judgement:
Appeal No. 326 of 1955.
1250 Appeal by special leave from the judgment and decree dated April 10, 1953, of the Madras High Court in Second Appeal No. 1815 of 1949, arising out of the judgment and decree dated January 28, 1949, of the Court of Subordinate Judge, Bapatla, in A. section No. 188 of 1947, against the judgment and decree dated December 23, 1946, of the District Munsif, Ongole, in O. section No. 139 of 1946.
M. C. Setalvad, Attorney General for India and R.Ganapathy Aiyar, for the appellants.
A. V. Viswanatha Sastri, M. R. Rangaswami Aiyangar, T. section Venkataraman and K. R. Choudhury, for the respondents.
September 4.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
This appeal arises out of a suit for partition of joint family properties instituted on April 2, 1942, in the Court of the District Munsif, Ongole, on behalf of one Kakumanu Ramanna, a minor of the age of about 2 1/2 years by his material grandfather, Rangayya, as his next friend.
The first defendant is his father.
The second and third defendants are the sons of the first defendant by his deceased first wife.
The fourth defendant is the second wife of the first defendant and the mother of the plaintiff .
The fifth defendant is the daugther of the first defendant by the fourth defendant.
In the plaint, three grounds were put forward as to why the minor plaintiff should have partition: (1) It was said that the mother of the plaintiff was ill treated, and there was neglect to maintain her and her children.
Both the District Munsif and the Subordinate Judge on appeal, held that this had not been established, and no further notice need be taken of it.
(2) It was then said that there had been a sale of the family properties to one Akkul Venkatasubba Reddi for Rs. 2,300, that there was no necessity for that sale, and that its object was only to injure the plaintiff.
That sale is dated May 9, 1939.
(3) Lastly, it was alleged that item 2 had been purchased on June 1, 1938, and item 11 on June 14, 1939, with joint family 1251 funds, but that the sale deeds had been taken in the names of the second and third defendants with a view to diminish the assets available to the plaintiff.
In addition to these allegations, it was also stated in the plaint that the family was in good circumstances, and that there were no debts owing by it.
On June 20, 1942, the defendants filed their written statements, wherein they claimed that the purchase of items 2 and 11 had been made with the separate funds of the second and third defendants, and that the joint family had no title to them.
They further alleged that the family had debts to the extent of Rs. 2,600.
Sometime in January 1943, the minor plaintiff died, and his mother who was the fourth defendant was recorded as his legal representative, and transposed as the second plaintiff.
The suit was in the first instance decreed, but on appeal, the Subordinate Judge remanded the case for trial on certain issues.
At the rehearing, it ",as proved that the first plaintiff was born on December 20, 1939.
On that, the District Munsif held that the sale of the family properties to Akkul Venkatasubba Reddi and the purchase of items 2 and II in the names of the second and third defendants having been anterior to the birth of the minor plaintiff, no cause of action for partition could be founded thereon.
The District Munsif also held on the evidence that the purchase of items 2 and 11 was not shown to have been made with separate funds, and that therefore they belonged to the joint family and further that the family owed no debts and that the allegations contra in the statements were not made out.
But he held, however, that this did not furnish a cause of action for partition.
In the result, he dismissed the suit.
There was an appeal against this judgment to the Court of the Subordinate Judge of Bapatla, who affirmed the findings of the District Munsif that items 2 and 11 belonged to the joint, family, and that there were no debts owing by it.
But he also agreed with him that as the sale and purchases in question were prior to the birth of the minor plaintiff, the suit for 159 1252 partition based thereon was not maintainable.
He accordingly dismissed the appeal.
The second plaintiff took the matter in second appeal to the High Court of Madras, and that was heard by Satyanarayana Rao J. who held that as the defendants had falsely claimed that items 2 and 11 were the separate properties of the second and third defendants, their interest was adverse to that of the minor and that the suit for partition was clearly beneficial to him.
He accordingly granted a preliminary decree for partition.
The present appeal has been brought against it on leave granted by this Court under article 136.
The learned Attorney General who appeared for the appellants advanced two contentions in support of the appeal: (1) that there was a concurrent finding by both the courts below that the suit was not instituted for the benefit of the minor, and that the High Court had no power to reverse it in second appeal; and (2) that, in any event, as the minor plaintiff had died before the suit was heard and before the court could decide whether the institution of the suit was for his benefit, the action abated and could not be continued by his mother as his legal representative.
On the first question, the contention of the appellants is that it is a pure question of fact whether the institution of a suit is for the benefit of a minor or not, and that a finding of the courts below on that question is not liable to be interfered with in second appeal.
But it must be observed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made before the minor plaintiff was born, no cause of action for partition could be founded by him thereon, and that, in our opinion, is a clear misdirection.
The transactions in question were relied on by the minor plaintiff as showing that the defendants were acting adversely to him, and that it was therefore to his benefit that there should be a partition.
It is no doubt true that as the plaintiff was not born on the date of those transactions, the defendants could not have entered into them with a view to injure him, though even as to this it should be noted that in May and June, 1253 1939 when the transactions were concluded, the first plaintiff was in the womb, and the first defendant admits knowledge of this, in his evidence.
But assuming that there was no intention to defeat the rights of the first plaintiff at the time when the transactions in question were entered into, that does not conclude the matter.
The real point for decision is whether the defendants were acting adversely to the minor, and if, after he was born, they used documents which might have been innocent when they came into existence, for the purpose of defeating his rights to the properties comprised therein, that would be conduct hostile to him justifying partition.
Now, what are the facts ? In the written statements which were filed shortly after the institution of the suit while the first plaintiff was alive, defendants I to 3 combined to deny his title to items 2 and I 1, and at the trial, they adduced evidence in support of their contention that they were the separate properties of defendants 2 and 3.
Even in the Court of Appeal, the defendants persisted in pressing this claim, and further maintained that the joint family had debts, and both the courts below had concurrently held against them on these issues.
These are materials from which it could rightly be concluded that it was not to the interest of the minor to continue joint with the defendants, and that it would be beneficial to him to decree partition.
In holding that as the transactions in question had taken place prior to his birth the minor could not rely on them as furnishing a cause of action, the courts below had misunderstood the real point for determination, and that was a ground on which the High Court could interfere with their finding in second appeal.
We accept the finding of the High Court that the suit was instituted for the benefit of the minor plaintiff, and in that view, we proceed to consider the second question raised by the learned Attorney General and that is the main ques tion that was pressed before us whether the suit for partition abated by reason of the death of the minor before it was heard and decided.
The contention on behalf of the appellants is that while in the case of an adult coparcener a clear and 1254 unambiguous expression on his part of an intention to become divided will have the effect of bringing about a division in status and the filing of a suit for partition would amount to such an expression, that rule can have no application in the case of a minor, as under the law he is incapable of a volition of his own.
