judgement:
Appeal No. 1 of 1962.
Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.) T. section Venkataraman and V. A. Seyid Muhammad, for the appellant.
A. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharm and K. P. Gupta for respondent No. 1. 1963.
May 8.
The judgment of the Court was delivered by HIDAYATULLAH J.
This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957.
The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an Otti created by one Bhagavathi Parameswaran in favour of 638 one Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams.
Subsequently, Krishnan Marthandan created some chittoti.
Bhagavathi Parameshwaran made a gift of the property to his wife Bhagavathi Vailiyamma on 9.3.1103 M.E., by Exh.
Bhagavathi Valli died on 4.11.1105 M.E. She had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi and had a son named Vasudevan.
Sivaraman, according to the plaintiff, left Travancore in 1096 M.E., and both sides have taken it for granted that he died thereafter.
Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the court.
The suit was valued at 3500 fanams (about Rs. 500/ ) which was the amount of the otti, and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession.
The suit was resisted by the first defendant (respondent No. 1).
Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter.
The first respondent admitted some of these facts.
He, however, averred that the document executed by Bhagavathi Parameshwaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh.
He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum, in O. section No. 36 of 1100 M.E., and that in an auction sale held on 3.4.1114 M. E., the jenmom rights were purchased by the decree holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale deed.
He claimed to have thus obtained the jenmom rights as also the otti rights.
639 The first respondent admitted that Sivaraman had left India in 1096 M.E., but denied the allegation that letters were received from him till II 00 M.E , or that till 1108 M E., some information was being received about him.
He asserted that right from 1096 M.E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M.E., or was not alive on 9.3 1103 M.E., the date of the gift to Bhagavathi Valli.
According to him, on Bhagavathi Valli 's death, her sister Narayani and Narayani 's daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights.
Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auctionsale in O.S. No. 36 of 1100 M.E., to the auctionpurchasers.
The first respondent, therefore.
submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand, as the auction purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenaksi, full title resulted to him.
The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the ' Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition.
One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law.
, The two courts below decreed the suit.
The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367/13/4.
An appeal was filed by the present first respondent, and the other side cross objected.
The appeal and the crossobjection were dismissed.
On further appeal by the 640 first defendant, the High Court reversed the decision of the two courts below, holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour, and was not entitled to redeem the property.
The plaintiff has now appealed to this Court on a certificate by the High Court.
A preliminary objection has been raised about the competency of the certificate granted by the High Court.
It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled.
Alternatively it is contended that if the valuation was more than Rs. 10,000, the trial court had no jurisdiction to try the suit.
The present appeal is against the judgment of the High Court which reversed the decision of the court below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie.
An appeal must satisfy two tests of valuation.
The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark.
There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark.
Such cases are also appealable.
Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal.
A plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation.
But in those cases in which the plaint is not required to be valued in 641 this way, a question may arise as to the proper value of the claim both in the court of first instance and on appeal to this Court.
The word 'indirectly ' in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint.
In this case, the High Court found the value to be Rs. 42,000 and Rs. 80,000 at the two material times.
It is obvious that the plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption.
He was not, therefore, concluded by the valuation given in the plaint.
He had asked for possession of the property after redemption, and that property as the High Court hag found, is well above the mark in value.
The certificate was, therefore, properly granted.
The attack on the jurisdiction of the court of first instance must also fail.
The suit as valued was properly laid in the court of first instance, and in any case, such an objection cannot be entertained now.
The preliminary objection is, therefore, rejected.
The main question in this appeal is whether Meenakshi and Vesudevan had any title to the property and whether they could transmit any title to the appellant.
This depends on whether the Ezhava Act applies or the ordinary Marumakkatha yam law.
The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line.
It is conceded that if the Marumakkathayam law is applicable, Meenakshi and Vasudevan, who were the daughter in law and son 's son of Bhagavathi Valli, were not heirs to her.
The Ezbava Act was passed to define and amend, among others, the law of succession and partition among the Ezhavas.
In its application, it excluded Ezhavas domiciled in Travancore, who were following Makkathayam.
By section 2 of the Ezhava 642 Act, the Act could be extended to Ezhavas who followed Makkathayam.
No question has been raised before us that it was not so extended and the arguments proceeded on the assumption that it was, indeed, the answering respondent claimed that Bhagavathi Valli had opted out of part IV under section 32 of the Act, and this could only be if the Act was applicable to her.
The appellant contended.
as we shall show presently, that Bhagavathi Valli was governed by the Ezhava Act. 'Makkathayam ' means gift by the father.
In the Ezhava Act, Makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest.
The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of makkathayam property.
The first question, therefore, raised by Dr. Seyid Muhammed, counsel for the appellant, is that though the gift was to Bhagavathi Valli co nomine, it operated, under the law applying to makkathayam property, to confer equal benefits upon Bhagavathi Valli and her issue howlow so ever.
Reference in this connection is made to section 32 of the Act which makes a special provision for the partition of makkathayam property and provides: "32.
Makkathyam property divisible among wife and children equally.
Except where a contrary intention is expressed in the instrument of gift or bequest, if any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares : Provided that, in the partition of makkathayam property, the issue how low so ever of a 643 deceased child shall be entitled to only such share as the child itself, if alive would have taken.
" According to the answering respondent, the settlement deed, Exh.
III, gave the suit property exclusively to Valliyamma and some other property to the grandson Vasudevan and thereby evinced an intention contrary to the operation of section 32.
Dr. Seyid Muhammed submits that the ordinary rule of law was that the property was impartable and was always shared by a female of a marumakkathyam tarwad with her thavazhee, and cited a passage from M.P. Joseph 's book on the Principles of Marumakkthayam Law (1926), pp. 52,53, in support of this contention.
He also refers to the observations of a Division Bench in Narayanen Narayanen v, Parwathi Nangali (1), where it was held that a gift by the rather (known as makkathayam) to his wife was ordinarily intended to benefit the wife and the children of the donor and though the property was usually registered and acquired in the name of the mother, it was always held in common by them.
He contends that section 32 made a departure and imposed partibility on the makkathayam property and the only intention that must appear must be in favour of impartibility, and such an intention cannot be spelled out of Exh.
Section 32 makes the makkathayam property divisible among wife and children equally.
The provision is in part VII which deals with partition.
It is not possible to say that by the contrary intention only impartibility could be imposed.
There is nothing to show that impartibility was the rule in respect of makkathayam property.
The two passages only show that ordinarily the benefit went to the thavazhee as a whole.
What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares would be equal (1) 644 unless a contrary intention was expressed.
The reading suggested by Dr. Seyid Muhammed cannot be accepted as the only reading.
If one goes by the document, Exh.
III, it is clear that there was such an intention implicit in it.
The donor gave some properties to his wife, and others to his grandson.
His son was then unheard of for years.
He thus divided his properties between his wife and grandson and the intention is manifest that each was to take exclusively.
Dr. Seyid Muhammed next contends that the property was either shared by Bhagavathi Valli with her son and son 's son as shown in the proviso to section 32, quoted above, or it belonged to her exclusively.
In either case, be contends Vasudevan would have an interest and could transmit it to the appellant.
He argues that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then, Vasudevan would have the right to redeem the otti as a person interested, and so would the present appellant, as a transferee from him.
Alternatively, if the property became that of Bhagavathi Valli alone, then, succession to that property would be governed by sections 18 and 19 of the Ezhava Act, read with Explanation II, which explanation governs the whole of part IV where sections 18 and 19 figure.
