judgement:
ivil Appeal No. 257 of 1962.
Appeal from the judgment and decree dated February 19, 1957 of the Allahabad High Court in section A. F. No. 4 of 1952.
section T. Desai, and J. P. Goyal, for the appellants.
G. section Pathak, B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 2.
The Judgment of the Court was delivered by Shah J.
Respondents I to 3 in this appeal presented a petition before the Insolvency Judge, Kanpur for an order adjudicating the second appellant Kotwaleshwar Prasad insolvent.
In their petition they alleged that Kotwaleshwar had in the course of business dealings with them borrowed Rs. 15,000 on September 28, 1935 from respondents I and 3 and had executed a promissory note agreeing to repay the amount, and that he had borrowed Rs. 3,500, on January 9, 1936 and Rs. 4,000 on April 7, 1936 from respondent 2, and executed similar promissory notes, that he had failed to repay the amounts due by him and with a view to defeat or delay his creditors secluded himself so as to deprive his creditors of the means of communicating with him, and had thereby committed an act of insolvency.
The Insolvency Judge by order dated October 8, 1937 adjudicated Kotwaleshwar insolvent and appointed the first appellant the Official Receiver, Kanpur, as receiver of his estate with powers under section 80 of the Provincial Insolvency Act, 1920 hereinafter called 'the Act '.
The Receiver proceeded in exercise of the powers under section 33 read with section 80 of the Act to frame a schedule of debts.
The claims set up by the respondents were challenged by Kotwaleshwar and a creditor named Abdul Sayed, but the Official Receiver included the claims of the respondents in the schedule of debts, for in his view Kotwaleshwar had admitted the claims on October 8, 1937 before the Insolvency Court.
In appeal under section 68 to the Insolvency Judge the matter was remanded to the Official Receiver with directions to hold a fresh enquiry into the debts due to the respondents.
The Official Receiver then held a further enquiry and rejected the claims of the respondents I to 3.
He held that it was not proved that Kotwaleshwar had received consideration for the three promissory notes.
In the view of the Official Receiver the documentary evidence produced by Kotwaleshwar and the respondents established that the promissory notes were executed by Kotwai 256 eshwar under the influence of respondents I to 3 and their servant Amir Hassan and that the evidence including the books of account of respondents 1 to 3 in support of the advance of consideration under the promissory notes was unreliable.
In appeal against the order of the Official Receiver, the Insolvency Judge, Kanpur directed that the names of respondents I to 3 be included in the schedule of creditors.
In the view of the Insolvency Judge the presumption of consideration arising under section 118 of the Negotiable Instruments Act supported the rest of the evidence which was directed to establish the genuineness of the signatures and the endorsements of execution on the promissory notes by Kotwaleshwar and on the receipts executed by him and that the Kachi Rokar of the respondents were adequately corr borated by the evidence of the creditors, their witness Abdul Rashid and others and that Kotwaleshwar had failed to discharge the burden which lay heavily on him to establish want of consideration.
Against the order of the Insolvency Judge an appeal was preferred to the District Court, Kanpur.
During the pendency of the appeal respondents 1 and 3 were declared evacuees under the Administration of Evacuee Property Act and the Assistant Custodian of Evacuee Property in whom their property had vested was impleaded as a party respondent.
In the view of the District Court the testimony of witnesses of the respondents in support of the plea of payment of consideration was unreliable and that the admission made by Kotwaleshwar before the Insolvency Judge on October 8, 1937 was procured by the exercise of undue influence and that the books of account relied upon by the respondents and the oral evidence in support thereof were unreliable.
The District Judge observed that the presumption under section 118 of the Negotiable Instruments Act in respect of the promissory notes did arise, but it stood in the circumstances of the case weakened and the burden shifted to respondents I to 3, to prove affirmatively that the sums covered by the three promissory notes were in fact paid to the insolvent and that they failed to discharge the burden.
Against the order passed by the District Judge, a second appeal being No. 4 of 1952 was preferred under section 75 (I.) proviso 2 of the to the High Court of Allahabad.
The Division Bench hearing the appeal referred the following two questions to a Full Bench.
These questions were (1) Whether the presumption mentioned in cl.
(a) of section 118, can be 257 invoked in insolvency proceedings where an alleged debt against the insolvent is called in question by the official receiver or by a creditor or by the insolvent ? (2) If it can be invoked, would circumstances tending to make it doubtful that consideration passed under the n egotiable instrument even though coupled with a denial on the part of the maker of the instrument, suffice to deprive the creditor of the benefit of the presumption and require him to prove by evidence that consideration did actually pass ? A Full Bench of the High Court by majority having recorded an affirmative answer on the first question, the second appeal was placed for hearing before a Division Bench of the High Court.
The Division Bench observed that the District Court had recorded certain findings and from those findings it had inferred as a matter of law that the statutory presumption under section 118 of the stood rebutted.
The High Court then observed : "The correctness, or otherwise, of the preliminary inference must need (sic) be considered first.
Scrutiny of that inference should however be prefaced with the observation that it is open to question not only because the various findings, or at least the material ones, described as circumstances by the court below, whereon that inference was based suffer from one or the other of the legal defects pointed out above, but also because the inference drawn by that court as a result of its view that the statutory presumption stood rebutted was a finding on a question of law and not on a question of fact.
That inference, or finding, of the court below was that the onus of proving consideration had shifted on to the creditors. .
.A finding which has to draw on a rule of law for the recording of it or for the ascertainment of its truth is a finding on a question of law, any other a finding on a question of fact.
The finding that onus has shifted has to draw on the rules of pleading and proof, of procedure and evidence, for the recording of it as well as for the ascertainment of its truth.
It is therefore a finding on a question of law." The Court then held that in the case before it "not only had the insolvent failed to displace, or even to weaken, the presumption in favour of the creditors under section 118 of the Negotiable Instru 258 ments Act, but the consideration stood fully established, even if there was no initial presumption in favour of the creditors, by the evidence adduced by them and by the insolvent 's own admission.
" With special leave, this appeal is preferred by the Official Receiver and Kotwaleshwar.
