judgement:
Appeal No. 150 of 1953.
Appeal by Special Leave from the Judgment and Order dated the 30th April, 1953, of the Election Tribunal, Jabalpur, at Nagpur in Election Petition No. I of 1952.
B. Sen, T. P. Naik and I. N. Shroff for the appellant.
R. M. Hajarnavis, J. B. Dadachanji and Rajinder Narain for respondent No. 1. 269 1954.
May 19.
The Judgment of the Court was delivered by MUKERJEA J.
This appeal, which has come before us on special leave, is directed against the judgment and order of the Election Tribunal, Jabalpur, at Nagpur dated the 30th April, 1953, whereby the Tribunal declared the election held on the 29th December, 1951, for the double member Lakhnadon Legislative Assembly Constituency, to be wholly void under section 100(1)(c) of the Representation of the People Act (hereinafter called "the Act").
To appreciate the contentions that have been raised by the parties to this appeal, it would be necessary to state briefly the material facts.
The Lakhnadon Legistive Assembly Constituency in Madhya Pradesh is a double member constituency, one of the seats in which is reserved for Scheduled Tribes.
The appellant and respondents Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat.
No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2, Vasant Rao.
Out of these eight candidates, respondents Nos. 5, 6 and 7 withdrew their candidature within the prescribed period under section 37 of the Act and the actual contest at the election was between the remaining five candidates, namely, the appellant and respondents Nos.
I to 4.
The votes secured by these five candidates at the polling were found to be as follows : (1) The Appellant (General). 18,627 (2) Respondent No. I (General)7,811 (3) Respondent No. 2 (Reserved)14,442 (4) Respondent No. 3 (Reserved)7,877 (5) Respondent No. 4 (General)6,604 Accordingly the appellant and respondentNo.
2 were declared elected to the general and reserved seat respectively, under section 66 of the Act, and the results were duly published in the Madhya Pradesh Gazette on 8th of February, 1952.
On the 14th of May, 1952, the 270 respondent No. 1, Raghuraj Singh, filed an election petition against the appellant and the other respondents, under section 81 of the Act, praying that the said election to the Lakhnadon Legislative Assembly Constituency be declared wholly void or in the alternative the election of Vasant Rao and/or that of the appellant, Durga Shankar Mehta, be declared void.
There was a string of allegations made in the petition accusing the appellant of various corrupt practices in the matter of securing votes but none of these are material for our present purpose, as the Tribunal, by a majority, held these allegations to be unfounded and not supported by proper evidence.
The substantial ground upon which the petitioner sought to assail the validity of the election was, that the respondent No. 2, Vasant Rao, who was declared duly elected to the reserved seat in the said constituency was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution.
This allegation was found to be true by the majority of the Tribunal and by its judgment dated the 30th of April, 1953, the Tribunal came to the conclusion that the act of the Returning Officer in accepting the nomination of Vasant Rao, who was disqualified to be elected a member of the State Legislature under the Constitution, amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act and as the result of the election was materially affected thereby, the whole election must be pronounced to be void.
It is the propriety of this decision that has been challenged before us in this appeal.
Mr. Hazarnavis, appearing for the respondent No. I before us, took a preliminary point challenging the competency of the appeal.
It is contended by the learned counsel, that article 329(b) of the Constitution ousts the jurisdiction of all ordinary Courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by and an election petition presented to such authority a in such manner as may be provided for by or 271 under any law made by the appropriate Legislature.
It is urged that there can be no challenge to the validity of an election except by way of an election petition, and the authority to which, and the manner in which, such petition is to be presented, have been embodied in the Representation of the People Act which has been enacted by the Parliament under article 327 of the Constitution.
Section 80 of the Act, which is worded almost in the same manner as article 329(b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part"; and section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive.
" It is contended by the learned counsel that the jurisdiction that is created in the Election Tribunal is a special jurisdiction which can be invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal is final and conclusive.
These arguments, though apparently attractive, appear to us on closer examination to be untenable.
We agree with the learned counsel that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available to a person in regard to election disputes.
The jurisdiction with which the Election Tribunal is endowed is undoubtedly a special jurisdiction ; but once it is held that it is a judicial Tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any Parliamentary legislation.
The non obstante clause with which article 329 of the Constitution begins and upon which the respondent 's counsel lays so much stress debars us, as it debars any other Court in the land, to entertain a suit or a ' proceeding calling in question any election to the Parliament or the State Legislature.
It is the Election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by an election petition 272 and in such manner as may be provided by a statute.
But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.
It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd. vs Employees of the Bharat Bank Ltd. (1) that the expression "Tribunal" as used in article 136 does not mean the same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.
