judgement:
Civil Appeal No. 1057 of 1970.
From the Judgment and order dated 3 11 1969 of the Punjab and Haryana High Court in R.S.A. No. 1456/64.
section K. Sinha for the Appellant.
Hardev Singh, section K. Bagga and Mrs. section Bagga for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by certificate granted by the Punjab and Haryana High Court is from the judgment of a Full Bench of that Court answering the following question referred to it: 87 "Whether by universal custom among the Sikh Jats of the Punjab, a widow does not forfeit her life estate in her husband 's property by reason of her remarriage in Karewa form with her husband 's brother, and if so, whether the custom admits of exceptions among different tribes of Sikh Jats and in particular among Dhaliwal Jats of Muktsar Tehsil of Ferozepur District.
" The relevant facts are these.
The first three respondents, Bakhtawar Singh, Jit Singh and Chand Singh, and the deceased husband of the appellant Sada Kaur were brothers.
The appellant 's husband died sometime in the year 1937 and a few months later she married the third respondent Chand Singh who was a younger brother of her husband in Karewa form.
The suit out of which this appeal arises was brought by the first two respondents, Bakhtawar Singh and Jit Singh, as plaintiffs for a declaration that they were entitled to two third share of the land in possession of the present appellant Sada Kaur which belonged to the appellant 's deceased husband.
Appellant Sada Kaur and her second husband Chand Singh were impleaded as defendant Nos. 1 and 2 respectively.
The plaintiffs ' case was that Sada Kaur having married for the second time had forfeited her interest in her deceased husband 's estate.
The parties are Dhaliwal Jats of Muktsar Tehsil in the Ferozepur District of Punjab.
In her written statement Sada Kaur pleaded that the parties were governed by customary law and according to their custom a widow marrying her deceased husband 's brother did not forfeit her interest in the estate of her deceased husband.
The plaintiffs filed a replication stating that according to the custom governing Dhaliwal Jats of Tehsil Muktsar, a widow on remarrying even her deceased husband 's brother forfeited her right in the estate.
The only question that arises for consideration in the present appeal is whether there is a custom governing the parties to the suit according to which on remarriage the widow forfeits her interest in the estate of her deceased husband as claimed by the plaintiffs.
The trial court declined to grant a declaration as asked for by the plaintiffs who preferred an appeal to the District Judge which was allowed.
Sada Kaur took a second appeal to the High Court challenging the decision of the lower appellate court.
The learned single Judge before whom the second appeal came up for hearing was inclined to accept the plaintiffs ' case and dismiss the appeal but felt that a Full Bench of three learned Judges of the Punjab High Court in an earlier case, Charan Singh vs Gurdial Singh(1) appeared to have taken a contrary view on the question and referred the appeal to a larger bench.
A Division Bench of the High Court thereafter referred the case to a Full Bench of five Judges and it is the Judgment of this Full Bench that is under appeal before us.
88 In Mara and others vs Nikko and others(1) this Court observed that it is "well known" that "custom in the Punjab changes from District to District, Tehsil to Tehsil and Pargana to Pargana".
The judgment under appeal relies mainly on the riwaj i am of Ferozepur District compiled in 1915 by M. M. L. Currie, Settlement Officer.
The evidentiary value of the entries in the riwaj i am has been discussed in more than one decision of this Court.
In Mohant Salig Ram vs Mst.
Maya Devi(2) it was held: "There is no doubt or dispute as to the value of the entries in the riwaj i am.
It is well settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
Whether, for instance, the riwaj i am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but whether, on the other hand, the custom as recorded in the riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened, likewise, whether the riwaj i am affects adversely the rights of the families who had no opportunity whatever of appearing before the revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
" There is however no material to suggest that the riwaj i am in this case suffers from any such infirmity.
In Jai Kaur and others vs Sher Singh and others(3) this Court has said: "The value of entries in the riwaj i am has . . been repeatedly stressed.
That they are relevant evidence under section 35 of the Evidence Act is clear and the fact that the entries therein are the result of careful research of persons who might also be considered to have become experts in these matters, after an open and public inquiry has given them a value which should not be lightly under estimated.
There is therefore an initial presumption of correctness as regards the entries in the riwaj i am. ." Question No. 47 of Currie 's compilation reads: 89 "What is the effect of unchastity upon the right of a widow to the estate of her deceased husband ? What is the effect of her remarriage ?" The answer to the question in so far as it deals with remarriage is as follows: "At last settlement Mr. Francis wrote: `unchastity or remarriage deprives a widow of her right to the property '.
The Muktsar Code gives a similar answer. .
Further (on page 124) it says: Whenever a widow remarries, even if she marry the brother of her deceased husband, she loses her right to her deceased husband 's estate, which reverts at once to his agnates (mostly Sikh Jats, Kumhar, Khatri, Lohar, Bodla, Chishti, Wattu).
If a son less widow in possession of her husband 's estate marries his brother, she is often allowed to remain in possession of her deceased husband 's estate for her life time (Bagri jats, Musalman jats and Rajputs) .
As regards the effect of remarriage, all tribes that admit widow remarriage agree that no matter whom the widow marries, she forfeits all rights to her deceased husband 's estate.
" The answer is followed by a note recorded by the compiler saying: "Despite the rulings to the contrary .
I am convinced that the above answer is a true exposition of the custom".
The rulings to the contrary which relate to jats of Ferozepur District are: Didar Singh vs Mst.
Dharmon(1), Punjab Singh vs Mst.
Chandi(2) and Mst.
Indi vs Bhangra Singh(3).
Out of these three cases again only Didar Singh 's case relates to Dhaliwal jats.
The impugned judgment points out that as against these cases the riwaj i am mentions numerous instances, 59 of them relate to Jats, which support the compiler 's note that on remarriage, no matter whom she marries, the widow forfeits her right to her deceased husband 's estate.
There are also three instances wherein remarriage did not result in forfeiture of the widow 's right.
Didar Singh 's case which relates to Dhaliwal jats was of the year 1888.
The impugned judgment mentions four instances from the riwaj i am of the years 1911 12 supporting the case of forfeiture.