These sections and the explanation read : "18.
Devolution of self acquired or separate property of a female.
On the death of an Ezhava female, the whole of her self acquired or separate property left undisposed by her at her death shall develove on her own thavazhee.
If she dies leaving her surviving no members of her thavazhee but her husband and members of her mother 's thavazhee, one half of such property shall devolve on her husband and the other half on her mother 's thavazhee.
In the absence of the husband the mother 's thavazhee shall take the whole; and in the absence of the 645 mother 's thavazhee the husband shall take the whole." "19.
Devolution of such property in the absence of members of her or her mothers thavazhee or husband.
On the death of an Ezhava female, leaving her surviving neither members of her thavazhee nor other members of her mother 's thavazhee nor husband but only the thavazhee of her grandmother or of her other more remote female ascendants, her self acquired or separate property left undisposed of by her at her death shall devolve on such thavazhee, the nearer excluding the more remote.
" x x x x " 'Explanation II.
The expression 'children ' in the case of an intestate male and the expression 'thavazhee ' in the case of an intestate female shall, for the purpose of Part IV of this Act, include the issue of such intestate male or female how low so ever.
" From the explanation, it would appear that the expression 'thavazhee ' in the case of an intestate female includes her issue how low so ever, and the word 'issue ' indicates both males and females.
Reading this expression in connection with section 18, Dr. Seyid Muhammed contends that on the death of Bhagavathi Valli, the whole of her separate property left undisposed of by her at her death, devolved on her own thavazhee, that is to say, her issue how lowso ever.
In this connection, a question of great nicety was also argued before us as to whether Sivaraman could be said to have survived Bhagavathi Valli or to have died earlier.
In the absence of evidence, we need not embark upon an inquiry by the light of presumptions as to when Sivaraman can be said 646 to have died.
In the document executed in favour of the answering respondent, Exh.
R, dated 1 7 1121 M.E., it is quite clearly stated by the predecessors in title of the answering respondent that Sivaraman was then dead.
This constitutes an admission which.
has neither been withdrawn nor shown to be incorrect, and is thus binding upon the answering respondent.
It follows that whether Sivaraman survived Bhagavathi Valli or died before her, Vasudevan succeeded, as an 'issue ' within the expression 'how low so ever ' of the Explanation, at least to a fractional interest in the property.
He would thus be in a position to transfer that interest to the appellant, and the appellant would be a 'person interested ' for the purpose of redeeming the otti.
But this can only be if 'lie provisions regarding succession under the Ezhava Act were applicable to Valli.
Though in the pleadings, there is no mention that Bhagavathi Valli, had secured an exemption from the Ezhava Act, parties appeared to have joined issue on this subject.
The answering respondent filed in the Court a copy of a Gazette notification which, so it was claimed, mentioned Bhagavathi Valli 's name among the persons who were granted exemption from part IV of the Ezhava Act.
Section 33, under which such an exemption from the Act could be claimed, reads : "33.
(1) On an application made within six months from the commencement of this ' Act (i) by an individual member of an Ezhava tarwad with reference to the provisions of part IV, x x x x the Government may, after making such enquiry as may be necessary and on being 647 satisfied as to the truth of the application, exempt by a notification in the Government Gazette such individual member. .from the operation of the said provisions of this Act.
" The plaintiff was cross examined about the address of Bhagavathi Valli to prove that it was the same as shown in the notification.
Evidence was also led by the answering respondent to show that Bhagavathi Valli had applied for exemption and obtained it.
The appellant did not lead any evidence to show the contrary.
It is contended before us that the notification or the deposition of the aforesaid witness cannot be looked into when there is no proper plea or issue about the exemption.
It is contended that the plaintiff was taken by surprise when the High Court considered this point, as he did not get sufficient opportunity to rebut it, which he would have done if it had been pleaded and an issue had been framed.
In our opinion, the parties understood that the only issue in the case was the application to Bhagavathi Valli of the rules of succession contained in part IV of the Ezhava Act.
The appellant was cross examind regarding Bhagavathi Valli 's address, and D.W.1, an advocate, gave evidence that Exh.
II was the notification, which showed the exemption obtained by Bhagavathi Valli.
The trial judge assumed that Bhagavathi Valli had been exempted from the provisions of part IV of the Ezhava Act, but he felt that did not affect the devolution of makkathayam property according to the provisions of section 32 of the Ezhava Act.
He was, therefore, of the opinion that after Bhagavathi Valli 's death, Bhagavathi Valli 's sister Narayani and Narayani 's daughter, Gouri, did not acquire any right in the property.
In the appeal court, the learned District Judge observed that in the notification there were more 648 than one Bhagavathi Valli, and therefore, it was impossible to say whether Bhagavathi Valli, the donee under Exh.
III, was at all mentioned in the notification.
We do not think that the plaintiff in the case was taken by surprise.
The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court.
The plaintiff was also cross examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross examined on this point.
The plaintiff did not seek the permission of the court to lead evidence on this point.
Nor did he object to the reception of this evidence.
Even before the District judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not.
The parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not.
The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision.
The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication: "The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act.
And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman." and the notification was filed to controvert his allegation.
In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below.
The High 649 Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act.
We shall now consider whether the finding on this part of the case given by the District judge or that given by the High Court is correct.
II is a notification issued in 1102 M.E.
It reads : "Whereas the undermentioned persons have applied to the Government, under Section 33 (1)(i) of the Travancore Ezhava Regulation, Act 3 of 1100 M.E, praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries.
The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M.E. Huzur, Trivandrum.
(By order) 8th January 1927 K. George Chief Secretary to Government." "section No. Full name of the person.
Address.
Bhagavathi Valli belong Thottuvarambu ing to the branch of Bha Bungalow, Kat gavathi Bhagavathi of akampalli Paku Pinarummoottu tarwad thi, Trivandrum Taluk. 171.
Bhagavathi Narayani of do Pinarummootu tarwad 172.
Narayani Gouri of do " Pinarummootu tarwad 650 section No. Full name of the person Address "183.
Narayanan Lakshmanan Vanchiyoor Pa of Pinarummototu kuthi, Trivand rum." "185.
Bhagavathi Valli of do Pinarummoottu 186.
Bhagavathi Narayani do It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli.
His witness, Mathan Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhaga vathi Valliamma and Bhagavathi Narayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayani 's daughter.
The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu, that Pinarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvurambu Veedu.
Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri.
These documents were of the years 1928 to 1938.
They are exhibits C, D, K,L,M, Q and R. He contends that in all these documents except one (Exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in Exh.
II and that Bhagavathi Valli at No, 170 was not this Bhagavatht Valli.
In Exh.
Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M.E. (1935), gave 651 her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi" and stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu.
It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi.
One of these addresses is given in Exh.
It would, therefore, follow that the address as given in Exh.11 does not show that this was some other Bhagavathi Valli.
Indeed the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous.
The name is correctly described.
It is also a fact that she belonged to the Bhagavathi Bhagavathi branch.
Further, she was of Pinarummoottu tarwad.
Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece.
Even the address is correct.
It is, therefore, quite clear that the High Court was right in holding that the identity had been established.
The observation of the learned District judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi valli mentioned at No. '185 may or may not be the same Bhagavathi Valli whose name is mentioned in conduction with one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi, Trivandrum.
In the other notification, under which exemption from part VII of the Act was notified, the 'branch of Bhagavathi Bhagavathi of Pinarummoottil tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivandrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vahchiyoor Pakuthi in Trivandrum.
This again proves that the tarwad had two houses which were occupied by different branches.