The only Courts or Tribunals, which are expressly exempted from the purview of article 136, are those which are established by or under any law relating to the Armed Forces as laid down in clause (2) of the article.
It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself.
The powers given by article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land.
The article itself is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws.
The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way.
Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under article of the Constitution.
(i) [195o] S.C.R. 459, 273 This overriding power, which has been vested in the Supreme Court under article 136 of the Constitution, is in a sense wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England.
The prerogative of the Crown can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the Crown 's prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any ' intention of creating a Tribunal with the ordinary incident of an appeal to the Crown annexed to it, the Privy Council would not admit an appeal from the decision of such Tribunal.
This is illustrated by the decision of the Privy Council in The berge vs Laudry(1) upon which Mr. Hozarnavis places considerable reliance.
In that case the petitioner having been declared duly elected a member to represent the electoral district of Montmanier, in the Legislative Assembly of the Province of Quebec, his election was afterwards, on petition, declared null and void, by judgment of the superior Court under the Quebec Controverted Elections Act, 1875, and he himself was declared guilty of corrupt practices.
He applied for special leave to appeal to His Majesty in Council.
The application was refused and Lord Cairns in delivering the judgment of the Board held, that although the prerogative of the Crown could not be take in away or limited except by express words and the relevant section of the Quebec Controverted Elections Act of 1875 providing that "such judgment shall not be susceptible of appeal" did not mention either the Crown or its prerogative, yet the fair construction of the above Act as also of the previous Act of/1872 was that it was the intention of the Legislature to create a Tribunal for the purpose of trying election petitions in a manner which would make its decision final for all purposes and should not annex to it the incident of its judgment being reviewed by the Grown under its prerogative.
This decision in our opinion does not assist Mr. Hazamavis.
In the first place article 136 is a (I) 274 constitutional provision which no Parliamentary legislation can limit or take away.
In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive, that there was an intention to exclude the exercise of the special powers.
As has been said already, the non obstante clause in article 329 prohibits challenge to an election either to Parliament or any State Legislature, except in the manner laid down in clause (2) of the article.
But there is no pro hibition of the exercise of its powers by the Supreme Court in proper cases under article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other judicial, tribunals comes within the purview of the article.
It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive so that the constitution of the Legislature may be distinctly and speedily known.
But the powers under article 136 are exercisable only under exceptional circumstances.
The article does not create any general right of appeal from decisions of all Tribunals.
As regards the decision of this Court in Ponnuswami vs Returning Officer, Namakkal Consistituency, and Others (1), to which reference has been made by the learned counsel, we would only desire to point out that all that this case decided was that the High Court bad no jurisdiction, under article 226 of the Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate.
It was held that the word "election" in article 329(b) of the Constitution had been used in the wide sense to connote the entire process, culminating in a candidate 's being declared elected and that the scheme of Part XV of the Constitution was that all matters which had the effect of vitiating election should be brought up only after the election was over and by.
way of an election petition.
The particular point, which arises for considers.
tion here, was not decided in that case and was expressly (I) ; 275 left open.
In our opinion therefore the preliminary point raised by Mr. Hazarnavis cannot succeed.
Coming now to the appellant 's case, Mr. Sen who appeared in support of the appeal, has pressed only one point for our consideration.
He plainly stated that he could not challenge the propriety of the finding, arrived at by the majority of the Tribunal that respondent, Vasant Rao, was below 25 years of age at all material times.
This, he concedes, is a finding of fact and being based on evidence, is not open to challenge before us in an appeal by special leave.
His contention in substance is, that there has been no improper acceptance of nomination in the present case, as has been held by the Tribunal and consequently the provision of section 100(1)(c) of the Act would not be attracted to it and the entire election could not have been declared void.
It is, true, says the learned counsel, that on the finding of the Tribunal there has been a violation of or non compliance with the provision of article 173 of the Constitution and as respondent No. 2 suffers from a constitutional disability by reason of his under age and is not qualified to be chosen to fill a seat in the Legislative Assembly of a State, his election can undoubtedly be declared void under section 100(2)(c) of the Act, but there was no justification for pronouncing the whole election, including that of the appellant, to be void.
The whole controversy thus centres round the point as to whether, upon the facts admitted and proved, the present case comes within the purview of sub section (1)(c) of section 100 of the Act or of sub section (2)(c) of the same section.
The relevant portions of section 100 of the Act so far as are material for our present purpose may be set out as follows: "100.
Grounds for declaring election to be void (1) If the Tribunal is of opinion (a) . . . . . . . . . (b) . . . . . . . . (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.
