judgement:
Appeal No. 203 of 1964.
Appeal from the judgment and decree dated January 29, 1963 of the Rajasthan High Court in Civil Regular First Appeal No. 29 of 1956.
Sarjoo Prasad and T. Satyanarayana, for appellant.
R. Ganapapathy Iyer and B.R.G.K. Achar, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate against the judgment and decree of the Rajasthan High Court dated January 29, 1963.
The appellant firm Bansidhar Premsukhdas brought a suit which is the subject matter of this appeal against the State of Rajasthan on March 31, 1953 for the recovery of Rs. 86,646/3/ in the Court of District Judge, Bharatpur.
The case of the appellant was that the former State of Bharatpur with a view to increase the trade and commerce in the said State decided to establish a Mandi at Bharatpur where at the material time a T.B. Hospital was located, It decided to sell plots for certain fixed amounts and, therefore, issued a notification on May 18, 1946 offering the plots by public advertisement for sale on certain terms and conditions.
The notifification exhibit
4 was published in Bharatpur Rajpatra and one of the concessions proposed to be granted was embodied in cl. 3 of the notification which stated: "If any commodity is imported from outside into the Mandi and is sold for consumption within the State, or if any commodity received in the Mandi from within the State and is exported in both cases, a reduction of 25% in the customs duty prevailing at the time of the import and export of such commodities will be allowed.
This concession shall not be available in case of vegetable Ghee.
" The notification contained other terms and conditions relating to auction sale such as the prices for different kinds of plots available and the maximum number of plots which a person could purchase.
A committee for supervising the auction was also formed and the notification laid down the procedure for the sale of plots and certain other conditions such as deposit of one fourth sale money at the 83 time of auction etc.
The appellant purchased plots Nos. 8 and 9 for Rs. 4,600 at a public auction and two sale deeds (sanad nilam) were issued to the appellant on October 10, 1946.
The Government of Bharatpur and after its merger, the Government of United State of Matsya and thereafter the present Rajasthan State carried out the promise contained in cl. 3 of the Bharatpur notification and allowed reduction of 25 per cent in the customs duty, but on January 16, 1951 the Rajasthan Government issued notification No. F.4(18) SR/49 which reads as follows: "Now therefore Government of Rajasthan is hereby pleased to direct that with an immediate effect all free Mandies and Zones including the area comprising the former Kishangarh State and the Bhim District of the former Rajasthan State shall be abolished and that in consequence all the Customs concession hitherto enjoyed by or applicable to these Mandies or Zones shall cease to have force and duties of customs shall be levied and collected in such Mandies or Zones in accordance with the revised tariff, amended from time to time.
" The appellant and other traders thereupon made representation to the Rajasthan Government on January 29, 1951 and pending the disposal of the representation the Customs authorities agreed to keep the amount of 25 per cent by way of 'Amanat '.
The State of Rajasthan ultimately decided on May 25, 1951 that the reduction in the customs duty could not be conceded.
On March 31, 1953 the appellant filed the present suit in the Court of the District Judge of Bharatpur for the recovery of the excess amount of customs duty paid to the Rajasthan Government.
The main defence of the State Government was that item No. 3 of the Bharatpur notification was a matter of concession and could not be claimed as of right and the Rajasthan State as successor State was not bound by the contracts of the former State and the applicability of the concessions had also become impracticable on the formation of Rajasthan.
The District Judge of Bharatpur, by his judgment dated March 31, 1956, held that item No. 3 of Bharatpur notification was a term of sale between the parties and the Rajasthan State was bound by it and the succeeding States have recognised the concessions granted to the appellant and therefore the suit of the appellant should be decreed.
The State of Rajasthan took the matter in appeal to the Rajasthan Nigh Court which allowed the appeal and dismissed the suit holding that item No. 3 of the Bharatpur notification was not a part of the contract of sale, and even if it was held to be a part of the contract, the successor State of Rajasthan did not recognise it and was not, therefore, bound by it.
84 The first question involved in this appeal is whether cl. 3 of the Bharatpur notification exhibit 4, was a term of the contract of sale between the appellant and the State of Bharatpur.
It Was argued on behalf of the appellant that exhibit 4 which is the notification dated May 18, 1946 regarding the sale of plots by the Bharatpur State was an offer of purchase of plots on terms and conditions made in that notification.
It was contended that the offer was made to the public as a whole and after it was accepted by the appellant a valid contract came into existence.
The opposite view point was presented on behalf of the respondent.
It was submitted that the concession granted in cl. 3 did not relate to, nor did it form a part of the contract of sale of the plots of the Mandi.
It was pointed out that the concession of 25 per cent reduction in customs duty will not merely enure to the benefit of the purchaser of the plots but also enure to the benefit of the person trading in the shop.
The benefits were generally offered for trade and business in the Mandi and cannot be considered as an offer of benefit only to the prospective purchasers of the plots.
The commodities for which the concession was granted might be in the hands of purchasers and builders of plots, their tenants and licensees or other dealers.
It was therefore not possible to hold that the State Government offered the tax concessions as a reciprocal promise in connection with the contracts of sale with the appellant and the latter had no justification for treating the benefits offered as consideration in return for the purchase of the plots and the construction of shop buildings.
It is also pointed out by learned Counsel on behalf of the respondent that there are certain conditions in the Bharatpur notification exhibit 4, which can.
not, in the nature of things, be treated as terms of the sale.
Reference was made, in this connection, to cls.
5, 6, 7, 10 and 11.
In our opinion, there is much force in the argument advanced on behalf of the respondent but it is not necessary to express any concluded opinion on this aspect of the case.
We shall assume in favour of the appellant that cl. 3 of the Bharatpur notification, exhibit 4, was a term of the contract of sale of plots 8 and 9 of the Mandi.
Even upon that assumption the suit of the appellant must fail, for we shall presently show that there was no recognition of the contractual right by the succeeding State of Rajasthan, and in the absence of such recognition the contract between the former State of Bharatpur and the appellant cannot be legally enforced.
We shall proceed, therefore, to consider the next question, namely, whether the term of the contract was binding upon the successor State of Rajasthan on the assumption that cl. 3 of the Bharatpur notification, exhibit 4, was an integral term of the contract between the appellant and the Government of Bharatpur State.
It is not correct to say as a matter of law that the successor State automatically inherits the rights and obligations of the merged State.
There is no question of suborgation the successor State is not 85 subrogated ipso jure to the contracts with the merged State.
The true legal position is that the contract of the predecessor State terminates with the change of sovereignty unless the contract is ratified by the succeeding sovereign State.
It is now well established in law that the contractual liability of a former State is binding on a succeeding sovereign State only if it recognises that contractual liability.
The season is that the taking over of sovereign powers by a State in respect of territory which was not till then a part of it is an. act of State" and the municipal courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge; and such recognition may be express or may be implied from circumstances.
In other words, accession of one State to another is an "act of State. and the subjects of the former State may claim protection of only such rights as the new sovereign recognises as enforceable by the subjects of the former State in his municipal courts.
In The Secretary of State in Council of India vs Kamachee Boye Saheba(1) the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined.
The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate, the East India, Company, it was an act of State and the Municipal Court had no jurisdiction to inquire into the propriety of the action.
At page 529 of the Report Lord Kingsdown observed: "The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.
" In another case Vajesingji Joravarsingji vs Secretary of State for India in Council(1) the Judicial Committee observed as follows: ". when a territory is acquired by a sovereign State for the first time that is an act of State, It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
Such rights as he had under the rule of precedes (1) Moore 's I.A. 476.
(2) 51 I. A. 357.
86 sors avail him nothing.
Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties.
" In Secretary of State vs Sardar Rustom Khan and Others(1) a question arose whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory, at a quit rent, and had ceded in perpetuity with full and exclusive revenue civil and criminal jurisdiction and all other forms of administration.
In delivering the opinion of the Judicial Committee, Lord Atkin observed as follows: "In this case the Government of India had the right to recognise or not recognise the existing titles to land.
In the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts.
" The principle that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(2).
The State of Saurashtra vs Jamadar Mohamat Abdulla and others(1).
Maharaja Shree Umaid Mills Ltd. vs Union of India (4), and State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(5).
On behalf of the appellant it was contended that there was an implied recognition by the Rajasthan State of the contractual liability since the exemptions were continued upto January 13, 1951 and were revoked with effect from that date by the notification No. F.4(18)SR/49.
We are unable to accept this argument as correct.
Before the process of integration began, each Covenanting State was a separate geographical unit for customs purposes and had its own customs laws and barrier.