652 We are satisfied that the exemption under the Act has been duly proved in this case.
Since Bhagavathi Valli was not subject to part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vesudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri.
Of these Gouri Narayani joined in executing the document 'R ' in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee.
In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights.
The appeal, therefore, must fail and is dismissed with costs.
Appeal dismissed.

summary/full:
The property in the suit originally belonged to one Bhag avathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanams (about Rs. 500/ ).
Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli.
Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was mar ried to Parvathi Meenakshi and had a son named Vasudevan.
Sivaraman left Travancore in 1096 M.E.
Both sides are agreed that he died thereafter.
But there is no aggreement as to the date of his death.
&ad Vasudevan claiming 635 to be the heirs jointly sold the jenmom rights in 1123 M.E. to the present appellant.
The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1).
The defendant denied that Bhagawathi Valli ever got the jenmom right.
He claimed to have obtained both the jenmom right as well as other rights.
According to him on Bhagavathi Valli 's death her sister B. Narayani and Narayani 's daughter Gouri were heirs through whom he traced his title.
He further contended that even if Meenakshi and Vasudevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E.
For these reasons it was contended that the plaintiff had no title to sue.
It is admitted by both parties that the case is governed by the Travancore Ezhava Act, 1100.
The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property.
The plaintiff thereupon appealed to this Court on a certificate granted by the High Court.
A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court.
It was contended that since the suit was valued at 3500 fanams (Rs. 500/ ) this valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under article 133 of the Constitution the certificate was not competent.
It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdiction to try the suit.
It was contended on behalf of the appellant that the ordi nary rule of law was that property was impartable and that section, 32 of the Act made a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention ' contemplated in section 32 was an intention contrary to partibility and such an intention could not be spelled out from exhibit III the gift deed.
It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him.
Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of sections 18 636 and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under section 33.
It was further contended that since the question of exemption was not pleaded by the defendant (respondent) in his written statement and since no issue was framed the High Court ought not to have considered the notification put in by the respondent in his evidence purporting to prove that Bhagavathi Valli was exempted.
Finally it was urged that the notification does not in fact prove that she was so exempted since her identity is not established by the notification.
Held that for the certificate to be competent the appeal must satisfy two tests of valuation.
The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark.
There are however cases in which the decree or final order directly or indirectly involves some claims or question to or respecting property above the mark.
Such cases are also appealable.
The word indirectly ' in such cases coven the real value of the claims which is required to be determined quite apart from the valuation given in the plaint if the property was not required to be valued for the purposes of the suit on the market value.
In the present case the High Court found the value to be Rs. 42,000/ and Rs. 80,000/ at the material times.
The plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption.
He had asked for possession of the property after redemption and the property as the High Court has found is well above the mark in value.
The certificate is competent.
The suit as valued was properly laid in the court of first instance and in any case such an objection cannot be raised for the first time in this Court.
The working of section 32 does not justify the contention that by reason of the expression 'contrary intention ' only impartibility could be imposed.
What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares should be equal unless a contrary Intention was expressed.
The gift deed exhibit III in the present case shows that the properties given to the donees are to be taken by each exclusively.
Reading sections 18 and 19 it follows that whether Sivaraman survived Valli or died before her Vasudevan would succeed as an issue within the expression 'how low so ever ' of the Explanation to section 19 at least to a fractional interest in the property.
637 But this can only be if Bhagavathi Valli was not exempted from the operation of Part IV of the Act.
The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not.
The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision.
The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act".
The subject of exemption from Part TV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court.
The High Court was right in holding that the identity of Bhagavathi Valli had been established and that Bhagavathi Valli was exempted from the operation of the Ezhava Act (Part IV).
The present appellant.
is not entitled to redeem the otti having never enjoyed the jenmom rights.


judgement:
Civil Appeal Nos. 30 and 31 of 1963.
Appeals by special leave from the judgment and order dated August 31, 1962, of the Rajasthan High Court in D. B Civil Writ Petitions Nos. 376 and 377 of 1962. ' M. C. Setalvad, G. section Pathak, N. P. Nathwani, H. J. Thacker and G. C. Mathur for the appellant (in C.A. No. 30 of 1963).
G.S. Pathak, N. P. Nathwani, H. J. Thackar and G. C. Mathur, for the appellant (in C.A. No 31 of 1963).
section C. Agarwala, R. K. Garg, D. P. Singh and M. K. Ramamurthi, for respondent No. 2 (in C. A. No. 30 of 1963).
R.K. Garg, for respondent No. 2 (in C. A. No. 31 of 1963).
V.K. Krishna Menon and Janardan Sharma for the Intervener.
575 1963.
May 7.
The judgment of the Court was delivered by section K. DAS J.
These two appeals have been heard together as they raise some common questions of law and fact, and this judgment will govern them both.
The appellant before us, Murarka Radhey Shyam Ram Kumar was elected to the House of the People at the third general elections held in the month of February, 1962.
He was elected from a constituency known as the jhunjhunu Parliamentary Constituency in Rajasthan.
Two election petitions were filed for setting aside the election of the appellant.
One of these was filed by one Ridmal Singh who stated that he was an elector in the said constituency.
Another application was filed by one Balji who was also an elector in the said Parliamentary Constituency and whose nomination paper was rejected by the returning officer.
We are not concerned in the present appeals with the grounds on which the two election petitions, one by Ridmal Singh and numbered as 269 of 1962 and the other by Balji and numbered as 295 of 1962, were based, because the election petitions have not yet been tried on merits By two applications dated July 6, 1962, the appellant who was one of the respondents to the two election petitions raised certain preliminary objections to the maintainability of the two election petitions.
The Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962.
It dismissed the preliminary objections.
Thereupon the appellant filed two writ petitions in the High Court of Rajasthan by which he prayed that the orders of the Election Tribunal dated August 13, 1962, and certain consequential orders passed on August 14, 1962, be quashed and that an order or direction be issued to the Election Tribunal to dismiss the two election petitions on the main ground that they do 576 not comply with certain mandatory provisions of the Representation of the People Act, 1951, hereinafter referred to as the Act.
These two writ petitions were dismissed by the High Court by its order dated August 31, 1962.
The appellant then applied for special leave to this court and having obtained such leave, has preferred the present appeals.
We may now state briefly the grounds on which the appellant contends that the two election petitions were not maintainable and should have been dismissed by the Election Tribunal With regard to Election Petition No. 269 of 1962 the grounds urged before us on behalf of ' the appellant are three in number Firstly, it is contended that there was noncompliance with the mandatory provisions of section 82 of the Act.
We shall presently read that section.
The contention of the appellant is that Ballu or Balji whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as respondent No. 7 to the election petition, though section 82 requires that in cases where in addition to the relief o declaring the election of the returned candidate to be void, a further declaration is claimed that the petitioner himself or some other candidate has been duly elected, all the contesting candidates must be made parties to the election petition.
Ballu or Balji was not a contesting candidate and was therefore impleaded to the election petition in contravention of the provisions of section 82.
Secondly, it is urged that there was non compliance with the provisions of section 81 (3) of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission nor war, it properly attested to be a true copy under the signature of the petitioner who filed the election petition.
Thirdly, it is urged that there was non compliance with the provisions of section 83 of the Act inasmuch as the affidavit in respect of corrupt 577 practices which accompanied the election petition was neither properly made nor in the prescribed form.