The District Court found on the evidence that the insolvent 's father died in 1933 leaving considerable properties, that the insolvent was at the time of his father 's death a young man about 20 years of age, inexperienced and open to all the temptations of early life, that the insolvent "got mixed up" with Amir Hassan and others and "they initiated him into the mysteries of wine and women", that although the promissory notes were not executed ",under the influence of drink" there were grounds for holding that he was under the influence of Amir Hassan when he signed them, that it was significant that the three promissory notes were executed in quick succession and at that time the insolvent was already indebted to other creditors to the extent of Rs. 6,000 that the respondents had no previous business relations with the insolvent, that although the creditors knew that the insolvent 's share in the property left by his father was only Rs. 28,000 to Rs. 30,000 and that he was joint in estate with his brother, no kind of security was taken from the insolvent, nor was any enquiry made whether the said property was encumbered or not, that respondent 3 Abdul Wahid admitted that about 21 months after the execution of the promissory note dated September 28, 1935 he came to know that the insolvent was executing "bogus and fictitious promissory notes" in favour of his friends to defraud his real creditors, and therefore it was incredible that further sums should have been advanced under the two subsequent promissory notes of the aggregate value of Rs. 7,500, that the insolvent was "fairly well off for his ordinary needs" and there was no apparent reason why he should have borrowed those considerable sums of money, that the respondents did not have sufficient funds or resources with them to advance either the amounts covered by the three promissory notes or those under the prior promissory notes of September 4, 1935 and September 15, 1935, that the thumb impression of the insolvent had been taken in addition to his signatures on the promissory note, and that his signatures were also obtained on the Rokar Bahi, that the oral evidence produced by the respondents in proof of the payment of consideration did not inspire confidence, that the admission of the insolvent dated October 8, 1937 on the foot of which the order of adjudication was passed appeared to have been made in suspicious circumstances and it was an erroneous admission and therefore did not bind the insolvent and that the Bahi 259 Khatas of the creditors were of a suspicious character.
AR these findings were findings of fact.
The District Court inferred from the facts found that the statutory presumption under section 118 of the had been weakened and the burden which lay upon the insolvent was discharged and it was not open to the High Court exercising jurisdiction under section 75(1) proviso 1, nor even under proviso 2, of the Provincial Insolvency Act to set aside the judgment of the District Court, for it is well settled that the question whether a statutory presumption is rebutted by the rest of the evidence is a question of fact : Wali Mohammad vs Mohammad Bakhsh (1).
This would be sufficient to dispose of the appeal.
But the question whether the Official Receiver is bound to give effect to the statutory presumption in respect of a negotiable instrument arising under section 118 of the when the negotiable instrument is sought to be relied upon by a creditor in the course of the insolvency proceeding in proof of the debts to be entered in the schedule of creditors, has been fully argued before us and as the High Court has overruled an earlier decision of that Court: Ram Lal Tandon vs Kashi Charan (2), and as the question is of some importance, we deem it necessary to express our opinion on that question.
Section 33 of the Provincial Insolvency Act by the first subsection provides : "When an order of adjudication has been made under this Act, all persons alleging themselves to be creditors of the insolvent in respect of debts provable under this Act shall tender proof of their respective debts by producing evidence of the amount and particulars thereof, and the Court shall, by order, determine the persons who have proved themselves to be creditors of the insolvent in respect of such debts, and the amount of such debts, respectively, and shall frame a schedule of such persons and debts : The Act imposes a duty upon the court to frame a schedule of creditors and of the debts due to them which are provable under the Act.
For that purpose the court has to hold an enquiry into the debts due by the insolvent which are provable.
A proceeding under section 33 of the Provincial Insolvency Act is not a proceeding between the insolvent and the proving creditor.
(1) L.R. 57 I.A. 86, 92.
(2) A.I.R. 1928 All.
260 The proceeding is between the creditors represented by the official receiver and the insolvent.
When a creditor, seeking to prove a debt relying upon a negotiable instrument, or other evidence makes a claim for inclusion of the debt due to him, the court, or where he is authorised the receiver of the estate of the insolvent, has to be satisfied about the existence of the debt, the amount due, its particulars and that it is provable in insolvency.
Section 33 does not indicate the quantum of proof which may be regarded as sufficient to prove a debt.
A court may accept in proof of a debt a registered letter to the court and an affidavit verifying the debt (see section 49 of the Act).
That however is a matter of procedure, and does not lay down as to what is sufficient to prove the debt.
In each case it is for the court or the receiver (Subject of course to review in the manner provided by the Act) to consider whether the debt of which the creditor claims inclusion is proved.
The decision of the question must of necessity depend upon the circumstances and the evidence led to prove the debt.
In the present case the High Court by majority took the view that in a proceeding under section 33 when the promissory note is brought before the Court by the promisee, a presumption that the promissory note was made for consideration arises under section II 8 of the and unless that presumption is rebutted by the promissory by other creditors or by the receiver that the amount for which the promissory note is executed must be included in the schedule.
In so holding the High Court pri marily relied upon absence of any reference to the nature of the proceeding in which the presumptions are required to be raised in relation to negotiable instruments.
It,,must be noticed in the first instance that presumption under section 118 of the is a presumption of consideration : it does not in all cases prove the quantum of debt due by the insolvent at the date of insolvency.
The Insolvency Court has, it must be remembered, to ascertain whether a debt is due by the insolvent, whether the debt is provable in insolvency, and the quantum of the debt due at the material date.
In making this enquiry in its three aspects even the judgment of a court against the debtor may not be regarded as binding upon the Court.
In Ex Parte Lennox(1), it was held that a judgment which the judgment debtor cannot set aside, may still be subjected to investigation by the court of Bankruptcy to enquire whether the debt on which the judgment was founded was a good debt, and if the Court be satisfied that it was not, the Court may refuse to make a receiving (1) [1885]16 Q.B.D. 315, 261 order in respect of the debt.
The principle of that case was extended in In Re.
Fraser Ex Parte Central Bank of London(1).
It was held in that case that "upon the hearing of a creditor 's petition for a receiving order against a judgment debtor, the Court of Bankruptcy has power, at the instance of the debtor himself, to go behind the judgment and to inquire into the validity of the debt, even though the debtor has previously applied in the action to set aside the judgment, and his application has been refused, and the refusal affirmed by the Court of Appeal.
" Lord Esher, M. R., observed at pp.
636 637 "The decision (Ex parte Lennox) is based upon the highest ground viz., that in making a receiving order, the Court is not dealing simply between the petitioning creditor and the debtor, but it is interfering with the rights of his other creditors, who, if the order is made, will not be able to sue the debtor for their debts, and that the Court ought not to exercise this extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor.
The existence of the judgment is no doubt prima facie evidence of a debt; but still the Court of Bankruptcy is entitled to enquire whether there really is a debt due to the petitioning creditor.