276 (2) Subject to the provisions of subsection (3), if the Tribunal is of opinion (a). . . . . (b). . . . . (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non compliance with the provisions of the Constitution or of this Act or of any or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void.
" The first point for our consideration is whether the nomination of Vasant Rao was improperly accepted by the Returning Officer and that has materially affected the result of the election.
It is not suggested on behalf of the respondent that the nomination paper filed by Vasant Rao was in any manner defective.
It is admitted that the names and electoral numbers of the candidate and his proposer and seconder as entered there were the same as those entered in the electoral rolls.
It is also not disputed that the nomination paper was received within proper time as is laid down in section 33, sub section (4) of the Act.
Section 36 of the Act provides for scrutiny of nominations and under subsection (2) the Returning Officer has got to examine the nomination papers and decide all objections that may be made to any nomination and he may either on such objection or oh his own, motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the grounds which are specified in the different clauses of the sub section.
The ground mentioned in clause (a) of the sub section is, that the candidate is not qualified to be chosen to fill the seat under the Constitution or the Act.
The contention of the respondent No. 1 is that the nomination of Vasant Rao should have been rejected on this ground and as the Returning Officer did not do that, his act 277 amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act.
We do not think that this contention is sound.
If the want of qualification.of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination.
The Returning Officer is then bound to make such enquiry as he thinks proper on the 'result of which he can either accept or reject the nomination.
But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination.
This would be apparent from section 36, subsection (7) of the Act which runs as follows: "(7) For the purposes of this section (a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper, as the case may be.
unless it is proved that the candidate is disqualified, under the Constitution or this Act, or that the proposer or seconder, as the case may be, is disqualified under sub section (2) of section 33.
" In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved.
The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly.
As no objection was taken to his nomination before the Returning Officer at the.
time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive ; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which 278 section 100(1)(c) of the Act contemplates.
It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him.
When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance.
It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that,* the candidate was not qualified at all.
But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.
In our opinion Mr. Sen is right that a case of this description comes under sub section (2)(c) of section 100 and not under sub section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified in clause (c) of subsection (2).
The expression " non cgmpliance with the provisions of the Constitution " is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all.
The English law, after the passing of the Ballot Act of 1872, is substantially the same as has been explained in the case of Stowe vs Jolliffe(1).
The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.
It is argued on behalf of the respondent that the expression" non compliance as used in subsection (2)(c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of (1) 279 qualification.
This, we think, would be a narrow way of looking at the thing.
When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has never.
theless been returned as such at an election, it can be said without impropriety that there has been noncompliance with the provisions of the Constitution materially affecting the result of the election.
There is no material difference between " non compliance " and " non observance " or " breach" and this item in clause (c) of sub section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause.
When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void.
Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make.
If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non compliance with the provisions of the Constitution in the holding of the election and as such sub section (2)(c) of section 100 of the Act applies.
The result therefore is that in our opinion the contention of the appellant succeeds.
We allow the appeal in part and modify the order of the Election Tribunal to this extent that the election of respondent No. 2 Vasant Rao only is declared to be void; the election of the appellant however will stand.
We make no order as to costs of this appeal.
Order accordingly.

summary:
Article 136 of the Constitution is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by a Court or ' Tribunal in any cause or matter and the powers can be exercised in spite of the specific provisions for appeal contained in the Consti tution 'or other laws.
The powers given by the article are, however, in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court.
The non obstante clause in article 329 of the Constitution which debars the Supreme Court as well as any other Court in India from entertaining a suit or a proceeding calling in question any election to Parliament or the State Legislature and section 105 of the Representation of the People Act which gives finality to the decision of the Election Tribunal so far as that Act is 268 concerned and does not provide for any further appeal, do not cut down or affect the overriding powers which the Supreme,Court can exercise in the matter of granting special leave under article 136 of the Constitution.
The overriding power vested in the Supreme Court under article 136 of the Constitution is wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England because the prerogative right of the Grown can be taken away or curtailed by express legislation but the Constitutional provision in article 136 cannot be limited or taken away by any Parliamentary legislation and this Constitutional provision overrides ordinary laws and no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive that there was an intention to exclude the exercise of the special power.
Where on the finding of the Tribunal there has been a viola tion of or non compliance with the provision of article 173 of the Constitution because the candidate suffers from a Constitutional disability by reason of his under age the case falls under sub section (2) (c) of section 100 of the Representation of the People Act and not under sub section (1) (c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer and therefore the 'election of that candidate only should be declared void and not the whole election.