No instance has been found either way relating to Dhaliwal jats of Tehsil Muktsar.
However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar.
On these facts and figures gathered from the entries in the riwaj i am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal 90 jats of Tehsil Muktsar which permitted a widow who married her deceased husband 's brother to retain her interest in her deceased husband 's estate.
In reaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh vs Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal.
In Charan Singh 's case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husband 's brother remains entitled to collateral succession in the family.
The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singh 's case suggesting as if this was the custom among the jats in the entire State of Punjab.
The basis of the decision in Charan Singh 's case is a statement in Sir W. H. Rattigan 's Digest of Customary Law in the Punjab.
The authoritative value of Rattigan 's compilation has been recognised by the Privy Council in Mst.
Subhani vs Nawab(1) and also by this Court in Mahant Salig Ram vs Mst.
Maya Devi (supra) and Jai Kaur vs Sher Singh (supra).
In Jai Kaur 's case however it was held that "when the custom as recorded in the riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the riwaj i am should ordinarily prevail. " Paragraph 32 of Rattigan 's Digest on which Charan Singh 's case relies states: "In the absence of custom, the remarriage of a widow causes a forfeiture of her life interest in her first husband 's estate which then reverts to the nearest heir of the husband".
It is thus clear that there is no conflict between the statement in Rattigan 's Digest and the entry in riwaj i am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husband 's estate.
However, a number of exceptions to this general custom have also been recorded.
Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widow 's life estate in the property of her first husband.
" The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana.
There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar.
It was for the first time in the 12th edition of Rattigan 's book which was published long after Sir Rattigan 's death, the following statement was added: "By custom among the 91 Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother, whether he be the sole surviving brother or there are other brothers as well of the deceased." A decision of the Sindh Judicial Commissioner 's Court, Sant Singh vs Rani Bai(1), has been cited there in support of the statement.
It has been pointed out very clearly by the learned Judge in his order by which he referred the case to a larger bench that Sant Singh 's case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigan 's book.
The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter.
Sant Singh 's case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant vs Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother whether he be the sole surviving brother or there are other brothers as well of the deceased.
" What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab".
Clearly, the head notes are wrong and do not set out the decision correctly.
That being so, it cannot be said that there is any real conflict between the riwaj i am and Rattigan 's Digest on this point.
In any event the statement cannot be attributed to Sir Rattigan.
Five learned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husband 's brother to retain her interest in the estate of the deceased, have answered the question in the negative.
On the material before us we find no reason to take a different view.
The facts and figures gathered from the entries in the riwaj i am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigan 's Digest is wrong cannot also be questioned.
We therefore dismiss the appeal but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.

summary/full:
The first three respondents and the deceased husband of the appellant who were Dhaliwal jats of Muktsar Tehsil in Ferozepur District of Punjab were brothers.
After the death of her husband the appellant married the younger brother of her late husband in Karewa form.
The first two respondents filed a suit for a declaration that having married for the second time, the appellant had forfeited her interest in her deceased husband 's estate and that they were entitled to two third share of the land in her possession.
The appellant on the other hand claimed that they were governed by customary law and according to their custom a widow marrying her deceased husband 's brother did not forfeit her interest in the estate of her deceased husband.
In replication the respondents stated that according to the custom governing Dhaliwal jats of Tehsil Muktsar a widow remarrying even her deceased husband 's brother forfeited her right in the estate.
The trial Court declined to grant the declaration, but the District Judge allowed the plaintiffs ' appeal.
The High Court did not accept the appellant 's claim that there was a special custom.
Dismissing the appeal ^ HELD: The High Court was right in holding that there was no special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow, on remarriage with her deceased husband 's brother, to retain her interest in the estate of her deceased husband.
It is well known that custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana.
[88A] It has been held by this Court that entries in the riwaj i am compiled in 1915 by Currie, Settlement Officer, are relevant evidence under section 35 of the Evidence Act.
[88F G] Mahant Salig Ram vs Mst.
Maya Devi, and Jai Kaur and others vs Sher Singh and others, referred to.
Entry 47 of the riwaj i am states that whenever a widow re marries, even if she marries the brother of her deceased husband, she loses her right to her deceased husband 's estate and that the estate reverts at once to his agnates.
86 As regards the effect of re marriage, all tribes that admit widow re marriage agree that no matter whom the widow marries she forfeits all rights to her deceased husband 's estate.
[89D] Another authoritative compilation is Rattigan 's Digest of Customary Law in the Punjab.
But when custom as recorded in the riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the riwaj i am would ordinarily prevail.
On this aspect of the custom there is no conflict between the two because Rattigan 's Digest also states that in the absence of custom, the re marriage of a widow causes a forfeiture of her life interest in her first husband 's estate which then reverts to the nearest heir of the husband.
[90E F] One of the exceptions recorded to this general custom, however, is that among certain tribes re marriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widow 's life estate in the property of her first husband.
But among the cases cited in support of the special custom relating to Sikh jats of certain districts of Punjab there is no mention of Dhaliwal jats of Tehsil Muktsar.
It was for the first time that in the 12th edition of Rattigan 's Digest published long after his death that an exception was added that by custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husband 's property by reason of her remarriage in Karewa form with her husband 's brother, whether he be the sole surviving brother or there are other brothers as well of the deceased.
Sant Singh vs Rari Bai (AIR 1924 Sindh 17=76 Indian Cases 408) on which this exception is purported to be based does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigan 's book.
In Sant Singh 's case the parties were Sikh jats from Jullundur District and Basant vs Pratap on which the Sant Singh 's case relied the parties were Sikh jats from Ludhiana District.
But the headnotes in both cases stated it as the custom "among Sikh jats in the Punjab" which clearly is wrong.
Therefore, it cannot be said that there is any real conflict between riwaj i am and Rattigan 's Digest on this point.
The statement in Charan Singh vs Gurdial Singh, AIR 1961 Punjab 301 that among jats governed by custom in matters of succession a widow marrying her deceased husband 's brother remains entitled to collateral succession in the family is too wide having regard to the facts of the case.