With regard to Petition No. 295 of 1962 the grounds alleged are these Firstly, it is stated that at the time of its presentation to the Election Commission, the petition was not accompanied by true copies of the petition as required by section 81 (3) of the Act because there was a reference to four enclosures at the foot of the schedule of the original petition, but in the copy served on the appellant the enclosures were not reproduced.
Secondly it is urged that the election petition was not duly verified inasmuch as the date and place of verification were not stated at the foot of the verification clause Thirdly, it is urged that a copy of the treasury receipt showing the deposit of a sum of Rs. 2,000/ in favour of the Election Commission was not enclosed with the copy of the petition which was served on the appellant, nor was the copy of the order dated january 22, 1962, by which the returning officer rejected the nomination paper of the petitioner, signed or verified by the, petitioner.
We may here refer to some of the provisions of the Act (as they stood 'at the relevant time) which have a bearing on the preliminary objections urged before us Under section 79 (b) the expression "candidate" in parts VI, VII and VIII of the Act means, unless the context otherwise requires, a person who has been or claims to have been duly 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.
section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI.
section 81 states in effect that an election petition calling in question any election may be presented on one or 578 more of the grounds specified in sub section
(1) of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty five says from the date of election of the returned candidate Sub section
(3) of section 81 which sub section is important for our purpose, reads as follows : "Every election petition shall be accompanied by as many copies thereof as there are respon dents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." 82 states who shall be parties to the petition.
It leads : "A petitioner shall join as respondents to his petition (a)where the petitioner, in addition to clai ming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration, is claimed, all the returned candidates; and (b)any other candidate against whom alle gations of any corrupt practice are made in the petition." S.83 lays down what shall be the contents of the petition.
We are concerned in the present case,% with the provisos to sub section
(1) of section 83.
That proviso says, "Provided that where the petitioner alleges any corrupt practice, the petition shall also be 579 accompanied by an affidavit in the prescribed form in support of the allegation of such cor rupt practice and the particulars thereof " S.85 states that if the provisions of section 81 or section 82 or s.117 have not been complied with, the Election Commission shall dismiss the petition.
section 86 lays down that if the petition is not dismissed under section 85, the Election Commission shall cause a copy of the petition to be published in the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to an Election Tribunal for trial.
We may skip over sections 87, 88 and 89 which deal with matters with which we are not directly concerned.
We then come to section 90 which lays down the procedure to be followed before the Election Tribunal.
Sub section
(1) of section 90 says that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits.
Sub section
(3) of section 90states : ' 'The Tribunal shall dismiss an election peti tion which does not comply with the provisions of section 81, or section 82 notwithstanding that it has not been dismissed by the Election Commission under section 85.
Explanation An order of the Tribunal dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98.
" Sub s (4) of section 90 states that any candidate not already a respondent shall, upon application made to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of section 119, be entitled to be joined as a 580 respondent.
Sub section
(6) states that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within 6 months from the date of publication of the copy of the petition in the Official Gazette under subs.
(1) of section 86.
Let us now examine the preliminary objections which have been urged before us on behalf of the appellant, in the light of the provisions to which we have just now referred.
We take first the objection based on the joinder of Ballu or Balji to Election petition No. 269/1962.
The argument on this part of the case is the following Learned counsel for the appellant has contended that the provisions of section 82 of the Act are mandatory provisions and any failure to comply with those provisions is fatal in the sense that it is obligatory on the Tribunal to dismiss an election petition which does not comply with the Provisions of section 82.
He has relied for this purpose on sub section
(3) of section 90.
He has further contended that in view of the aforesaid provisions of the Act, namely, the provisions in section 82 and sub section
(3) of section 90, it is not open to an Election Tribunal to apply the Principles of the Code of Civil Procedure and treat a non ,joinder or mis joinder as not fatal to the maintainability of the petition.
The foundation of the argument is that there has been a non compliance with the provisions of section 82.
If that foundation is absent, then the whole argument disappears.
Now, it is admitted that Ballu or Balji was not a contesting candidate within the meaning of section 82 because his nomination paper had been rejected.
The admitted position further is that all the contesting candidates were joined to the petition as required by section 82.
Therefore, what happened was this All 'the parties whom it was necessary to join under the provisions of section 82 were joined as respondents to the petition ; but Ballu 581 or Balji was joined in excess of the requirements of section 82.
The question before us is, does this amount to non compliance with, or contravention of, the provisions of section 82? Learned counsel for the appellant wishes us to read section 82 as though it said that the persons named therein and no others shall be joined as respondents to the petition.
He wants us to add the words "and no others" in the section.
We find no warrant for such a reading of section 82.
We agree with the High Court that if all the necessary parties have been joined to the election petition, the circumstance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of section 82 and no question of dismissing the petition under sub so (3) of section 90 arises.
It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of section 82 of the Act.
The position will be different if a person who is required to be joined as a necessary party under section 82 is not impleaded as a party to the petition.
That however is not the case here and we are of the view that the learned counsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based.
In the view we have taken it is unnecessary to consider further the legal effect of a contravention of the provisions of section 82.
It is perhaps necessary to add that learned counsel for the respondents relied on the decision of this court in Jagan Nath vs Jaswant Singh (1), where it was held that section 82 of the Act as it then stood was not mandatory.
section 82 then provided as follows: "A petitioner shall join as respondents to his petition all the candidates who were duly No. minated at the election other than himself if he was so nominated.
" Sub section
(4) of section 90 then provided that notwithstanding anything contained in section 85, the tribunal may (1) ; 582 dismiss an election petition which does not comply with the provisions of sections 81, 83 or 117.
There has been a change of law since that decision.
section 82 has been re cast and sub section
(3 of section 90 now states that the tribunal shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 notwithstanding that it has not been dismissed by the Election Commission under section 85.
Therefore we do not think that the decision in Jagan Nath vs Jaswant Singh (1), is determinative of the problem before us.
We need not however pursue this question any further, because we have held that in the present cases there was no contravention of the provisions of section 82.
We now go to the second point.
But before we do so, it may perhaps be stated that certain defects in the verification of Election Petition No. 269 of 1962 have been brought to our notice, as they were brought to the notice of the Election Tribunal.
One of these defects was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of advice and information received by the petitioner from legal and other sources, the petitioner did not state in so many words that the advice and information received was believed by him to be true.
The Election Tribunal took the view that this defect in verification was a matter which came within cl.
(c) of sub section
(1) of section 83 and the defect could be removed in accordance With the principles of the Code of Civil Procedure, 1908.
The Election Tribunal further held that such, a defect did not attract sub section
(3) of section 90 inasmuch as that sub section does not refer to non compliance with the provisions of section 83 as a ground for dismissing an election petition.
We agree with the view expressed by the Election Tribunal.
We have pointed out that sub section
(4) of (1) ; 583 section 90 originally referred to three sections, namely, is 81, 83 and 117.
It said that nothwithstanding anything contained in section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of section 81, section 83 or section 117.
section 90 .was amended by Act 27 of 1956.
Sub section
(3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85.
There was a further amendment by Act 40 of 1961 and sub section
(3) of section 90 as it now stands has already been quoted by us in an earlier part of this judgment.
It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by cl.
(c) of sub section
(1) of section 83 is fatal to the maintainability of the petition.
On behalf of the appellant it has been further contended that the copy of the petition which was served on the appellant was not a true copy within the meaning of the mandatory provisions of subs.
(3) of section 81 of the Act.
The argument is that a failure to comply with the provisions of sub section
(3) of section 81 attracts sub section
(3) of section 90 and it is obligatory on the Tribunal to dismiss an election petition which does not comply with the requirements of sub section
(3) of section 81.