After the formation of the Matsya Union on March 18, 1948 there was a promulgation of the Matsya Customs Ordinance by the Raj Pramukh on September 21, 1948.
The United State of Rajasthan was constituted on May 15, 1949 when there was merger of Matsya Union in the United State of Rajasthan.
On August 9, 1949 the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance (1) 68 I.A. 100.
(2) [1959] S.C.R. 729.
(3) (4) [1963] Supp. 2 S.C.R. 515.
(5) ; 87 No. 16 of 1949.
Section 3 of this Ordinance abolished duties on the transport of goods within the territory of Rajasthan.
Sectio n Section 3 reads as follows: "3.
No duty leviable on internal transport With effect from such date as may be notified by the Government in the Rajasthan Gazette, no duties of Customs shall be levied and collected in respect of any goods transported within Rajasthan, notwithstanding anything to the contrary in any law, or rule, instrument of usage having the force of law, in any part of Rajasthan; and any such law, rule instrument or usage shall be deemed to be repealed to that extent: Provided that the Government may, by notification in the Rajasthan Gazette (a) Impose a duty of customs on the transport of goods from or to any part of Rajasthan to or from such other part thereof at such rate or rates and with effect from such date as may be specified in the notification, or (b) direct that, in respect of the transport of goods of such description and from or to such part of Rajasthan as may be specified in the notification, a sum of money equal to the amount of the duty leviable on the export on such goods shall be deposited with the appropriate Customs Officer of the place from where the goods are intended to be transported.
" section 4 is the charging section with regard to import and export duties.
Section 4(1) states: "4.
Duties on export and import: (1) Until a revised tariff is introduced under sub section (2) Customs duties on the export or on the import of goods shall be levied and collected in accordance with the tariff for the time being in force in the place from or into which goods leviable with a duty of Customs have been exported or imported, as the case may be.
" sub section (2) of section 4 provides: "The Government may, by notification in the Rajasthan Gazette, issue a revised tariff specifying the goods or class of goods in respect of which, and the rate at which, duties of Customs shall be levied and collected with effect from such date as may be specified in the notification on the export or on the import of such goods or class of goods." eventually on August 15, 1949 a uniform revised tariff was made applicable to the whole of Rajasthan.
Section 6 provided that the existing law in force of the covenanting States shall regulate the GI 8 88 collection of such duties and other ancillary duties in relation thereto, unless altered, modified or repealed by a competent legislative authority of Rajasthan and thus saved existing law with regard to the procedure and ancillary matters.
It is manifest on examination of the provisions of this Ordinance that there was a repeal of all Customs laws of the Covenanting States in so far as they provided for the levy and collection of duties in the particular territorial limits of the Covenanting States and the Ordinance introduced a new law imposing duty on export and import into Rajasthan State as a whole.
Further, after the issue of a revised tariff the old tariffs under the various laws of the Covenanting States also stood repealed.
There is no express provision in the Ordinance saving the previous contractual rights with regard to customs duty.
In the absence of any such express provision it must be held that all existing contracts were repudiated and cancelled.
The enjoyment of the concession by the appellant after the formation of the Rajasthan State is clearly referable to the law under which customs concessions could be granted and recognised.
This is borne out by the notification dated January 16, 1951 which appeared in the Rajasthan Raj Patra, which itself refers to sections 10 and 33 of the Matsya Customs Ordinance No. 14 of 1948 by which customs concessions were revoked.
We are, therefore, of the opinion that the High Court has rightly taken the view, upon an analysis of the evidence adduced in the case, that there was no recognition of the contractual liability by the succeeding State of Rajasthan.
We shall however ,assume in faboure of the appellant that the State of Rajasthan recognised the contractual right of the appellant with regard to the exemption of tax.
Even upon that assumption the suit of the appellant must fail, for the contractual liability must be taken to have been superseded by the enactment of the Rajasthan Regulation 'of Customs Duties) Ordinance No. 16 of 1949 promulgated by the Raj Pramukh on August 9,1949.
Before we deal with this question it is desirable to indicate the constitutional developments which resulted in the inclusion of the former Bharatpur State into the Part B State of Rajasthan, which came into existence on January 26, 1950.
The former Bharatpur State remained a separate entity till March 18, 1948, though it had acceded to the Dominion of India after August 15, 1947 with respect to three subjects, namely, communications, defence and external affairs.
In 1948, however, the process of merger in Rajasthan began and the first merger that took place was of the former States of Alwar, Bharatpur, Dholpur and Karauli, which formed the Matsya Union as from March 18, 1948 by a Covenant entered on February 28, 1948.
After the formation of the Matsya Union the Raj Pramukh promulgated the Matsya Customs Ordinance 1948 on September 21, 1948.
Section 2 of that Ordinance repealed the levy of 89 customs duty in force in all the Covenanting States and applied the provisions of the new Ordinance to the whole of the United State of Matsya.
Section 10 of the Ordinance provided for the charge of customs duty on goods or class of goods to be notified in the State Gazette from time to time.
Section 33 of the Ordinance similarly granted power to the State Government to exempt any goods or class of goods imported or exported from the United State of Matsya from payment of customs duty leviable thereon.
Then came another union of certain other Rulers in Rajasthan in March 1948 by which these Rulers united under the Ruler of Udaipur to form what later came to be known as the Former State of Rajasthan.
In March 1949, the United State of Rajasthan was formed by Covenant entered into by fourteen Rulers of Rajasthan, including those who had formed the Former State of Rajasthan, and this State came into existence from April 7, 1949.
There was a merger of the Matsya Union in the State of Rajasthan on May 15, 1949 and thus the former Bharatpur State came to be included in the United State of Rajasthan through the Matsya Union.
As we have already stated, the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 on August 9, 1949.
It is well established that Parliament or State Legislatures are competent to enact a law altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises.
The legislative competence of Parliament or of the State Legislatures can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter of imitation on the plenary powers which the Legislature is endowed with for legislating on the topics enumerated in the relevant Lists.
this view is borne out by the decision of the Judicial Committee in Thakur Jagannath Baksh Singh vs The United Provinces(1) in which a similar complaint was made by the taluqdars of Oudh against the United Provinces Tenancy Act (U.P. Act 17 of 1939).
It was held by the Judicial Committee that the Crown cannot deprive itself of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists, and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence.
If therefore, it be found that the subject matter of a Crown grant is within the competence of a Provincial legislature nothing can prevent that legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.
accordingly, in the absence of any such express prohibition, the (1) [1946] F.C.R. III.] I 8(a) 90 United Provinces Tenancy Act, 1939, which in consolidating and amending the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh, dealt with matters within the exclusive legislative competence of the Provincial legislature under item 21 of List 11 of the 7th Sch.
to the Government of India Act, 1935, was intra vires the Provincial legislature notwithstanding that admittedly some of its provisions cut down the absolute rights claimed by the appellant taluqdar to be comprised in the grant of his estate as evidenced by the sanad granted by the Crown to his predecessor.
The same principle has been reiterated by this Court in Maharaj Umeg Singh and others vs The State of Bombay and others(1).
It was pointed out that in view of article 246 of the Constitution, no curtailment of legislative competence can be spelt out of the terms of clause 5 of the Letters of Guarantee given by the Dominion Government to the Rulers of "States" subsequent to the agreements of Merger, which guaranteed, inter alia, the continuance of Jagirs in the merged 'States '.
This principle also underlies the recent decision of this Court in Maharaja Shree Umaid Mills Ltd. vs Union of India(2) in which it was pointed out that there is nothing in article 295 of the Constitution which prohibits Parliament from enacting a law altering the terms.
and conditions of a contract or of a grant under which the liability of the Government of India arises.
It was further held that there was nothing in article 295 prohibiting Parliament from enacting a law as to excise duty or income tax in territories which became Part B States, and which were formerly Indian States, and such a prohibition cannot be read into article 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person.
As we have already indicated, there is nothing in the provisions of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 which preserves the alleged contractual rights of the appel lant, and in the absence of any express language in the Ordinance preserving such alleged contractual rights, it must be held that the general, law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Bharatpur.
Lastly, it was argued on behalf of the appellant that the notification dated January 16, 1951 revoking the tax concessions was in violation of article 306 of the Constitution which provides as follows: "Notwithstanding anything in the foregoing provisions of this Part or in any other provisions of this Constitution, any State specified in Part B of the First Schedule which before the commencement of this Consti tution was levying any tax or duty on the import of goods into the State from other States or on the export of goods (1) [1963] Supp. 2 S.C.R. 515. 91 from the State to other States may, if an agreement in that behalf has been entered into between the Government of India and the Government of that State, continue to levy and collect such tax or duty subject to the terms of such agreement and for such period not exceeding ten years from the commencement of this Constitution as may be specified in the agreement.