[90H & 91A E]


judgement:
N: Criminal Appeal No. 474 of 1980.
93 Appeal by Special Leave from the Judgment and Order dated 26 9 1979 of the Allahabad High Court in Crl.
Case No. 356/79.
Pramod Swarup for the Appellant.
R. D. Upadhyaya and M. M. L. Srivastava for the Respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave involves a short point of law.
Proceedings under section 145 was started by the Magistrate against the respondents on the basis of a police report.
After passing a preliminary order on the 29th July, 1976 (wherein the Magistrate had recorded reasons for his being satisfied that a breach of the peace existed), the Magistrate called upon the parties to file their written statements and then after a full enquiry as provided by section 145 the Magistrate passed the final order on 17th July, 1978 declaring the appellant to be in possession of the land in dispute.
Against this order, the respondents moved the High Court under section 482 Cr.
P.C. for quashing the order of the Magistrate.
The High Court found that as there was no clear finding by the Magistrate in the final order that there was an apprehension of breach of the peace, therefore, the final order was bad and the High Court accordingly allowed the petition and remitted the case to the Magistrate.
We have heard counsel for the parties and in our opinion the High Court erred in holding that the final order of the Magistrate was vitiated in absence of a finding that breach of the peace existed at the time the order was passed.
It is not disputed that in the preliminary order there was a clear finding by the Magistrate that apprehension of breach of the peace did exist which was sufficient to give jurisdiction to the Magistrate to initiate the proceedings.
When the parties filed their written statements, they did not state that no dispute between the parties existed but whereas one party said that there was no apprehension of breach from their side, the other side took the stand that there was an apprehension of breach of the peace.
Thus, the stand taken by the two parties was contradictory; hence it must be taken for granted that the apprehension of breach of peace continued to exist and it was not a case where it could be said that no dispute existed, as contemplated under section 145(5) Cr.
After considering the record and evidence produced by the parties, the Magistrate passed the final order in favour of the appellant.
The High Court thought that it was absolutely essential for the Magistrate to give a finding that a breach of peace existed even in 94 the final order.
It may have been proper if the Magistrate had given a finding on this aspect of the matter also but in the circumstances, it can be safely presumed that apprehension of breach of peace existed and such a finding was implicit in the final order passed by the Magistrate so it was not necessary for the Magistrate to repeat what he had said in the preliminary order in the final order also.
Moreover, mere absence of finding by the Magistrate in the final order in the circumstances as mentioned above cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under section 482 of Cr.
It is, therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order.
Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub section (5) of section 145 of the Code of Criminal Procedure.
Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub section (6) of section 145.
As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under sub section (5) of section 145 nor was such a case set up by any party before the Magistrate or before the High Court.
Further, it is well settled that under section 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based.
In R. H. Bhutani vs Miss Mani J. Desai & Ors.(1), this Court pointed out as follows: "The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace.
But once he is satisfied on these two conditions the section requires him to pass a preliminary order under sub section
(1) and thereafter to make an enquiry under sub section
(4) and pass a final order under sub section
It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist.
The enquiry under section 145 is limited to the 95 question to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.
The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate." (Emphasisours) In Hari Ram & Ors.
vs Banwari Lal & Ors.(1) it was held that once a Magistrate finds that there is a breach of peace it is not necessary that the dispute should continue to exist at other stages of the proceedings also.
In this connection, the High Court observed as follows: "Of course, Magistrate can under sub section (1) of section 145, Criminal Procedure Code, assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc.
Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
The enquiry, therefore, after the initial satisfaction of the Magistrate and after the assumption of jurisdiction by him, has to be directed only as respects the fact of actual possession.
At that time he has not to record a finding again about the existence of a dispute likely to cause a breach of the peace." (Emphasisours) To the same effect is a decision of the Hyderabad High Court in Ramarao vs Shivram & Ors.(2) where Srinivasachari J. observed as follows: "As regards this contention I am of opinion that once the Magistrate has given a finding to the effect that there is apprehension of breach of peace and that he has jurisdiction to take proceedings under section 145, Cr.
P.C., he can continue the proceedings.
It is not necessary that at each stage he should be satisfied that there exists an imminent apprehension of breach of peace.
" (Emphasisours) 96 We find ourselves in complete agreement with the observations made by the Punjab and Hyderabad High Courts, extracted above, which lay down the correct law on the subject.
Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court.
It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the civil court.
For these reasons therefore, we are satisfied that the order passed by the High Court is legally erroneous and cannot be allowed to stand.
The appeal is accordingly allowed.
The order of the High Court is set aside and the order of the Magistrate is confirmed.
V. D. K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Allowing the appeal by special leave, the Court, ^ HELD: (1) A finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order.
Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub section (5) of section 145 of the Code of Criminal Procedure.
Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub section
(6) of section 145.
Further, it is well settled that under section 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based.
[94C F] R. H. Bhutani vs Miss Mani J. Desai & Ors., ; , followed.
Hari Ram & Ors.
vs Banwari Lal & Ors., A.I.R. 1967 Punjab 378; Ramarao vs Shivram & Ors., A.I.R. 1954 Hyderabad p. 93, approved.
(2) Mere absence of a finding of the existence of breach of the peace by the Magistrate in the final order in the circumstances of the case cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under Section 482 of the Criminal Procedure Code.
[94B] (3) At the worst the omission on the part of the Magistrate to mention in his final order that there was breach of the peace could be said to be an error of procedure clearly falling within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show, in the instant case, that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court.
[95B C]


judgement:
Appeal No. 81 of 1954.
Appeal from the judgment and order dated the 10th March 1953 of the Bombay High Court in Income tax Reference No. 35 of 1952.
B. J. Kolah and I. N. Shroff for the appellant.
G. N. Joshi, Porus A. Mehta and R. H. Dhebar for the respondent.
May 10.
The following Judgments were delivered.
BHAGWATI J. Two questions were referred by the Income tax Appellate Tribunal to the High Court of Bombay under section 66(1) of the Indian Income tax Act.