It is conceded by the appellants that a suit for partition could be entertained on behalf of a minor plaintiff, and decreed if the court decides that it, is in the interests of the minor.
But it is said that in such a case, the court exercises on behalf of the minor a volition of which lie is incapable, that it is not until that volition is exercised by the court that there can be a division in status, and that, therefore, when a minor plaintiff dies before the court adjudicates on the question of benefit to him, he dies an undivided coparcener and his interest survives to the other coparceners and does not devolve on his heirs by inheritance.
The contention of the respondents, on the other hand, is that a suit for partition instituted on behalf of a minor coparcener stands on the same footing as a similar suit filed by an adult coparcener, with this difference that if the suit is held by the court not to have been instituted for the benefit of the minor it is liable to be dismissed, and no division in status can be held to result from such an action.
In other words, it is argued that a suit for partition on behalf of a minor effects a severance in status from the date of the suit, conditional on the court holding that its institution is for the benefit of the minor.
The question thus raised is one of considerable importance, on which there has been divergence of judicial opinion.
While the decisions in Chelimi Chetty vs Subbamma (1), Lalta Prasad vs Sri Mahadeoji Birajman Temple (2) and Hari Singh vs Pritam Singh(3), hold that when a suit for partition is filed on behalf of a minor plaintiff there is a division in status only if and when the Court decides that it is for his benefit and passes a decree, the decisions in Rangasayi vs Nagarathnamma (4), Ramsing vs Fakira (5) and Mandliprasad vs Ramcharanlal (6), lay down that when such a (1) 442.
(2) All.
(3) A.I.R. 1936 Lah.
(4) Mad.
(5) I.L.R. (6) I.L.R. 1255 suit is decreed, the severance in status relates back to the date of the institution of the suit.
While Chelimi Chetty vs Subbamma (1) decides that when a minor on whose behalf a suit is filed dies before hearing, the action abates, it was held in Rangasayi vs Nagarathnamma (2) and Mandliprasad vs Ramcharanlal (3) that such a suit does not abate by reason of the death of the minor before trial, and that it is open to his legal representatives to continue the suit and satisfy the court that the institution of the suit was for the benefit of the minor, in which case there would be, a division in status from the date of the plaint and the interests of the minor in the joint family properties would devolve on his heirs.
To decide which of these two views is the correct one, we shall have to examine the nature of the right which a minor coparcener has, to call for partition and of the power which the court has, to decide whether the partition in question is beneficial to the minor or not.
Under the Mitakshara law, the right, of a coparcener to share in the joint family properties arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it.
The view was at one time held that there could be no partition, unless all the coparceners agreed to it or until a decree was passed in a suit for partition.
But the question was finally settled by the decision of the Privy Council in Girja Bai vs Sadashiv Dhundiraj (4), wherein it was held, on a review of the original texts and adopting the observation to that effect in Suraj Narain vs lqbal Narain (5), that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not, that a division in status takes place when he expresses his intention to become separate unequivocally avid unambiguously, that the filing of a suit for partition is a clear expression of such an intention, and that, in consequence, (1) Mad.
(2) Mad.
(3) I.L.R. (4) (1916) L.R. 43 I.A. 151.
(5) (1912) L.R. 40 I.A. 40,45.
1256 there is a severance in status when the action for partition is filed.
Following this view to its logical conclusion, it was held by the Privy Council in Kawal Nain vs Prabhu Lal (1), that even if such a suit were to be dismissed, that would not affect the division in status which must be held to have taken place, when the action was instituted.
Viscount Haldane observed: "A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains consequential judgment or not." The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend.
Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned.
A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major.
Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit.
Vide the authorities cited in Rangasayi vs Nagarathnamma (2 ) at p. 137.
The course of the law may be said, thus far, to have had smooth run.
But then came the decision in Girja Bai vs Sadashiv Dhundiraj (3) which finally established that a division in status takes place when there is an unambiguous declaration by a coparcener of his intention to separate, and that the very institution of a suit for partition constituted the expression of such an intention.
The question then arose how far this principle could be applied, when the suit for partition was instituted not by a major but by a minor acting through his next friend.
The view was expressed that (1) (1917) L.R. 44 I.A. 159.
(2) Mad.
(3) (1916) L.R. 43 I.A. 151.
1257 as the minor had, under the law, no volition of his own ' the rule in question had no application to him it was not, however, suggested that for that reason no .suit for partition could be maintained on behalf of a minor, for such a stand would be contrary to the law as laid down in a series of decisions and must, if accepted, expose the estate of the minor to the perils of waste and spoliation by coparceners acting adversely to him.
But what was said was that when a court decides that a partition is for the benefit of a minor, there is a division brought about by such decision and not otherwise.
It would follow from this that if a minor died before the court decided the question of benefit lie would have died an undivided coparcener of his family and his heirs could not continue the action.
In Chelimi Chetty vs Subbamma (1), the point directly arose for decision whether on the death of a minor plaintiff the suit for partition instituted on his behalf could be continued by his legal representatives.
It was held that the rule that the institution of a suit for partition effected a severance of joint status was not applicable to a suit instituted on behalf of a minor, and that when he died during the pendency of the suit" his legal representative was not entitled to continue it.
The ground of this decision was thus stated: " It was strongly argued by the learned pleader for the respondent that as the plaint states facts and circumstances which, if proved, would be good justification for the court decreeing partition, therefore at this stage we must proceed on the basis that there was a good cause of action and there was thus a severance of status effected by the institution of the suit.
This clearly does not amount to anything more than this, that it is open to a person who chooses to act on behalf of a minor member of a Hindu family to exercise the discretion on his behalf to effect a severance.
What causes the severance of a joint Hindu family is not the existence of certain facts which would justify any member to ask for partition, but it is the exercise of the option which the law lodges in a member of the joint family to say whether he shall continue to remain (1) Mad.
1258 joint or whether he shall ask for a division.
In the case of an adult he has not got to give any reasons why lie asks for partition but has simply to say that he wants partition, and the court is bound to give him a decree.
In the case of a minor the law gives the court, the power to say whether there should be a division or not, and we think that it will lead to considerable complications and difficulties if we are to say that other persons also have got the discretion to create a division in the family, purporting to act on behalf of a minor.
" This decision was cited with approval in Lalta Prasad vs
Sri Mahadeoji Birajman Temple (1), wherein it was observed: " The effect, therefore, we think, of an action brought by a minor through his next friend is not to create any alteration of status of the family, because a minor cannot demand as of right a separation; it is only granted in the discretion of the court when, in the circumstances, the action appears to be for the benefit of the minor.
See Chelimi Chetty vs Subbamma (2).
" In Hari Singh vs Pritam Singh (3), a suit for partition instituted on behalf of a minor was decreed, the court finding that it was for the benefit of the minor.
The question then arose as to the period for which the karta could be made liable to account.