The argument is based on the assumption that the appellant was enjoying concessions under section 40 of the Customs Circular No. 15 and continued to enjoy the concessions in the State of Matsya under section 34 of the Matsya Customs Ordinance No. 14 of 1948, and subsequently in the State of Rajasthan under section 6 of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949.
It is the admitted position that the agreement entered between the Government of India and the United State of Rajasthan on February 25, 1950 incorporated certain recommendations of the Federal Finance Enquiry Committee Report 1948 49.
The agreement having been executed and the condition under article 306 having been satisfied in this case, the continuance of the customs duty is in conformity with the provisions of this Article.
In any case, the claim of the appellant is not based on any provision of Bharatpur law but upon a contractual liability of Bharatpur State and to a case of this description the provisions of article 306 cannot be attracted.
For the reasons expressed, we hold that the judgment of the High Court is right and this appeal must be dismissed with costs.
Appeal dismissed.

summary/full:
The former State of Bharatpur sold some plots for establishing a Mandi, and the appellant was one of the purchasers.
Under the terms of the sale, a person trading in the Mandi would get a reduction of 25 % in the customs duty payable, if the commodities were imported into or exported out of the State through the Mandi.
The Government of Bharatpur and after its merger the Government of the United State of Matsya, and thereafter, the present Rajasthan State (respondent herein) allowed the reduction to the appellant, who was also a trader.
In 1951, the respondent revoked the concession.
The appellant filed a suit for the recovery of the excess amount of customs duty paid on the basis that there was a valid contractual liability to grant the concession.
The suit was dismissed by the High Court on appeal.
In appeal to this Court, HELD:(i) The appellant 's suit must fail because there was no recognition of the contractual right to the succeeding State of Rajasthan.
The contractual liability of a former State is binding on a succeeding sovereign State only if it recognises that contractual liability.
The enjoyment of the concession by the appellant after the formation of the Rajasthan State did not show any implied recognition of the contractual liability by the respondent, because, the concession is referable to section 33 of the Matsya Customs Ordinance of 1948 under which the concession could be granted and recognised.
[85B 88C D] Case law referred to.
(ii) Even upon the assumption that there was an implied re cognition by the respondent of the contractual liability, the suit must fail, for the contractual liability must be taken to have been super.
seded by the enactment of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949.
[88 E F].
Parliament and State Legislatures are, subject to any prohibition in the Constitution, competent to enact laws altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises.
There is nothing in the provisions of the Ordinance which preserves the alleged contractual rights of the appellant, and in the absence of any express language in the Ordinance preserving such rights.
it must be held that the general law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Bharatpur.
[90 D F] Maharaj Umeg Singh vs The State of Bombay.
[1955] 2 S.C.R. 164 and Maharaja Shree Umaid Mills Ltd. vs Union of lndia, [1963] Supp. 2 S.C.R. 515, followed.
82 (iii)The levy of Customs duty is in conformity with article 306 of the Constitution.
[91 D]


judgement:
Appeal No. 891 of 1963.
Appeal by special leave from the judgment and decree dated June 26, 1959 of the Assam High Court in Letter Patent Appeal No. 1 of 1959.
N. C. Chatterjee and D. N. Mukherjee, for the appellants.
Sarjoo Prasad and K. P. Gupta for respondents.
The Judgment of the Court was delivered by Shah, J.
Biswambar Roy predecessor interest of the appellants was Granted on February 20, 1928, a lease for ten 115 years 1335 B.S. to 1344 B.S. at an annual rental of Rs. 75/ in respect of a plot of land, part of Dag No. 3615 in the town of Silchar, District Cachar in the State of Assam.
Biswambar Roy constructed on the land, buildings, some for residential use, and others as warehouses.
On the expiry of the period of the original lease, Biswambar Roy obtained a fresh lease in respect of a part of the land for ten years Baisakh 1345 B.S. to Chaitra a 1354 B.S. at an annual rental of Rs. 70/ under an instrument dated February 22, 1938.
The respondents purchased the interest of the landlords the land and instituted on August 3, 1951 an action in the Court of the Sadar Munsiff, Silchar against Biswambar Roy for a decree for vacant possession of the land.
The suit was decreed by the Munsiff.
Biswambar Roy appealed to the Subordinate Judge, Silchar.
During the pendency of the appeal, the Non agricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam Legislature was brought into force.
Biswambar Roy claimed protection from eviction under section 3 of Act 12 of 1955.
The Subordinate Judge held that Biswambar Roy had acquired under section 5(1)(a) of the Act the rights of a permanent tenant, since he had constructed within the period prescribed permanent structures for residential or business purposes.
He accordingly reversed the decree passed by the Trial Court and dismissed the suit.
Against that decree, an appeal was preferred to the High Court of Assam.
Deka, J., held that Biswambar Roy could not claim the protection of section 5(1) (a) of the Act, since he had let out to tenants the buildings constructed on the land.
In the view of the learned Judge, by the use of the expression "for residential or business purposes" in section 5(1)(a) it is intended that buildings constructed by the tenant should be utilized by the tenant himself for his own residence or for carrying on business and that it is not the intention of the Legislature that third persons should be protected by section 5 from eviction from those structures.
An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C. J., and Mehrotra, J.
The learned Judges differed.
Sinha, C. J., was of the view that permanent structures constructed by Biswambar Roy conformed to the descripticon "residential or business purposes" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non payment of rent.
With that view Mehrotra, J., did not agree.
He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build "a permanent structure on the land of, the tenancy for residential or business purposes".
and may not claim protec tion under section 5(1)(a).
Since there was no majority concurring in the judgment agreeing or reversing the decree appealed from, under section 98(2) of the Code of Civil Procedure the appeal was ordered to be dismissed.
Against the decree passed by the High Court, with special leave, this appeal is preferred.
116 This Court has held that section 5 of Assam Act 12 of 1955 has retrospective operation: Refiquennessa vs Lal Bahadur Chetri & Others,(1) and the only question to be determined in this appeal is whether a tenant qualifies for protection under section 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes.
The material part of the section reads: "(1) Notwith tanding anything in any contract or in any law for the time being in force (a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non payment of rent;" Protection under the first part of section 5(1)(a) may be claimed by a tenant if three conditions co exist: (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he has actually built, within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes.
The first two conditions are fulfilled in this case.
But the learned Judges of the High Court disagreed on the fulfillment of the third condition: they differed as to the true meaning of the expression" a permanent structure. . for residential or business purposes".
In the view of Sinha, C. J., under the Act the character of the structure is determinative and not personal use by the ten. ant.
Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant.
We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights of permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge.
The section merely requires that the permanent structure must be one adapted for residential or business purposes.
If the structure is not adapted to such purposes, the protection of section 5(1)(a) will not be available.
To read the expression "permanent (1) ; 117 structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section.
It was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by section 5(1)(a) protection upon sub tenants.
It was said that a sub tenant is not a tenant within the meaning of section 3(g) of the Act, and he cannot claim protection from eviction under section 5(1)(a).
In our judgment, the argument is wholly misconceived.
Protection is conferred in terms by section 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land.
It is not necessary in this case to consider whether by virtue of the definition of "tenant" in section 3(g) of the Act which includes a person who derives his title from a tenant, a sub tenant of the land is entitled to protection of section 5(1)(a).
In the present case, the tenant of the land has claimed protection.
By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land.
The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined.
Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is let out.
We therefore agree with the view taken by Sinha, C. J., that the protection of section 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute.
The appeal is therefore allowed and the decree passed by the High Court vacated and the plaintiffs ' suit dismissed.
The appellants who are the representatives of the tenant will be entitled to their costs in this Court.
There will be no order as to costs in the High Court.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
Certain structures for residential and business purposes were raised by a tenant of land in the term of Silchar in Assam.
The landlord secured a decree for ejectment against the tenant.
During the pendency of the appeal the Non Agricultural Urban Areas Tenancy Act, Assam Act 12 of 1955 was brought into force.
The tenant claimed protection from eviction under section
The Subordinate Judge held that the tenant had acquired units section 5(1) (a) of the Act the right of a permanent tenant since he had constructed within the pres cribed period structures for residential or business purposes.
He accordingly dismissed the suit.