(1) Whether there is any material to justify the assessment of Rs. 30,000 (Rupees thirty thousand) from out of the sum of Rs. 61,000 (Rupees sixtyone thousand) (for Income tax and Excess Profits Tax and Business Profits Tax purposes) representing the value of high denomination notes which were encashed on the eighteenth day of January one thousand nine hundred and forty six, and (2) Whether in any event by reason of the orders of the Revenue Authorities not having found *at the alleged item was from alleged undisclosed business profits the assessment of Rs. 30,000 (Rupees thirty thousand) is in law justified for Excess Profits Tax and Business Profits Tax purposes? The High Court answered the first question in the affirmative but refused to answer the second question, being of the opinion that even though it had asked the Tribunal to refer that question under section 66 (2) of the Act, it had no jurisdiction to do so inasmuch as the appellants had not asked the Tribunal to refer 629 the second question and, therefore, no question arose of the Tribunal refusing to raise that question or to submit it for the decision of the High Court.
The appellants area partnership firm doing business in Mill Stores at Ahmedabad.
Their head office is in Ahmedabad and their branch office is in Bombay.
The Governor General on 12th January 1946 promulgated the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and High Denomination Bank Notes ceased to be legal tender on the expiry of 12th day of January 1946.
Pursuant to clause 6 of the Ordinance the appellants on 18th January 1946 encashed high denomination notes of Rs. 1,000 each of the face value of Rs. 6 1,000.
This was done in the calendar year 1946 being the account year corresponding with assessment year 1947 48.
During the assessment proceedings for the year 1947 48 the Income tax Officer called upon the appellant to prove from whom and when the said high denomination notes of Rs. 61,000 were received by the appellants and also the bona fides of the previous owners thereof.
After examining the entries in the books of account of the appellants and the position of the Cash Balances on various dates from 20th December 1945 to 18th January 1946 and the nature and extent of the receipts and payments during the relevant period, the Income tax Officer came to the conclusion that in order to sustain the contention of the appellants he would have to presume that there were 18 high denomination notes of Rs. 1,000 each in the Cash Balance on 1st January 1946 and that all cash receipts after 1st January 1946 and before 13th January 1946 were received in currency notes of Rs. 1,000 each, a presumption which he found impossible to make in the absence of any evidence.
He, therefore, added the sum of Rs. 61,000 to the assessable income of the appellants from undisclosed sources.
On appeal to the Appellate Assistant Commissioner the appellants produced before him affidavits of three persons to show that the appellants had received Rs. 20,000 in 1,000 rupees currency notes on 28th 630 December 1945, Rs. 15,000 in 1,000 rupees currency notes on 6th January 1946 and Rs. 8,500 in 1,000 rupees currency notes (making Rs. 8,000) on 8th January 1946, thus aggregating to Rs. 43,500 during the relevant period.
The Appellate, Assistant Commissioner did not accept the statements contained in the said affidavits and dismissed the appeal and confirmed the order of the Income tax Officer.
An appeal was taken by the appellants before the Income tax Appellate Tribunal.
The Tribunal after taking into consideration all the materials which bad been placed before the Appellate Assistant Commissioner, including the said affidavits, was of the opinion that if it was to accept the appellants ' contention, it would mean that practically every payment above Rs. 1,000 was received by the appellants in high denomination notes, which was almost impossible.
The Tribunal could not say that the appellants bad no high denomination notes with them.
It accepted the books of account of the appellants but thought that the cash balance on 18th January 1946 could not have sixtyone high denomination notes.
It came to the conclusion that the appellants appeared to have put in high denomination notes in the cash balance and taken the other notes away.
It accepted the appellants ' explanation only in regard to 31 notes and directed that the appellants ' assessment for the year under reference be reduced by that amount and dismissed the rest of the appeal.
The appellants applied to the Tribunal for stating a case and referring the first question of law to the High Court for its opinion under section 66(1) of the Act.
The Tribunal rejected the said application holding that no question of law arose from its order.
The appellants thereupon applied to the High Court under section 66(2) of the Act for an order directing the Tribunal to state a case and refer the questions set out in the application.
The High Court directed the Tribunal to state a case and refer the two questions of law set out hereinabove to it for its decision under section 66(2) of the Act.
In stating the case and referring the said questions of law to the High 631 Court, the Tribunal pointed out that the second question was not urged before the Tribunal at any stage and hence it was not dealt with by it in its original order.
The reference was heard by the High Court and the High Court answered the first referred question in the affirmative, but did not answer the second referred question.
The High Court held that there were materials before the Tribunal to hold that the sum of Rs. 30,000 represented the income of the appellants from undisclosed sources and that the finding of the Tribunal was a finding of fact based on materials before it and even if it was an inference drawn by the Tribunal, the inference was based on the facts and materials before the Tribunal.
The High Court observed that it was impossible to say that the inference drawn by the Tribunal from the circumstances was an unreasonable inference or an arbitrary and capricious inference or an inference which no judicial tribunal could ever draw.
It, therefore, answered the first referred question in the affirmative.
As regards the second referred question, the High Court held that question was not raised by the appellants in their application for reference under section 66(1) of the Act and, therefore, it bad no jurisdiction to ask the Tribunal to state a case on a particular question of law, where the appellants themselves had never asked the Tribunal to refer such a question to the High Court and that even though it had directed the Tribunal under section 66(2) to refer the said question, as it had no jurisdiction to ask the Tribunal to refer the said question, it was not open to it to answer the second question which had been raised by the Tribunal at its instance and refused to answer it.
On a petition made by the appellants for leave to appeal to this court, the High Court granted a certificate that this was a fit case for appeal to this court and hence this appeal.
It may be mentioned at the outset that the assessment of the appellants by the Income tax Officer was under section 23(3) and section 26 A of the Act.
The 632 books of account of the appellants were accepted by the Income tax Officer and the only scrutiny made by the Income tax Officer was whether at the relevant date, i.e. on 12th January 1946, the appellants had in their cash 61 notes of high denomination of Rs. 1,000 each.