It was held, following the decisions in Chelimi Chetty vs Subbamma (2 ) and Lalla Prasad vs Sri Mahadeoji Birajman Temple (1), that as the severance in status took place only on the date of the decision and not when the suit was instituted, the liability to account arose only from the date of the decree and not from the date of the suit.
It may be mentioned that in Chhotabhai vs Dadabhai (4) Divatia J. quoted the decision in Chelimi Chetty vs Subbamma (2) with approval, but as pointed out in Ramsing vs Fakira (5) and by the learned judge himself in Bammangouda vs Shankargouda (6), the point now under consideration did not really arise for decision in that case, and the (1) All. 461.
(2) Mad.
(3) A.I.R. 1936 Lah.
(4) A.I.R. 1935 Bom.
(5) I.L.R. (6) A.I.R. 1944 Bom.
1259 observations were merely obiter.
It is on the strength of the above authorities that the appellants contend that when the minor plaintiff died in January 1943, the suit for partition had abated, and that his mother had no right to continue the suit as his heir.
Now, the ratio of the decision in Chelimi Chetty vs Subbamma (1) and it is this decision that was followed in Lalta Prasad 's Case (2 ), Hari Singh vs Pritam Singh (3) and Chhotabhai vs Dadabhai (4) is that the power to bring about a division between a minor and his coparceners rests only with the court and not with any other person, and that, in our judgment, is clearly erroneous.
When a court decides that a suit for partition is beneficial to the minor, it does not itself bring about a division in status.
The court is not in the position of a super guardian of a minor expressing on his behalf all intention to become divided.
That intention is, in fact, expressed by some other person, and the function which the court exercises is merely to decide whether that other person has acted in the best interests of the minor in expressing on his behalf ail intention to become divided.
The position will be clear when regard is had to what takes place when there is a partition outside court.
In such a partition, when a branch consisting of a father and his minor son becomes divided from the others, the father acts on behalf of the minor son as well; and the result of the partition is to effect a severance in status between the father and his minor son, oil the one hand and the other coparceners, on the other.
In that case, the intention of the minor to become separated from the coparceners other than his father is really expressed on his behalf by his father.
But it may happen that there is a division between the father and his own minor son, and in that case, the minor would normally be represented by his mother or some other relation, and a partition so entered into has been recognised to be valid and effective to bring about a severance in status.
The minor has no doubt the right to have the partition set aside if it is shown to have been prejudicial to him but if that is not established, the partition (1) Mad.
(3) A.I.R. 1936 Lah.
(2) All.
(4) A.I.R. 1935 BOM.
160 1260 is binding on him.
Vide Balkishen Das vs Ram Narain Sahu (1).
And even when the partition is set aside on the ground that it is unfair, the result will be not to annul the division in status created by the partition but to entitle the minor to a re allotment of the properties.
It is immaterial that the minor was represented in the transaction not by a legal guardian but by a relation.
It is true, as held in Gharib Ul Lah vs Khalak Singh (2) that no guardian can be appointed with reference to the coparcenary properties of a minor member in a joint family, because it is the karta that has under the law the right of management in respect of them and the right to represent the minor in transactions relating to them.
But that is only when the family is joint, and so where there is disruption of the joint status, there can be no question of the right of a karta of a joint family as such to act on behalf of the minor, and on the authorities, a partition entered into on his behalf by a person other than his father or mother will be valid, provided that person acts in the interests of and for the benefit of the minor.
If, under the law, it is competent to a person other than the father or mother of a minor to act on his behalf, and enter into a partition out of court so as to bind him, is there any reason why that person should not be competent when he finds that the interests of the minor would best be served by a division and that the adult coparceners are not willing to effect a partition, to file a suit for that purpose on behalf of the minor, and why if the court finds that the action is beneficial to the minor, the institution of the, suit should not be held to be a proper declaration on behalf of the minor to become divided so as to cause a severance in status? In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division in status.
That (1) (1903) L.R. 30 I.A. 139.
: (2) (1903) L.R. 30 I.A. 165.
1261 was the view taken in a Full Bench decision of the Madras High Court in Rangasayi.
vs Nagarathnamma (1), wherein Ramesam J. stated the position thus: " These instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree.
It is no objection to the maintainability of the suit.
In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the court being able to find that the suit when filed was for the benefit of the minor.
" The same view has been taken in Ramsing vs Fakira (2) and Mandliprasad vs Ramcharanlal (3), and we agree with these decisions.
On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor or not.
Now, the theory is that the Sovereign as parens patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the courts.
In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned.
They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious.
In Halsbury 's Laws of England, 3rd Edn., Vol.
XXI, p. 216, para.
478, it is stated as follows: " Infants have always been treated as specially under the protection of the Sovereign, who, as parens patriae, had the charge of the persons not capable of looking after themselves.
This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery, and is now vested in the Chancery Division of the High Court of Justice.
It is independent of the question whether the infant has any property or not.
" (1) Mad.
(2) I.L.R. (3) I.L.R. 1262 It is in the exercise of this jurisdiction that courts require to be, satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest.
When, therefore, the court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors.
The true effect of a, decision of a court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action.
Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor.
It remains to consider one other argument advanced on behalf of the appellants.
It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis moritur cum persona.
But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.
That was the view taken in Rangasayi vs Nagarathnamma (1) at pp.
137 138 and in Mandliprasad vs Ramcharanlal (2) at p. 871, and we are in agreement with it.
All the contentions urged in support of the appeal have failed, and the appeal is accordingly dismissed with costs.
The amounts paid by the appellants to the respondents in pursuance of the order of this Court dated March 7, 1958, will be taken into account in adjusting the rights of the parties under this decree.
(1) Mad.
Appeal dismissed.

summary/full:
In a suit instituted on behalf of a Hindu minor for partition of the joint family properties, the minor plaintiff died during the pendency of the suit and his mother as the legal representative was allowed to continue the suit as the second plaintiff, and the suit was decreed as it was found that the defendants had been acting against the interests of the minor and that the suit for partition was therefore beneficial to him.
It was contended for the appellants that the suit had abated by reason of the death of the minor before the suit was heard and before the Court could decide whether the institution of the suit was for his benefit.
Held, that when a suit is instituted by a person acting on behalf of a minor for the partition of the joint family properties, a declaration made by him on behalf of the minor to become divided brings about a severance in status, subject only to the decision of the Court that the action is beneficial to the minor.
The true effect of the decision of the Court is not to create in the minor a right which he did not possess before but to recognise the right which had accrued to him when the action was instituted.
Rangasayi vs Nagarathnamma, Mad. 95, Ramsingh vs Fakira, I. L. R. and Mandilprasad vs Ramcharanlal, I.L.R. , approved.
Case law reviewed.
Accordingly, the suit did not abate and the legal represen tative was entitled to continue the suit and obtain a decree on showing that when the suit was instituted it was for the benefit of the minor.