" A debt to be entered in the schedule must therefore be a real debt.
A judgment against a debtor which is sought to be relied upon in proving a debt does not necessarily establish the existence of a real debt for the judgment may have gone by default, it may have gone by consent or it may have been procured for any other reason.
In a proceeding relating to proof of debts the question which arises being not one between the insolvent and the proving creditor alone, the rights of other creditors of the insolvent have of necessity to be considered.
Even if for some reason the debtor himself is estopped from denying the debt there will be no estoppel against the Insolvency Court.
The Court therefore in each case has jurisdiction to investigate whether there is a real debt: whether production of a judgment or a negotiable instrument or other evidence may be regarded as sufficient to regard the debt as proved is a matter for the Insolvency Court to decide.
The question is not to be adjudged in the light of any estoppel which may operate against the insolvent or of any presumption.
The Court in a given case may rely merely upon a judgment or a negotiable or other instrument, and admit the debt to the schedule not because there is an estoppel 1.
[1892] 2 Q .
B.D. 633.
L2Sup./64 4 262 against the Receiver or the other creditors, or presumption of 1aw in favour of the evidence produced, but because in its view in the light of the circumstances no further enquiry beyond proof of the judgment or negotiable instrument or other document evidencing the debt and proof of non satisfaction of the debt since the date thereof is sufficient.
The Court has power, however, to insist upon proof of the debt apart from the judgment or the negotiable or other instrument.
The reason is that the Insolvency Court with a view to effectively distribute the estate of the insolvent among the creditors is entitled to go behind outward forms of transactions and to ascertain the truth of the debts sought to be proved, and the estoppel to which the insolvent may have subjected himself will not prevail against the Receiver.
Whether the power should be exercised in the case of a judgment debt in a given case depends upon the discretion of the Court which has to be exercised on sound judicial principles.
It is true that the Court ordinarily; does not go behind a judgment against the debtor, on a bare suggestion by the debtor that the debt which is merged in the judgment did not exist or was bad.
There must undoubtedly be circumstances prima facie justifying an enquiry There must appear something that the judgment was procured by fraud or collusion, or that there has been miscarriage of justice But a mere irregularity or error in form will not be a sufficient reason for going behind the judgment.
When a debt secured by a promissory note is sought to be proved, the Insolvency Court must enquire into the reality, and the quantum of consideration.
What shape this enquiry may take will depend upon the circumstances of the case.
In a given case the Insolvency Court may regard an affidavit setting out the particulars ,of the debt, and affirming execution of the promissory note by the insolvent, and asserting non satisfaction of the debt, as sufficient In other cases, the Court may enter upon a fuller enquiry which the circumstances of the case may demand.
But in all cases of proof of debts under section 33 the burden is upon the creditor.
That burden may be discharged by the affidavit of the creditor viewed in the light of a presumption which the Court may raise under section 114 of the Evidence Act, that a bill of exchange accepted or endorsed, was for good consideration.
If that be the true effect of.
section 33 of the Provincial Insolvency Act, and we think both on principle and authority that is the true effect, of necessity the presumption under section 118 of the that every negotiable instrument was made or drawn for consideration cannot avail against the Receiver of the estate of the insolvent 263 It is true that section 118 of the , unlike section 119 to section 122 which occur in Ch.
XIII, does not refer to a proceeding in suit where the various presumptions directed have to be raised.
The section is undoubtedly in terms general.
But there is no reason to suppose that it was intended to apply to a proceeding which is not in the nature of a civil dispute between the parties to the negotiable instrument or their privies.
The is intended to codify the law merchant relating to 'dealings concerning negotiable instruments.
The presumptions which are raised under section 118 do undoubtedly set out special rules of evidence relating to negotiable instruments, but in our opinion the nature of the presumptions from their very nature operate in favour of or against the parties to the negotiable instrument or their privies and cannot generally apply to persons who do not claim under the parties to the instrument.
In Anumolus Narayana Rao vs Chattaraju Venkatappayya(1) it was observed by Varadachariar J., that a suit on a promissory note instituted against an undivided son of a Hindu promisor governed by the Mitakshara law after the latter 's death cannot be regarded as one against the heirs or representatives of the promisor, because it only seeks to enforce the Hindu law theory of pious obligation of the sons in respect of the property which the sons have taken by survivorship.
The pious obligation can arise only on the assumption of the existence of a debt due by the father and in such a case the onus of proving the existence of the debt must prima facie be laid on the creditor who can call in aid the presumption permissible under the general law of evidence, namely, section 114 of the Indian Evidence Act and not the presumption under section 118 (a) of the .
The learned Judge observed "Though this section is not, like sections 119 to 122, limited in terms to a suit upon the instrument, it seems only reasonable to hold that the special rules of evidence laid down in section 118 must have been intended to apply only as between the parties to the instrument or those claiming under them.
In other cases the presumption can only be in the terms enacted in section 114 of the Evidence Act (vide illus.
c) which by the use of the expression 'may presume leaves it to the Court to apply the presumption or not according to circumstances." (1) I.L.R. 264 Section 114 of the Indian Evidence Act authorises the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
Under the third illustration of section 114 the Court may presume that a bill of exchange accepted or endorsed was accepted for good consideration.
But the section provides, that the, Court shall also have regard to other material facts in considering whether the maxim does or does not apply in the particular case before it.
It is therefore open to the Court to consider in its proper setting, the fact that the drawer of a bill of exchange was a man of business, and the acceptor was a young and ignorant person completely under the former 's influence.
This is one illustrative fact which the Court may consider in raising the presumption.
There may be other circumstances which may also justify the Court in declining to raise the presumption.
Mr. Pathak for the respondents urged that the Indian Evidence Act was enacted in 1872 and the having been enacted in 1881, and as the two provisions conflict or overlap, section 118 of the must supersede section 114 of the Evidence Act.
We are unable to accept that contention.
Undoubtedly section 114 of the Evidence Act is a general provision which enables the Court to presume, though not obliged to do so, that a bill of exchange or a promissory note were founded on a good consideration.
Section 118 of the , however, enacts a special rule of evidence which operates between parties to the instrument or persons claiming under them in a suit or proceeding relating to the bill of exchange and does not affect the rule contained in section 114 of the Evidence Act, in cases not falling within section 11 8 the .