On the basis of the decision of this court in Sri Babu Ran vs Shrimati Prasanni (1), it is contended that the principle in such cases is that whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence (1) 584 It is argued that no question of substantial compliance arises in such cases, and the mandatory requirement must be strictly complied with.
Let us first see what are the defects found in the copy of the petition served on the appellant.
It is admitted that the first part of sub section
(3) of section 81 has been complied with and the election petition was accompanied by as many copies thereof as there were respondents mentioned in the petition.
It is also admitted that one more copy for the use of the Election Commission was also given with the petition.
The ' last part of the sub section says that " 'every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
" The grievance of the appellant is that this part of the sub section was not complied with inasmuch as (1) the copy which was 'served on the appellant did not contain the signature of the petitioner at the foot of the petition though the original contained such signature, and (2) the verification in the copy served on the appellant omitted to mention paragraph 14 g (ii) in that part of the verification which related to averments stated to be true to the personal know ledge of the petitioner.
As to the first of these defects the Election Tribunal pointed out that every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner and furthermore it was not necessary to append a fresh signature to the copy of the petition.
With regard to the second defect the Election Tribunal apparently took the view, though it did not say so in so many words, that the omission of a reference to.
paragraph 14 g (ii) in the verification in the copy served on the appellant was a case of mere oversight which did not mislead anybody because in the body of the petition full details of the averments were made.
The High Court took the view that the defect was not of such a nature as to amount to noncompliance with the provisions of sub section
(3) of section 81.
585 We agree with the High Court and the Election Tribunal that the first defect is not a defect at all.
When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary.
Sub section
(3) of section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done.
As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in sub section
(3) of section 81.
On behalf of the appellant the argument is that sub section
(3) of section 81 being mandatory in nature all the requirements of the sub section must be strictly complied with and the word "copy" must be taken to be an absolutely exact transcript of the original.
On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original.
Alternatively, the argument is that the last part of sub section
(3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this court in Kamaraja Nadar vs Kunju Thevar (1).
We are of the view that the word ""copy" in sub section
(3) of section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud 's judicial Dictionary, third edition, volume 4, page 3098).
In this view of the matter it is unnecessary to go into the further question whether any part of sub section
(3) of section 81 is merely directory.
Several English decisions were cited at the Bar The earliest decision cited to us is the decision in Pocock vs Mason (2) where it was held that the omission of the words "the" and "by" in the copy of the writ of capias prescribed by the schedule 2 W. 4, c. 39 did not invalidate an arrest.
The reason given was thus expressed : "To ascertain whether or not an unfaithful copy produces any alteration in the meaning (1) [ (2) ; 586 supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serve the copy.
It was to obviate this inconvenience, that the legislature has.given a form, and required that it should be pursued.
Nothing but ordinary care is neccs sary for taking the copy.
" In a later decision Sutton vs Mary and Burgess the copy of the writ served on the defendant omitted the letter "s" in the word "she" It was held that the omission was immaterial as it could not mislead anybody.
In Morris vs Smith (2), there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given.
It was held that the form in the statute 2 Will 4, c. 39 section I did not require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence.
The writ of summons was therefore valid.
In another case in the same volume Cooke vs Vaughan (2), it was held that where a writ of capias described the defendant by the addition of "gentleman", but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the stat.
2 Will. 4, c. 39, section 4 On behalf of the respondents a number of decision under the Bills of Sale Act, 1878 and the Amend ment Act, 1882 (45 and ' 46 Vict. c. 43) were cited The question in those cases was whether the bill was ""in accordance with the form in the schedule to this Act annexed" as required by section 9 of the Bills of Sale Act 1878, and Amendment Act 1882.
In re Hewer Ex parte Kahen (4), it was held that a "true copy" of a bill of sale within the Bills of Sale Act, 1878 section 10, sub section 2, must not necessarily be an exact copy so long as any errors or omissions in the copy file( are merely clerical and of such a nature that no on, (1) ; (2) ; (3) ; (4) 587 would be thereby misled.
The same view was expressed in several other decisions and it is unnecessary to refer to them all.
Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy.
It means a copy so true that nobody can by any possibility misunderstand it.
The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person.
Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant ; therefore there was no failure to comply with the last part of sub section
(3) of section 81.
In that view of the matter sub section
(3) of section 90 was not attracted and there was no question of dismissing the election petition under that sub section by reason of any failure to comply with the provisions of section 81.
This disposes of the second preliminary objection raised before us.
We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant.
The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the rules in the Conduct of Election Rules, 1961 ; therefore there was a failure to comply with the proviso to sub section
(1) of section 83 of the Act.
The argument further is that an election petition under section 81 must comply with the provisions of section 83 and unless it complies with those provisions, it is not an election petition under section 81.
We think that this contention hag been sufficiently disposed of by what has been stated by the Election Tribunal.
The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the oaths 588 Commissioner had made a mistake in the verification portion of the affidavit.
The Tribunal said : "It appears that due to inexperience of the Oaths Commissioner instead of "verified before me" words, "verified by me" have been written.
The signature of the deponent have been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner.
According to the prescribed form the verification should be " solemnly affirmed or sworn by "such and such" on "such and such date" before me".
The verification of the affidavit of the petitioner is apparently not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form.
The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner 's petition summarily, as the provisions of section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also.
" This view of the Election Tribunal was affirmed by the High Court.
We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition.
Turning now to Election Petition No. 295 of 1962, the defect as to the time and place of verification is, as we have said earlier, not a fatal defect.
It is a matter which comes within cl.
(c) of sub.s.
(1) of section 83 and the defect can be remedied in accordance with the principles of the Code of 589 Civil Procedure relating to the ' verification of pleadings.
As to the four enclosures which were not re ,produced in the copy served on the appellant, the position was this.
In the original petition there was an endorsement to the following effect "Enclosed : 1.
Two copies of the grounds of election petition.
Original treasury receipt of Rs. 2,000/ as security deposit.
Certified copy of the order of the Returning Officer rejecting the nomination dated 22 1 1962.
Vakalatnama duly stamped." ' In the copy served on the appellant the original treasury receipt of Rs. 2,000/ deposited byway_ of security was not re produced.
A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner.
As to the security deposit it was mentioned in the body of the petition (paragraph 9) that such a deposit had been made.
The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon.
It is obvious to us that a copy of the vakalatnama was not required under sub section
(3) of section 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition.
It is not disputed that copies as required by sub s.(3) of section 81 were filed.
The only ' grievance made is that the endorsement "two copies" was not repated in the enclosure portion of the copy served on the appellant.
We 590 have already explained what is meant by the word " copy" in sub section
(3) of section 81 and we are of the view that the defects pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case.
In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the grounds mentioned in his petition dated April 4, 1963.
The intervener supported the arguments advanced on behalf of the appellant.
We have fully dealt with those arguments in this judgment and nothing further need be said about the intervener 's petition.
For the reasons given above, we see no merit in these two appeals.
The appeals are accordingly dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The validity of the election of the appellant to the House of the People at the third general elections held in the month of February, 1962, was challenged by two of the electors of the constituency from which the appellant was elected, by filing election petitions for setting aside the election.
The nomination paper of B, one of the two electors aforesaid, had been rejected by the returning officer.