The expression " non compliance with the provisions of the Constitution " in clause (c) of sub section (2) of section 100 of the Act is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer but there is a fundamental disability in the candidate to stand for election at all.
Bharat Bank Ltd., vs Employees of the Bharat Bank Ltd. ([1950] S.C.R. 459), Theberge vs Laudry ( [1876 771 2 A.C. 102), Stowe vs Jolliffe and Ponnuswami vs Returning Officer, Namakkal Constituency and Others ( ; referred to.


judgement:
Appeal No. 339 of 1966.
Appeal by special leave from the judgment and order dated December 12, 1962 of the Bombay High Court in First Appeal No. 436 of 1967.
G. L. Sanghi, and A. G.Ratnaparkhi, for the appellants.
section T. Desai and I. N. Shroff, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave from the judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by which the High Court dismissed the appeal and allowed the cross objections filed by the respondents in the said appeal.
247 The relationship of the parties will appear from the following pedigree Neneppa Gowdwppa=1.
Kashibai Apparaya=Sidgangawa II 2.Sigangawa I (died on (Widows of Gowdappa) 20 12 53) (wife of Apparaya time of Apparaya Gangabai Neneppa II Neneppa II Revgowda Subhadra (widoed daughter (adopted in =Sidgangawa bai(daug of Gowdappa) 1930 died in III(wife of Reveg ter of Appellant No. 1944) owda Respodent No. Apparaya 5in 1944) 2 Appellant No. 3.
Neelagangawa=Mudigowda (daughter of (alleged to Neneppa II) have been Ramchandra(adopted Appellant No. adopted by to Revegowda by 2.
Gowdappa in Sidgangawa III) 1948; and became Respodent No. the husband of 1.
since deceased.
Neelagangawa Appellant No.1.
Goudappa had one daughter by name Gangabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai.
In 1930 Nenappa 11 was given in adoption to Goudappa.
He had two wives Kashibai and Sidgangawa.
Revagowda 'Married another Sidgangawa.
In 1938 Revagowda was murdered.
Thereafter Goudappa and Apparaya purported to effect a partition between themselves.
At the time of the death of Nenappa 1, six plots of lands belonged to the joint family.
Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at Rs. 126/12/ and are located in Borgi Khurd.
The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs. 16/14/ .
The total area of the ancestral lands was, therefore, 151 acres and 27 gunthas assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/ were acquired in various names.
After Nenappa II 248 was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944.
After the partition deed was executed various alienations were made by the two.
brothers.
On 25th September, 1944 by exhibit 161 Goudappa gifted section Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd to defendant No. 4, Subhadrabai.
By exhibit 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa H.
On 20th April, 1948 by exhibit 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 50001.
On the same day by exhibit 160 Goudappa sold survey No. 79 for Rs. 1,000/ to Apparaya.
Again on 17th May, 1948, by exhibit 158 Goudappa made a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3.
By exhibit 117, dated 7th December 1948 Gou dappa by a Vardi transferred survey No. 66 of Borgi Khurd, to defendant No. 6 his widowed daughter.
On 15th December, 1948 Goudappa gave a portion of plot No. 96 to Sidgangawa, wife.
of Apparava for maintenance.
By exhibit 166, dated 25th May, 1950, Goudapa and defendant No. 1 together sold to defendant No. 5 portion of survey No. 23 for a sum of Rs. 3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is exhibit 168 whereby he bequeathed survey No. 79 to, defendant No. 4 and one house to his daughter defendant No. 4.
The plaintiff 'claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent.
He alleged that it was intended to defeat the rights of the widows, that it was never acted upon and that the family continued to be joint.
The defendants contested the suit on the ground that the partition deed exhibit 157 was a genuine transaction and was acted upon, that Apparaya and Goudappa became separate in status and managed their properties separately.
The defendants supported all the alienations as being genuine and effective.
The trial court came to the conclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed part of the joint family properties, that the partition deed exhibit 157 was not intended to be acted upon but was executed to defeat the rights of the widows.
The trial court held that none of the alienations except the sale deed exhibit 159 executed by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff.
The trial court accordingly made a decree for partition with appropriate directions.
The defendants took the matter in appeal to the High Court.
The plaintiff also filed a cross. objection with regard to the sale deed exhibit 159.
By its judgment dated 12th December, 1962, the High Court dismissed the appeal of the defendants and allowed the cross objection of the.
plaintiff holding that the sale deed exhibit 159 regarding survey plots Nos. 43 and 77 was also not binding upon the plaintiff.
249 The first question to be considered in this appeal is whether the partition.
deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and not intended to be effective.