Held, further, that the suit did not abate on the ground either that the cause of action for a suit for partition by a minor was one personal to him, because such a suit is one relating to property.


judgement:
ivil Appeal No. 836 of 1974.
From the Judgment and Order dated 23.8.1971 of the Punjab & Haryana High Court in L.P.A. No. 487 of 1968.
S.P. Goyal and D.D. Sharma for the Appellants.
A. Minocha for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Nawal Singh sold 102 bighas of land to Nathu Ram for Rs.8,000 by a sale dated 11th February, 1952.
He also executed a sale deed in respect of 90 bighas of land to Sardha Ram for a sum of Rs.4,500 on 28th October, 1952.
There were recitals in the two sale deeds regarding the necessity for the sale.
The first sale deed stated: 771 "(1) The land is Banjar Qadim.
According to the law in force, it is obligatory to break and cultivate this land.
Otherwise the Govern ment would give it out by auction to some other person.
(2) I need money to bring other land under the plough, to sink a new well and for other agricultural works, such as purchases of bullocks etc.".
The recitals in the second sale deed dated 28 10 1952 ran as follows: "I have absolutely sold the aforesaid banjar qadim land . . for meeting my own needs, repairing the well, installing a persian wheel purchasing camel, and reclaiming the aforesaid banjar qadim jungle land.
" Nawal Singh 's heirs filed suits for setting aside the sales on the ground that they were governed by Punjab Agri cultural customs in matters of alienation, that the land was ancestral and that the alienation had been made without legal necessity and, therefore, would not affect their reversionary rights on the death of the vendor.
Both suits were consolidated and tried together.
The suits were dis missed by the sub judge and the first appeals were dismissed by the senior subordinate judge.
Second appeals were pre ferred which came up for hearing before a learned Single Judge of the High Court.
The learned Judge held that the sale in favour of Nathu Ram was without legal necessity except to the extent of a sum of Rs. 1,000 which was actual ly utilised by the vendor for the sinking of a new well 'in his remaining lands ', and that the sale in favour of Sardha Ram was entirely without necessity.
There were appeals against the order of the learned Single Judge to a Division Bench of the same High Court.
The Division Bench held that, so far as the sale in favour of Nathu Ram was concerned, the learned Single Judge had fallen into an error in upsetting the concurrent findings of fact of the Courts below.
The Court proceeded to observe: "The Courts below found and on evidence that bulk of Nawal Singh 's land was banjar qadim.
It has been further found that under the Punjab Utilisation of Lands Act, notices were issued to Nawal Singh that if the land was not broken up it would be taken under that Act and leased out 772 to third party.
There were no irrigation facilities available for the land and to sink a well money was needed.
There is ample evi dence on the record on which these evidences are based.
The vendor has come into the wit ness box and stated that the money was raised for this purpose.
The statement of the vendee was accepted by the Courts of fact.
In this situation, there was no justification to displace the judgments of the Court below with regard to the sale in favour of Nathu Ram (exhibit D 3).
The rule is firmly settled that the vendee either established the existence of necessity in fact or a bona fide inquiry that there was necessity for the sale.
If he satis fies either one of the two requirements the sale would be held for necessity or an act and good management, as the case may be .
It cannot be denied that for an agriculturist to bring under his plough his land is a matter of necessity and if some land is sold to bring the bulk of the land under cultivation, it would certainly be an act of necessity as well as an act of good management.
We are, there fore, clearly of the view that the learned Single Judge was not justified in upsetting the sale in favour of Nathu Ram." However, in respect of sale in favour of Sardha Ram, the Bench observed that the real difficulty was that there was no evidence that the money was advanced for the purpose of breaking up of the land but for the mere recital in the sale deed which was not sufficient for the purpose.
Unfortu nately, neither the vendee nor the witness had stated that the land was sold by Nawal Singh to break up his banjar qadim land.
The only fact proved was that Nawal Singh had a lot of banjar land but that was of no consequence by itself.
The decision of the learned Single Judge was therefore upheld in respect of the sale in favour of Sardha Ram.
The vendor has accepted the decision in regard to the sale in favour of Nathu Ram.
Sardha Ram has preferred the present appeal before us.
The learned counsel for the appellant contended that there was really no difference in the factual position so far as the two sales are concerned and that the Division Bench has erred in upsetting the sale in favour of Sardha Ram while upholding it in the case of Nathu Ram.
The High Court overlooked that even assuming that there was no evi dence to show that Sardha Ram had made enquiries as to the necessity for the sale, factual necessity for the sale had been established by the evidence on the record which was common to both the sales.
After 773 hearing both sides, we are of opinion that this contention has to be accepted.
It is an admitted fact that the alienor owned about 1,100 bighas of land.
It was also an established fact that, of this, 973 bighas was banjar qadim and the remaining land was of inferior quality.
The land was also under mortgage.
It is also Common ground that the provisions of the East Punjab Utilisation of Lands Act (Act 3.8 of 1949) as amended by Ordinance 15 of 1950 were in force in the area.
Under the provisions of this Act, a notice could be given requiring a land holder to bring uncultivated land under cultivation after reclamation within a period of 30 days from the date of issue of a notice in that regard.
Failing this, the area could be resumed by the Government and leased out to some other cultivators or society for cultivation for a period of at least 8 years.
The appellant had examined the development clerk in the office of the Deputy Commissioner, Kamal (D .W. 1) to show that a notice had been issued to Nawal Singh under the provisions of the said Act on 8th May, 1951 in respect of his banjar land measuring 976 bighas.
The learned Single Judge overlooked the notice of 8th May, 1951 and, mistakenly referring to another notice issued on 15.10.1954 to Sardha Ram, thought that the compulsions under the Act arose only after the sales of 1952.
The Divi sion Bench, however, has accepted the correct position while dealing with the sale in favour of Nawal Singh.
Having done this, we fail to see now the Bench could have held that the sale in favour of Sardha Ram was not actuated by the same grounds of necessity.
The question for consideration is whether if Nawal Singh, faced by the notice under the Punjab Utilisation Act that unless he brought the land under culti vation they would be leased out to some other party, decided that it would be in the best interests of the holdings as a whole to sell a portion of the land so that sale proceeds may be utilised for the reclamation of the major part of the remaining land, it could not be said that such a sale was justified by necessity.
We think that the answer must be in the affirmative.
The learned Single Judge expressed the view that non compliance with the notice would result only in a temporary lease of the land to outsiders and this conse quence was not sufficient to justify the sale of a portion of the lands on grounds of necessity.
We, however, agree with the Division Bench on this.
A land owner receiving a notice under the said Act has two options before him.
He can either own his helplessness to reclaim the land and permit it to be leased out by the Government to other persons for cultivation for a substantial period.
Or he may decide that he should make an attempt to make at least a part of the lands fertile by selling a portion of the land and reclaim ing the rest 774 with the help of the sale proceeds.