The cash book entries from 20th December 1945 up to 18th January 1946 were put in before the Income tax Officer and they showed that on 28th December 1945 Rs. 20,000 were received from the Anand Textiles, and there was an opening balance of Rs. 18,395 on 2nd January 1946.
Rs. 15,000 were received by the appellants on 7th January 1946 from the Sushico Textiles and Rs. 8,500 were received by them on 8th January 1946 from Manihen, widow of Shah Maneklal Nihalchand.
Various other sums were also received by the appellants from 2nd January 1946 up to and inclusive of 1 1 th January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000 and were thus capable of having been paid to the appellants in high denomination notes of Rs. 1,000.
There was a cash balance of Rs. 69,891 2 6 with the appellants on 12th January 1946, when the High Denomination Bank Notes (Demonetisation) Ordinance 1946 was promulgated and it was the case of the appellants that they had then in their custody and possession 61 high denomination notes of Rs. 13000, which they encashed through the Eastern Bank, on 18th January 1946.
The appellants further sought to support their contention by procuring before the Appellate Assistant Commissioner the affidavits of Kuthpady Shyama Shetty, General Manager of Messrs Shree Anand Textiles, in regard to payment to the appellant is of a sum of Rs. 20,000 in Rs. 1,000 currency notes on 28th December 1945, Govindprasad Ramjivan Nivetia, proprietor of Messrs Shusiko Textiles, in regard to payment to the appellants of a sum of Rs. 15,000 in Rs. 1,000 currency notes on 6th January 1946 and Bai Maniben, widow of Shah Maneklal Nihalchand, in regard to payment to the appellants of a sum of Rs. 8,500 (Rs. 8,000 thereout being in Rs. 1,000 currency notes) on 8th January 1946.
The appellants were not in a position to give further 633 particulars of Rs. 1,000 currency notes received by them during the relevant period, as they were not in the habit of noting these particulars in their cash book and therefore relied upon the position as it could be spelt out of the entries in their cash book coupled with these affidavits in order to show that on 12th January 1946 they had in their cash balance of Rs. 69,891 2 6, the 61 high denomination currency notes of Rs. 1,000 each, which they encashed on 18th January 1946 through the Eastern Bank.
Both the Income tax Officer and the Appellate Assistant Commissioner discounted this suggestion of the appellants by holding that it was impossible that the appellants had on hand on 12th January 1946, the 61 high denomination currency notes of Rs. 1,000 each, included in their cash balance of Rs. 69,891 2 6.
The calculations.
, which they made involved taking into account all payments received by the appellants from and after 2nd January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000.
There was a cash balance of Rs. 18,395 6 6 on band on 2nd January 1946, which could have accounted for 18 such notes.
The appellants received thereafter as shown in their cash book several sums of monies aggregating to over Rs. 45,000 in multiples of Rs. 1,000 or sums over Rs. 1,000, which could account for 45 other notes of that high denomination, thus making up 63 currency notes of the high denomination of Rs. 1,000 and these 61 currency notes of Rs. 1,000 each, which the appellants encashed on 18th January 1946 could as well have been in their custody on 12th January 1946.
This was, however, considered impossible by both the Income tax Officer and the Appellate Assistant Commissioner as they could not consider it within the bounds of possibility that each and every .payment received by the appellants after 2nd January 1946 in multiples of Rs. 1,000 or over Rs. 1,000 was received by the appellants in high denomination notes of Rs. 1,000 each. ' It was by reason of their visualisation of such an impossibility that they negatived the appellants ' contention.
It has to be noted, however, that beyond there 82 634 calculations of figures, no further scrutiny was made by the Income tax Officer or the Appellate Assistant Commissioner of the entries in the cash book of the appellants.
The cash book of the appellants was raccepted and the entries therein were not challenged.
No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party.
The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Incometax Officer, who was present at the hearing of the appeal before the Appellate Assistant Commissioner, considered it necessary to call for them in order to cross examine them with reference to the statements made by them in their a affidavits.
Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits.
This being the position, the state of affairs, as it ob tained on 12th January 1946, had got to be appreciated, having, regard to those entries in the cash books and the affidavits filed before the Appellate Assistant Commissioner, taking them at their face value.
The entries in the cash books disclosed that, taking the number of high denomination notes at 18 on 2nd January 1946, there came in the custody or possession of the appellants after 2nd January 1946 and up to 12th January 1946, 49 further notes of that high denomination, making 67 such notes in the aggregate, out of which 61 such notes could be encashed by the appellants on 18th January 1946 through the Eastern Bank.
A mere calculation of the nature indulged in by the Income tax Officer or the Appellate Assistant Commissioner was not enough, without any further scrutiny, to dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Assistant Commissioner.
The Tribunal also fell into the same error.
It could 635 not negative the possibility of the appellant being in possession of a substantial number of these high deno mination currency notes.
It, however, considered that it was impossible for the appellants to have bad 61 such notes in the cash balance in their hands on 12th January 1946 and then it applied a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility, excluding 30 such notes as not covered by the explanation of the appellants.
This was pure surmise and had no basis in the evidence, which was on the record of the proceedings.
The High Court treated this finding of the Tribunal as a mere finding of fact.
The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron vs Prendergast (Inspector of Taxes) (1): "Inferences from facts stated by the Commissioners are matters of law and can be questioned on appeal.
The same remark is true as to the construction of documents.
If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court to differ from such a holding".
To the same effect are the observations of the House of Lords in Bomford vs Osborne (H. M. Inspector of Taxes) (2): "No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusions which are themselves conclusions of pure fact.
But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners ' conclusions".
The latest pronouncement of the House of Lords on this question is to be found in Edwards (Inspector of Taxes) vs Bairstow and Another(3).
Viscount Simonds observed at page 586: "For it is universally conceded that, though it is (1) [1940]8I.T.R.(Suppl.)75,81.
(2) [1942] 10 I.T.R. (Suppl.) 27, 34.
(3) 636 a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained".
and Lord Radcliffe expressed himself as under at page 592: "If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously erroneous in point of law.
But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.
In those circumstances, too, the court must intervene".
It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law.
The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.
The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case.
