner failed to show, how article 16 was in fringed before he was allotted to the new Mysore State.
The State in its reply had asserted that all the orders complained against were passed by competent authorities, after considering the merits of the petitioner on each occasion.
It was for the competent authorities to judge the merits of the petitioner.
Therefore, it must be held that infringement of article 16 was not established.


judgement:
Appeal No. 223 of 1964.
Appeal by special leave from the Judgment and order dated December 6, 1963 of the Mysore High Court in Writ Petition No. 2273 of 1963.
S.K. Venkataranga Iyengar and R. Gopalakrishnan, for the appellant.
N.S. Krishna Rao and Girish Chandra, for respondents No. 1, 2, 4 10, 12 15.
April 1, 1964.
The Judgment of the Court was delivered by DAS GUPTA, J.
Is the requirement of three clear days ' notice for the holding of a special general meeting as embodied in section 27(3) of the Mysore Town Municipalities Act 1951, a mandatory provision? That is the main question which arises for decision in this appeal.
The appellant was elected as the President of Holenarsipur Municipality on September 11, 1962.
At a special general meeting of the Municipal Council held on October 14, 1963, a resolution was passed in the following terms: "This Council has no confidence in the Municipal President of Holenarsipur Municipality.
" On November 2, 1963 Mr. Narasimhiah, the President of the Council applied to the High Court of Mysore under article 226 of the Constitution praying for the issue of an appropriate writ quashing the proceedings of the meeting which culminat ed in the resolution of no confidence against him.
Prayer; were made also for some consequential reliefs.
Holenarsipur Municipality has twenty Councillors.
Thirteen out of the them sent a request to the President to convene a special general meeting to discuss a resolution expressing no confidence in him as President.
This request was handed over to the President on 25th September 1963.
As however he did not take any steps for convening the meeting the Vice President acted in the matter calling a meeting to discuss the resoulation to express no confidence in the President.
A notice under the Vice President 's signature stating that it was proposed to hold a special general body meeting 620 of the Municipality on the 14th October 1963 at 10 A.M. in the office premises and asking the members to be present in time was served on the Councillors.
One copy of the notice was also posted up at the Municipal Office as required by 27(3) of the Mysore Town Municipalities Act, 1951 (herein after referred to as "the Act").
The notice bore the date 10th October 1963.
On fifteen of the twenty Councillors the notice was personally served on that very date, i.e., the 10th October.
On three of the Councillors, viz., the President Narasimhiah, Mr. Dasappa and Mr. Sanniah, the notice was served on the 13th October.
It was served on Councillor Mirza Mohammad Hussain on the 12th October and on the Councillor R. G. Vaidyanatha on the 11th October 1963.
When the meeting was held on October 14, 1963, nineteen of the twenty Councillors were present.
The President, Mr. Narasimhiah was among them.
He claimed to preside over the meeting.
But, ultimately, he appears to have left the meeting.
The meeting was then held under the presidentship of the Vice President Mr. Singri Gowda.
The no confidence motion against the President was moved and was passed, fif teen members having voted for it.
In challenging the legality of the proceedings of this meeting of 14th October and the validity of the resolution of no confidence passed there, the petitioner urged three principal grounds.
The first is that the requisite three days ' notice was not served on all the members and so the meeting was not validly held.
The second ground urged was that the meeting cannot be said to be properly held as he was not allowed to preside and the Vice President presided.
and thus s.24(1)(a) of the Act was contravened.
Thirdly, it was urged that the requisition for moving the resolution of no confidence did not comply with the proviso to s.23(9) of the Act as 15 days ' notice was not given of the intention to move the resolution.
The High Court held that on the materials before it, it was not possible to pronounce as to the circumstances under which the Vice President presided at the meeting.
So, the High Court rejected the contention that there was any contravention of s.24(1)(a) of the Act.
The case made in the petition that 15 days ' notice had not been given of the intention to move the resolution does not appear to have been pressed at the hearing; as there is no mention in the judgment of any such argument.
On the question regarding the failure.
to serve three days ' notice of the meeting on all the Councillors, the High Court followed its own decision in another Writ Petition No. 2280 of 1963 and rejected the petitioner 's contention.
The judgment in Writ Petition No. 2280 of 1963 which was produced before us shows that the High Court took the view that 621 as the notices were sent on the 10th October they must he held to have been given on that date even though they were ,actually served on the 11th, 12th and 13th; but, apart from that the High Court was of opinion that the provision about ' three days ' notice was only directory and not mandatory and so the omission to give notice would not affect the validity of the resolution.
All the three grounds raised in the petition were urged before us in support of the appeal.
As regards the petitioner 's contention that the meeting was not held in accordance with law as he was not allowed to preside, we are of opinion, on a consideration of what material there is on the record, that it was after he left the meeting that the Vice President took the chair and thereafter the no confidence resolution was moved and passed.
There can therefore be no question of any contravention of the requirement that the President shall preside.
There is.
our opinion, no substance also in the contention that the proviso to s.23(9) was contravened.
The proviso runs thus: "Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one third of the whole number of the Councillors and at least fifteen days ' notice has been given of the intention to move the resolution.
" Admittedly, the notice was signed by more than one third of the whole number of Councillors.
It is said, however, that fifteen days ' notice of the intention to move the resolution was not given.
This argument which Mr. lyengar addressed to us, but which does not appear to have been urged before the High Court proceeds on the assumption that fifteen days ' notice of the intention to move the resolution has to be given not only to the President but also to the other Councillors.
We do not think that that assumption is justified.
In our opinion, what is required is that fifteen days ' notice of the intention to move the resolution has to be given to the President.
In other words, all that is required is that before the resolution is actually moved the President has got fifteen days ' notice.
In the present case, the meeting was held on October 14 and the President received the notice on the 25th September.
There was thus more than 15 days ' notice given to him.