The appellant who was one of the respondents to the two election petitions raised preliminary objections to the maintainability of the petitions and pleaded that they should be dismissed on the grounds, inter alia, (1) that B whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as a respondent to the election petition in contravention of the provisions of section 82 of the Representation of the People Act, 1951, (2) that there was non compliance with the provisions of section 81 (3) of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission, and (3) that there was non compliance with the provisions of section 83 of the Act inasmuch as (a) the election petition was not verified in the manner laid down in section 83, and (b) the affidavit in respect of corrupt practices which accompanied the petition was neither properly made nor in the prescribed from.
Held (1) that where all the parties whom it was neces sary to join under the provisions of section 82 of the Representation of the People Act, 1951, were joined as respondents to the 574 petition, the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of section 82 of the Act; (2) the word "copy" in section 81 (3) of the Act did 'not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person; In re Hewer, Ex parte Kahan, (I 882) 1, relied on.
(3)that a defect in the verification of an election petition as required by section 83 (1) (c) of the Act did not attract section 90 (3) and so was not fatal to the mintainability of the petition; and, (4)that a defect in the affidavit was not a sufficient around for dismissal of the petition.


judgement:
Appeals Nos. 480 & 481 of 1962.
Appeals by special leave from the order dated March 10, 1958 of ' the Allahabad High Court in Writ Nos. 1006 and 1007 of 1955, and from the decision dated July 15, 1955 of the Labour Appellate Tribunal of India, Lucknow, III Bench in Appeal Nos.
III 274 and 300 of 1954.
G. section Pathak and G. C. Mathur, for the appellants.
K. section Hajela and C.P. Lai, for respondent No. 2 (In C.A. No, 480 of 1962).
727 J.P. Goyal, for respondents Nos. 3 to 12 (in C.A. No. 480 of 1962) and the respondents (in C.A. No. 481 of 1962).
May 9.
The judgment of the court was delivered by GAJENDRAGADKAR J.
An Industrial dispute which arose between the appellant, J,K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents.
The judgment of the court was delivered by GAJENDRAGADKAR J. An Industrial dispute which arose between the appellant, J.
K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents.
The first item was in regard to the dismissal of a gardener (Mali) Badri by name.
The respondents urged that the said dismissal was unlawful and Badri was entitled to reinstatement with all the wages during the period of his enforced unemployment.
The second item of dispute was in regard to the claim made by the 10 Malis employed by the appellant to receive dear food allowance, weekly holidays and leave with: wages.
Before the Adjudicator, the appellant contended that the Malis were not workmen within the meaning of the U.P. (No. 28 of 1947), and so, the reference was invalid.
It was also urged by the appellant that the claim made by the respondents for dear food allowance could not be sustained, because G.O. No. 3754 (LL)/XVIII 894 (L) 1948 issued by the U. P. Government on December 6, 1948, was inapplicable to the Malis inasmuch as the said Government order applied only to industrial employees and the Malis are not industrial employees within the meaning of the said order.
The other claims made by the respondents for weekly holidays and leave with wages were also resisted on the ground that the Malis were not workmen under 728 the Act, and so, they were entitled to, no relief in the present proceedings.
The Adjudicator held that the Malis were workmen under the Act, and so, he rejected the appellant 's contention that the reference was bad.
On the merits, he found that the dismissal of Badri was without justification, and so, he was entitled to reinstatement.
He also ordered that the appellant should pay Badri half his wages at Rs. 45/ p.m. as compensation from the date of his dismissal to the date of his reinstatement.
That is how the first item of dispute was decided by the Adjudicator.
On the second item of dispute. the Adjudicator found that the Malis were not industrial employees, and so, they were not entitled to claim dear food allowance under the relevant Government order.
The other claims made by the Malis With regard to weekly holidays and leave with wages were likewise rejected by the Adjudicator.
In other words, the second item of dispute was decided against the respondents.
This award was pronounced on May, 31 1954.
The decision of the Adjudicator gave rise to two appeals before the Labour Appellate Tribunal.
The appellant by its appeal No. 300 of 1954 disputed, the correctness of the Adjudicator 's conclusion that Badri was a workman and that his dismissal was unjustified.
The Labour Appellate Tribunal has rejected this contention and the appellant 's appeal was dismissed.
The respondents by their appeal No. 274/1954 contended that the Adjudicator was in error in holding that the Malis were not industrial employees and as such, were not entitled to dear food allowance.
The Labour Appellate Tribunal has upheld this plea and has given the Malis the benefit of the provision contained in the relevant Government order in respect of dear food allowance.
The claim of the respondents for a weekly holiday was, however, rejected by the Labour Appellate 729 Tribunal, while their claim for leave with wages was allowed, and a direction was issued that the Malis in question should be given leave in the manner prescribed by section 79 of the Factories Act (No. 63 of 1948).
The Labour Appellate Tribunal held that though the said Act was, in terms, not applicable to the Malis, the principle on which the statutory provision for leave prescribed by section 79 was based was a principle of social justice, and so, the Malis were entitled to have a similar benefit.
The respondents had also claimed that Badri should be given the full wages for the period of his enforced unemployment instead of Rs. 45/
as allowed by the Adjudicator.
This plea has also been upheld by the Labour Appellate Tribunal.
In the result, the respondents appeal substantially succeeded.
The decision, of the Labour Appellate Tribunal was pronounced on 15.7.1955.
This decision was challenged by the appellant before the Allahabad High Court by preferring a writ petition No. 1006/1955.
It was urged by the appellant that, the decision of the Labour Appellate Tribunal was patently erroneous and illegal, and so,, it should be quashed under article 226 of the Constitution.
Whilst the writ petition was pending in the said High Court, the Bench of the Labour Appellate Tribunal that sat at Lucknow ceased to exist, and so, the High Court took the view that it had no jurisdiction to entertain a writ petition in respect of the decision of the Labour Appellate Tribunal which was not functioning within the limits of its territorial juridiction.
That is why the said writ petition was dismissed as having become in fructuous.
This decision was pronounced on March 10, 1958.
The two present appeals Nos.
480 & 481/1962 have been brought to this Court by the appellant by special leave and they are directed, against the decision of the High Court dismissing the appellant 's 730 writ petition and against the decision of the Labour Appellate Tribunal respectively.
Mr. Pathak who appeared before us for the appellant stated that he did not propose to argue Civil Appeal No. 480/1962, because this Court 's decision in Civil Appeal No. 481/1962 would determine the dispute between the parties.
Civil Appeal No. 480/1962 has in that dense become unnecessary, because the merits of the main dispute are raised by the appellant in its appeal No. 481/1962 which is directed against the decision of the Labour Appellate Tribunal.
We would, therefore, deal with Civil Appeal No. 481/1962 only.
In this appeal, Mr. Pathak has not disputed the correctness or propriety of the decision of the Labour Appellate Tribunal in regard to the claim made by the respondents in respect of Badri 's dismissal.
So, that part of the dispute need not detain us in the present appeal.
The principal contention which has been seriously pressed before us by Mr. Pathak is that the Labour Appellate Tribunal was in error in holding that the Malis are workmen under section 2 of the Act.
Section 2 of the Act, as it stood at the relevant time, provided, inter alia , that in this Act the expression "workman" shall have the meaning assigned to it in section 2 of the , and that takes us to section 2 (s) of the (No. 14 of 1947) which defines a workman.
Section 2 (s), inter alia, provi des that a "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward.
, whether the terms of employment be expressed or implied; and so, the question is whether the 10 Malis whose claims have given rise to the present reference can be said to be workmen under section 2 (s).
For deciding this point, it is necessary to refer to the relevant facts, as they have been found by the 731 Tribunals below.