In our view the High Court was in error in holding that a statutory presumption of consideration arose in favour of the respondents in the proceedings under section 33 for settlement of the schedule of creditors, and the Receiver exercising power under section 80 of the Act was bound to admit the debts in the schedule if the insolvent or the other creditors failed to displace that presumption The appeal must therefore be allowed, the order of the High Court set aside, and the order of the District Court restored, with costs in this Court.

summary/full:
The second appellant, who had executed promissory notes in favour of the respondents was adjudicated an insolvent on a petition by them.
The Official Receiver in exercise of the powers under sections 33 and 80 of the Provincial Insolvency Act (5 of 1920) and under directions of the Insolvency Judge, inquired into the claims of the respondents and rejected them.
On appeal, the Insolvency Judge directed the inclusion of their names in the schedule of creditors.
The appeal to the District Court against the order of the Insolvency Judge was allowed.
In second appeal to the High Court, it was held, that the inference drawn by the District Court from its findings was a matter of law and that therefore the High Court had jurisdiction under section 75(1), to interfere with the order of the District Court.
Relying upon the presumption in favour of creditors in section 118 of the Negotiable Instruments Act (26 of 1881), the High Court set aside the judgment of the District Court.
The Official Receiver and the insolvent appealed to the Supreme Court.
HELD : The appeal should be allowed.
Since all the findings of the District Court were findings of fact and the question whether a statutory presumption was rebutted by the rest of the evidence was also a question of fact, the High Court had no jurisdiction to set aside the judgment of the District Court.
[259A C].
Wali Mohammad V. Mohammad Bakhsh, (1930) L.R. 57 I.A. 86.
approved.
Section 118 of the Negotiable Instruments Act, enacts a special rule of evidence which operates only between parties to the instrument or persons claiming under them in a suit or proceeding relating to the negotiable instrument.
The section does not affect section 114 of the Evidence Act, and in cases not falling within section 118 of the Negotiable Instruments Act the Court may or may not presume that a promissory note was founded on good consideration.
Therefore, in a proceeding relating to proof of debts, the question being not one between the insolvent and the proving creditor alone, and since the rights of other creditors of the insolvent have of necessity to be considered, the Court has jurisdiction to investigate whether there is a real debt.
Even if for some reason the debtor himself is estopped from denying the debt, there could be no estopped against the Insolvency Court.
There is thus no statutory presumption of consideration in favour of the creditors under promissory notes in proceedings under section 33 of the Provincial Insolvency Act for settlement of the schedule of creditors, and the Receiver exercising powers under section 80 of that Act is not bound to admit the debts in the schedule merely because the insolvent or the creditors have failed to displace such a presumption.
[261F 262C; 264E G].
Case law reviewed.


judgement:
Appeals Nos.
53 to 55 of 1951.
Appeals from the Judgment and Decree dated the 8th September, 1948, of the High Court of Judicature at Patna (Mahohar Lall and Mahabir Prasad JJ.) in C.A. Nos. 219 of 1946, and 40 and 39 of 1945, arising out of the Judgment ' and Decree dated the 29th January, 1946, and 16th September, 1944, of the Court of the Subordinate Judge, Motihari, in Original Suits Nos. 108, 109 and 110 of 1943.
C. K. Daphtary, Solicitor General for India (Rameshwar Nath, with him) for the appellant.
Ratan Lal Chowla (K. N. Aggarwal with him) for respondents Nos.
I and 2.
H. J. Umrigar for respondents Nos. 3 and 4. 1953.
October 5.
The Judgment of the Court was delivered by MUKHERJEA J.
Civil Appeal No. 53 of 1951.
This appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated the 8th of September, 1948, modifying those of the Additional Subordinate 179 Judge, Motihari, passed in Partition Suit No. 108/6 of 1943/46.
There were two money suits between the same parties which were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal.
Civil Appeals Nos.
54 and 55 of this court arise out of these appeals and we will deal with them separately.
So far as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title.
The plaintiff averred that he was entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge.
The High Court held, on the other band, that the plaintiff 's title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition.
It is the propriety of this decision that has been challenged before us in this appeal.
To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts.
The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors.
Defendant No. 1, Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932.
Panchanan instituted a suit in the Court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the Court of the Subordinate Judge at Motihari.
In course of these proceedings, the right, title and interest of the judgment debtor in the properties in suit, which was described as amounting to 4 annas share in the same, was put up to sale and purchased by the decreeholder himself on 7th of September, 1932.
The purchaser got delivery of possession on January 25, 1935.
It is 180 admitted that at the time of the sale, Bhubneshwar along with his grand father Bishun Prakash, his father Lachmi Prasad and his two sons who are defendants 2 and 3 in the suit, constituted an undivided Hindu family, of which apparently his grand father was the karta; and it is not disputed that if a partition had taken place at that time, Bhubneshwar Prasad along with his sons would have got 4 annas share in the joint ancestral property.
Panchanan sold the interest purchased by him at the execution sale to the plaintiff by a conveyance dated the 1st of February, 1935, and it is on the strength of this conveyance that the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties.
Bhubneshwar and his three son&, to wit, defendants 2, 3 and 4, are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties.
The defendants 5, 6 and 7 were impleaded as parties defendants on the allegation that they held different portions of the joint properties as zarpeshgidars under the 12 annas proprietors.
The suit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that as the money suit was instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided interest in the joint family properties and not that of his sons passed by the sale.
Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone the plaintiff could legitimately lay a claim.
This contention was repelled by the Subordinate Judge who took the view that as the debt contracted by Bhubneshwar was not for immoral purposes, it was open to his creditor to realise his dues not merely from the father 's undivided coparcenary interest in the ancestral property but from the entire interest of the father and the sons in the same.
The execution proceedings showed that the creditor intended to attach and sell the interest of the sons as well and unless, 181 therefore, the sons succeeded in showing that the debts were such which they were not obliged to pay under the rules of Hindu law, the fact that they were not made parties to the proceedings was altogether immaterial.
The result was that the trial judge allowed the plaintiff 's claim in its entirety and passed a preliminary decree declaring the plaintiff 's one fourth share in the schedule properties.
The defendant No. 1 thereupon took an appeal to the High Court.
The learned Judges of the High Court, who heard the appeal, were of the opinion that the decision of the trial court would have been unassailable if the defendant No. I was the head of a joint family consisting of himself and his sons.
In such cases he could have represented the interests of his sons and the entire interest could have been sold in the execution sale.
But as in this case the plaintiff himself was a junior member of the family, he had neither any right of disposition over the interests of his sons, nor could he represent them in any suit or proceeding.