This brings us to the main contention that three days ' notice of the special general meeting was not given and so the meeting is invalid.
We find it difficult to agree with the High Court that "sending" the notice amounts to "giving" the notice.
622 "Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given.
In the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him.
Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it.
We can find however no authority or principle for the proposi tion that as soon as the person with a legal duty to give the.
notice despatches the notice to the address of the person to whom it has to be given, the giving is complete.
We are therefore of opinion that the High Court was wrong in thinking, that the notices were given to all the Councillors on the 10th October.
In our opinion, the notice given to, five of the Councillors was of less than three clear days.
The question then is: Is the provision of three clear days ' notice mandatory, ie., does the failure to give such notice make the proceedings of the meeting and the resolution pas sed there invalid? The use of the word "shall" is not conclusive on the question.
As in all other matters of statutory construction the decision of this question depends on the ascertainment of the legislature 's intention.
Was it the legislature 's intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law? That is the question to be answered.
To ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part.
In the State of U.P. vs Manbodhan Lal Srivastava (1) where the question arose whether the provisions of article 320(3)(c) of the Constitution are mandatory (which provides that the Union Public Service Commission or the State Public Service Commission shall be consulted on certain disciplinary matters), this Court laid stress on the fact that the proviso to the Article contemplates that the President or the Governor as the case may be make regulations specifying the matters in which either in general or in any particular class or in any particular circumstances, it shall not be necessary for the Public Service Commission to be consulted.
Speaking for the Court Sinha J. observed: "If the provisions of article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Excutive Government to undo those provisions by making regulations to the contrary." (1) ; 623 This appears to have been the main reason for the court 's decision that the provisions of Article 320 (3)(c) are not mandatory.
Naturally, strong reliance has been placed on this decision on behalf of the respondents.
It is pointed out that while providing that three clear days ' notice of special general meeting shall be given to the Councillors, the legislature said in the same breath that "in cases of great urgency, notice of such shorter period as is reasonable should be given to the Councillors of a special general meeting.
" The decision of what should be considered to be a case of "great urgency" was left ,entirely to the President or the Vice President on whom the duty to call such a meeting is given under s.27(2).
It is urged by the learned Counsel that if the intention of the legislature had been to make the service of three clear days ' notice man datory it would not have left the discretion of giving notice for a shorter period for some of the special general meetings in this manner.
We see considerable force in this argument.
The very fact that while three clear days ' notice is not to be given of all special general meetings and for some such meetings notice only of such shorter period as is reasonable has to be given justifies the conclusion that the "three clear days".
mentioned in the section was given by the legislature as only a measure of what it considered reasonable.
It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting.
For an ordinary general meeting the notice provided is of seven clear days.
That is expected to give enough time for the purpose.
But a lesser period of three clear days ' is considered sufficient for "special general meetings" generally.
The obvious reason for providing a shorter period for such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves.
Where the special general meeting is to dispose of some matter of great urgency it is considered that a period ,of even less than three clear days ' notice would be sufficient.
A consideration of the object of these provisions and the manner in which the object is sought to be achieved indicates that while the legislature did intend that ordinarily the notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid.
624 It is important to notice in this connection one of the pro visions in s.36 of the Act.
It is in these words: "No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided the proceedings of the municipal council or committee were not prejudicially affected by such irregularity.
" It is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors.
Quite clearly, any irregularity in the manner of giving the notice would be covered by the words "irregularity in the service of the notice upon any Councillor".
It appears to us however reasonable to think that in making such a provision in s.36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required.
It is interesting to notice in this connection that the English law as regards meetings of borough councils and county councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting.
It may be presumed that the legislature which enacted the Mysore Town Municipalities Act,. 1951, was aware of these provisions in English law.
It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid.
It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by such irregularity.
The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity, The existence of this provision in s.36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in s 27(3) is only directory and not mandatory.
We are therefore of opinion that the fact that some of the Councillors received less than three clear days ' notice of the, meeting did not by itself make the Proceedings of the meeting or the resolution passed there invalid.
These would be invalid only if the proceedings were prejudicially affected by such irregularity.
As already stated, nineteen of the twenty Councillors attended the meeting.
Of these 19, 15 voted in favour of the resolution of no confidence against the appellant.
There is 625 thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice.
" We have therefore come to the conclusion that the failure to give three clear days ' notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant.
In the result, we dismiss the appeal with costs.
Appeal dismissed.

summary:
The appellant was the elected President of the Municipality.
In a special general meeting of the councillors a resolution expressing no confidence in him as President was moved and passed.
In the High Court as well as in this Court, the legality of the proceedings of the meeting and the validity of the resolution was challenged by the appellant on the grounds, (i) that the requisite three days notice under the Act was not served on all the members and so the meeting was not validly held, (ii) that the meeting was not properly held as the appellant was not allowed to preside and thus section 24(1) (a) of the Act was contravened and (iii) that the requisition for moving the resolution ,did not comply with the proviso to section 23(a) of the Act as fifteen days notice was not given of the intention to move the resolution.
The last two contentions were rejected by the High Court.
On the main contention it held that as the notices were sent to the councillors on the 10th October 1963, they must be held to have been given on that date even though they were actually served on the llth, 12th and 13th; but, apart from that it was of opinion that the provisions about three days, notice was only directory and not mandatory and so the omission to give notice would not affect the validity of the resolution.
Held: (i) The High Court was wrong holding that "send ing" a notice amounts to "giving" the notice.
There is no authority or principle for the proposition that as soon as the person in the legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete.
Therefore, it must be held that the notice given to some of the councillors was of less than three clear days.
(ii) The provision as regards any motion or proposition of which notice must be given in section 27(3) of the Act is only directory and not mandatory.
Therefore the fact that some of the councillors received less than three clear days notice of the meeting did not by itself made the proceedings of the meeting or the resolution passed there invalid.