The High Court in further appeal held that the protection under section 5(1)(a) was not available to the tenant since he had let out to tenants the buildings constructed on the land.
The tenant, by special leave, appealed to this Court.
HELD:(i) The section merely requires that the permanent structure must be one adapted for residential or business purposes.
If the structure is not adapted to such purposes.
the protection of section 5 (1) (a) will not be available.
To read the expression "permanent structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section.
[116 H].
(ii) Protection is conferred in terms by section 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land.
By letting out the structures the tenant of land does not lose the protection given by the statute.
[117 C].


judgement:
Appeal No. 959 of 1964.
Appeal by special leave from the judgment and decree dated March 16, 1963 of the Madhya Pradesh High Court in Second Appeal No. 86 of 1962.
section V. Gupte, Solicitor General, Rameshwar Nath, section N. Andley P. L. Vohra and Mahinder Narain, for the appellant.
A. K. Sen and R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal by special leave against the judgment of the Madhya Pradesh High Court and arises in the following circumstances.
The appellant brought a suit for redemption of certain mortgaged property.
A preliminary decree was passed in the suit on February 3, 1954.
It specified the amount due as principal and the amount due as interest upto a certain date.
It also provided that future interest was to be paid at three per cent per annum on a certain sum from that date till the date of realisation.
Parties were to bear their own costs.
Further the decree provided for payment of the amount due on or before July 15, 1964 or within such time as might be extended.
It also provided that if payment was made within the time limited under O.XXXIV r. 7(1)(c) of the Code of Civil Procedure, final decree would be passed.
In the alternative it was provided that if the deposit was not made, the respondent would be entitled to apply for passing of a final decree praying that the right of the appellant to redeem the mortgaged property be debarred.
There were appeals by both parties from this preliminary decree to the High Court.
In the meantime the appellant had prayed for extension of time and the trial court had extended time for making payment upto August 15, 1954.
About the same time, the appellant applied to the High Court praying that the order requiring him to deposit the decretal amount by August 15, 1954 be stayed till the disposal of the appeal by the High Court.
On this application, the High Court passed an order on July 26, 1954.
This order provided that if the appellant gave an undertaking to pay nine per cent per annum interest instead of three per cent per annum during the period of stay, the order of the trial court directing the appellant to deposit the decretal amount by August 15, 1954 would be stayed.
Thereupon the appellant gave an undertaking to the trial court on August 7, 1954 that he would pay nine per cent per annum simple interest instead of three per cent per annum during the period 111 of stay.
In consequence the order of stay passed by the High Court came into force and no deposit was made by August 15, 1954.
On October 16, 1958, the High Court dismissed both the appeals and the preliminary decree stood confirmed.
On March 20, 1959, the appellant applied to the trial court for permission to deposit the sum of Rs. 42,204/5/ .
On March 27, 1959, the trial court permitter the appellant to deposit the amount but made it clear that this did not amount to, any extension of time for making the deposit, and the question whether the deposit was made within time would be decided after hearing both parties.
Notice was also issued to the respondent on the same date.
On March 28, 1959, the appellant deposited the amount.
On April 8, 1959 the respondent appeared and objected that the amount due was not Rs. 42,204/5/ but Rs. 46,882/6/6 and therefore the deposit was short by a sum over Rs. 4,000/ .
Thereupon the appellant deposited a further sum of Rs. 4,590/ on April 9,1959 and prayed for a final decree in his favour.
The trial court held on April 18, 1959 that the deposit was made beyond time and therefore directed that a final decree for foreclosure in favour of the respondent be drawn up.
The appellant then went in appeal to the District Judge.
The Additional District Judge who heard the appeal rejected the memorandum of appeal as insufficiently stamped The appellant then filed a revision before the High Court.
The High Court allowed the revision on July 22, 1961 and remanded the appeal to the Additional District Judge for decision on the merits.
On March 23, 1962, the Additional District Judge allowed the appeal holding on the basis of O.XXXIV, r. 8 that as the amount had been paid before the final decree was passed, it was within time.
Consequently the Additional District Judge ordered that a final decree be drawn up in favour of the appellant.
It may be noticed that it was also contended before the Additional District Judge that the amount deposited was short by Rs. 88/ 1/ .
The Additional District Judge pointed out that this was not made a ground of attack in the trial court.
In any case be held that the amount which had to be deposited was as required by the preliminary decree and that the same had certainly been deposited.
We may add that it is not in dispute between the ' parties that if the amount to be deposited is to be in accordance with the preliminary decree, the appellant has deposited that amount, rather more.
The shortage has occurred because for the period of stay the High Court had ordered the payment of an extra six per cent per annum interest and it is with respect to that interest that the shortage has occurred.
The respondent then went in second appeal to the High Court.
The High Court agreed with the Additional District Judge.
and held that in view of O.XXXIV r. 8(1) the deposit made on April 9, 1959 before the final decree was passed on April 18, 1959 was within time, even though the money might have been deposited 112 after the time fixed under O.XXXIV r.7.
But the High Court also took the view that the mortgagor appellant had to deposit the entire amount due on the date of the deposit and as there was a shortage of Rs. 88/1/ , the entire amount had not been deposited and in consequence no final decree could be passed in favour of the appellant.
In the result the High Court set aside the order of the Additional District Judge and restored the order of the trial court passing a decree for foreclosure in favour of the respondent.
Thereupon the appellant obtained special leave from this Court, and that is how the matter has come before us.
The only question raised on behalf of the appellant is that he had deposited the amount which was strictly due under the preliminary decree and something more.
The shortage was only on account of the sum due as a result of the stay order passed by the High Court by which he was required to pay six per cent per annum more as interest for the duration of the stay.
It is urged that this amount could not be taken into account in considering the question whether the appellant bad deposited ' the entire amount due under the preliminary decree.
We are of opinion that there_ is force in this contention and the appeal must succeed.
Under O.XXXIV, r. 8(1) the mortgagor can deposit all amounts due under O.XXXIV r. 7(1) before the final decree debarring him from all rights to redeem is passed.
Order XXXIV r. 7(1) lays down what a preliminary decree should contain and we are in the present case concerned with cls.
(b) and (c) thereof.
In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provide for three per cent per annum interest on a certain sum from that date and had directed as required by cl.
(c) of O. XXXIV r. 7(1) that if the mortgagor plaintiff paid in court the amount found before a certain date a final decree in his favour would be passed.
The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the defendant mortgagee would be passed.
Now under O.XXXIV r. 7(1)(c)(i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also "the amount adjudged due in respect of subsequent costs, charges, expenses and interests" It is not in dispute, as we have already indicated that the appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree.
Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per ' annum for the period of stay.
The question is whether this amount can be said to be within the words "the amount adjudged due in respect of subsequent costs, charges, expenses and interests".
We are of opinion that this extra amount which was to be paid on account of the undertaking of the appellant for the purpose of stay cannot come within the words "in respect of subsequent costs, charges, 113 expenses and interests".
It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree.
This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking, it was not made a part of the amount due under the preliminary decree.
Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests.
Besides, such subsequent costs, charges, expenses and interests have to be adjudged before the mortgagor is asked to deposit the amount and it is not in dispute that no adjudgement as to any subsequent costs, charges, expenses and interests was made.
So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the terms of that decree, and he had to pay nothing account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these.
Nor as we have said already can the amount due as extra, interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O.XXXIV r. 7(1)(c)(i) and (ii).
It is however urged that on this view there would be no way to enforce the appellant 's undertaking to pay extra interest for the period of stay.
We do not think so.
It would in our opinion be in order for the court to insist before it passed the final decree that the appellant honours his undertaking.
But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be "subsequent costs.
charges, expenses and interests".
We may add that the shortage in question was made good by the appellant soon after the order of the Additional District Judge and long before the judgment of the High Court.
As we have come to the conclusion that this amount due on account of the undertaking given by the appellant in the matter of stay cannot be taken to be part of the amount due under the preliminary decree, it must be held that the appellant was entitled to a final decree in his favour.
We therefore allow the appeal, set aside the order of the High Court and restore the order of the Additional District Judge.
The respondent will be entitled to withdraw the amount deposited by the appellant including the amount deposited on April 21, 1962 on the conditions in that order.
In the circumstances however we pass no order as to costs throughout.
Appeal allowed.

summary/full:
A preliminary decree was passed in the appellant 's suit for redemption of a mortgage.
The decree specified the amounts due as principal and interest, provided for payment of future interest at 3 % from the date of decree till date of realisation, and payment of the amount due by a certain date.