A bona fide decision taken by him to exercise the latter option cannot be said not to be an act of good management.
We think that if the sale in favour of Nathu Ram in the same circumstances was a valid sale (and we agree with the Division Bench on this), it is very difficult to say that the sale in favour of Sardha Ram was not.
The necessity for both the sales was the situation arising out of the receipt of the notice under the Punjab Land Utilisation Act.
Indeed we think that the find ings of the trial court and first appellate court on this issue were findings of fact which did not call for interfer ence by the High Court.
Learned counsel for the respondent drew our attention to the findings of the Learned Single Judge that, according to D.W. 2, the vendor was a "drunkard given to licentious habits".
The trial court and first appellate court have examined the entire evidence and recorded a finding to the contrary.
That apart, all that D.W. 2 said was: "The charac ter of Nawal Singh is bad.
He drinks and is also a womanis er", D.W. 2, however, also said that Nawal Singh had sold the land for managing the work of cultivation.
It is, there fore, difficult to draw from D.W.2 's testimony the inference that the sale of the land had been necessitated by the immoral activities of the vendor and that there was no real necessity to sell the land.
The Division Bench, rightly, has attached no importance to this aspect of the case.
For the reasons mentioned above we are of opinion that the sale in favour of Sardha Ram was a valid sale and is not liable to be impugned by the representatives or the succes sors in interest of Nawal Singh.
This appeal is therefore allowed and the judgment of the first appellate court is restored.
In the circumstances, however, we make no order as to costs.
T.N.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent 's predecessor in interest received notice under the East Punjab Utilisation of Lands Act, 1949 for bringing his uncultivated land under cultivation.
Thereafter he sold a portion of his land by executing two sale deeds in favour of two different vendees for the purpose of utilising the sale proceeds to reclaim the remaining land.
The re spondents fried suits for setting aside the sales, contend ing that the alienation was made without legal necessity, which were dismissed by the Trial Court.
The first appeals were dismissed by the Senior Subordinate Judge.
On second appeal a learned single judge of the High Court held that the sale in favour of the first vendee was for legal necessity only to the extent of Rs.1,O00 and the sale in favour of the second vendee was entirely without necessity.
On a further appeal the Division Bench reversed the decision of the single judge with regard to first vendee holding that the sale was for necessity but upheld the decision with regard to second vendee holding that the sale in his favour was without legal necessity.
Hence this appeal by the second vendee.
Allowing the appeal, this Court, HELD: 1.
The sale in favour of the second vendee was a valid sale and is not liable to be impugned by the represen tatives or the successors in interest of the vendor.
[774E] 770 2.
Under the provisions of the East Punjab Utilisation of Lands Act, 1949 a notice could be given requiring a land holder to bring uncultivated land under cultivation after reclamation within a period of 30 days from the date of issue of a notice in that regard.
Failing this, the area could be resumed by the Government and leased out to some other cultivators or society for cultivation for a period of at least 8 years.
[773B] 2.1 A land owner receiving a notice under the said Act has two options before him.
He can either own his helpless ness to reclaim the land and permit it to be leased out by the Government to other persons for cultivation for a sub stantial period.
Or he may decide that he should make an attempt to make atleast a part of the lands fertile by selling a portion of the land and reclaiming the rest with the help of the sale proceeds.
A bona fide decision taken by him to exercise the latter option cannot be said not to be an act of good management.
[773G H; 774A] 3.
If the sale in favour of the first vendee in the same circumstances was a valid sale, it is very difficult to say that the sale in favour of the second vendee was not.
The necessity for both the sales was the situation arising out of the receipt of the notice under the East Punjab Lands Utilisation Act.
In fact the findings of the Trial Court and the first appellate court on this issue were findings of fact which did not call for interference by the High Court.
[774A B]


judgement:
ivil Appeal No. 3577 of 1988.
From the Judgment and Order dated 19.9.1986 of the Madras High Court in C.R.P. No. 3210 of 1985.
section Padmanabhan, Mr. T.A. Subramaniyam, R.N. Keshwani and section Balakrishnan for the Appellants.
G. Ramaswamy, Additional Solicitor General, K. Swami, section Srinivasan, Rajyappa, section Murlidhar, Diwan Balak Ram and M.K.D. Namboodari for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Venkatarayulu Naidu Charities is a public trust V.P. Venkatakrishna Naidu and V.P. Rajagopala Naidu, filed an original suit No. 28 of 1909 (hereinafter called original suit) in the court of Subordinate Judge, Mayavaram under Section 92 of the Code of Civil Procedure praying inter alia that the defendant trustee be 763 removed from the said office and a new trustee be appointed with directions to recover trust properties improperly and fraudulently alienated by the defendant.
The subordinate court permitted the trustee to continue and framed a scheme decree dated September 9, 1910 for the future manage ment and administration of the trust.
Clauses 13 and 14 of the scheme are as under: "13 The trustee shall not effect any altera tions or additions to the existing buildings except with the permission of the Tanjore Sub Court." "14 Liberty is given to the parties to apply to the Tanjore Sub Court for further direc tions if any from time to time as regards the administration of the trusts.
" The question for consideration in this Appeal is whether "parties" mentioned in Clause 14 of the scheme decree repro duced above mean only the named plaintiffs and defendant in the suit title and their successors in interest or the suit being representative it includes all those who are interest ed in the trust.
Further necessary facts are as under: The trust owns several items of proper ties.
We are concerned with the following two properties alone of the trust.
Property situate at Muthukumara Moopannaar Road in T.S. No. 2936 to an extent of 11484 sq.
ft. 2.
Property situate at ward No. 6 Gandhiji Road, in T.S. No. 2937 to an extent of 4429 sq.
The trustees filed interim application No. 453 of 1984 in the Original Suit before the subordinate court for per mission to sell the first property which was granted by the order dated October 27, 1984 and the property was sold for Rs.11,000.
Similarly the second property was sold for Rs.69,328 with the permission of the court dated January 23, 1985.
R. Venugopala Naidu and three others who are the present appellants filed interim application No. 175 of 1985 in the original suit before the subordinate judge, Thanjavur for setting aside the orders dated October 27, 1984 and January 23, 1985 granting permission to 764 the trust to sell the above mentioned two properties.
It was alleged that the negotiated sale was at a price which was almost 20% of the market price.
There was no publication in any newspapers or even in the court notice board inviting the general public.
The learned subordinate judge dismissed the application on the ground that the applicants have no locus sandi to file the application under clauses 13 and 14 of the scheme decree as they were not parties to the original suit.
A further revision before the Madras High Court was dismissed.
The High Court also came to the conclusion that the applica tion was not maintainable.
It was also held by the High Court that two of the four applicants who are muslims cannot have any interest in the administration of the trust.
Against the High Court judgment the present appeal by way of special leave has been filed.