These would be invalid only if the proceedings were prejudicially affected by such irregularity.
In the present case, nineteen of the, twenty councillors attended the meet ing and of these 19, 15 voted in favour of the resolution of no confidence against the appellant.
There is thus no reason for holding that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice".
State of U.P. vs Manbodhan Lai Srivastava, [1958] S.C.R. 533, referred to.
(iii) On a consideration of the material on the record, it must be held that it was after the appellant left the meeting that the Vice President took the chair and thereafter the no confidence resolution was moved and passed.
There could therefore 619 be no question of any contravention of the requirement under s.24(1) (a) of the Act that the President shall preside.
(iv) The proviso to s.23(9) of the Act was not contravened.
All that is required is that before the resolution is actually moved, the President has got fifteen days notice.
In the present case, the meeting was held on October 14 and the appellant received the notice on the 25th September.
There was thus more than 15 days notice given to him.


judgement:
Appeal No. 589 of 1960.
Appeal by special leave from the judgment and decree dated April 28, 1953, of the Madras High Court in A.S. No. 695 of 1949.
K.N. Rajagopal Sastri, K. Jayram and R. Ganapthy Iyer.
for the appellant.
A. V. Viswanatha Sastri and T.V.R. Tatachari, for respondent nos.
1, 3, 4 and 6 to 8.
B. Kalyana Sundaram, M. Rajagopalan, K. Rajendr Choudhry, M. R. Krishna Pillai for K. R. Chaudhuri, for respondent No. 2.
March 26, 1964.
The Judgment of the Court was delivered by DAs GUPTA, J.
Three brothers, Ramakrishna, Narayanaswamy and Mahadeva.
, who are eighty three, seventy nine and sixty nine years of age respectively, are the main figures in this litigation.
After their father 's death in 1908 the three brothers continued as members of a joint family.
The eldest brother, Ramakrishna became under the law the Karta of the family.
When the father died the family was possessed of about 10 acres of land.
But he had left some debts and one of the first acts which Ramakrishna had to do as the Manager was the repayment of those debts.
Ramakrishna had become the Karnam in Narasingampettai in 1902 and even during his father 's life time started acquiring property.
Property to the extent of about 25 acres was acquired for the joint family between the years 1911 to 1931.
In 1927 Ramakrishna had been transferred to the bigger village of Vepatthur and continued to be there till 1930.
On his retirement in that year his son Venkatarama succeeded him as the Karnam of Vepatthur.
Between 1931 to 1946 properties in Vepatthur and other villages were acquired in the name of Ramakrishna 's son Vankatarama, his wife Mangalathammal, his grandson (Ven katarama 's son) Mahalingam.
Some property was acquired also in the name of Mangalathammal 's brother Raja Ayyar.
Monies were also invested in loans in the names of Ramakrishna 's wife.
Mangalathammal, his son Venkatarama and his grandson, Mahalingam.
492 The second brother Narayanaswami became a Vakil 's clerk in Kumbakonam in 1910.
The third brother Mahadeva who was a boy a of thirteen at the time of his father 's death was put into the medical school and qualified as a doctor.
He was in service as a Sub Assistant Surgeon at the time when the present suit was instituted by Narayanaswamy.
Both of them earned well and have admittedly acquired properties for themselves out of their own earnings.
As early as the thirties feelings became strained between Ramakrishna, the eldest brother and Narayanaswami the second brother.
Mahadeva who had to remain away at different places in connection with his service demanded partition of the joint family properties and in this Narayanaswami also seems to have joined him.
The extreme action of going to courts was however not taken so long as mother was alive.
She died early in 1945 at the age of 90 years.
In December, (12th December) 1946 Narayanaswami sent a lawyer 's notice to Ramakrishna in which he claimed that not only the 25 acres acquired between 1911 and 1931 but also the properties ac quired in the name of Ramakrishna 's wife, his son and brother in law had been acquired with the income of the family and formed part of the joint family properties.
He claimed also in this notice that family funds of about Rs. 25.000/ was in the hands of Ramakrishna in the shape of cash and Benami investments.
He demanded a partition of all these properties and of the cattle and other movable properties owned by the family.
He also called upon Ramakrishana to account for the income derived from the family properties "for the last three years at least".
In all these he claimed a one third share.
To this Ramakrishna replied on December 1, 1946.
He stated that the joint family properties consisted only of 10 acres left by their father and about 25 acres acquired later on and denied that the other properties belonged to the family.
Soon after this, on the 1st February 1947.
Narayanaswami brought this suit for partition and accounts in the court of the Subordinate Judge, Kumbakonam.
The eldest brother Rama krishna was impleaded as the first defendant; Mahadeva the third brother, was the second defendant, Ramakrishna 's son Venkatarama.
his wife Mangalathammal and his brother inlaw Raja lyer were in pleaded as the third, fourth and the fifth defendants respectively.
Mahalingam was impleaded as the sixth defendant.
Two other minor sons of Venkatarama were also impleaded.
They are the seventh and the eighth defendants in the case.
The plaintiff 's case was short and simple.
He claimed that Ramakrishna as the Karta of the joint family managed the family properties and acquired properties with the family funds from 1911 to 1946.
He thus claimed that not only the 34 493 acres and 58 cents of land in the village Kumarakshi (men tioned in the A Schedule) which the first defendant Rama krishna 's wife or son or grandson or brother in law were joint ties mentioned in the Schedules B, Bl and B2, and C, C1 and C2 and D for which the sale deeds stood in the name of Ramakrishna 's wife or son or grandson or brother in law were joint family properties.
He claimed also that between 1931 and 1946 Ramakrishna.
the Karta.
had invested family funds in the name of his wife.
his son and his grandson and these were also joint family properties.
The movable properties claimed to be joint family properties were mentioned in Schedule A2, while the house in Thiagarajapuram.
also claimed to be joint family property was mentioned in AI Schedule.