What the purchaser acquired by the execution sale was not any interest in a specified portion of the joint property, but the right of the judgment debtor to have his share defined and allotted by partition, and in this claim for general partition the question of the pious obligation of the sons to pay their father 's debts would not at all arise.
It was held, therefore, that the plaintiff was legally entitled to 1 anna 4 pies share in the joint properties which the father himself could claim on partition at the date of the sale.
The sole point for our consideration is, whether the view taken by the learned Judges is right ? For a proper determination of this point, it would be necessary to consider first of all whether the sons of defendant No. 1 were legally liable to pay the decretal debt due by their father and could this liability be enforced by attachment and sale of their undivided coparcenary interest in the joint family property along with that of their father ? If the liability did not exist, no other question would arise; but if it did exist, a question of procedure would still have to be considered as to whether the sons ' interest in the coparcenary 25 182 could be attached and sold without making the sons parties to the suit and the execution proceedings.
So far as the first point is concerned, the question whether the sons of defendant No. 1 were liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality.
This doctrine, as is well known, has its origin in the conception of Smriti writers who regard non payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after world.
It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father 's debts.
The doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions.
Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same.
The obligation exists whether the sons are major or minor or whether the father is alive or dead.
If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts.
We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member.
No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions.
Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted the debts.
The 183 authority of the manager is based upon the principle Of agency or implied authority which has been formulated in a text quoted by Mitakshara.
"Even a single individual," thus runs the text, "may make a donation, mortgage or sale of immovable property during a season of distress, for the sake of the family and especially for religious purposes"(1).
Such family debt, however, stands on quite a different footing from a personal debt contracted by the father which does not benefit the family.
The liability of his sons to pay such debt does not rest on the principle indicated above, according to which the junior members of a family are made to pay the family debts.
It is a special liability created on purely religious grounds and can be enforced only against the sons of the father and no other coparcener.
The liability, therefore, has its basis entirely on the relationship between the father and the son.
There is no authority to show that it is in any way dependent upon the constitution of the family either at the time when the debt was contracted or when the obligation is sought to be enforced.
On the other hand, the subject of debts has been dealt with by the author of Mitakshara quite separately and it has apparently no connection with the provisions made by the author relating to inheritance and constitution of the family.
The learned Judges of the High Court laid great stress on the fact that the defendant No. 1 in the present case was a junior member and not the karta of the family and consequently had no rights of disposal over his own interest or the interest of his sons in the joint property.
The idea seems to be that if the father was incompetent to alienate the coparcenary rights of his sons for satisfaction of his own debts, the creditor of the father could not claim to occupy a better position.
This way of approach does not seem to us to be correct.
It cannot be laid down as a pro position of law that the creditor 's power of proceeding against the son 's share in the joint estate for recovery of the debt due by the father is co extensive with the father 's power of disposal over such interest.
As has (1) Mitak.
L, 28, 184 been observed by this court in the case of Pannalal and Another vs Mst.
Naraini(1) "the father is power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation.
" If the creditor 's rights are deemed to be based exclusively upon the father 's power of disposition over the son 's interest, such rights must necessarily come to an end as soon as the father dies, or there is a partition between him and his sons.
It is settled law that even after partition the sons could be made liable for the pre partition debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated shares of the sons.
It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally, to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition.
A personal decree obtained against the sons could certainly be executed against them by attachment and sale of their undivided interest.
The position, in our opinion, cannot be different if they are under a legal liability to discharge the decretal debt due by their father; and this liability must be capable of being enforced in the same manner as a personal decree against them.
Whether this could be done only by making the sons parties to the sale or execution proceeding, is another matter to which we would advert presently; but so far as the legal liability of the sons is concerned, as the debts incurred by the father have not been shown to be immoral or irreligious, it must be hold that tinder (2) ; at 556, 185 the rule of Hindu law mentioned above, there is a legal liability on the part of the sons to discharge these debts and the creditor can enforce this liability by attachment and sale of the sons ' interest in the same manner as if it was a personal debt due by them.
The fact that the father was not the karta or manager of the joint family or that the family did consist of other coparceners besides the father and sons, does not affect the liability of the sons in any way.
This view has been taken in quite a number of cases(1) by the Allahabad as well as the Madras High Courts, and in our opinion it is quite a sound view to take.
Holding, as we do, that the sons were liable in this case to discharge the decretal debt due by their father, the further question arises as to how this liability could be enforced ? Could the interest of the sons in the joint property be attached and sold without making the sons parties to the suit and the execution proceedings? The point does not seem to us to present much difficulty.
Strictly speaking, the sons could not be said to be necessary parties to the money suit which was instituted by the creditor against the father on the basis of a promissory note.
If a decree was passed against the father and the sons jointly, the latter would have been personally liable for the debt and the decree could have been executed against their separate or personal property as well.
No doubt the sons could have been made parties to the suit in order that the question of their liability for the debts of their father might be decided in their presence.
Be that as it may, the money decree passed against the father certainly created a debt payable by him.
If the debt was not tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons ' coparcenary interest in the joint property on the principles discussed above.
As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin vs Modun Mohun(2) may (1) Vide Lalta Prashad v, Gazadhar, 55 All. 28; Chhotey Lal vs Ganpat 57 All.176; Vivayya vs Parthasarathi, (2) 13 I.A. 1.
Also see Bhagbut Pershad vs Mst.
Girja Kour, 15 I.A. 99.Minakshi Naidu vs Immudi, 16 I. A. 1 ; Mahabir Prashad vs Marktunda, 17 1, A. 11 ; Sripat v, Tagore, 44 I. A. 1.
186 be taken as a type, the creditor has an option in such cases.
He can, if he likes, proceed against the father 's interest alone but he can, if he so chooses, put up to sale the sons ' interest also and it is a question of fact, to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution.
In the present case it has been found as a fact by the trial judge and this finding has not been reversed in appeal that the executing court intended to sell and did sell a four annas share in the joint property which included the undivided interest of the sons of defendant No. 1.
According to the view taken by the Privy Council in Nanomi Babuasin 's case(1), all that the son can claim in such cases is that not being made party to the sale or execution proceeding, he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him or to which he might be made a party.
He could raise the point either by way of objection in the execution proceeding itself or he could himself file a suit for a declaration that the debt was not binding on him.
He could also raise it by way of defence when the auction purchaser seeks to have his rights defined and demarcated in a partition suit.
In the case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them.
Unfor tunately, however, they did not choose to avail themselves of this opportunity.
Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all.
A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised.
But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it.
They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindu law.
It may be further noted that although the trial court 's decision was against the sons, they did not choose to challenge the decree by way of an appeal.
The appeal was filed only by their (1) 13 I.A. 187 father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category of appellants.
The learned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasin 's case(1) or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding.
But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well.
This does not seem to us to be a sound view to take.
It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle.
If the difference is sought to be made on the basis of the father 's capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself.
Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis a vis his sons his position would not improve in any way by his being a karta of the family.
It has been observed in a Madras case(1) and we think rightly that so long as the family remains joint, all the members of a branch or a sub branch of the family can form a distinct and separate corporate unit within the larger unit.
Of such a smaller unit consisting of the father and his sons, the father would undoubtedly be the head and legal representative, although he is not the head of the larger unit.
In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on (1) 13 I.A 1.
(2) Vide Sudarsaram vs Narasimhulu, I.L.R. 25 Mad.
149, 155, 188 the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time.
The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored.
The plaintiff will have costs of this court as well as of the court below.
Civil Appeals Nos. 54 and 55 of 1951.
Coming now to the money appeals, the point for consideration is a short one.
The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share.
The High Court has held that this claim of the plaintiff must fail.
All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property.
He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase.
He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.
In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase.
The result is that these appeals are dismissed with costs.
Appeal No. 53 allowed.
Appeals Nos. 54 and 55 dismissed.

dataset_name: IN-Abs

summary/full:
A person who has obtained a decree against a member of a joint Hindu family for a debt due to him is entitled to attach and sell the interest of his debtor in the joint family property, and, if the debt was not immoral or illegal, the interest of the judgment debtor 's sons also in the joint family property would pass to the purchaser by such sale even though the judgment debtor was not the karta of the family and the family did not consist of the father and the sons only when the decree was obtained against the father and the properties were sold.
It is not necessary that the sons should be made parties to the suit or the execution proceedings.
Lalta Prashad vs Gazadhar (I. L.R. 55 All. 28), Chhoteylal vs Ganpat (I.L.R. 57 All. 176) and Virayya vs Parthasarathi (I.L.R. approved.
178 The rule laid down by the Privy Council in Nanomi Babuasin 's Case is not restricted in its application to cases where the father was the head of the family and in that capacity could represent his sons in the suit or execution proceedings, for, subject to the right of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the Hindu law, the father, even if he was not the karta could represent his sons as effectively in the sale or execution proceedings as be could do if he was the karta himself.
A person who has purchased the interest of a member of a joint Hindu family in execution of a decree against him is not entitled to institute a suit against the other coparceners for recovery of a share of the income of the joint family properties from the date of his purchase.
He can work out his rights only by a suit for partition and his right to possession would commence only from the period when a specific allotment is made in his favour.


judgement:
ivil Appeal No. 269 of 1962.
Appeal by special leave from the judgment and decree dated October 5, 1959 of the Bombay High Court in First Appeal No. 712 of 1955.
212 section G. Patwardhan and B.R.G.K. Achar, for the appellant.
G. section Pathak and Naunit Lal, for the respondents.
The Judgment of the Court was delivered by Gajendragadkar C. J.
What is the scope and effect of the provisions contained in section 65 read with section 83 of the Bombay Tenancy and Agricultural Lands Act, 1948 (No. 67 of 1948) (hereinafter called the Act), that is the short question which arises for our decision in this appeal.
The four respondents are the owner of certain agricultural lands in Deokhope in Taluka Palghar in Maharashtra.
On the 23rd June, 1951, a notice was served by the appellant, State of Bombay (now Maharashtra), inviting the attention of the respondents to the fact that the agricultural lands of which they were the owners had remained fallow since 1948 49, and intimating to them that the appellant State would resume management of the said lands under section 65 of the Act unless the respondents took steps to bring them under cultivation in the following agricultural season.
The respondents were told that in case they wanted to bring the said lands into cultivation, they should send intimation of their intention to do so within 15 days from the date of the receipt of the notice.
It appears that later, an enquiry was made under the orders of the Dy.
Collector as a result of which on the 30th December, 1951, he passed an order under section 65 directing that the lands should be resumed by the Government for cultivation.
Thereafter, representations were made by the respondents to the Dy.
Collector as a result of which about 8 acres and 30 ghunthas of land were released on the ground that the owners had taken steps to cultivate that portion of the lands in pursuance of the direction given to them by the earlier notice.
The order passed 'by the Dy.
Collector in respect of other lands remained unaffected.
Thereafter, respondent No. 1 approached the Collector by his application dated 24th March, 1952.
This application was, however, rejected.
The respondents then moved the Revenue Department, but that effort also failed.
That is why the present suit was filed by them on the 23rd December, 1953 for a declaration that the order passed by the Dy.
Collector on the 30th December, 1951 was illegal and void, and that it could not dispossess them of the lands which belonged to them.
As a consequence of the declaration thus claimed by them, the respondents, asked for a decree for possession and mesne profits against the appellant.
The appellant disputed the respondents ' claim.
It urged that the suit as framed was barred under section 63 (I ) and section 85 of 213 the Act.
On the merits, the appellant challenged the correctness of the allegations made by the respondents.
It was averred by the appellant that the requisite enquiry had been duly and properly made and the impunged order was passed in accordance with the relevant provisions of the Act.
According to the appellant, civil court has no jurisdiction to consider the propriety or reasonableness of the conclusion reached by the Dy.
Collector before he passed the impunged order.
The learned trial Judge who framed appropriate issues on these pleadings, in the main upheld the contentions raised by the appellant.
In his opinion, the present suit was barred by sections 65 (1) and 85 of the Act.
He also held that the declaration made by the Dy.
Collector was not null and void.
The plea raised by the respondents against the validity of the statutory provisions contained in sections 65 & 66 of the Act was rejected by him, because he thought that the said sections did not contravene the provisions of Articles 19 and 31 of the Constitution.
The learned Judge also found that the grievance made by the respondents against the propriety or reasonableness of the enquiry made prior to the passing of the impunged order was not justified.
In the result, the respondent 's suit was dismissed.
The respondents then carried the matter before the High Court by an appeal, and on their behalf three contentions were raised before the High Court.
It was first argued that the lands in respect of which the impunged declaration was made were not lands as defined by the Act, and so, the relevant provisions of the Act were inapplicable.