Mr. section Padmanabhan, learned counsel for the appellants has vehemently argued that though the appellants were not shown as parties in suit title but the suit under Section 92 of Civil Procedure Code being a representative suit the scheme decree binds not only the parties thereto but all those who are interested in the trust.
According to him "parties" in clause 14 of the scheme decree would include appellants and all those who are interested in the trust.
He has relied on Raje Anandrao vs Shamrao and Others, ; wherein this Court held as under: " . .
It is true that the pujaris were not parties to the suit under section 92 but the deci sion in that suit binds the pujaris as wor shipers so far as the administration of the temple is concerned, even though they were not parties to it, for a suit under section 92 is a representative suit and binds not only the parties thereto but all those who are inter ested in the trust." The learned counsel further relied on Ahmed Adam Sait and Others vs Inayathullah Mekhri and Others, ; wherein this Court observed as under: "A suit under section 92, it is urged, is a repre sentative suit, and so, whether or not the present respondents actually appeared in that suit, they would be bound by the decree, which had framed a scheme for the proper administra tion of the Trust.
In support of this argu ment, reliance is placed on the decision of this Court in Raja Anandrao vs Shamrao, 765 where it is observed that though the Pujaris were not parties to the suit under section 92, the decision in that suit binds the pujaris as worshipers so far as the administration of the temple is concerned, because a suit under section 92 is a representative suit and binds not only the parties thereto, but all those who are interested in the Trust . . " " . .
In assessing the validity of this argument, it is necessary to consider the basis of the decisions that a decree passed in a suit under section 92 binds all parties.
The basis of this view is that a suit under section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust.
The said section authorises two or more persons having an interest in the Trust to file a suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub section (1) after consent in writing there prescribed has been obtained.
Thus, when a suit is brought under section 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsi bility of representing all the beneficiaries of the Trust.
In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative charac ter.
This position immediately attracts the provisions of explanation VI to section 11 of the Code.
Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the pur poses of this section, be deemed to claim under the persons so litigating.
It is clear that section 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by persons to which explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted.
Explanation VI thus illustrates one aspect of constructive res judicata.
Where a representa tive suit is brought under section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, there fore, are constructively barred by res judica ta from reagitating the matters directly and substantially in issue in the said earlier suit.
A similar result follows if a suit is either brought or 766 defended under 0.1.
, r. 8.
In that case per sons either suing or defending an action are doing so in a representative character, and so the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants . . " The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and chari ties.
The suit is fundamentally on behalf of the entire body of persons who are interested in the trust.
It is for the vindication of public rights.
The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit title in that event would show only their names as plaintiffs.
Can we say that the persons whose names are on the suit title are the only parties to the suit? The answer would be in the negative.
The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit.
A suit under Section 92 of the Code is thus a representative suit and as such binds only the parties named in the suit title but all those who are interested in the trust.
It is for that reason that explanation VI to Section II of the Code constructively bar by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code.
Mr. G. Ramaswamy, learned counsel appearing for the respondent trust has argued that only the two persons who filed the original suit can be considered as "parties" in terms of clause 14 of the scheme decree and according to him since the appellants were not the plaintiffs they have no locus standi to file any application under clause 13 and 14 of the scheme decree.
According to the learned counsel Section 92 of the Code brings out a dichotomy in the sense that there are "parties to the suit" and "persons interested in the trust." According to him persons interested in the trust cannot be considered parties to the suit although the judgment/decree in the suit in binding on them.
He has also argued that a suit under Section 92 of Civil Procedure Code is different from a suit filed under Order 1 Rule 8 of Civil Procedure Code.
We do not agree with the learned counsel.
A suit whether under Section 92 of Civil Procedure Code or under Order 1 Rule 8 of Civil Procedure Code is by the representatives of large number of persons who have a common interest.
The very nature of a representative suit makes all those who have common interest in the suit as parties.
We, 767 therefore, conclude that all persons who are interested in Venkatarayulu Naidu Charities which is admittedly a public trust are parties to the original suit and as such can exercise their rights under clauses 13 and 14 of scheme decree dated September 9, 19 10.
It is not necessary to go into the finding of the High Court that two of the appellants being muslims can have no interest in the trust as the other two appellants claim to be the beneficiaries of the trust and their claim has not been negatived.
Moreover, the trust has been constituted to perform not only charities of a religious nature but also charities of a secular nature such as providing for drinking water and food for the general public without reference to caste or religion.
In view of our findings above the subordinate court and the High Court were in error in holding that the appellants had no locus standi to file the application for setting aside the order permitting the sale of the properties.
We, therefore, allow the appeal and set aside the order of the subordinate court and that of the High Court.
The subordinate court and the High Court did not go into the merits of the case as the appellants were non suited on the ground of locus standi.
We would have normally remanded the case for decision on merits but in the facts and circum stances of this case we are satisfied that the value of the property which the trust got was not the market value.
Two persons namely S.M. Mohamed Yaaseen ad S.N.M. Ubayadully have filed affidavit offering Rs.9.00 lacs and Rs. 10.00 lacs respectively for these properties.
In support of their bona fide they have deposited 10% of the offer in this Court.
This Court in Chenchu Ram Reddy and another vs Gov ernment of Andhra Pradesh and Others, [1986] 3 SCC 391 has held that the property of religious and charitable endow ments or institutions must be jealously protected because large segment of the community has beneficial interest therein.
Sale by private negotiations which is not visible to the public eye and may, even give rise to public suspi cion should not, therefore, be permitted unless there are special reasons to justify the same.
It has further been held that care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.
We, therefore, set aside the orders of subordinate court dated October 27, 1984 and January 23, 1985 permitting the sale of the two properties and also set aside the consequent sale in favour of the respondents.
We direct that the properties in question may be sold by 768 public auction by giving wide publicity regarding the date, time and place of public auction.
The offer of Rs. 10 lacs made in this Court will be treated as minimum bid of the person who has given the offer and deposited ten percent of the amount in this Court.
It will also be open to the re spondents/purchasers to participate in the auction and compete with others for purchasing the properties.
The respondents vendees from the trust shall be enti tled to refund of the price paid by them with 10% interest from the date of payment of the amount till the date of auction of the property.
They will also be entitled to compensation for any super structure put up by them in the properties including compensation for any additions or improvements made by them to the building and the property.
The value of such super structure and the improvements and additions shall be ascertained by the subordinate court through a qualified engineer and by Such other method as the court may deem fit.
The court shall fix the value and com pensation amount after affording opportunity to the respond ents and the trust to make their representation in that respect.
There shall be no order as to costs.
G.N. Appeal al lowed.

summary/full:
Respondent No. 1 is a public trust.
The trust owns several properties.
On the ground that the trust properties were improperly and fraudulently alienated, a suit was fried under Section 92 CPC for removing the trustee and appointing a new trustee and to recover trust properties alienated by the said trustee.