It also provided that, if payment was made by that date, a final decree would be passed in favour of the appellant, but that, if the payment was not so made, the respondent would be entitled to apply for a final decree for foreclosure.
The appellant appealed against the preliminary decree to the High Court and applied for stay of the order requiring him to deposit the decretal amount within the date fixed by the trial court, and the High Court granted stay on his undertaking to pay 9 % interest instead of 3 %, during the period of stay.
Subsequently, the High Court dismissled the appeal and confirmed the preliminary decree, but, the additional amount due for the period of stay on account of the undertaking, was not included by the High Court in the preliminary decree.
The appellant then applied for a final decree in his favour, after depositing a sum which was more than the amount to be deposited when calculated according to the preliminary decree, but was less than the amount when circulated according to the condition imposed by the High Court in its stay order.
The trial Court however directed that a final decree for foreclosure in favour of the respondent be drawn up.
On appeal, the lower appellate court ordered that a final decree be drawn up in favour of the appellant.
In second appeal, the High Court took the view that the appellant had to deposit the entire amount due on the date of the deposit, as per its direction in the stay order, and as there, was a shortage on the date of deposit though the shortage was made up after the judgment of the lower appellate court only a final decree for foreclosure could be passed in the respondent 's favour.
In appeal to this Court, HELD:The appellant was entitled to a final decree.
In order that a final decree may be passed in favour of the appellant, he had to carry out before a final decree is passed, the terms of the preliminary decree and to pay "the amount adjudged due in respect of the subsequent costs, charges, expenses and interests" under O.XXXIV, r. 7(1) (e) (i) and (ii) of the Civil Procedure Code.
The appellant had carried out the terms of that decree by the deposit made by him and he had nothing to pay on account of Subsequent charges, costs, expenses and interest, because, the extra interest of 6% was not made a part of the decree, and it could not come within the words "in respect of subsequent costs, charges, expenses and interests.
" as it arose out of an independent order of the High Court 110 and was only payable on account of the undertaking for purposes of stay.
Further, such subsequent costs.
charges, expenses and interest have to be adjudged before the mortgagor is asked to deposit the amount.
As regards the appellant 's undertaking in the stay matter the court could insist on his honouring it before the final decree is passed.
[112 F 113 C].


judgement:
s Nos. 98, 99, 100 and 101 of 1950.
139 Appeals from the orders of the High Court of Judicature at Patna (Manohar Lall and Imam JJ.) in Miscellaneous Ap peals Nos.
108 to 111 of 1948.
Shambhu Barmeswar Prasad and Ramanugrah Prasad for the appellants.
H.J. Umrigar for the respondents.
January 12.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The decision of these four ap peals, which are connected with each other and which have arisen out of orders made by the High Court of Patna in four Miscellaneous Appeals, depends on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transac tions) Act, 1939.
The facts which have led to the appeals are found brief ly stated in the petition filed by the present appellants in the 3rd Court of Sub Judge, Patna, and may be re stated here for convenient reference : "The father of the petitioners borrowed Rs. 40,000 from the guru (ancestor) of the decree holder under mortgage bond, dated 11 1 1893.
Out of Rs. 40,370 7 6 interest and compound interest up to 4 1 1910, Rs. 32,370 7 6 was paid in cash and for the balance Rs. 8,000 interest and Rs. 40,000 principal, i,e., for Rs, 48,000 a Mortgage Suit No. 14 of 1910 was filed in1st Court of the Sub Judge, Patna, and in lieu of the claim and cost of the said suit two fresh mortgage bonds were executed on 11 7 1910, viz., one for Rs. 40,000 and the other for Rs. 9,488 and the latter bond was satisfied by payment of Rs. 15,835 in cash.
With respect to the above bond of Rs. 40,000, dated 11 7 1910 the petitioners paid Rs. 38,530 13 6.
Mort , gage Suit No. 110 of 1927 was brought in the 3rd Court of the Sub Judge, Patna, and a decree for Rs. 58,012 2.0 was passed on 9 7 1929.
Out of this Rs. 5,000 was paid in cash and for the balance of Rs. 53,012 12 0 one mortgage bond dated 6 10 1931 was executed for Rs. 42,000 and on the same date two 140 hand notes were executed, viz., one for Rs. 5,000 and one for Rs. 6012 2 0.
One Suit No. 14 of 1933 for both the hand notes was brought in 3rd Court of the Sub Judge and a decree for Rs. 15,008 2 0 was passed on 28 2 1935.
This decree is under execution.
" When the decree holder sought to execute the money decree by attachment and sale of the judgmentdebtors ' properties stating that they were subject to a mortgage lien of Rs. 62,272 13 0 under the mortgage bond dated 6 10 1931, the two judgment debtors, who are brothers, filed objec tions under sections 11 and 16 of the earlier Bihar Money lenders Act III of 1938 and section 47 of the Civil Procedure Code.
The petitions (two by each of them) were filed separately by the brothers.
They urged that on a proper calculation under section 11 no lien was subsisting on the properties owing to payments made towards the mort gage debt amounting to Rs. 92,394 2 0.
The Subordinate Judge held that this plea of the judgment debtors could not be entertained in the Miscellaneous case before him relating to the execution and all that could be done was to notify the mortgage encumbrance without deciding anything as to the correctness of the amount claimed to be due under it; and this conclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void.
Ap peals taken to the High Court were dismissed.
The judgment debtors thereupon preferred an appeal to the Feder al Court, contending that sections 7 and 13 of the new Act (corresponding to sections 7 and 11 of the old Act)were applicable and that it was the duty of the court to estimate the value of the property after making the necessary calcu lations under section 7 with reference to the lien.
The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwarni Madhwanand Ramji(1).
The case was remitted back to the High (1) 141 Court, giving liberty to the appellants to file an applica tion under section 13.
In answer to a fresh application for execution dated 2 7 1042, the two brothers filed the same objections as before.
Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1042 related to the objections under section 47 of the Code of Civil Procedure.
The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond.
He determined the market value of the several properties given as security, adopting 16 times the net income as the basis.
Appeals to the High Court were numbered as M.A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ.
They modified the order of the lower Court in certain re spects.
Even according to them the amount of the loan was what was mentioned in the mortgage bond of 6 10 1931, but as a sum of Rs. 11,855 3 0 had been repaid expressly towards the principal amount after the date of the bond, that amount became reduced to Rs. 28,150.
Adding an equal sum by way of interest which according to them was the maximum amount, permitted to be allowed under section 7 of the Act, the total liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount.
They also directed that the valuation of the property should be fixed at twenty times the net income and not sixteen times.
It is from this order that the present appeals have been preferred.
Two points were urged on behalf of the appellants, namely (a) that the decree holder was barred by construc tive res judicata from contending that the construction placed upon section 7 by the judgmentdebtors was wrong; and (b) that in applying section 7, we must consider the origi nal amount of loan of Rs. 40,000 given in the year 1893 and allow the claim 142 of interest only for that maximum sum, after taking into account all sums paid by the appellants and their predeces sors towards interest since 1893.
The first point is entirely without substance.
When the decree holder contended that section 11 of the Bihar Money lenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which corresponded to section 11 was also inapplicable, the judgment debtors pleaded that they were entitled to the benefit of section 7 of the new Act.
The Federal Court held in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwami Madhwanand Ramji(1) that the judgment debtors (present appellants) were entitled to claim the benefit of the provi sions of the new Act when the executing court proceeded under section 13 to determine the value of the properties to be sold.
The correct interpretation of section 7 was not in question between the parties.
To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely different from the contention that the inter pretation sought to be put by them on section 7 was the right one.
The Federal Court was not dealing with any question of interpretation at all.
It is impossible to see where the doctrine of constructive res judicata comes in, so as to be of help to the appellants.
The second question raised on their behalf relates to the true meaning of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act VII of 1939, which is in these terms: "7.
Notwithstanding anything to the contrary con tained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the com mencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, (1) 143 which together with any amount already realised as interest through the court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by, such document.
" In the present case, the original loan of Rs. 40,000 was advanced as early as 11 1 1893.
The appellants j contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest.
On the other hand, the decree holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mortgage bond dated 8 10 1931, namely Rs. 42,000.
Whichever method of calculation is adopted, it must be remembered that it has to be made not for the purposes of passing any decree on the mortgage loan, but for estimating under section 13 of the Act the value of the properties to be brought to sale in execution of the money decree against the appellants.
As pointed out by Sir Maurice Gwyer C.J. in Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Otherse), "Section 7 of the Act of 1937 is no doubt extremely obscure and illdrawn.