The attempt which was made by the High Court to probe into the mind of the Tribunal by trying to discard the affidavit of Govindprasad Ramjivan Nivetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6th January 1946 and thus reducing the aggre gate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far fetched and contrary to the terms of 637 the tribunal ' s order itself,the Tribunal not having given any inkling, whatever, of what was at the back of its mind when it fixed upon the figure Rs. 31,000.
Really speaking the Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad.
The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000.
The case was analogous to the one before the Patna High Court in Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa(1) and should have been similarly decided in favour of the appellants.
For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative.
It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income tax and Excess Profits Tax and Business Profit Tax purposes representing the value of the high denomination notes which were encashed on 18th January 1946.
In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also.
The answer to the first referred question being in the ' negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical.
The result, therefore, is that the appeal is allowed and the first referred question is answered in the negative.
The appellants will have their costs here as well as in the High Court.
VIMNKATARAMA AYYAR J.
I agree to the order just proposed; but I prefer to rest my decision on the (1) 638 ground that the finding of the Tribunal that high denomination notes of the value of Rs. 30,000 represented the concealed* profits of the appellant is not supported by any evidence, and is, in consequence, erroneous in point of law and liable to be set aside.
The evidence on record has been exhaustively reviewed in the judgment just delivered, and there is no need to traverse the same ground again.
To put the matter in anut shell, the accounts of the appellant have been accepted by the Tribunal as genuine, and it is impossible to say, having regard to the cash balance as shown therein, that the notes in question could not have been included therein.
The Tribunal observes that it is unlikely that so many high denomination notes would have been held as part of the cash on hand for such a large number of days.
That, no doubt, is highly suspicious; but the decision of the Tribunal must rest not on suspicion but on legal testimony.
For the respondent, Mr. Joshi con.
tended that the cash balance shown in the books could not be accepted as true, because the appellant had ample time to rewrite the accounts, as the Ordinance was issued on 12th January 1946 and the year of account of the assessee was the Calendar year.
Whether the accounts are genuine or not is a pure question of fact, and a finding on a question of fact is as much binding on the Revenue as on the subject.

summary/full:
The appellants, a partnership firm assessed under sections 23(3) and 26 A of the Income tax Act, were called upon by the Income tax Officer during the assessment year 1947 48 to explain how and when they came to possess 61 thonsand rupee currency notes which they had encashed on the 18th January, 1946, after the promulgation of the High Denomination Bank Notes (Demonetisation) Ordinance of 1946, under which such notes ceased to be legal tender on the expiry of the 12th of January, 1946.
The assessees produced their cash book entries from the 20th December, 1946, to the 18th January, 1946, which were accepted as correct by the Income tax Officer, who, however, made no further scrutiny of the accounts, and,the entries showed that on the 12th of January, 1946, the cash balance in hand was Rs. 69,891 2 6.
The case of the appellants was that the said notes were a part of the cash balance and in further support of their case they filed before the Appellate Assistant Commissioner three affidavits by persons actually making the payments, in respect of certain entries in the cash book to prove that Rs. 20,000 on the 28th December, 1946, Rs. 15,000 on the 6th of January, 1946, and Rs. 8,000, out of a sum of Rs. 8,500, on the 6th of January, 1946, were paid in thousand rupee notes.
The Income tax Officer and the Appellate Assistant Commissioner in appeal, on a calculation of their own, held that the possession by the appellants of so many thousand rupee notes was an impossibility and that these notes must represent income from, undisclosed sources and as such be added to the assessable income of the appellants.
Neither the Appellate Assistant Commissioner nor the Income tax Officer, who was present at the hearing of the appeal, called for the deponents in order to cross examine them with reference to their statement in the affidavits.
The Appellate, Tribunal on appeal accepted the explanation of the assesses in respect of 31 of the notes but not with regard to the rest and rejected their application for a reference of the matter to the High Court.
The assessees moved the High Court and the Tribunal was directed under section 66(2) to state 627 a case for its decision.
In answering the main question, the High Court was of the opinion that the finding of the Tribunal was a finding of fact or an inference based on such finding and it was not possible to say that such finding or inference was unreasonable or arbitrary.
Held (per curiam), that the High Court was in error in refusing to interfere with the finding of the Tribunal which was based on no evidence and the appeal must succeed.
Per C.J. and BHAGWATI J. Conclusions based on facts proved or admitted may be conclusions of fact but whether a particular inference can legitimately be drawn from such conclusions may be a question of law.
Where, however, the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the court is entitled to interfere.
Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa, ([1955]) , applied.
Cameron vs Prendergast (Inspector of Taxes), ([1940] 8 I.T.R. (Suppl.) 75), Bomford vs Osborne (H. M. Inspector of Taxes), ([1942] 10 I.T.R. (Suppl.) 27) and Edwards (Inspector of Taxes) vs Bairstow and Another, ([1955] , referred to.
The High Court was in error in treating the finding of the Tribunal as a finding of fact and failed to apply the true principles of interference applicable to such cases.
The entries in cash book and the statements made in the affidavits in support of the explanation.
which were binding on the Revenue and could not be questioned, clearly showed that it was quite within the range of possibility that the appellants had in their possession the 61 high denomination notes on the relevant date and their explanation could not be assailed by a purely imaginary calculation of the nature made by the Income tax Officer or the Appellate Assistant Commissioner.
The Tribunal made a wrong approach and while accepting the appelants ' explanation with regard to 31 of the notes, it had absolutely no reason to exclude the rest as not covered by it in absence of any evidence to show that the excluded notes were profits earned by the appellants from undisclosed sources.
The appellants having given a reasonable explanation the Tribunal could not, by applying a rule of thumb, discard it so far as the rest were concerned and act on mere surmise.
Per VENKATARAMA AYYAR J.
The finding of the Tribunal that high denomination notes of the value Rs. 30,000 represented concealed profits of the appellants being unsupported by any evidence amounted to an error of law and was liable to be set aside.
That so many notes of high denomination should have been held as part of 628 the cash for so long a time, might be highly suspicious but decisions must be founded on legal testimony and not on suspicion.
The question whether the accounts were genuine or not was a pure question of fact and a finding that they were genuine was binding both on the Revenue and the subject.