The 10 Mails have been appointed by the appellant for the maintenance of gardens attached to the bungalows of some of the officers of the Mills which are situated in the compoun, of the Mills, while others are employed for looking after the gardens attached to Kamla Niwas which is a residential building allotted to the Governing Director of the Mills and which is also situated within the compound of the Mills.
Some of these Malis have also to work in the gardens attached to the residential building of the Director in charge of the Mills.
The gardens which are looked after by these Malis are not the gardens attached to the Mills as such.
It appears that in the large and expensive colony of the Mills, the factory of the Mills is inside a compound.
Outside this compound of the factory, but within the colony of the Mills, are situated the bungalows occupied by the officers of the Mills and the Director.
It is the gardens attached to these bungalows that arc looked after by the 10 Malis.
It is also clear that the Malis are appointed by the appellant.
The total monthly wages of these 10 Malis come to about Rs. 450/ .
The appellant collects a small amount from.
the officers as a contribution to the salaries of these Malis and the bulk of it approximating to 78% is paid by the appellant.
The contributions made by the officers are credited to the revenue of the appellant and from the funds of the appellant, the Malis are paid their wages and they are debited in the accounts of the appellant.
The names of the Malis are borne on a register maintained by the clerk of the appellant who supervises their work.
This clerk notes their attendance from day to day.
Their appointment is made by the appellant, their work is supervised and controlled by the appellant and they are liable to be dismissed by the appellant.
The officers who are allotted the bungalows have no control over the Malis and can exercise no jurisdiction over them.
It is in the light 732 of these facts that the question raised by Mr. Pathak in regard to the status of the Malis has to be determined.
Mr. Pathak contends that the crucial words used in the definition prescribed by section 2 (s) are ",,employed in any industry".
He argues that before any person can claim to be a workman under section 2 (s), it must be shown that he has been employed in the industry of the employer.
The industry of the appellant is spinning and weaving operations and, says Mr. Pathak, the Malis have obviously nothing to do either with the spinning or weaving operations of the appellant; since they are not employed in the industry of the appellant, the fact that they have been employed by the appellant would not make them Workmen within the meaning of the Act.
Thus presented, the argument is no doubt prima facie attractive; but as soon as we begin to examine it more carefully, it breaks down.
If the construction for which 'Mr. Pathak contends is accepted without any modification, clerks employed in the factory would not be workmen, because on the test suggested by Mr. Pathak, they are not employed in the spinning or weaving operation carried on by the appellant and yet, there is no doubt that clerks employed by the appellant to do clerical work are workmen under section 2 (s), and so.
the literal construction of the clause employed in any industry" cannot be accepted and that means that " employed in any industry" must take in employees who are employed in connection with operations incidental to the main industry, and once we are compelled to introduce this concept of incidental Connection with the main industry, the literal construction for which the appellant contends has to be rejected.
It is, of course, not very easy to decide what is the field of employment included by the principle of incidental relationship, and what would be the limitations of the said principle? If sweepers arc 733 employed by the appellant to clean the premises of the Mills, that clearly would be work incidental to the main industry itself, because though the work of the sweepers has no direct relation either with the spinning or weaving, it is so manifestly necessary for the efficient functioning of the industry itself that it would be irrational to exclude sweepers from the purview of section 2 (s).
If buses are owned by the industry for transporting the workmen, would the drivers of such buses be workmen or not? It would be noticed that the incidental connection in ' the present illustration is one degree removed from the main industry; the workmen who work in the industry are intended to be brought to the factory by the buses and it is these buses that the drivers run.
Even so, it would not be easy to exclude drivers of buses engaged by the factory solely for the purpose of transporting its employees to the Mills from their respective homes and back, on the basis that they are not workmen under section 2 (s).
Mr. Pathak was unable to resist the extension of the definition to such cases; but, nevertheless, he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under section 2 (s).
Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connection is indirect and remote, and so, this class of employees must be excluded from the definition.
We are not prepared to accept this argument.
In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman, provided the other requirements of section 2 (s) are satisfied.
In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of 734 any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole.
Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry.
Reverting to the illustration of the buses owned by the factory for the purpose of trans porting its workmen, if the bus drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a Mali, should not claim that he is also engaged in an operation which is incidental to the main industry.
While we are dealing with this point, it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers ' employment.
Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take tare of the gardens attached to them.
If the terms and conditions of service require that the officers should be given bungalows and gardens are attached to such bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellant 's property, it should be said that the work done by them has no relation with the industry carried on by the appellant.
The employment is by the appellant, the 'conditions of service.
are determined by the appellant, the payment is substantially by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing 735 Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant.
Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer.
It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and far fetched.
We arc not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect or far fetched.
That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.
Before we part with this point, we would like to add that industrial adjudication appears consistently to have taken the view that Malis looking after the gardens attached to the bungalows occupied by officers of any industrial concern are workmen under section 2 (s).
Our attention has been drawn to two decisions of the Labour Appellate Tribunal dealing with this question.
In Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, (1) the Labour Appellate Tribunal while dealing with the case of Bhikari who was engaged as a gardener by the Company and was on the pay roll of the Company observed that the Tribunal failed to see why he is not to be regarded as a workman within the meaning of section 2 (s) of the which (1) 736 definition has been adopted by the U.P. under which the case was started.
The same view was taken by the Labour Appellate Tribunal in the case of The Upper India Chini Mazdoor Union vs The Upper India Sugar Mills (1).
Dealing, with the case of Rati Rama Who was engaged as a Mali, the Tribunal rejected the employer 's contention that the said Mali was a domestic servant and observed that merely because the Company chooses to put Rati Ram on the work of a gardener with the Managing Director which the A Company is admittedly required to provide for and pay for, it does not follow that Rati Ram became a domestic servant.
It is remarkable that both these decisions which are directly in point, were under section 2 of the Act with which we are concerned.
In dealing with industrial dispute we are reluctant to interfere with the well established and consistent course of decisions pronounced by the Labour Appellate Court unless, of course, it is shown that the said decisions are plainly erroneous.
The next question which calls for our decision is whether the Malis are industrial employees within the meaning of the relevant G. O. The said G. O. opens with two operative paragraphs which are followed by the table of minimum basic wages prescribed by it and other paragraphs.
These first two paragraphs read thus : "(1) This order shall he deemed to have come into force with effect from December, 1, 1948 and shall, in respect of the matters covered by it, bind all the industries affected thereby and the workmen employed therein.
(2) The minimum basic wage payable to employees (industrial or clerical) in the various industries and undertakings specified in column 1 of, Table I hereunder shall, so long as this (1) 737.
order remains in force, be the amounts menti oned against them in column 2 or 3 thereof, as the case may be," Paragraph 3 prescribes the dear food allowance, and it is in respect of this claim made by the respondents that the appellant has raised the contention that this paragraph does not apply, because the Malis are not industrial employees.
It will be noticed that the first Paragraph makes it perfectly clear that the order binds all the industries affected by it and the workmen employed therein ; so that as soon as it is held that the Malis are workmen under section 2 of the Act, it would follow that the order would apply to the Malis.
In considering the present point.
it is necessary to bear in mind that this order has been issued in exercise of the powers conferred by clauses (b) and (g) of section 3 of the Act, and that clearly means that persons who are workmen under section 2 of the Act are referred to by paragraph I and there would be no escape from the conclusion that the order would apply to such workmen and the Industries that employed them.
It is, however, urged that in paragraph 2 the minimum basic wage is specified as being payable to employees, industrial, or clerical, in the various industries and the suggestion is that it is only employees who are either industrial or clerical to whom the order applies.