Both the trial court and the High Court have reached a concurrent finding after an elaborate examination of the evidence that the partition deed was not genuine, and that it was effected for an ulterior purpose in order to defeat the rights of the widows in the joint family.
It is manifest that the finding of the lower courts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the normal practice of this Court to accept such a concurrent finding of fact as correct.
It was, however, contended by Mr. sanghi that the finding of the lower courts is vitiated in law because there was no evidence in support of that finding.
In our opinion, there is no justification for this argument.
In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed it.
As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only.
The total assessment of lands given to Goudappa is Rs. 82/3/ while the assessment of the lands given to Apparaya is Rs. 61/7/ .
There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house.
The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that the transaction was not genuine.
It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda.
At about this time, after Nenappa 's death, the adoption of Nenappa by Goudappa was denied.
The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya.
There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before.
It appears that the two brothers had a joint mess even after the date of partition.
It was contended by Mr. Sanghi that there,was no evidence that the two brothers continued to be in joint possession of the lands.
But if is not possible to accept this argument as correct.
On a perusal of the evidence it is apparent that P.Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower courts.
There is another circumstance which strongly lends support of the plaintiff 's case on this point.
It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir, such as a widow or a collateral, the power of the widow of a predeceased Sup.
CI/69 17 250 coparcener to.
adopt was at an end.
(Chandra vs Gojarabai and Adivi Suryapnakasarao vs Nidamarty Gangaraju (2).
The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar vs Lahoo Sambhaji Tetgura(3).
It was 'held in that case that where a coparcenary exists at the date of the adoption the adopted son becomes a member of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
But the decision of the Full Bench of the Bombay High Court was expressly over ruled by the Judicial Committee in Anant V. Shankar(4) It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener.
Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners.
The rights of the adopted son relate back to the date of the adoptive I father 's death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latter 's death.
If, therefore, there was a coparcenary in existence when the adoptive father then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint.
The decision of the Judicial Committee in Anant vs Shankar(4) was unexpected and revolutionary in character.
It is likely that in view of the fluid and un certain state of the law on this point the two brothers Goudappa and Apparaya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption.
We are accordingly of 'the view that there is proper evidence to support the concurrent finding of the lower courts and there is no reason to disturb that finding.
it was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint (1) I.L.R. (3) A.I.R. 1937 Bom.
(2) I.L.R. (4) A.T.R. 251 after 20th April, 1944 which was the date of the partition deed.
In other words, the argument was that there was a declaration by the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family.
status of the two brothers.
In our opinion, there is no substance in this argument.
It is now well established that an agreement between all the copar ceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status.
It is immaterial in such a case whether the other members assent or not.
Once the decision is unequivocally expressed, and clearly intimated to his co sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeach able.
But in order to operate as a severance of joint status, it is necessary; that the expression of intention by the member separating himself from the joint family must be definite and unequivocal.
If, however., the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status.
See for instance the decision of the Judicial Committee in Merla Ramanna vs Chelikani Jagannadha Rao & Ors. '(1).
We pass on to consider the next question arising in this appeal,, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the self acquisition of Goudappa.
The case of the appellants was that these lands were self acquisition of Goudappa, but the respondents contended that they were joint family properties.
The law on this aspect of the case is well settled.
of course there is no presumption that a Hindu family merely because, it is joint, possesses any joint property.
The burden of proving that any particular property is joint family property, is, therefore, in.
the first instance upon the person who claims it as coparcenary property.
But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property.
This is.
however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired.
It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the 'family estate.
In Appalaswami vs Suryanarayanamurti(2), Sir John Beaumont observed as follows "The Hindu law upon this aspect of the case is well settled.
Proof of the existence of a joint family does (1) A.I.R. 1941 P.C. 48.
(2) I.L.R.(1948)Mad. 440.(P.C.) 252 not lead to the presumption that property held by 'any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.
But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
See Babubhai Girdharlal vs Ujamlal Hargovandas(1), Venkataramayya vs Seshamma(2) and Vythianatha vs Varadaraja(3).
In the present case, both the lower courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made.
It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs. 143.
It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land.
Witnesses on behalf of 'the plaintiff assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war.
It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members.
Between 1911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/ were acquired in various names.
The total price of the sale deeds is Rs. 4800 spread over a period of 30 years.
In view of this evidence, we see no reason to differ from the finding of the lower courts that the income from the nucleus was more than sufficient for the purchase on the different dates.
The respondents alleged that these properties belonged to the joint family, and unless it is shown by the appellants that Goudappa carried on any other business and that these pro perties were acquired out of that income, the appellants must fail.