The plaintiff prayed for allotment to him of one third share of these properties by division in metes and bounds into three equal shares.
He further prayed for a direction on the first defendant to account for the management of the family properties for three years and for payment to the plaintiff of his share in the amount that may be found due.
The second defendant Mahadeva generally supported the plaintiff though as regards the years, 1940, 1941, 1942 and 1943 his case in the written statement was that it was the plaintiff Narayanaswamy and not the first defendant who collected the income from the join family properties.
For these four years, he pleaded that the plaintiff was liable to render an account while for the remaining period the first defendant was said to be liable.
In a Schedule to his written statement he mentioned several other items of properties which he claimed belonged to the joint family though one of the sale deeds stood in the name of the sixth defendant Mahalingam and the other in the name of the fifth defendant Raja Ayyar.
The other defendants contested the suit.
The first defendant 's case was that though on his father 's death he became in law the Karta of the joint Hindu family the actual management was carried on by the mother till 1940 and from 1940 till the mother 's death in 1945 by the plaintiff Narayanaswami.
It was only after the mother 's death that he has taken up the management of the properties.
He pleaded that of the properties mentioned in the plaint only 34.58 acres mentioned in the A Schedule formed the joint family property.
(In addition to some of the movable properties mentioned in A2 Schedule).
He further pleaded that a house in Kumbakonam town which was acquired by the plaintiff in his own name as also some lands in Manalur village in Kumbakonam and Rs. 8,000/ in cash which the plaintiff had obtained on sale of certain lands also formed part of the joint family property.
His wife Mangalathammal, the fourth defendant also pleaded that the properties and the investments standing in her 494 name were made by her on her own account with the monies which her husband Ramakrishna gave to her from his own earnings.
These therefore were not part of the joint family property and consequently not liable to partition.
The third defendant (Venkatarama 's) case was that the purchases of land and investments of money standing in his name were all with his own earnings since he became Qarnam and did not form part of the joint family property.
As regards what stood in the name of his son Mahalingam the third defendant pleaded that these were with his own earnings.
The fifth defendant also pleaded that whatever stood in his name was acquired by him with his own money and did not form part of the joint family of the plaintiff and his brothers.
The learned Subordinate Judge held on a consideration of the evidence that the plaintiff 's case 'that the oldest brother Ramakrishna managed the family property as the Karta from and after their father 's death in 1908 till the date of the suit had been established.
He also came to the conclusion that in about 1931 Ramakrishna had with him an accumulated income of about Rs. 14,000/ belonging to the family and but very little money of his own,, From these findings it was an easy step to hold, as the learned Judge did.
that the immovable properties mentioned in Schedules A, Al, B, B1., C. Cl, C2 and D as also Item 5 in Schedule B2 were all properties belonging to the joint family.
Out of these he found that the properties in Schedule Al, that is, a house in Thiagarajapuram had been, given away to the sister Rukmaniammal and was no longer a joint family property and therefore not liable to division.
The rest of the properties, he held, was liable to be divided among the three brothers, the plaintiff and the defendants 1 and 2.
The Court also held that the mortgages and promissory notes on which money had been lent in the names of defendants 3 to 5 belonged to the joint family with the exception of a few standing in the name of the third defendant (Venkatarama) which was held to be the third defendant 's personal property.
A preliminary decree was made by the Court in accordancewith these findings with a direction that an account be taken with reference to income of the properties in Schedules A, A1, B, B1, C, C1 and D and Item 5 in Sch.
B2 and the house at Kumbakonam mentioned in the Schedule to the first defendant 's written statement, for three years prior to the date of the suit and from the date of the suit till the passing of the final decree.
As regards the properties in Schedule A it was, directed that the accounting will cease from the date on which the parties took possession of their share in accordance with the interim decree.
Against this decision the first defendant appealed to the High Court of Judicature at Madras.
The plaintiff also filed 495 an appeal challenging the decision of the Subordinate Judge that the house in Kumbakonam was a joint family property. 'The High Court allowed the plaintiff 's appeal holding that the Kumbakonam house was a separate self Acquisition of the plaintiff.
Against this decision of the High Court no appeal has been preferred and we are no longer concerned with the question whether this house was plaintiff 's property or not.
In the appeal preferred by the first defendant the High Court came to the conclusion, disagreeing with the Trial court, that the first defendant Ramakrishna had saved enough from his separate earnings from which it was quite possible for him to make all the acquisitions and investments in the name of his son, wife and grandson subsequent to 1930.
In the opinion of the High Court the view of the Subordinate Judge that by 1930 the first defendant had in his hands a sum of Rs. 14,000/ accumulated from the income of the joint family lands was "surprising and untenable".
It did not disturb the Trial Court 's findings that Schedule D land acquired in the name of the 3rd defendant was joint family property, apparently because no appeal had been filed as regards this property.
Taking these 14 acres to be acquisitions for the family the High Court recorded its conclusion thus: "When we consider that the joint family nucleus has been more than quadrupled, it is difficult to see what grievance the younger coparceners really have, particularly the second defendant, who after keeping for himself his earnings as a Doctor in Government Service finds himself entitled to a share in a greatly increased ancestral patrimony.
" Finally the High Court concluded "that the plaintiff has not shown that any of the acquisitions or investments in the names of defendants 3, 4 and 6 were made from joint family funds.
" Accordingly, it allowed also the appeal preferred by the first defendant, holding that the only items liable for partition as joint property assets were those in Schedules A and D. It also ordered that the first defendant would account for the income from 12th December 1946, the date on which notice demanding partition was sent to him by the plaintiff.
The present appeal has been preferred by the plaintiff against this decision of the High Court.
Two main arguments were advanced before us by Mr. Rajagopala Sastri in support of the appeal.