It was then urged that before the Government could exercise its powers under section 65 of the Act, a duty was cast on it to be satisfied that the lands had remained uncultivated for a period of two years before their management was assumed; and this condition had not been satisfied, because delegation by the State Government to subordinate officers of its duty to satisfy itself, or its power to make the declaration, was not justified in law.
It was also contended that since the satisfaction had to be by the authority who was competent to make the declaration, he could not delegate any part of his function and duty in that behalf and the said authority had to hold the enquiry himself.
The High Court has upheld the second of these contentions.
It has found that on a fair and reasonable construction of section 65(1) read with section 83, the appellant could delegate its powers prescribed by section 65(1), but could not delegate its duty incidental to the exercise of the said power.
That is why the decree passed 214 by the trial Court has been reversed on this ground and the respondents ' suit 'has been decreed.
Consistently with this decision, an appropriate order has been passed in regard to the delivery of possession and the payment of mesne profits as claimed by the respondents.
It is against this decree that the appellant has come to this Court by special leave; and the only point which is raised on its behalf by Mr. Patwardhan is that the view taken by the High Court in regard to the scope and effect of the provisions contained in section 65(1) read with section 83 is not well founded.
Section 65(l) reads thus "If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such enquiry as it thinks fit, declare that the management of such land shall be assumed.
The declaration so made shall be conclusive.
" Along with this section, it is necessary to refer to section 83 which reads thus: "The State subject to such restrictions and conditions as it may impose, by notification in the Official Gazette, delegate to any of its officers not below the rank of an Assistant or Deputy Collector, all or any of the powers conferred on it by this Act." The High Court appears to have taken the view that though it was competent to the State Government to delegate its powers under section 65(l), it could not delegate its duty or obligation to make an enquiry as a result of which the declaration in question can be made.
The State Government, says the High Court, can exercise its authority to make a declaration and this authority or power can be delegated under 9. 83; but before such authority or power can be exercised, there is an obligation imposed on the State Government to make an enquiry as to whether the agricultural land in question has remained uncultivated or fallow for the period prescribed by the statute, and the obligation or duty to hold such an enquiry which is distinct and separate from the power or authority to make a declaration consequent upon the enquiry, cannot be 215 delegated under section 83.
It is common ground that the enquiry was not made by the State Government and if the view taken by the High Court is right that the obligation or duty to hold the enquiry cannot be delegated, then the impugned declaration would be open to attack because it had not been preceded by a proper enquiry.
Mr. Patwardhan contends that the view taken by the High Court is plainly erroneous and we are satisfied that this contention is well founded.
Section 83 in terms authorises delegation by the State Government to any of its officers of the specified status and the delegation can be in respect of all or any of the powers conferred on the State Government by the provisions of the Act.
Now, it seems to us that the authority to delegate all or any of the powers which is expressly conferred on the State Government by section 83 would be rendered almost meaningless if the duty to hold an enquiry as a condition precedent for the exercise of the said authority cannot be delegated.
In the context, the power which can be delegated is inseparable from the enquiry which must precede the exercise of the power, and so, in order to make section 83 effective it is necessary to hold that the delegation of the power authorised by the said section must necessarily involve the delegation of the discharge of obligations or functions which are necessary for the exercise of the said power.
If the view taken by the High Court is right it would mean that whereas the State Government can authorise any of the officers belonging to the specified class to exercise its powers under section 65(l), it must hold the preliminary enquiry itself without delegating the authority to ' hold such an enquiry to any officer.
It is hardly necessary to emphasise that this position is so plainly illogical that it would be unreasonable to recognise the validity of the authority to confer powers while insisting that the conditions precedent for the exercise of the powers are of such a separate and distinct character that in order to satisfy the said conditions, the required enquiry must be held not by any delegate of the State Government but by the State Government itself.
In coming to the conclusion that the duty, as distinct from the power, cannot be delegated, the High Court was apparently influenced by the fact that there would be no appeal against the enquiry and the conclusion reached at such an enquiry.
We do not propose to express any opinion on this part of the reasoning adopted by the High Court; that will depend upon the construction of section 86 of the Act.
But whatever may be the position in respect of the competence of an appeal, we are satisfied that on 216 a fair and reasonable construction of section 83 it must be held to authorise the delegation not only of the powers mentioned by it, but also of duties or functions which are incidental to the ,exercise of the powers and are integrally connected with them.
In this connection, we may usefully refer to the decision of the Privy Council in Edward Liso Mungoni vs Attorney General of Northern Rhodesia(1).
In that case, in dealing with a similar question under regulation 16(1) of the Emergency Powers Regulations, 1956 of Northern Rhodesia, made by the Acting Governor of Northern Rhodesia under his statutory powers, the Privy Council has held that the power and the duty under reg.
16(1) were so interwoven that it was not possible to split the one from the other so as to put the duty on one person and the power in another; the regulation contained not so much a duty, but rather a power coupled with a duty, and he who exercised the power bad to carry out the duty.
In the result, the Privy Council took the view that in delegating his functions under reg. 16(41) the Governor could delegate both the power and duty together to ,one and the same person he could not delegate the power to another and keep the duty to himself.
It is not difficult to realise what anomalous consequences would follow if it is held that the power can be delegated, but not the duty to hold the incidental enquiry which alone can lead to the exercise of the power.
In substance, the view taken by the High Court would make the authority to delegate the power wholly meaningless.
In fairness, we ought to add that Mr. Pathak who appeared for the respondents did not seek to support this part of the High Court 's decision.
It appears that a result of the decision of the High Court in the present case, the Maharashtra Legislature thought it prudent to make the necessary amendment in section 83 of the Act.
Section 29(a) of the Amending Act provides that for the words "powers conferred the words "Powers conferred or duties impose& ' shall be and shall be deemed to have been substituted ,on the 31st day of October, 1949; and accordingly, the delegation or the purported delegation by the State Government under section 83 of any duty imposed shall (notwithstanding the judgment, decree or order of any Court) be deemed always to have been valid, and the discharge of any such duty by any officer shall for all purposes be valid and effective and shall not be called in question in any Court on the ground only that the State Government had no power to delegate the duty; and clause (b) provide that (1) 217 to the marginal note the words "and duties" shall be added.
It is not surprising that in view of the serious consequences which would have inevitably followed if the judgment under appeal had remained unchanged, the legislature thought it necessary to make a suitable amendment in order to avoid any interruption in the peaceful and smooth working of the,, relevant provisions of the Act.
Realising the infirmity in the view taken by the High Court, Mr. Pathak attempted to support the decision of the High Court on another ground.