The case of defendant N6.
1 was that Goudappa made these acquisitions out of his business.
D.W. 1 did not however state the nature of the business.
In cross examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption.
D.W. 1 was however unable to say with whom Goudappa had dealings in cotton.
If Goudappa was doing cotton business it should not have been difficult for the ,defendants to have produced more direct evidence of persons with whom he had business dealings.
The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless.
It is manifest that there is no proof that Goudappa had any separate income of his (1) I.L.R. Born.708.
(2) I.L.R.[1937] Mad. 1012.
(3) I.L.R. 253 own out of which he could have acquired the 12 pieces of land. 'Me lower courts were, therefore,right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition.
It was lastly contended on behalf of the appellants that in any case the High Court should not have allowed the cross objection of the respondents with regard to 'survey plots Nos. 43 and 77.
Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed executed by Apparaya in favour of defendant No. 3 of survey plots Nos. 77 and 43.
But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint.
Survey plots Nos. 77 and 43 are expressly mentioned in the schedule.
It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed exhibit 159 with respect to survey plots Nos. 77 and 43.
The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own.
The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.
For these reasons we hold that the, judgment of the Bombay High Court dated 12th December, 1962 is correct and this appeal must be dismissed with costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
A joint family consisting of two brothers G and A and their wives, sons and daughters was possessed of joint family properties.
Between 'the years 1911 and 1940 several other properties were acquired.
In 1930, the son of A was taken in adoption by G. The adopted son died in 1944, and both the brothers denied the adoption and purported to effect a partition.
In the partition deed the lands were unequally divided between the brothers, G getting twice as much as A, but the brothers continued to be in joint possession of the lands.
There was no division of their house at all and the brothers had a joint mess even after the date of partition.
After the partition deed was executed the two brothers executed various alienations.
The first respondent, claiming to be the adopted son of another son of A, filed a suit in 1954 after the death of G and A, challenging the partition deed as fraudulent, that it was never acted upon and was only intended to defeat the rights of two widows in A 's family.
The appellant , contested the suit and supported all the alienations.
The trial court decreed the suit except with respect to one sale deed, and the High Court, in appeal, held in favour of the first respondent even with respect to that item.
In appeal to this Court, it was contended that : (1) The partition deed was not a sham transaction; (2) 'Even if the partition deed was bogus, there was in law a severance of joint family status; (3) The later acquisitions between the years 1911 and 1940 were not joint family properties but belonged exclusively to G; and (4) The High Court should not have reversed the decree of the trial court with respect to the sale deed, because it was not challenged in the plaint.
HELD : (1) The scheme of the partition was to deprive the widows .
in A 's family of any claim for maintenance out of the joint family properties but to limit their rights to the smaller share :given to A.
In view of the state of law before the decision in Anant vs Shankar, A.I.R. 1943 P.C. 196 the two brothers decided to execute a bogus deed of partition in order to avoid any legal consequences which may follow if either of the widows should take a son in adoption.
Therefore, the deed was not genuine.
[249 D G; 250 F G] 246 (2)In order to operate as a severance of joint status, it is necessary that the expression of intention to separate himself, by the 'particular member must be definite and unequivocal.
If the expression of the intention is a mere pretence or sham, there is, in the eye of law, no separation of the joint family status.
[251 C D] Merla Ramanna vs Chelikani Jagannadha Rao, A.I.R. 1941 P.C. 48, applied.
(3)There is no presumption that a joint Hindu family, because it is joint, possesses any joint family property or if there was a nucleus, any acquisition made by any member of the joint family is joint family property.
It is only after the possession of an adequate nucleus is shown that such a presumption is drawn and the onus shifts on to the person who claims the property as a self acquisition to make out his claim.
In the present case, the income from the nucleus was more than sufficient for the purchase of the various items acquired later, and there was no proof that G had any separate income of his own out of which he could have: acquired those items.
Therefore, the later acquisitions were also joint family properties.
[251 E G 252 C D, E F] Appalaswami vs Suryanaravanamurti, I.L.R. applied.
(4)The first respondent challenged all the alienations in the plaint and the High Court was right in holding that the sale without consideration and hence was not genuine and was not binding on the first respondent.
[253 D E]


judgement:
Appeals Nos. 847 and 848 of 1966.
388 Appeals by special leave, from the judgment and order dated January 20, 1965 of the Allahabad High Court, Lucknow Bench in Writ Petitions Nos. 108 and 109 of 1962.
section C. Manchanda and section section Shukla, for the appellant (in both 'the appeals).