The first is as regards the properties purchased in the name of the first defen dant 's wife, his son, and his grandson.
Learned Counsel submitted that the High Court did not record any clear conclusion that at the date of the acquisition of these properties the joint family had not a sufficient nucleus for acquiring these.
He argued that the acquisitions in the name of the first defendant 's wife was admittedly with funds advanced by the first defendant himself; and if at the date of the acquisition in her name the joint family had sufficient nucleus for acquiring them, the presumption would be that they were acquired with joint family funds notwithstanding the fact that the first defendant may have sufficient funds of his own for the same purpose.
It was rightly argued that in such a case the property should be held to be joint family property unless the presurmption of the acquired property also being joint family property was rebutted by the first defendant.
It was also argued that acquisitions in the name of the third defendant and the sixth defendant should also be held to have been made with funds advanced by the first defendant himself and so these also should be presumed to have been acquired with joint family funds if it is shown that the joint family had sufficient nucleus for acquiring these at the date of the acquisitions and the first defendant does not show positively that the funds with which they were acquired did not belong to the joint family.
The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.
(Vide Amritlal Sen & ors., vs Surath Lal Sen & others(1) Appalaswami vs Suryanarayanamurthy & others(2).
In the case before us, it is not disputed that the acquisi tions in the name of the first defendant 's wife were made with funds advanced by him.
As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant.
The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisitions could have been made is therefore of great importance.
On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisitions made in the names of the first defendant 's wife.
his son, and his grandson sufficient nucleus from which these properties could be acquired.
In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant.
(1) A.I.R. 1942 Cal.
(2) I.L.R. [1948] Mad.
(P.C.) 440.
497 The period during which acquisitions admittedly for the joint family were made came to an end in about 1931.
At that time the first defendant had, according to his own evidence, about Rs. 15,0001 in his hand.
His case is that this entire K. amount was what he had accumulated out of his own earnings.
The Subordinate Judge held that a little more than Rs. 14,000 / out of this amount was the savings from the family funds.
We agree with the High Court that this conclusion is not justified by the evidence on the record.
As rightly pointed out by the High Court properties worth about Rs. 20,000/had been purchased out of the family income during this period.
During part of this period at least monies had to be spent for other requirements of the family including the expenses on the education of the third brother Mahadeva.
The several documents produced in the case show that at the time of more than one purchase the first defendant had to borrow money on promissory notes to pay the consideration mentioned in the documents.
It is worth mentioning that even the plaintiff was not prepared to say that the family income was sufficient to pay for these purchases.
In cross examination a question was put to him in these words: "Q. From 1911 out of the family income Rs. 20,000/worth of lands had been purchased? Can there have been more income from the family lands?" The answer is significant.
It was in these words: "A. From the family income, the joint income of myself and Defendant 1 certainly exceeded Rs. 20,000/ .
The income of myself and Defen dant 1 which went in the purchase of lands may have come to Rs. 10,000/ ".
In other words, the plaintiff himself seem to concede that only Rs. 10,000/ of the family income was available during this period for purchase of lands.
The claim made here that he also contributed to the purchase is clearly inconsistent with his own written statement and with other parts of his evidence and cannot be accepted.
The learned Subordinate Judge, appears to have been con vinced that Ramakrishna 's personal earnings were very little.
He thought also that what little Ramakrishna earned was required for the expenses of his own branch of the family.
The learned Judge concluded that he could not have saved out of these earnings.
This view appears to have been mainly responsible for this conclusion that almost the whole of Rs. 15,0001which the defendant No. 1 admitted to have with him in about 1931 came out of the family funds.
In our opinion, the materials on the record do not justify the Trial Court 's view that Ramakrishna could not have accumulated a sum of 498 Rs. 15,000/ out of his own income.
The mamools which he received as Karnam of Narasingampettai and later on of the bigger village Vepatthur amounted to a considerable quan tity of paddy and must have fetched him a goodly income.
There was apart from this, his income from the banana plan tations which he had at Narasingampettai.
One of the lease deeds shows a receipt of Rs. 450/ for one season.
Taking good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees.
We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (exhibit B IO 1) that he received a sum of Rs. 2,500/ as reward for successfully maintaining the litigation on Appalaswamy 's behalf.
There can be little doubt that he received good sum also as fees for writing documents.
One of his witnesses, Narayanaswami Reddiar, DW 7, has given evidence that he paid the defendant Rs. 1,000/ as fees for the documents written for him.
Even if this be considered an exaggeration, it s quite clear from, the evidence of this witness that Ramakrishha who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam.
It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box.
On a consideration of the circumstances we are convinced that this story that he had Rs. 15,O0O/ in his hands in about 1931 as accumulated out of his own earnings is sub stantially true.
Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the family income would not be sufficient to show that there was no sufficient nucleus for the acquisition of the different pro perties in the name of the defendant 's wife, his son and his grandson after 1931 For a proper decision of this question it is necessary to consider roughly the income and expenditure out of the admittedly family properties during this period.
We shall first consider the period, 1931 to 1939, as it is clear from the evidence that during this period the defendant No. 1 carried on the actual management of the joint family properties.
It is common case of both the parties that the paddy yield in 1931 was 856 kalams; during 1932 1,000 kalams and during 1933 1,118 kalams.
For the next five years paddy yield was, according to the respondent 's counsel, 1,058, 1,058, 958, 958, and 958 kalams.
The appellant 's counsel puts his estimates and 1,160 kalams respectively.
These differences in the estimates for these years at the higher figures of 1,360, 1,360, 1,160, 1,160 seem to be mainly due to the fact that while, 499 according to the respondent, the family was in possession of only six acres of mortgaged land in addition to the 35 acres, the appellant 's case was that an additional area of six acres of mortgaged land was also in the family 's possession during these years.
Mr. Rajagopala Sastri was not however able to point out anything on the record in support of this claim.