" The true intention of the framers of the Act is somewhat difficult to gather.
But the Patna High Court has been consistently placing upon the section an interpretation which is opposed to the contention of the appellant in these proceedings.
The point came up expressly for decision in Singhesh war Singh and Others vs Madni Prasad Singh Others(2) where a mortgage bond was executed on 31 8 1922 for a sum of Rs. 2,000 which was the balance of the principal and inter est due under a mortgage bond of the 11th of October, 1912, for (1) (2)A.T.R. 1940 Pat.
65. 19 144 Rs. 1,391.
The judgment debtors raised the plea that the court should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs. 1,391.
The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000, as the loan and they held that the plaintiffs were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond.
The same view was taken in Lal Singh vs Ramnarain Ram and Others(1) and the plain tiffs were awarded a decree on the basis that the loan was to be taken as Rs. 2,909 8 0 which was the amount for which the hand note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand note of the year 1924.
The case reported in Madho Prasad Singh vs Mukutdhari Singh and Others(2) lays down the same position.
The Full Bench decision in Deo Nandan Prasad vs Ram Prasad (3) rei terates the same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we can go to the original loan in spite of a later document, under section 7, the loan must relate to the document on which the suit is based, that is, the final document and not the original one.
In each one of these cases, the question of the true meaning of section 7 was pointedly considered.
This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount.
Gwyer C.J. points out this difficulty at page 59 in the case Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Others(4).
If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legis lature to intervene.
But far from doing so, it has (1) , Patna 618.
(2) (1941) 193 I.C.661.
(4) [1940] F.C.R.39.
145 acquiesced, during all these years in the construction which the Patna High Court has been placing upon the section from the very next year after the enactment of the statute.
Having regard to the great obscurity in the language em ployed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature.
The appeals fail and are dismissed with costs, only one set in all of them together.
Appeals dismissed.
Agent for the respondent ': R.C. Prasad.

summary/full:
Where a fresh document is executed for the amount remaining due on account of principal and interest under a loan ad vanced prior document, and a suit is brought for recovery of the amount due under the later document with interest due thereunder, "the amount of loan mentioned in, or evidenced by, such document" for the purposes of section 7 of the Bihar Money Lenders Regulations and Transactions) Act, 1939, is the amount mentioned, or evidenced by, the later document and not that mentioned in the original document which was renewed; and the court can pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount realised as interest after the date of the later document, is not greater than the amount of loan mentioned in the later document.
The maximum amount that can be so decreed is not the amount which together with the interest realised from the date of the original loan does not exceed the original loan.
Singheswar Singh and Other 's vs Nadni Prasad Singh and Others (A.I.R. 1940 Pat.
65), Lal Singh vs Ramnarain Ram and Others (,A.I.R 1942 Pat 138), Madho Prasad Singh vs Mu kutdheri Singh and Others , Deo Nandan Prosad vs Ram Prasad (I.L.R 23 Pat. 618), Ram Nandan Prasad Narain Singh vs Kulpati Shri Mahanth Goshwami Madhwanand Ramji ([1940] F.C.R. 1), Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Others ([1940] F.C.R. 39) referred to.


judgement:
Appeal No. 239 of 1953.
Appeal by special leave from the Order and Judgment dated the 5th September, 1953, of the Election Tribunal, Cuttack, in Election Case No. 5 of 1952.
section B. Jathar for the appellant.
section P. Sinha (R. Patnaik, with him) for the respondent.
February 4.
The Judgment of Mahajan C.J. Mukherjea, Das and Ghulam Hasan JJ.
was delivered ' by Das J. Vivian Bose J. delivered a separate judgment.
DAS J.
The question here is whether an election to a State Legislative Assembly is invalidated when the 118 914 member 's nomination was either proposed or seconded, or both, by a Government servant or servants.
The appellant was a minister in the State of Orissa.
He was nominated as a candidate for the Orissa Legislative Assembly and was later declared to have been elected.
One of his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds, among them, the following.
The appellant had filed about two dozen nomination papers.
In five of them the proposer was a Government servant and in four the seconder.
The 1st respondent stated that this was the first step in a scheme to get the assistance of Government officers in furtherance of the appellant 's election and to "use and utilse" them "for the purposes of the election.
" There were also other allegations Which we need not consider here.
The appellant made counter allegations against the 1st respondent, whom he had defeated, but they do not concern us either.
The Election Tribunal framed twelve issues and examined 101 witnesses, but when it came to make its order it proceeded to decide only two issues instead of deciding the whole case.
It held that as the proposers and seconders referred to above were admittedly Government servants that constituted a major corrupt practice and so invalidated the election under section 123 (8) of the Representation of the People Act, 1951 (No. XLIII of 1951).
The other of the two decided issues does not concern this appeal.
The appellant thereupon petitioned the High Court for a writ of certiorari Under article 226 of the Constitution.
The High Court refused to interfere.
The learned Judges held that there was no want of jurisdiction in the tribunal and that the tribunal 's view of the law was a possible and reasonable one , accordingly, as the High Court was not a court of appeal from the tribunal, they were not called upon to decide the question as a court of appeal.
The appellant was granted special leave to appeal by this court against the order Of the Election Tribunal.
915 A question of 'great public importance affecting Government servants is involved and we deem it right to examine the question under our special jurisdiction under article 136.
The only sections we are called upon to consider are sections 33 (2) and 123 (8).
The former provides that "Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950 (XLIII of 1950) may subscribe as proposer or seconder as man nomination papers.
as there are vacancies to be filled.
According to the latter "The obtaining or procuring or abetting. by a candidate or his agent or, by any other person with the 'connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person" shall be deemed to be a major corrupt practice for the purposes of the Act.
A corrupt practice of this kind entails disqualification for membership (section 140).
Section 33 (2) is general and confers the privilege of proposing or seconding a candidate for election on every person who is registered in the electoral roll provided be is not disqualified under section 16 of the Act of 1950.
That section excludes three classes of persons but not Government servants, unless of course they happen to fall within those classes.
Therefore, so far as section 33 (2) is concerned, a Government servant is entitled to nominate or second a candidate for election unless he happens to fall in one of the three excluded categories.
The question is whether section 123 (8) takes away from Government servants that which section 33 (2) gives to them.
We do not think it does.
Viewing the question as a plain matter of construetion, we find that when section 33(2) was framed those 916 who passed it had in mind the desirability of excluding certain classes of persons from its scope and they chose to limit those classes to three.
Therefore, in the absence of express provision to the contrary elsewhere, or unless it follows by necessary implication, the section must be construed to mean that those not.
expressly excluded are intended to be included.
As Government servants are not in the excluded categories it follows that so far as this section is concerned they are not disqualified from proposing and seconding a candidate 's nomination.
Now, does section 123 (8) contain express provision to the contrary or can such provision be inferred by necessary implication? It is usual, when one section of an Act takes away what another confers, to use a non obstante clause and say that "notwithstanding anything contained in section so and so, this or that will happen", otherwise, if both sections are clear, there is a head on clash.
It is the duty of courts to avoid that and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise.
What exactly does section 123 (8) forbid? It is the obtaining or procuring etc., of "any assistance. . other than the giving of vote by such person.
" Therefore, it is permissible for a candidate to canvass Government servants for their votes and if a Government servant chooses to reveal his hand it would be permissible for the candidate to disclose the fact and use it in furtherance of his election, for the law imposes no secrecy on the intentions of those who, of their own free will, choose to say how they intend to vote.
They cannot be compelled to disclose the fact and any improper attempt to obtain such information would be a corrupt practice, but equally, they are not completed to keep the fact secret if they do not wish to do so; nor is the candidate.
If therefore the law permits this, we find it difficult to see how in the same breath it can be said to have taken away the right expressly conferred by section 33(2).
The policy of the law is to keep Government servants aloof from politics and also to protect them from being imposed on, by those with 917 influence or in positions of authority and power, and to prevent the machinery of Government from being used in furtherance of a candidate 's return.
But at the same time it is not the policy of the law to disenfranchise them or to denude them altogether of their rights as ordinary citizens of the land.
The balance between the two has, in our opinion, been struck in the manner indicated above.
But though it is permissible for a candidate to go that far, he cannot go further and if the procurement of Government servants to propose and second a nomination is part of a plan to procure their assistance for the furtherance of the candidate 's prospects in other ways than by vote, then section 123(8) is attracted, for in that case, the plan, and its fulfillment, must be viewed as a connected whole and the acts of proposing or seconding which are innocent in themselves cannot be separated from the rest.