He argued that since the enquiry was made by the Talathi and the Mamlatdar under section 65 and not by the Dy.
Collector, the declaration made by the Dy.
Collector was invalid.
In other words, the argument is that the State Government may have validly delegated its powers under section 65(l) to the Dy.
Collector, but the Dy.
Collector who is a delegate of the State Government cannot, in turn, delegate a part of his power or authority to a subordinate of his own, and that is what he has done in the present case.
This argument proceeds on the basis that in exercising his powers under section 65 ( 1 ), the Dy.
Collector must himself hold the enquiry and cannot delegate the function of holding such an enquiry to any other subordinate revenue officer.
There is no doubt that a delegate who has received the authority from the principal cannot, in turn, delegate his own authority to a delegate of his own, but there is hardly any question of delegation by a delegate in the present case.
All that section 65(l) requires is that the State Government and therefore its delegate may after making such enquiry as it think,; fit, declare that the management of the land shall be resumed.
In other words, in what form the enquiry should be held is a matter left entirely in the discretion of the State Government or its delegate.
All that the Dy.
Collector has done in the present case is to direct his subordinate officers to collect material relevant to the purpose of the enquiry.
The Talathi went on the spot and ascertained as to whether the respondents ' lands were lying fallow for the requisite period.
He submitted his report to the Mamlatdar.
The Mamlatdar in turn made his report to the Dy.
Collector.
In other words, all that the Dy.
Collector has done is to collect the relevant material, so that he can enquire into the question as to whether the lands are lying fallow or not.
This procedure does not, in our opinion, involve the question of any delegation at all.
The form of the enquiry and its mode are entirely in the discretion of the Dy. Collector.
Section 65(l) does not require that the Dy.
Collector must himself go to the agricultural fields and enquire on the spot whether they are lying fallow.
He may, if 218 he so desires, record evidence himself, or the recording of the evidence and the actual inspection on the spot can be left to some subordinate officer.
The report of such local inspection and the record of the evidence collected in that behalf would be forwarded to the Dy.
Collector, and that would be the material on which he would hold the enquiry himself.
The enquiry is thus hold by the Dy.
Collector, though the mechanical work of collecting material has been entrusted to a subordinate revenue officer.
In such a case, we do not see how the principle that a delegate cannot delegate comes into operation.
In support of his argument, Mr. Pathak has relied on a decision of the Kings Bench Division in Allingham and anr.
vs Minister of Agriculture and Fisheries(1).
In that case, the Court held that on the principle of delegatus non potest delegare, the Committee exercising its powers under reg.
62(1) could not delegate its powers to determine the land to be cultivated to its officers and, therefore, the notice issued in that behalf was ineffective and noncompliance with it was not an offence.
It, however, appears that the War Agricultural Committee for the County did appoint the Biggleswade district Committee as a sub committee to Act under the instructions of the executive committee and to make recommendations to the executive committee.
Apparently, they made some recommendations to the executive officer and the executive officer accordingly made the order.
On these facts, Lord Goddard, C.J., observed that he could find nothing in the regulations or the statute which enabled the executive officer to make the order.
The appellants had contended before the Court that they were entitled to have the decision of the executive committee and no one else on the matter, and this contention was upheld on the facts of that case.
We do not see how this case can assist Mr. Pathak 's argument in the appeal before us, because there has been no delegation to hold an enquiry as such.
What the Dy.
Collector has done in the present proceedings is not to delegate his authority to hold an enquiry, but to get the material necessary for the enquiry collected by his subordinate officers.
After the material was thus collected, he examined the material himself, held the enquiry and came to conclusion that the lands had remained fallow and uncultivated for the requisite period.
We are, therefore, satisfied that the English decision on which Mr. Pathak relies does not assist him in the present case.
This contention appears to have been raised before the High (1) 219 Court and has been rejected by it and, we think, rightly.
In fact, in Nathubhai Gandabhai Desai vs The State of Bombay and Ors.(1), a similar contention was raised before the High Court and had been rejected by it.
In that case, the High Court has field that inasmuch as the Legislature has left it entirely to the discretion of the State Government or the delegated authority to hold such enquiry as it thinks proper, if an enquiry Is held the Court cannot consider as to whether the enquiry was a proper one or whether a better enquiry would not have yielded better results.
This view has been consistently followed in the Bombay High Court and we see no reason to doubt its correctness.
In the result, the appeal succeeds, the decree passed by the High Court is set aside and that of the trial Court restored.
There would be no order as to costs throughout.
Appeal allowed.

summary/full:
A notice was served by the appellant State inviting the attention of the respondents to the fact that the agricultural lands of which they were the owners had remained fallow, and intimating to them that the appellant would resume management of the said lands under section 65 of the Bombay Tenancy and Agricultural Laws Act unless the respondents took steps to bring them under cultivation in the following agricultural season.
It appears that later, an enquiry was made under the orders of the Deputy Collector as a result of which he passed an order under section 65 directing that the lands should be resumed by the State for cultivation.
Having failed in their efforts to get the order of the Deputy Collector altered, the respondents filed a suit for a declaration that the order passed by the Deputy Collector was illegal and void and that it could not dispossess them of the lands which belonged to them. 'Me suit was dismissed.
The respondents appealed to the High Court and it found that on a fair and reasonable construction of section 65(l) read with section 83, the appellant could delegate its powers prescribed by section 65(l), but could not delegate its duty incidental to the exercise of the said power, and as it reversed the decree passed by the trial Court.
On appeal by special leave : HELD : (i) Section 83 authorises the delegation not only of the powers mentioned by it, but also the duties or functions which are incidental to the existence of the powers and are integrally connected with them [216 A B] Edward Liso Mungoni V. Attorney General of Northern Rhodesia, , referred to.
(ii) Section 65(l) does not require that the Deputy Collector mini himself go to the agricultural fields and enquire on the spot whether they were lying fallow.
He may, if he so desires, record evidence himself, or the recording of the evidence and the actual inspection on the spot can be left to some subordinate officer.
The report of such local inspection and the record of the evidence collected in that behalf would be forwarded to the Deputy Collector, and that would be the material oil which he would hold the enquiry himself.
This procedure does not involve any delegation at all.
[217 H; 218 B; 217 G H].
Allingham V. Minister of Agriculture and Fisheries, [1948] 1 AB.
E.R. 780, distinguished.
Nathubhai Gandabhai Desai V. State of Bombay & Ors.
I.L.R. , referred to.