Industrial employees are not defined; but it is assumed by the appellant in urging this argument that the class of industrial employees would be narrower than the class of workmen covered by section 2 of the Act.
In our opinion, this argument is wholly fallacious.
It is clear that the second paragraph refers to industrial or clerical employees, because the table prescribing the minimum basic wages divides the employees into two categories, industrial and clerical.
It is only because his division is made by the table that for the 738 purpose of clarification, paragraph 2 mentions industrial or clerical in bracket after referring to the employees.
Besides it would be unreasonable to assume that when the order prescribed minimum basic wages for workmen to whom paragraph I expressly refers, it could have been intended that the said minimum basic wages should not be extended to some workmen falling under paragraph I because they do not fall under the category of industrial employees or clerical employees.
The scheme of the order is plain and unambiguous ; to all workmen failing under section 2 the benefits of the order are intended to be extended.
That is the view taken by the Labour Appellate Tribunal and, in our opinion, that view is obviously right.
If that be so, the validity of the order passed by the Labour Appellate Tribunal awarding the respondents ' claim for dear food allowance under paragraph 3 of the G.O. cannot be questioned.
It is true that in The Suti Mill Mazdoor Sabha Kanpur vs Messrs.
The British Indian Corporation Ltd. Kanpur (1), the Labour Appellate Tribunal appears to have taken the view that the expression " 'industrial employees" is limited to the class of employees who are employed directly or indirectly for the purpose of manufacturing process carried on by the factory.
In coming to this conclusion, the Labour Appellate Tribunal noticed the fact that the expression " 'industrial employees" had not been defined, but it was disposed to drive assistance from the definition of the word "worker" in the Factories Act in determining the scope of the expression "industrial employees".
No doubt, it was urged before the Tribunal that expression "industrial employees" should be understood in the same comprehensive sense as the word "industry" as defined in the industrial Disputes Act, but this contention was rejected by the Tribunal.
It seems to us that the Tribunal was in error in limiting the, scope of (1) 739 the expression. " 'industrial employees" by reference to the definition of the word "worker" prescribed by the Factories Act.
Indeed, it would be relevant and appropriate to refer to the definition of the word workman" under section 2 (s) of the , because the G.O. in question has been issued under the Act and the definition of a "work man" prescribed by section 2 of the Act as section 2 (s) of the would determine the true denotation of the expression "industrials employees".
We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees" used in the Government order.
The next point which has been urged before us by Mr. Pathak is in regard to the decision of the Labour Appellate Tribunal awarding the benefit of leave to the respondents on the same lines as section 79 of the Factories Act.
Mr. Pathak attempted to argue that the claim for leave had been made specifically on the basis of provisions of the Factories Act and the U.P. shops and Commercial Establishments Act, and he suggested that as soon as it was found that these two Acts were inapplicable to the Malis the said claim should have been rejected.
The Labour Appellate Tribunal has, however, held that though the said two Acts do not apply, a claim for leave can be justified on the ground of social justice.
Mr. Pathak objects to this decision on the technical ground.
that the claim itself was based on the provisions of the said two Acts and no other.
This contention is not well founded.
It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts.
Therefore, the technical ground urged by Mr. Pathak that the, 640 relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained.
It was a general reference which the Adjudicator was called upon to decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave in limine.
Then Mr. Pathak was driven to contend that the ground of social justice given by the Labour Appellate Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice 'were "not only irrelevant but untenable" vide J.K. Iron & Steel Co., Ltd. Kanpur vs The Iron and Steel Mazdoor Union, Kanpur (1), and Muir Mills Co., Ltd. vs Suti Mills Mazdoor Union, Kanpur.
(2), In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation.
The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice, vide Messrs. Crown Aluminum Works vs Their Workmen, (s) and The State of Mysore vs The Workers of Gold Mines (4) Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes.
The concept of social justice is not narrow, one sided, or pedantic, and is not confined to industrial adjudication alone.
Its sweep is comprehensive.
It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities ; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire (1)[1955] 2 S.C.R. 1315.
(2)[1955] 1 S.C.R. 991.
(3)[1958]S.C.R. 651.
(4) ; 741 approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.
It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and Labour, and good relationship.
The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view, that industrial disputes are settled by industrial adjudication on principles of fair play and justice.
That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen, who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act.
We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice.
The result is, Civil Appeal No. 481/1962 fails and is dismissed with costs.
Civil Appeal No. 480 of 1962 has not been pressed and is, therefore, dismissed.
There would be no order as to costs.
Appeals dismissed.

summary/full:
An industrial dispute was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur.
,Me Adjudicator held that the Malis were workmen under the U.p.
but they were not Industrial employees and hence were not entitled to claim dear food allowance under the Government order dated December 6, 1948.
The claims of the Malis with regard to weekly holidays and leave with wages were also rejected by the Adjudicator.
725 Two crow appeals were filed against the order of the Adjudicator before the Labour Appellate Tribunal.
The appeal of the appellant was dismissed.
As regards the appeal of respondents, the Tribunal gave the Malis benefit of dear food allowance.
Their claim for leave with wages was also allowed on the ground of social justice.
However, their claim for weekly holiday was rejected.
The appellant filed a writ petition in the Allahabad High Court but that was dismissed as in fructuous.
The appellant came to this court by special leave.
The contentions raised by the appellant in this court were that the Malis were not workers within the meaning of section 2 of the U.P. , that Malis were not industrial employees within the meaning of Government order dated December 6, 1948, and hence were not entitled to dear food allowance and that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on ground of fair play and social justice.
Held that the Malis were workers within the meaning of section 2, of the U.P.
They were employed by the appellant, were paid by it and were, subject, to its control and supervision and *discharged the function of looking after the properties of the appellant.
Their conditions, of service were also determined by the appellant and the continuance of their service also depended upon the pleasure of the appellant.
The bungalows and gardens on which they worked were a kind of amenity supplied by the appellant to its officers.
Hence, the Malis were engaged in operations which were incidentally connected with the main industry carried on by the employers The case of the Malis was similar to that of the bus drivers.
The relation of the work carried on by the Malis with the industry was not remote, indirect or far fetched.
The employee who is engaged in any work or operation which is incidentally,connected with the main industry of the employer is a workman, provided the other requirements of section 2 (s) of the industrial Disputes Act are satisfied.
Held also, that the Malis were industrial employees within the meaning of the Government order dated December 6, 1948, and hence were entitled to claim the benefit of dear food allowance.
The Tribunal was in error in limiting the scope of the expression, " Industrial , employees" by reference to the definition of the word "worker" as given in the Factories Act, 726 Held also, that the Tribunal was justified in granting the demand of the respondents for leave on grounds of fair play and social justice.
The concept of social justice has now become such an integral part of industrial law that it is idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes.
The concept of social justice is not narrow, one sided or pedantic and is not confined to industrial adjudication alone.
Its sweep is comprehensive.
It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities.
In dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach.
It endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capita i labour and relationship.
Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, ; The Upper India Chini Mills Mazdoor Union vs The Upper India Sugar Mills ; The Suti Mill Mazdoor Sabha, Kanpur vs Messrs.
The British India Corporation Ltd., Kanpur, ; J.K. Iron& Steel Co. Lid, Kanpur vs The Iron and Steel Masdoor Union, Kanpur, ; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; ; Messrs. Crown Aluminium Works vs Their Workmen, ; and The State of Mysore vs The Workers of Gold Mines, [1959] S.C.R. 895, referred to.