The sub judge permitted the trustees to continue and framed a scheme decree for the future manage ment and administration of trust.
The scheme also granted liberty to the parties to apply to the sub court for further directions as regards the administration of the trust.
The trustees filed an interim application before the sub court and obtained permission to sell two properties.
The appellants filed an interim application for setting aside the order granting permission to the trust for selling the two properties, alleging that the negotiated price was only about 20% of the market price.
The sub judge dismissed the application on the ground that the applicants had no locus standi to file the application under clauses 13 and 14 of the Scheme decree as they were not parties to the Origi nal suit.
On revision the High Court also came to the conclusion that the application was not maintainable.
This appeal, by special leave, is against the said judgment of the High Court.
On behalf of the appellants, it was contended that since the suit under section 92 CPC being a representative suit, the scheme decree binds not only the parties thereto, but all those who are interested in the trust.
The contention of the Respondents was that only the two persons 761 who filed the original suit can be considered as "parties" in terms of clause 14 of the scheme decree and since the appellants were not plaintiffs in the suit, they have no locus standi to file an application under clauses 13 and 14 of the scheme decree.
Allowing the appeals, this Court, HELD: 1.1 A suit under Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and charities.
The suit is fundamentally on behalf of the entire body of persons who are interested in the trust.
It is for the vindication of public rights.
The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit title in that event would show only their names as plaintiffs.
The named plaintiffs being the repre sentatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit.
A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit title but all those who are interested in the trust.
It is for that reason that explanation VI to Section 11 of Code constructively bar by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code.
[766B C] 1.2 A suit whether under Section 92 of the Civil Proce dure Code or under Order 1 Rule 8 of Civil Procedure Code is by the representatives of large number of persons who have a common interest.
The very nature of a representative suit makes all those who have common interest in the suit as parties.
In the instant case all persons who are interested in the respondent trust are parties to the original suit and as such can exercise their rights under clauses 13 and 14 of scheme decree.
[766H; 767A] Raje Anandrao vs Shamrao and Ors., ; ; Ahmed Adam Sait and Ors.
vs Inayatullah Mekhri and Ors., ; relied on.
2.1 The property of religious and charitable endowments or institutions must be jealously protected because large segment of the community has beneficial interest therein.
Sale by private negotiations which is not visible to the public eye and may even give rise to public suspicion should not, therefore, be permitted unless there are special 762 reasons to justify the same.
Care must be taken to fix the reserve price after ascertaining the market value for safe guarding the interest of the endowment.
[767F G] 2.2 The orders of subordinate court dated October 27, 1984 and January 23, 1985 permitting the sale of the two properties and consequent sale in favour of the respondents, are set aside.
The properties in question may be sold by public auction by giving wide publicity regarding the date, time and place of public auction.
The offer of Rs. 10 lacs made in this Court will be treated as minimum bid of the person who has given the offer and deposited ten percent of the amount in this Court.
It will also be open to the re spondents/purchasers to participate in the auction and compete with others for purchasing the properties.
The respondents vendees from the trust shall be entitled to refund of the price paid by them with 10% interest from the date of payment of the amount till the date of auction of the property.
They will also be entitled to compensation for any superstructure put up by them in the properties includ ing compensation for any additions or improvements made by them to the building and the property.
[767H; 768A C] Chenchu Ram Reddy and Anr.
vs Govt.
of Andhra Pradesh and Ors.
, [1986] 3 SCC 391, relied on.


judgement:
ivil Appeal No. 778 of 1988.
From the Judgment and Order dated 5.8.
1987 of the Assam High Court in Civil Rule No. 372 of 1982.
Anil Dev Singh and P. Parmeshwaran for the Appellants.
A.K. Ganguli, I.A. Ansari and Ms. Mridula Ray for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the judgment of the Division Bench of the High Court of Guwahati setting aside the order of conviction and the punishment of imprisonment as also the order of dismissal from service inflicted on the three respondents following a finding of guilt by the General Court Martial.
Naik Subedar Baleshwar Ram was a Junior Commissioned Officer of Amaribari Supply Point in the far eastern sector and was in overall charge of the said supply point.
Around 5.30 p.m. on June 19, 1980, he directed Driver Rattan Singh to park an army vehicle near the ration store for loading dry ration.
Respondent Ramji with the help of one labour from civilian side loaded the dry ration in the vehicle, whereafter Baleshwar Ram directed the truck to be taken towards Balipura.
Respondent No. 1 sat in the front seat in civil dress while respondents 2 and 3 sat behind the body of the truck.
By the time the vehicle reached Balipura, it had become dark and respondent No. 1 ordered the driver to take the vehicle towards Tezpur.
When the vehicle reached the outskirts of village Eatavari, respondent No. 1 directed the driver to slow down and turn the vehicle towards the right and take it off on a narrow kutcha track not leading to Tezpur.
The driver of the vehicle was not prepared to take the vehicle on the kutcha road but upon respondent No. 1 's insistence the vehicle was so taken and on the kutcha track the vehicle bogged down mid way and could not be taken further.
In the meantime, some civilian persons gathered there.
The respondents 2 and 3 got down and started unload ing some ration until they were prevented by the civilians present there.
Respondent No. 2 21 slipped away from the place.
The civilians being suspicious informed the civil police, who in turn handed over the matter to military police for investigation and necessary action.
After due inquiry a disciplinary action was initiat ed and inquiry under Rule 22 of the Army Rules was undertak en.
A General Court Martial followed where definite charges were given and ultimately on the basis of summary evidence available all the three persons were found guilty, convicted and sentenced.
Order of dismissal from service followed.
The decision of the Court Martial and the order of dismissal were challenged before the Guwahati High Court in a writ petition.
The High Court found that as against re spondents 2 and 3 there was no inquiry under Rule 22.
The High Court relied upon the decision of this Court in Lt. Col. Prithi Pal Singh Bedi vs Union of India & Ors., [1982] 3 SCC 140 and held that the proceeding before the General Court Martial was in violation of the mandatory provisions of the Army Rules.
On that finding the High Court set aside the order of conviction and punishment of imprisonment as also the order of dismissal from service.
It is a fact that as against respondents 2 and 3 there was no inquiry under Rule 22.
It is not disputed that the Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respond ents 2 and 3.
The summary of evidence recorded in the Gener al Court Martial has been made available to us and we have read the same.
The conclusion reached by the Commanding Officer seems to us to be a reasonable one.
We do not think there is any justification to set aside the order of the High Court so far as respondents 2 and 3 are concerned.
So far as the case against respondent No. 1 goes there was an inquiry under Rule 22.
The point raised on behalf of respondent No. 1 in the High Court was different from the case made out by respondents 2 and 3.