judgement:
Civil Appeal No. 691 of 1970.
Appeal by Special Leave from the Judgment and Order dated 12 8 1969 of the Mysore High Court in Civil Revision Petition No. 1322 of 1967.
section section Javali, M. Veerappa and J. R. Das for the Appellant.
section C. Javali, P. G. Gokhale and B. R. Agarwala for the Respondents.
The Judgment of the Court was delivered by GUPTA J.
The only question that arises for decision in this appeal by special leave is whether the respondents before us are entitled to relief under section 25(ii) of the Bombay Agricultural Debtors Relief Act, 1947.
The question arises on the following facts.
On June 1, 1927 the predecessors in interest of the appellants transferred to one Krishnaji two plots of land bearing survey numbers 125/1 and 136 measuring respectively 14.5 and 21.31 acres in village Murnal, Bagalkot Taluk in Bijapur District.
The document by which the transfer was effected, described as a sale deed, shows that the two items of property were sold "absolutely" for a total sum of Rs. 2000/ .
In 1932 Krishnaji sold the plot bearing survey No. 136 to one Ramanna, predecessor in interest of respondent Nos. 2(a) to 2(e).
for Rs. 400/ .
In 1935, Krishnaji sold the other plot, survey No. 125/1, for Rs. 1000/ to Utalsab Dogrisab.
Walikar, predecessor in interest of respondents 1(a) to 1(c).
After the Bombay Agricultural Debtors Relief Act, 1947 came into force, the appellants applied under section 4 of the Act for adjustment of debts claiming that the transaction in 1927 was really not a sale but a mortgage.
The trial court held that the transaction was a mortgage and not a sale but dismissed the application on the view that the respondents were entitled to protection under section 25(ii) of the Act.
The District Judge reversed the decision and allowed the application under section 4.
The matter was taken to the High Court in revision and the High Court recorded a consent order that the tran 125 saction was not a sale but a mortgage and remitted the case to the trial court for a decision on the question whether the purchasers, Ramanna and Walikar, were transferees for value without notice of the real nature of the transaction between the appellants ' predecessors and Krishnaji and as such entitled to the protection of section 25(ii).
This order of the High Court was made on January 25, 1963.
At this stage we may mention that our attention was drawn to an order made in the same matter by the High Court on January 31, 1962, which is reported in , that shows that the same learned Judge had set aside the order of the appellate court and restored that of the trial court.
Counsel for both sides appeared to think that the order made by the High Court in 1962 must have been set aside later on review though neither of them was able to produce the order by which the 1962 order had been set aside.
However both learned counsel agreed that for the purpose of this appeal it is the order of the High Court made on January 25, 1963 that need be considered.
That the 1963 order held the field would be apparent from the fact that the case was reconsidered by the trial court as directed by the aforesaid order.
The trial court on hearing the matter after remand dismissed the application under section 4 on the finding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction.
The lower appellate court reversed this decision.
The purchasers then moved the High Court in revision from the order passed by the appellate court.
The High Court by the impugned order set aside the order of the appellate court and restored that of the trial court agreeing with the trial court that the purchasers had no notice of the real nature of the transaction of 1927.
Section 24 of the Bombay Agricultural Debtors Relief Act, 1947 empowers the court to declare any transfer of land by a person whose debts are being adjusted under this Act purporting to be a sale, to be a mortgage if the court was satisfied that the circumstances connected with the transfer showed it to be in the nature of a mortgage.
Section 25(ii) provides that nothing in section 24 shall apply to "any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before the 15th day of February, 1939".
The document evidencing the transfer of the plots to Krishnaji in 1927 is discribed as a "sale deed" and contains a statement that the vendors "have absolutely sold both the said lands to Krishnaji" and that the "entire ownership" was Krishnaji 's "alone".
It is also said that possession of the lands has also been given to Krishnaji.
The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927.
But the High Court also held that the notice contemplated in section 126 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)".
It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay.
We are of the view that section 25(ii) does not exclude constructive notice.
However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927.
It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice.
Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Court says: "It will be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody.
If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue further enquiries." Mr. section section Javali appearing for the appellants contends that the fact that the lands in question were transferred for a smaller amount in 1932 and 1935 than the price Krishnaji had paid for them in 1927 was a circumstance that should have put the transferees on enquiry and that if reasonable enquiries had been made they would have had knowledge of the real nature of the transaction of 1927.
The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the transaction of 1927 was really a mortgage.
As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935.
Ramappa in his deposition said that he paid Rs.400/ for the land as it was "fallow", and that if there were no weeds the price would have been Rs. 600/ .
As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court.
The record of rights also does not contain 127 any indication that the transaction of 1927 was in the nature of a mortgage.
The evidence discloses that Krishnappa put the transferees in possession of the lands in question.
There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors in interest of the appellants in 1927.
The appeal is dismissed but in the circumstances of the case without any order as to costs.
N.K.A. Appeal dismissed.

summary/full:
Section 25(ii) of the Bombay Agricultural Debtors ' Relief Act, 1947 provides that nothing in section 24 shall apply to any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before 15th February, 1939.
The predecessors in interest of the appellants transferred two plots of land in 1927 to one Krishnaji.
The document evidencing the transfer of the plots was described as a sale deed and contained a statement that the vendors had absolutely sold both the said lands to him, that the entire ownership was his "alone" and that possession had been given to him.
In 1932 and 1935 Krishnaji sold the two plots to the predecessors in interest of the respondents at a price lower than that paid by him when he purchased the plots.
After the coming into force of the 1947 Act the appellants applied under section 4 of the Act for adjustment of debts claiming that the transaction of 1927 was really not a sale but a mortgage.
Although the trial court came to the conclusion that the transaction was mortgage and not a sale it dismissed the application on the ground that the respondents were entitled to protection under section 25(ii) of the Act.
On appeal the District Judge allowed the application under section 4.
In revision, the High Court recorded a consent order that the transaction was not a sale but a mortgage and remitted the case to the trial court for a decision whether the purchasers were transferees for value without notice of the real nature of the transaction and were entitled to protection of section 25(ii).