We think it reasonable therefore to accept as substantially correct the estimate of paddy yield as mentioned before us on behalf of the respondent for these years.
For the year 1939 the yield may be taken as 1,153 kalams roughly as in that year the D Schedule lands now found to be the property of the joint family had also been acquired.
On an examination of the evidence on the record we accept the the price for each kalam of paddy to be Rs. 2.50 nP for each of the years 1931 and 1932 and 1.19, 1.25, 1.37, 1.40, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as contended before us on behalf of the respondent.
The total income received from paddy in these nine years thus appears to be about Rs. 14,976/ .
To this has to be added the receipts from the dry crops like black grams and green rams grown on some of the lands.
We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands.
The sale proceeds of black grams and green grams amounted to Rs. 72/ for the year 1935 according to the account book exhibit A 98.
Taking this to be the average receipt per year from the dry crops the receipts from these crops during the nine years under consideration amounted to about Rs. 648/ .
The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs. 15,624/ .
Adding to this the sum of Rs. 1,100/ received on repayment of the mortgage loan on exhibit 187 the joint family earnings during these nine years appears to have amounted to about Rs. 16,724/ .
It is now necessary to have some idea of the expenditure incurred during these years.
The claim of expenditure of Rs. 5,172/ during these years made before us on behalf of the respondent is not disputed by the appellant.
We think also that the respondent 's claim that Rs. 1,100/ advanced on the mortgage bond (exhibit 187) was paid from family funds should be accepted.
We have next to add the sum of Rs. 6,500/ that was paid for the purchase of the D Schedule lands, Rs. 4,030/ paid as kists and Rs. 2.000 / as cultivation expenses including Kariasthan 's pay.
The total expenditure during the nine years 1931 to 1939 amounted thus to more than Rs. 18,000 / .
Proceeding therefore on the basis on which there is no longer any dispute, that the D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases.
made during this period, viz., the properties mentioned in Schedules B and BI purchased by the document exhibit 125, the properties mentioned in Schedule Cl purchased by the document exhibit B 124, the properties mentioned in Schedule C purchased by exhibit 129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135.
The High Court 's conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearly correct.
The properties mentioned in Schedule C2 were purchased on the 24th April 1941 by exhibit 136 in the name of the 4 th defendant while properties mentioned in Item 1 of B2 Schedule were purchased on the 19th August 1942 by exhibit 126 in the name of the sixth defendant.
Though it was the first defendant 's case that he had nothing to do with these purchases we are convinced on a consideration of the evidence that the monies for these purchases were also advanced by him.
To decide whether these properties or the properties mentioned in Item 5 of Schedule B2, a house in Vepatthur, of which mortgage was taken in the name of the first defendant himself by exhibit B 1929 on the 10th May 1942, formed part of the joint family property, it is necessary to examine what funds, if any, belonging to the joint family were with the first defendant during these years.
The first defendant 's case, as already indicated, is that from 1940 till the mother 's death in 1945 the plaintiff and not he managed the joint family properties so that he did not receive any portion of the joint family earnings during the period.
The plaintiff has strenuously denied the truth of this statement.
There are several circumstances however which make us think that the first defendant 's version is true.
The most imoprtant of these is the fact that the youngest brother Mahadeva, who is clearly siding with the plaintiff in this family quarrel, made a definite assertion in his written statement in these words: "Similarly the plaintiff has been collecting the income from the joint family properties during the years 1940, 1941, 1942 and 1943.
" He also stated there that the plaintiff had assured him that he would maintain proper accounts for the collection and expenditure of the income joint family for his period of management and made the definite claim that the plaintiff was liable to render an account for the period of his management.
It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1.
In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his coiiclusion.
It is important to notice in this connection that at the bottom of exhibit B 190 dated the 13th March 1941 which Mahadeva 501 received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect: "1939 Kuruvai (paddy) sold by Nana 1939 Semba Mudal (harvest) by Nana, sold in 1940.
" It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Kariasthan.
But, considering the facts mentioned above along with the letters Exibits B 177 and B 72 in which detailed instructions about the cultivation were being given by the plaintiff to the Kariasthan, we have come to the conclusion that from about 1940 till the mother 's death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakshi and took away all the income from them.
The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands.
The yield from these lands may roughly be estimated at about 300 kalams for each year.
The price per kalam in 1941 appears from exhibit 100 to have been Rs. 2/6/ .
The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed there fore at about Rs. 500 It is undoubtedly a very rough estimate.
But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendant 's hands from the D Schedule property.
On this calculation the first defendant appears to have had in his hands about Rs. 1,5001 during the years 1940 to 1942.
There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939.
It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942.
The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.
Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by exhibit B 127 aid B. 128 in the name of the third defendant, Venkatarama.
At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years.
It is not unlikely he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings.
It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant.
Apart from this, it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had 502 with him sufficient income out of the joint family properties for purchasing all these lands.
We have already found that the first defendant resumed management of the joint family properties on his mother 's death in 1945.
On the question about the income and expenses during this period there is hardly any evidence worth the name on the record.
On a consideration of all these circumstances, we are of opinion that the High Court 's conclusion as regards these properties also that they did not form part of the joint family property is correct.
The brings us to Mr. Rajagopala Sastri 's second argument.
While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition.
In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube vs Gobind Dube(1).
That case laid down the rule that in the absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition.
About the correctness of this proposition there is no dispute.
In what manner this principle can be applied depends however on the facts and circumstances of each case.
Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income.
In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.
In the result, the appeal is dismissed with costs.
Appeal dismissed.

summary:
There were three brothers who continued as members of a joint family with the eldest of them, the first respondent as the karta.
Certain properties were acquired thereafter for the joint family.
Certain properties were also acquired in the name of the first respondent 's son his wife and grandson.
The two other brothers of respondent No. 1 acquired properties for themselves out of their own earnings.