C. B. Agarwala and K. P. Gupta, for the respondents (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the im.
Position of a water rate imposed by the Municipal Board Sitapur.
Section 126(1)(x) of the U.P. Municipalities Act, 1916 (U.P Act No. 2 of 1916) empowers the Board to impose a water tax on the annual Value of buildings or lands or of both.
Sections 131 to 135 lay down the procedure for imposing the tax.
The High Court held that the levy was invalid as the Board did not comply with this procedure.
A municipal board desiring to impose the tax is required by section 131 sub section
(1) to pass a special resolution framing the preliminary proposal for the tax.
The Municipal Board, Sitapur, passed a special resolution on January 24, 1956 framing the proposal for the levy of water tax at the rate of 12% per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs. 24 or below.
Section 131 sub section
(2) requires the Board to prepare a draft of t he rules in respect of the proposed tax.
The Board duly prepared the necessary draft rules.
Section 131 sub &.
(3) requires the Board to publish in the manner prescribed in section 94 the proposal and the draft rules along with a notice in the form set forth in Schedule III.
The draft rules along with the notice was published in the Rashtra Sandesh, a local paper published in Hindi.
The proposal was not separately published.
But the proposal was to be found in the draft rules published in the local paper.
Objections against the proposal were filed by the inhabi tants of the municipality.
The Board duly considered the objections and passed orders thereon under section 132 sub section
After considering the objections and the recommendations of the prescribed authority under section 133 sub section
(1) the Board decided to modify the original proposal by reducing the tax to 10% on the annual value and by exempting all lands and buildings whose annual value was Rs. 36 or below.
Section 132 sub section (2) requires the Board to publish the modified proposal along with a, notice indicating that it is in modification of the original proposal, and section 132 sub section
(3) provides that the objec 389 tions to the modified proposal shall be dealt with in the manner prescribed by sub section
The modified proposal was not published as required by section 132 subs.
The prescribed authority acting under section ' 132 sub section
(2) duly sanctioned the final proposal and made the necessary rules in respect of the tax.
It may be noted that the Commissioner, Lucknow Division, was the prescribed authority.
On receipt of the order of sanction and the copy of the rules, the Board acting under section 134 sub section
(2) pas sed a special resolution on April 23, 1957 directing the im position of the tax with effect from October 1, 1957.
This special resolution was not published in the manner prescribed by section 94.
On receipt of the special resolution the prescribed authority acting under section 135 sub section
(2) notified in the official gazette dated August 3, 1957 the imposition of the tax from the appointed date.
Section 135 sub section
(3) provides that, "a notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.
" The respondents raised three objections against the validity of the imposition of the water tax : ( 1 ) omission to publish the preliminary proposal separately in the manner prescribed by section 131 sub section
(3) read with section 94; (2) non publication of the modified proposal in accordance with section 132 sub section
(2); and (3) non publication of the special resolution directing the imposition of the tax in accordance with section 94.
The procedure laid down by the Act was, not strictly complied with before imposing the tax ' But all the procedural defects in the imposition of the tax are cured by section 135 sub section
(3), where, as in this case, the Municipal Board has the power to levy the tax and has passed the special 'resolution necessary for the imposition of the tax and the defects are not of a fundamental character.
The procedural defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejudice is caused thereby to the, inhabitants of the municipality.
The issue of the notification under section 135 sub section
(2) is conclusive proof that all necessary steps for the imposition of the tax have been taken in accordance with the provisions of the Act.
In Municipal Board vs Raghuvendra(1) the Court held that the defect of non publication of the special resolution proposing the tax in a local Hindi paper and omission to publish the draft rules as required by section 131 sub section
(3) read with section 94 sub section
(3) was cured by section 135 sub section (3) and that the publication of the special resolution by affixing a copy of it on the notice board and by beat of drum was sufficient.
In Bland Sugar vs Municipal Board(2) the Court held that the publication of the pro (1) ; (2) ; 390 posals and ;the draft rules in Hindi in a local Urdu paper was sufficient compliance with section 131 sub section
In Berar Swadeshi Vanaspathi vs Municipal Committee, Shegaon,(1) the Court held that in view of the similar provisions of section 67 sub section
(7) of the C. P. and Berar Municipal Act, 1922, the validity of imposition of the octroi tax could not be challenged on the ground that the objections were not considered on the merits.
As to the first objection we find that there, was substantial compliance with section 131 sub section
The draft rules were published in the Rashtra Sandesh.
They incorporated the preliminary proposal and mentioned the special resolution dated January 24, 1956 by which the proposal was framed.
There was thus sufficient publication of the proposal.