Our conclusion on the preliminary issue may also be supported on another ground.
The major corrupt practice referred to in clause (8) of section 123 consists in obtaining or procuring or abetting or attempt to obtain or procure by a candidate or his agent etc.
, any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person.
In order, therefore, to bring a case within the mischief of that clause the assistance must be for the furtherance of the prospects of the candidate 's election.
Section 79(b) defines a candidate as meaning " a person who has been or claims to have been nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.
" Unless, therefore, a case falls within the latter half of the definition a person becomes a candidate under the first part of the definition only when he has been duly nominated as a candidate and the furtherance of 918 the prospects of a candidate 's election must, therefore, in such a case commence from after that stage.
Although evidence was adduced on both sides, there has been no finding so far on questions of fact which may or may not bring the case within the second part of the definition.
In the absence of such a finding the case must be regarded, for the purpose of the preliminary issue, as governed by the first part of the definition and as such the proposing and seconding by a Government servant cannot be regarded as "assistance for the furtherance of the prospects of the candidate 's election." In this view of the matter also, the judgment of the Election Tribunal cannot be sustained.
We set aside the order of the tribunal and remit the case to the Election Commission with directions to it to reconstitute the tribunal which tried this case and to direct the tribunal to give its findings on all the issues raised and to make a fresh order.
Our power to make such an order was not questioned but it was said that when the legislature states that the orders of a tribunal under an Act like the one here shall be conclusive and final (section 105), then we should not interfere.
It is sufficient to say that the powers conferred on us by article 136 of the Constitution and on the High Courts under article 226 cannot be taken away or whittled down by the legislature.
So long as these powers remain, our discretion and that of the High Courts is unfettered.
We wish to record our disapproval of the way in which this tribunal shirked its work and tried to take a short cut.
It is essential that these tribunals should do their work in full.
They are ad hoc bodies to which remands cannot easily be made as in ordinary courts of law.
Their duty under section 99 is, " where any charge is made in the petition of any corrupt or illegal practice having been committed at the election" to record " a finding whether any corrupt or illegal practice has or has not been proved to have been committed. and the,nature of that corrupt or illegal practice.
" 919 Also, " to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice.
" Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that " at the time of making an order under section 98the tribunal shall also make an order etc. . " A number of allegations were made in the petition about corruption and illegal practices, undue influence and bribery.
It was the duty of the tribunal not only to enquire into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made.
We make no order about costs.
Bose J. I agree on all but one point.
I have some doubt about the reason given by my learned brother which is based on the definition ' of "candidate" in the Act.
I prefer not to express any opinion that one point.
Case remanded.
Agent for respondent No. 1 A. D. Mathur.

summary/full:
(1) The unfettered discretionary powers conferred on the Supreme Court and the High Courts by articles 136 and 226 of the Constitution respectively cannot be taken away or whittled down by the legislature and therefore section 105 of the Representation of the People Act, 1951, which provides that every order of the tribunal under the Act shall be final and conclusive did not affect such powers.
(2) In view of the provisions of section 16 of the Representation of the People Act, 1950, and the provisions of sections 33 (2) and 123 (8) of the Representation of the People Act, 1951, an election to a State Legislative Assembly is not invalidated when the elected member is either nominated or seconded or both by a Government servant or servants.
(3) The Supreme Court recorded its disapproval of the way in which the Election Tribunal shirked its duty and tried to take a short cut in deciding only two of the twelve issues framed and thus acted against the provisions of section 99 of the Act.


judgement:
Appeal No. 225 of 1964.
Appeal by special leave from the judgment and decree dated July 25, 1961 of the Kerala High Court in S.A. No. 852 of 1957.
L/S5SCI 11 136 A. G. Pudissery, for the appellant.
M. R. K. Pillai, for the respondents.
The Judgment of the Court was delivered by Bachawat, J.
In 1921, the plaintiff executed in favour of the defendant an otti kuzhikanam deed in respect of the suit property.
By this deed, the plaintiff sold to the defendant the building standing on the property for 350 fanams and also transferred to him for 350 fanams the right to possess and enjoy the property for 12 years in kuzhikanam right with liberty to plant coconut trees thereon, expressly reserving for the plaintiff the right to enjoy the fruit bearing trees then standing on the property ' The deed provided that after the expiry of 12 years the defendant would on demand demolish and take away the building and surrender possession of the land on receipt of 350 fanams and the agreed compensation for the coconut trees planted by him.
The plaintiff instituted a suit for redemption of the property.
During the pendency of the litigation, the plaintiff and the defendant died, and their legal representatives were substituted in their place.
On May 31, 1951, the Principal District Munsif Quilon decreed the suit.
On appeal, the District Court of Quilon affirmed this decree.
The present appellant, who is one of the legal representatives of the original defendant, filed a second appeal in the High Court of Kerala.
During the pendency of this appeal, the Kerala Agrarian Relations Act, 1960 (Act IV of 1961) came into force.
Before the High Court, the appellant claimed fixity of tenure and protection from eviction on the ground that he was a kuzhikanamdar or alternatively, the holder of a kudiyiruppu, and, therefore, a tenant within the meaning of section 2(50) (i)(e) read with section 2(22) and section 2(50)(i)(j) read with section 2(21) of Act IV of 1961.
The High Court negatived this contention, and dismissed the appeal.
The appellant now appeals to this Court by special leave.
During the pendency of this appeal, Act IV of 1961 was repealed and the Kerala Land Reforms Act, 1963 (Act 1 of 1964) came into force.
The appellant now claims fixity of tenure and protection from eviction on the ground that he is a, kuzhi kanamdar within the meaning of section 2(57)(d) read with section 2(28), or alternatively, the holder of a kudiyiruppu within the meaning of section 2(57)(h) read with section 2(26) of Act 1 of 1964.
In the High Court, the appellant also claimed protection from eviction on the ground that he was a 'kudikidappukaran ', but this contention was negatived by the High Court and is no longer pressed.
Section 13 of Act 1 of 1964 gives to every tenant fixity of tenure in respect of his holding, and forbids resumption of the holding except as provided in sections 14 to 22.
Section 2(57) defines 'tenant '.
By sections 2(57)(d) and (h), a tenant includes a kuzhikanamdar and the holder of a kudiyiruppu.
The appellant does not contend that he is a tenant as defined in the main part of section 2(57).
137 He, however, contends that he is a tenant as defined in section 2(57)(d) and section 2(57)(h).
The deed of 1921 was styled 'otti kuzhikanam deed '.
In Malabar, the word "otti" in the context of the deed designates a possessory mortgage.
According to Wilson 's Glossary of Judicial and Revenue Terms, "kurikanam" means "compensation allowed for the value of trees planted, or other improvements made by the tenant or mortgagee on relinquishing possession; a lease or mortgage on such conditions." Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession.
Had there been no special definition of the expression "kuzhikanam" in Act 1 of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar.
But section 2(28) of Act 1 of 1964 provides that in this Act unless the context otherwise requires, "kuzhi kanam" means and includes a transfer of garden lands or of other lands or of both, with the fruit bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit bearing trees thereon but shall not include a usufructuary mortgage as defined in the .
" This definition of kuzhikanam is both inclusive and exhaustive.
Unless the context requires otherwise, the expression "kuzhikanam in the Act can have only the meaning given in section 2(28).
There is nothing in the context of section 2(57) and section 13, which requires a different meaning for this expression.
"Kuzhikanam" as defined in section 2(28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit bearing trees, if any, standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruitbearing trees thereon.
It does not include a usufructuary mortgage as defined in the , but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgaee.
Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit bearing trees then standing on the land and did not transfer those trees to the ,grantee.
On behalf of the appellant, it was argued that the words "with the fruit bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees" are not essential parts of the definition of 'kuzhikanam ' in section 2(28), and that we should hold that a transfer of land for the purpose of planting fruit bearing trees thereon is kuzhikanam, though there is no transfer of the fruit bearing trees standing on the land at the time of the transfer and though the transfer is not for the enjoyment of those trees.
We are unable to accept this contention.
We think that a transfer of land without the fruit bearing trees then standing on it and Dot carrying with it the right to enjoy those trees is not a L/S5SCI 11(a) 138 kuzhikanam as defined in section 2(28).
The force of the words "if any" in the definition is that if there are any fruit bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee.
The contention that the deed of 1921 granted kuzhikanam rights as defined in section 2(28) of Act 1 of 1964 is rejected.
The appellant next contends that he is the holder of kudiyi ruppu.