Relations became strained between the brothers and the second brother the present appellant filed suit for partition claiming not only the original properties of the joint family and the properties acquired for the joint family by the Karta, the present respondent but also the properties acquired by the respondent No. 1 in the name of his wife, son and grandson as joint family properties.
He also called on the first respondent to account for the past years.
The third brother was impleaded as second defendant.
Respondent No. 1 's contention was that the last mentioned properties were bought by him from his own savings and therefore were not part of the join, family property and consequently not liable to partition.
The learned trial Judge held that those properties were joint family property and were liable to be partitioned.
Respondent No. 1 thereupon appealed to the High Court and the High Court allowed the appeal regarding substantial part of the schedule properties.
Thereupon the appellant filed the present appeal.
Held: (i) Where properties were acquired in the name of a joint family member, if at the date of such acquisition the joint family had sufficient nucleus for acquiring it, the property should be presumed to have been acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.
In the present case on a consideration of the evidence it is found that the joint family had at the date of the acquisition Of the properties in question sufficient nucleus from which these properties could be acquired.
Amritlal Sen & Ors.
vs Surath Lal Sen, A.I.R. 1942 Cal.
553 and Appalaswami vs Suryanarayanamurthy, I.L.R. [1948] Mad.
(P.C.) 440, referred to.
(ii) In the absence of any evidence of fraud or misrepresentation the Karta of a joint family cannot be called upon to account for the past transactions, but this does net mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover that in fact the property consisted of at the date of the partition.
In what manner this principle can be applied depends on the facts and circumstances of each case.
Where as in the present case the evidence ,on record shows prima facie that the Karta could not reasonably 491 be expected to have in his hands at the date of the suit any accumulaties found on evidence to have been acquired by the family, there can be no justification for calling the Karta to account for his past dealing with the joint family property and its income.
Parameshwar Dube vs Govind Dube, I.L.R., , explained.


judgement:
Appeal No. 677 of 1963.
Appeal from the judgment and order dated March 31, 1961 of the Mysore High Court in Writ Petition No. 283 of 1959.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
section V. Venkataranga Iyengar, M. Rama Jois and A. G. Ratnaparkhi, for the respondent.
March 25, 1964.
The judgment of the Court was delivered by AYYANGAR, J.
A very short question regarding the proper construction of Rule 50(b) of the Bombay Civil Services Rules is involved in this appeal which comes before us by a certificate of fitness granted by the High Court of Mysore under article 133 of the Constitution.
The facts giving rise to this appeal which are necessary to be narrated to appreciate the only point urged before us were these: The respondent was recruited as an Upper Division Clerk by the Government of Bombay in 1931 and was later appointed substantively as a Junior Assistant in the Political Department.
While so, on September 17, 1943 his services were transferred on deputation to the office of the Controller of Rationing, Bombay to work as a Senior Assistant in the newly started Rationing department which was a temporary department.
He obtained successive promo tions in this department and by March, 1954 he was drawing a pay of Rs. 460/ p.m. in the grade Rs. 350 30 650 as Rationing Officer.
That department was abolished in March, 1954 and thereafter he was reverted to his parent depart ment.
Though his parent department was the Political De partment, the respondent was, after he ceased to be a Rationing Officer, posted first to the Labour Department and then to the Public Works Department.
When this reversion took place his pay was fixed at Rs. 120/ p.m.
The petitioner protested against this reversion and this loss of his emoluments on the ground that this fixation of pay was contrary to the Rules framed by Government in regard to the service conditions of a Government servant who was appointed on deputation in another department.
He also pointed out that the officer next below him in his parent department had been appointed as an Assistant Secretary by virtue of normal and regular promotion.
therefore, however, final orders were passed on his representation by the Government of Bombay, the came into force and the respondent was allotted to the State of Mysore.
On November 27, 1958 the Government of Mysore informed the respondent through an official memorandum that in view of 473 certain communications received by that Government from the Government of Bombay in answer to his representations he should be considered to have held the post of Senior Assistant on June 1, 1954 on a salary of Rs. 225/ in the grade Rs. 210 15 300.The petitioner 's complaint,however, was that even this order was in violation of the conditions of his service and he claimed that when he was reverted to the parent department he was entitled to be posted as an Assistant Secretary a post which according to him, he would have held on that date had he not been deputed to the department of Civil Supplies on September 17, 1943.
There was no dispute that subject to an argument to which we shall refer presently, the respondent would have held the post of Assistant Secretary because the person next below him one Nadkarni actually held that post on that day.
The respondent claimed that on the basis of the Service Rules to which we shall immediately make reference he should, on his return to the parent department, have been posted as an Assistant Secretary and been allowed the scale of emoluments applicable to that post.
As the Government of Mysore refused to accede to his demand the respondent filed a petition under article 226 for inter alia a writ of mandamus directing the appellant State to include the petitioner in the grade pay of an Assistant Secretary I and fix him above Nadkarni.
The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the petitioner was not justiciable.
This was primarily based upon the fact that the respondent relied upon a circular of the Government of Bombay dated October 31, 1950 in support of his plea that he was entitled to the benefit that he claimed on reversion to the parent department from his service on deputation.
The material part of that circular ran: "It has come to the notice of Government that Government servants when deputed to other Departments or offices often draw pay in time scales which are identical with the timescales in their parent Departments.
The question therefore, arises on their reversion to their parent Department whether the service rendered in an identical time scale in the Department to which their service had been lent, should be allowed to count for increments in the parent Department under Note 4 below Bombay Civil Service Rule 41.
Government is pleased to direct that all such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion of service in the foreign Department or office should be allowed to count for increments in the parent Department during which the person concerned would have drawn pay in the time scale applicable to the post he holds on reversion, but for his deputation to another Department or office, i.e., the case should be so regulated as to restore the position the person concerned would have occupied in his parent Department had he not been deputed.