The proposal was not separately published in the prescribed form, but the omission to do so was a mere irregularity.
The inhabitants of the municipality had due notice of the proposal.
The object of the publication under section 131 sub section
(3) is to inform the inhabitants of the proposal so that, they can file their objections to it.
That object was fully achieved by the publication in the Rashtra Sandesh.
As to the second objection, we, find that the original proposal was to levy water tax at the rate of 12% per annum on the annual value.
The inhabitants had full opportunity to raise objections to the rate of the tax and to submit whether the rate should be 12% or 10% or less.
After considering their objections, the Board proposed to levy the tax at the reduced rate of 10% per annum on the annual value.
No prejudice was caused by not inviting fresh objections to the modified proposal of levying the tax at the reduced rate.
It is interesting to notice that the U.P. Municipalities (Amendment) Act, 1964 (U.P. Act No. XXVII of 1964) inserted in section 132 sub section
(2) the following proviso : "Provided that no such publication shall be necessary where the modification is confined to reduction in the amount or rate of the tax originally proposed.
" This proviso was not in force.
on January 24, 1956.
But it does indicate that it is unnecessary to publish a modified proposal reducing the rate of tax originally proposed.
The original proposal exempted all buildings and lands whose annual value was Rs. 24 or below.
The modified proposal raised the exemption limit and provided that all buildings and lands whose annual value was Rs. 36 or below would be exempted.
The inhabitants of the municipality had full opportunity to raise objections as to the exemption limits as originally proposed and to submit whether buildings and lands of the value of Rs. 24 or Rs. 36 or more should be exempted.
No prejudice was caused by not inviting fresh objections to the (1) 391 modified proposal raising the exemption limit.
The inhabitants submitted all objections which they could possibly I raise both with regard to the rate of tax and the exemption limit.
In our opinion, the non publication of the modified proposal was a mere irregularity, and the defect was cured by section 135 sub section
As to the third objection it is to be observed that section 134.
section (2) does not provide for the publication of the special resolution passed under it.
Assuming that this special resolution had to be published under the general provisions of section 94, we think that the non publication was a mere irregularity.
The inhabitants had no right to file any objections against the special resolution.
They had clear notice of the imposition of the tax from the notification published in the official gazette on August 3, 1957.
The defect of the non publication of the special resolution in the manner prescribed by section 94 was cured by section 135 sub section
The High Court was in error in quashing the imposition of the water tax.
In the result, the appeals are allowed with costs in this Court and in the High Court, the order of the High Court is set aside and the writ petitions are dismissed.
There will be one hearing fee.

summary:
The Municipal Board Sitapur took various steps to levy water tax as authorised by section 126(1)(x) of the U.P. Municipalities Act, 1916, and the special resolution imposing the tax with effect from October 1, 1957 was passed on April 23, 1957.
The High Court held the levy to be, invalid.
In appeal filed by the Municipal Board this Court had to consider the effect of (i) the omission to publish the preliminary proposal separately in the manner prescribed by section 131(3) read with section 94, (ii) the nonpublication of the modified proposal in accordance with section 132(2) and (iii) the non publication of the special resolution directing the imposition of the tax in accordance with section 94.
HELD: The High Court was in error in quashing the imposition of the water tax.
(i) Procedural defects in the imposition of the tax are cured by section 135(3).
Such defects cannot be regarded as fundamental or as invalidating the imposition, if no substantial prejudice is caused thereby to the inhabitants of the municipality.
The issue of the notification under section 135(2) is conclusive proof that all necessary steps for the imposition of the tax have been taken in accordance with the. provisions of the Act.
[389E F] Municipal Board vs Raghuvendra, ; , Buland Sugar V. Municipal Board, ; and Berar Swadeshi Vanaspathi vs Municipal Committee, Shegaon, , applied.
(ii) In the present case there was substantial compliance with section 131(3).
The proposal was not separately published in the prescribed form but the omission to do so was a mere irregularity.
The object of the publication under section 131(3) is to inform the inhabitants of the proposal so that they can file their objections to it.
That object was fully achieved by the publication in the local newspaper.
[390 B D] (iii) The inhabitants submitted all objections which they could possibly raise both with regard to the rate of tax and the exemption limit.
Noprejudice was caused by not inviting fresh objections to reduction of the rate of tax or the exemption limit.
The non publication of the modified proposal was a mere irregularity and the defect was cured by section 135(3).
[390 E] (iv) Section 134(2) does not provide for the publication of the special resolution passed under it.
Assuming that it had to be published under the general provisions of section 94, the non publication was a mere irregularity cured by section 135(3).
[391 C]