On remand the trial court dismissed the application under section 4 holding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction.
The lower appellate court reversed this decision.
The High Court set aside the order of the appellate court and restored that of the trial court on the view that the purchasers had no actual knowledge or notice of the real nature of the transaction of 1927.
It also held that the notice contemplated by section 25(ii) was actual notice and that constructive notice was clearly beyond the contemplation of section 25(ii).
Dismissing the appeal, ^ HELD: Construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay.
Section 25(ii) does not exclude constructive notice.
[126A B] 124 In the instant case, however, the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927.
[126B] The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the transaction was really a mortgage.
The Act of 1947 could not have been within the contemplation of any one in 1932 or 1935 when the lands were sold.
The lands were fallow and barren.
The record of rights does not contain any indication that the transaction was a mortgage.
The transferees were put in possession of the lands.
Therefore there was no occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between the seller and the predecessors in interest of the appellants in 1927.
[126F H, 127A B]


judgement:
Civil Appeal No. 140 of 1979.
Appeal by Special Leave from the Judgment and Order dated 8 12 1978 of the Kerala High Court in C.R.P. No. 3450/78.
P. Govindan Nair, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. section Krishnamurthy Iyer, A. section Nambiyar, and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent landlord filed a petition for eviction of the appellant tenant from the premises in dispute under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, on the ground that the appellant had sub let the premises without the consent of the landlord.
The petition had a chequered career but finally the Rent Controller ordered eviction by his order dated July 31, 1974.
The order of the Rent Controller was confirmed, successively by the Subordinate Judge, the District Judge and, the High Court.
The tenant has now preferred this appeal by special leave of this Court under Art, 136 of the Constitution.
Shri Govindan Nair learned counsel for the appellant submitted that under section 108(j) of the , it was a term of every lease that the lessee might sub lease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act.
In order to appreciate the submission of Shri Govindan Nair, we may set out the relevant statutory provisions.
section 108(j) of the , is as follows: "108.
In the absence of a contract or local usage to the contrary, the lessor and the lessee of the immovable property, as against one another, respectively, possess the rights and are 141 subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased : (A) Rights and liabilities of the lessor (a) X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X (j) the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it.
The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; X X X X X X X X X section 11 of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, to the extent that it is relevant is as follows: "11(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that . . .
Provided further that . . (2) X X X X X X X X X (3) X X X X X X X X X (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building: (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so".
The submission of Shri Govindan Nair was that if the lease did not expressly prohibit sub letting, the provision in section 108(j) of the which enabled a lessee to sub lease the whole or any part of his interest in the property had necessarily to 142 be read into every lease as one of its terms, and so read, it followed that the lease conferred on the tenant the right to sub let "the entire building or any portion thereof" so as to disentitle the landlord from seeking eviction of the tenant under section 11(4)(i) of the Kerala Act.
We are unable to agree with this submission.
Read plainly and without gloss, section 11(4)(i), simply and clearly, means that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant.
If the clause "if the lease does not confer on him any right to do so" was not there in section 11(4)(i) the position would be unarguable that section 108(j) would offer no protection.
That much was also conceded by Shri Govindan Nair.
In our opinion, the addition of the clause did not improve matters for the tenant.
It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently, but it had to be conferred: it could not be claimed unilaterally by the tenant.
To interpret section 11(4)(i) in the manner suggested by Shri Govindan Nair would be to rewrite the provision as follows: "if the tenant. . . . . , without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, though prohibited by lease from doing so".
That, we are not called upon to do.
A little thought over the reason for section 11 (4)(i) will also throw some light.
Quite obviously, the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord by his act agreed to such a course.
Where the landlord had himself agreed that the tenant could sublet, the question would not arise.
Therefore, section 11 (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.
In V. Dhanapal Chettiar vs Yesodai Ammal(1) a Bench of seven judges of this Court had to consider the question whether notice under section 106 of the determining the lease was necessary before a landlord could move Rent Controller or other appropriate authority for the eviction of the tenant under the various State Rent Acts.
The Court held that it was not necessary and Untwalia, J., speaking for the Court, said: 143 "Section 108 deals with the rights and liabilities of lessors and lessees.
Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly.
The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution.
The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in section 108 of the except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication".
Later, he said: "But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given.
Or, it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice.
But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of the ".
It is clear from what has been said that not all the rights conferred on landlord and tenant by section 108 and other provisions of the have been left in tact by the various State Rent Acts and that if a State Rent Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) of the stands displaced by section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act and is no defence to an action for eviction based on section 11(4)(i).
We are satisfied that the appeal is without merit and is accordingly dismissed with costs.
P.B.R. Appeal dismissed.

summary/full:
On the ground that the tenant had sublet the premises without his consent the landlord sought the tenant 's eviction from the premises under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
The Rent Controller ordered eviction and this order was affirmed by the Subordinate Judge, District Judge and the High Court.
Before this Court it was contended on behalf of the tenant that under section 108(j) of the , it was a term of every lease that the lessee might sublease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Act.
Dismissing the appeal, ^ HELD: What section 11(4)(i) of the Act provides is that sub letting shall be a ground for eviction but not if it was by agreement of the landlord.
[142G] 1(a) What section 11(4)(i) means is that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
If the clause "if the lease does not confer on him any right to do so" was not there the position would be unarguable that section 108(j) of the would offer no protection.
But the addition of the clause only clarified that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently but it had to be conferred; it could not be claimed unilaterally by the tenant.
[142B D] (b) Quite obviously the legislature thought that the tenant, whose tenancy was well secured and protected by the rights conferred by the Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others beside himself unless the landlord by his act agreed to such a course.
[142F] 2.
It is well settled law that not all the rights conferred on the landlord and tenant by section 108 and other provisions of the have been left intact by the various State Rent Acts and that if a State Rent 140 Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) stands displaced by section 11(4)(i) of the Act and is no defence to an action for eviction based on this section.
[143G] V. Dhanapal Chettiar vs Yesodai Ammal. ; @ 1747= ; referred to.