It had been pleaded that the inquiry under Rule 22 as against respondent No. 1 related to an offence which came under section 63 of the , namely, conduct prejudicial to good order and military discipline; while the charge he was called upon to face in the General Court Martial was one of theft punisha ble under section 52(a) of the .
We have seen the evidence recorded in the inquiry under Rule 22.
It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted that charge of 22 theft.
It is, therefore, clear that no prejudice has been caused to respondent 1 and the inquiry under rule 22 and the trial before General Court Martial were over the self same facts.
In these circumstances, we are inclined to sustain the judgment of the High Court in regard to respondents 2 and 3 but we would reverse the judgment in regard to respondent 1 and restore the order of the General Court Martial.
Respond ent No. 1 has already been dismissed from service.
He has undergone more than 9 months of the punishment out of one year of imprisonment.
There has been a gap of several years since he has been released from jail initially on bail and Later on the basis of the judgment of the High Court.
In these circumstances he need not be taken into custody for suffering the balance period of the sentence.
The appeal is partly allowed.
There shall be no order for costs.
T.N.A. Appeal allowed.

summary/full:
The respondents faced trial for the charge of theft.
After a General Court Martial, they were found guilty, convicted and sentenced.
All the three respondents were dismissed from service.
The respondents filed a writ petition in the High Court challenging the decision of the Court martial, and the order of the dismissal.
The High Court set aside the order of conviction and punishment of imprisonment as also the order of dismissal from service by holding that the trial before the Court Martial General was in contravention of Rule 22 of the Army Rules, 1954.
Hence this appeal by the Union of India.
Allowing the appeal in part, this Court.
HELD: 1.
It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted the charge of theft.
It is, therefore, clear that no prejudice has been caused to respondent 1 and the enquiry under Rule 22 and the trial before General Court Martial were over the selfsame facts.
[21H; 22A] 2.
It is a fact that as against respondents 2 and 3 there was no inquiry under Rule 22.
It is not disputed that the Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respondents 2 and 3.
The conclusion reached by the Command ing Officer was reasonable.
Therefore there is no justifica tion to set aside the order of the High Court so far as respondents 2 and 3 are concerned.
[21D E] 20 Lt. Col. Prithi Pal Singh Bedi vs Union of India & Ors., [1982] 3 SCC 140, referred to.


judgement:
Special Leave Petition (Civil) No. 10326 of 1989.
From the Judgment and Order dated 1.8.1989 of the Patna High Court in C.W.J.C. No. 5768 of 1989.
R.K. Jain, R. Sharma, R.P. Sharma and Ms. Sangeeta Tripathi for the Petitioners.
The Judgment of the Court was delivered by KANIA, J.
This is one more case of an educational insti tution started in the State of Bihar without recognition applying for permission to allow the students, whom it has admitted and, from whom it has presumably recovered substan tial fees, to be allowed to appear at the ensuing examina tion on the ground that the question of its recognition has not been decided by the Government.
It appears from the judgment of the High Court that a number of similar mushroom institutions have sprung up in the State of Bihar without prior recognition, have admitted students, received fees from them and allowed them to undergo training for a sub stantial period of time without getting any recognition and thereafter tried to get permission from the Court for their students to be allowed to appear at the examination on grounds of sympathy.
This impression has been gathered from a 25 number of similar applications made to this Court in the last few months.
It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act (See the judgments in S.L.P. No. 120 14 of 1987 decided on Novem ber 25, 1987 and the A.P. Christians Medical Educational Society vs Government of A.P. & Anr., ; ; What is however, unfortunate is that applications made by various educational institutions to the Government for recognition are not promptly disposed of.
In fact, we are of the view that the concerned department of the Government of Bihar should see to it that applications for recognition of educational institutions are decided promptly and where such an application is without merit, the Government should promptly reject the same and take steps to see to it that the rejection is brought to the attention of the students of the institution concerned so that they may not waste further time and money by undergoing training in that institution.
The failure of the Government to take such action would only reflect callous indifference to the inter ests of the young students to whom the Government certainly owes certain responsibilities.
We also feel that the State Government should issue advertisement through newspapers and other possible channels, if any, to ensure that students do not get misled by such unrecognised institutions into wast ing their precious time and money in undergoing training which will be of no avail to them.
We find that there ap pears to be a large number of students in the State who are misled by such institutions.
In fact, the State should consider taking such steps, criminal or civil, as open to it in law to stop such institutions and those who run them from misleading students and deceiving them.
We are informed that in the present case, the applica tion for recognition was made by the petitioners and as early as 1986 that application has not still been disposed of.
We direct that, if this so, the application should be disposed of within 4 weeks from today.
In these circumstances, we direct the State Government of Bihar to get published advertisements in at least three newspapers in that State with wide circulation warning students not to take admission in any educational institu tion which has not got recognition and making it clear that if they do so, they would be doing so at their own risk.
The advertisements to be issued within three weeks from the date of receipt of this order by the department concerned.
We direct that the 26 copies of this order be sent forthwith to the Chief Minister of Bihar, the Minister in charge of the Education Department and the Secretary of that department.
Special leave petition is dismissed with these observa tions.
In case the application of the petitioners for recog nition is granted, the Government will consider the granting of appropriate relief to the students in respect of the years for which the recognition is concerned.
R.S.S. Petition dismissed.

summary/full:
The petitioners in the special leave petition started, without recognition, a teachers training college in Bihar, and later applied for permission to allow its students to appear at the examination on the ground that the question of its recognition had not been decided by the Government.
The petitioners failed to get the desired relief from the High Court.
Dismissing the special leave petition, this Court, HELD: (1) A number of mushroom institutions have sprung up in the State of Bihar without getting any recognition and thereafter have tried to get the permission from courts that its students be allowed to appear at the examination on grounds of sympathy.
[24G] (2) It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act.
[25B] S.L.P. No. 12014 of 1987 decided on November 25, 1987 A.P. Christians Medical Educational Society vs Government of A.P. & Anr., ; , referred to.
(3) The application for recognition in this case was made by the petitioners as early as 1986 and that applica tion has not still been disposed of.
The same should be disposed of within 4 weeks from today.
[25F] (4) The concerned department of the Government of Bihar, should see to it that applications for recognition of educa tional institutions are decided promptly and where such an application is without 24 merit, the Government should promptly reject, the same and take steps to see to it that the rejection is brought to the attention of the students of the institution concerned so that they may not waste further time and money by undergoing training in that institution.
[25C] (5) The failure of the Government to take such action would only reflect callous indifference to the interests of the young students to whom the Government certainly owes certain responsibilities.
[25D] (6) The State should consider taking such steps, Crimi nal or Civil, as open to it in law, to stop such institu tions and those who run them from misleading students and deceiving them.
[25E] (7) The State Government of Bihar shall get published advertisements in at least three newspapers in that State with wide circulation warning students not to take admission in any educational institution which has not got recognition and making it clear that if they do so, they would be doing so at their own risk.