Section 2(26) of Act 1 of 1964 which defines 'kudiyiruppu ' reads: " kudiyiruppu" means a holding or part of a holding consisting of the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu.
" I here is no material on the record to show that the building on the land is a residential building.
Moreover, it does not appear that the land is necessary for the convenient enjoyment of the building.
The contention that the appellant is the holder of kudiyiruppu is rejected.
The appeal fails and is dismissed.
There will be no order as to costs.
Appeal dismissed.

summary/full:
By a deed styled `otti Kuzhikanam deed ', the predecessor of the respondent sold a building standing on a property to the predecessor of the appellant and also transferred to him the right to possess and enjoy the property for 12 years in Kuzhikanam right with liberty to plant coconut trees thereon.
The deed expressly reserved the right for the respondent to enjoy the fruit bearing trees then standing on the properties.
and provided that after expiry of 12 years the appellant would on demand demolish and take away the building and surrender possession of the land on receipt of a certain amount and he agreed compensation for the coconut trees planted by him.
The respondent instituted a suit for redemption of the property, which was decreed.
On appeals, the decree was affirmed by the District Court and High Court.
In appeal to this Court the appellant claimed fixity of tenure and protection from eviction on the ground that he was (i) a Kuzhikanamdar under section 2(57)(d) and section 2(28), or alternatively.(ii) the holder of a kudiyiruppu under section 2(57) (h) and section 2(26) of the Kerala Land Reforms Act.
HELD: (i) The deed did not grant Kuzhikanam rights to the appellant.
"Kuzhikanam" as defined in section 2(28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit bearing trees, if any standing thereon at the time of the ' transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit bearing trees thereon.
It does not include a usufructuary mortgage as de fined in the but it was not the case of the respondent that the deed created such a usufructuary mortgage.
[137 E F] A transfer of land without the fruit bearing trees then standing on it and not carrying with it the right to enjoy those trees was not a kuzhikanam as defined in section 2(28).
The force of the words "if any" in the definition of "kuzhikanam" in section 2(28) is that if there are any fruit bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee.
[137 H 138 B] (ii)The appellant was not the holder of Kudiyiruppu within the meaning of section 2(26) of the Act.
There was no material on the record to show that the building on the land was a residential building.
Moreover, it did not appear that the land was necessary for the convenient enjoyment of the building.
[138 D]


judgement:
Appeal No. 230 of 1964.
Appeal by special leave from the judgment and order dated January 11, 1961 of the Madras High Court in section C. Petition No. 165 of 1960.
R. Ganapathy Iyer and R. Thiagarajan, for the appellant.
A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
This appeal by special leave is against the order,, of the High Court of Madras dated January 11, 1961 refusing the certificate under article 133(1)(a) and (b) of the Constitution.
155 The authorities appointed under the Hindu Religious and Charitable Endowments Act, Madras Act 11 of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the idol of Sri Srinivasaparumal and certain other idols were located constituted a temple within the meaning of the said Act, the appellant filed an application in the District Court for a declaration that the said premises were private property and for an order setting aside the said decision.
The said application was by an order of the High Court converted into a suit.
The main question in the suit was whether the said premises could be said to be a temple as defined by Madras Act 19 of 1951.
The District Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple and set aside the decision of the said authorities.
On appeal, the High Court reversed the said judgment and decree and found that the premises in question constituted a temple.
The appellant thereupon filed a petition for leave to appeal to this Court and submitted that the value of the subject matter of dispute in the District Court as also in appeal in the High Court was more than Rs. 20,000/ and that the judgment of the High Court having reversed the judgment and decree of the Trial Court he was entitled to leave under article 133(1)(a) and (b).
The High Court dismissed that application on the following grounds: (a) that the subject matter of the dispute, whether it was a private or a public temple could have no market value and therefore was incapable of valuation; (b) that cl.
(b) of article 133(1) could not apply as the judgment and decree passed by it did not involve directly or indirectly a claim or question res pecting property of the value of Rs. 20,000/ or more and (c) that the appeal did not involve any substantial question of law.
For the time being we are concerned with grounds (a) and (b) and not with ground (c) is the contention raised by Mr. Ganapathy Iyer for the appellant was that the refusal to grant leave by the High Court under either of the clauses (a) and (b) of article 133(1) was not correct.
The point for consideration is whether the High Court was right in holding that the property in question whether as a private or a public temple was incapable of valuation as it could have in either case no market value.
It may be observed that the appellant claimed that the property belonged to the Thoguluva family and he was in management thereof for and on behalf of the family.
The suit in the first instance was filed by him in the form of an application, being O.P. No. 37 of 1950 under section 84(2) of Madras Act 11 of 1927.
Under that Act only a fixed court fee was payable.
That being so, the appellant did not have to pay court fees as it would in the case of an ordinary suit on a valuation made by him therefor.
The application was subsequently converted into a suit by an order of the High Court.
He was therefore entitled 156 to contend at the time of the leave application that the property in dispute was of the value of not less than Rs. 20,000/ .
It does not appear to be in dispute that the site of the Mandapam and the structure standing thereon was originally the property of one Kuppaiyan and his undivided sons.
The appellant 's case was that in execution of the decree in Suit No. 650 of 1882 passed against the said Kuppaiyan the property was sold by public auction and purchased by Thoguluva Thirumalayyan, the appellant 's ancestor, for a sum of Rs. 1,060/ .
The original mandapam was thereafter improved upon and some additional structures e.g., shops and other constructions were added, the expenses for such repairs and additions having been met by the descendants of the said Thoguluva Thirumalayyan, and therefore the property belonged to and was an alienable private property of the family.
On the other hand, the case of the respondents in their written statement was that the property was a public temple for public religious worship and that the allegation of the plaintiff that it was a private property capable of alienation was "false and misleading." The case of the appellant was accepted by the Trial Court but was rejected by the High Court and the High Court held that the property was a public temple within the meaning of Madras Act 19 of 195 1.
The dispute between the parties was thus centred round the question whether the property was the private alienable property of the said family or was a public temple as held by the High Court.
There was evidence that the shops subsequently constructed as aforesaid were let out to tenants for a number of years and property taxes were levied thereon by the Madhurai Municipality, presumably on their rateable value.
We may also mention here that in his application to this Court for directing an inquiry into the value of the property under 0. 45, r. 1 of the Code of Civil Procedure the appellant has stated that he has in his possession municipal receipts showing the property tax paid to the Madurai Municipality.
According to the appellant, property tax for the half year ending September 30, 1950 was Rs. 94 0 6 and for the half year ending March 31, 1961 it was Rs. 130.36nP.
According to him the half yearly tax would be equivalent to one month 's rent and on that basis the annual rental value would come to Rs. 1,126 6 0 in 1950 and to Rs. 1,672.32nP in 1961.
If that be so, capitalising that value at twenty times the annual rental value, the value of the property would come to more than Rs. 20,000/ .
The refusal of the High Court to grant leave was based on the observation that whether the property is a private or a public temple, it was incapable of valuation.
But as observed earlier the appellant 's case was that the subject matter of dispute in the suit was the private property of the said family and that it was alienable property and therefore capable of a valid transfer.
That being 157 the dispute between the parties, the High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation.
The subject matter of the dispute has to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint, the property is the private property of the said family capable of alienation, the High Court ought to have valued the property accordingly though according to the respondents the property was inalienable and was a public temple.
The High Court was thus wrong in proceeding on the aforesaid assumption.
We would therefore allow the appeal, set aside the order passed by the High Court and remand the case to the High Court to decide the application for leave in accordance with the observations made in this judgment.
The High Court may either hold the inquiry itself or remit the case to the Trial Court to hold such inquiry and report to it.
Accordingly, the appeal is allowed and the High Court 's order is set aside.
The respondents will pay to the appellant the costs of this appeal.
Appeal allowed.

summary/full:
The appellant sought a declaration that certain premises belonged to his family as private property and did not constitute a temple within the meaning of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951).
The District Court decreed the suit but the High Court found that the property in question was a temple.
The appellant then filed a petition for leave to appeal to this Court under article 133(1) (a) and (b) of the Constitution and submitted that the property was more than Rs. 20000 in value.
The High Court dismissed the application on the ground, inter alia, that the subject matter of the dispute whether as a private or a public temple was incapable of valuation as it could have in either case no market value.
The appellant by special leave came to this Court.
HELD:The High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation.
The subject matter of the dispute had to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint the property was the private property of the appellant 's family capable of alienation, the High Court ought to have valued the property accordingly.
[157 A, B]