" The question as to whether this circular which was treated as an administrative instruction could confer rights en forceable in a court on a Government servant was referred to a Full Bench for its opinion.
Before the learned Judges of the Full Bench the learned Advocate General, however, brought to the notice of the Court that this circular merely gave effect to a statutory rule framed by the Government of Bombay.
The relevant rule in this respect was rule 50(b) of the Bombay Civil Services Rules which ran: "50(b) Service in another post, other than a post carrying less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave counts for increments in the time scale applicable to the post on which the Government servant holds a lien as well as in time scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended: Provided that Government may, in any case in which they are satisfied that the leave was taken on account of illness or for any other cause beyond the Government servant 's control, direct that extraordinary leave shall be counted for increment under this clause.
" The position, therefore, that emerged after this was whether an infraction of a statutory rule could give rise to a cause of action to an aggrieved Government servant.
The learned Judges answered this question in the affirmative and there after the Division Bench which heard the petition allowed the writ and granted the respondent the relief that he sought.
It might be mentioned that even by the date of the pendency of these proceedings in the High Court the respondent had retired on account of superannuation and the only question, therefore, was whether he would be entitled to the remuneration to which he, would have been entitled uader the rule in question.
The appellant State applied to the High Court 475 for a certificate to enable an appeal to be filed to this Court and on this having been granted the appeal is now before us.
in view of the decisions of this Court of which it is sufficient to refer to State of U.P. vs Babu Ram Upadhya(1) it was not disputed that if there was a breach of a statutory rule framed under article 309 or which was continued under article 313 in relation to the conditions of service the aggrieved Government servant could have recourse to the Court for redress.
Learned Counsel for the Appellant, however urged two contentions in support of the stand that the respondent was not entitled to be appointed to any higher post than as a Senior Assistant or to receive a salary higher than Rs. 225/in the scale Rs. 210 15 300 which had been granted to him by the impugned order of November, 1958.
The first was that on a proper construction of Rule 50(b), an officer who after serving on deputation in another department is revert ed to his parent department is entitled to nothing more than the increments allowable in the time scale applicable to the substantive appointment which he held at the time of the transfer.
In this connection stress was laid on the words "increments in the time scale applicable to the post on which the Government servant holds a lien" occurring in the subrule.
We are unable to accept this contention.
In the first place, it is not clear whether the case of the respondent was one where he held a lien or one where the lien was suspended, and no material was placed before the Court in this regard, the point in this form not being urged in the High court.
But even assuming that it was a case where the respondent had a lien and his lien had not been suspended it is difficult to see what logic there could be in interpreting the rule as providing different criteria in the two cases. 'Where the lien is suspended the rule speaks of the "post or posts, if any he would have held if his lien had not been suspended".
By the use of the plural, it is clear that the rule ,contemplated the suspended lien being transferred from one post to another in other words, to a promotion from one post to another during the period of the service in another ,department.
If there was any ambiguity in what the rule meant it is wholly dispelled by reference to the circular which ensures to the officer on deputation in another department that he shall be restored to the position he "would have occupied in his parent department had he not been deputed".
It was not suggested that there was any ambiguity in the wording of this circular which, in our opinion, gives proper effect to the provisions of Rule 50(b). (1) ; 476 The other submission of learned Counsel was that a Government servant though he had a right to increments in a time scale applicable to the post that he held on the date of his transfer on deputation and on which he had a lien, had no legal right to be promoted to a higher post and that the construction adopted by the High Court virtually con ceded or guaranteed to officers on deputation a right to an automatic promotion which they would not have had if they had not been posted on deputation.
We see no force in this contention either.
Learned Counsel is right only in so far as the promotion involved relates to a selection post.
But where it is based on seniority cum merit, those considerations are not relevant.
The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b).
So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions, which are often on seniority cummerit basis.
What is indicated here is precisely what is termed in official language the "next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.
If there are adverse remarks against him in the new department or punishments inflicted on him there, different considerations would arise and these adverse remarks etc.
would and could certainly be taken into account in the parent department also, but that is not the position here.
In view of the facts of the case it is not necessary to discuss this aspect in any detail or any further.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The respondent was a Government servant in one of the departments of the Bombay Government.
He was sent on deputation to another department and after serving there for a long period and getting a number of promotions he was re verted back to his parent department and ordered to be posted at a considerably lower grade, while another Government servant who was below his rank was promoted as Assistant Secretary.
Thereupon the respondent filed a petition under article 226 of the Constitution challenging the order of his posting.
A preliminary objection was raised by the appellant that the petition was not maintainable.
But the High Court held that the respondent was entitled to invoke the jurisdiction of the Court when there is a violation of a statutory rule and on merits it held that the respondent was entitled to the relief claimed.
The present appeal was filed on a certificate granted by the High Court under article 133 of the Constitution.
Before this Court in view of the decision State of U.P. vs Babu Ram Upadhya. ; it was not disputed that if there was a breach of a statutory rule framed under article 309 or continued under article 313 in relation to the condition of service the aggrieved Government servant could have recourse to the Court.
The main contention on behalf of the appellant was that the respondent was not entitled to be appointed to any higher post than as a Senior Assistant or to receive a salary higher than that which had been granted to him by the im pugned order.
Held: (i) Assuming that this was a case where the respon ,dent had a lien and his lien had not been suspended it was not possible to interpret Rule 50(b) of the Bombay Civil Service Rules as providing different criteria to cases where a Government servant had a lien and where his lien has been suspended.
The Rule and the circular make it abundantly clear that an officer on deputation in another department shall be re stored to the position he would have occupied in his parent department had he not been deputed.
(ii) Where promotions are based on seniority cum merit basis an officer on deputation has a legal right to claim pro motion to a higher post in his parent department provided his service in the department to which he is lent is satisfactory.
This may not be the case in regard to selection posts.