judgement:
Appeal No. 370 of 1967.
Appeal from the judgment and order dated July 22, 1963 of the Calcutta High Court in Appeal from Original Order No. 58 of 1963.
E. Udayaratnan and A. P. Chatterjee, for the appellants.
H. R. Gokhale and D. N. Mukherjee, for respondents Nos. 1 3.
The Judgment of the Court was delivered by Bhargava, J.
On an industrial dispute referred to it, the Fifth Industrial Tribunal of West Bengal gave an award, which was published on September 19, 1955, under which 41 persons, including the 30 appellants who had been dismissed from service by the two Companies, which are respondents 1 & 2 in this appeal, were directed to be reinstated in service.
Under the award, it was held that these appellants were entitled to half their salary from October 2, 1953 to the date.
of their actual resumption of duty.
According to the appellants, they were not allowed to resume duty by the Companies, even though they offered to do so.
The Companies did not admit that there was any such offer and went up in appeal to the Labour Appellate Tribunal and obtained an order of stay of implementation of the award from it.
The Labour Appellate Tribunal dismissed the appeal, where after the Companies came in further appeal to this Court, and this Court also granted stay of the implementation of the award during the pendency of that appeal.
After the final dismissal of the appeal by this Court, the appellants were allowed to resume their duty.
Thereafter, a dispute arose as to the amount to which the appellants were entitled under the award until the date of resumption of duty by them.
The appellants, by separate applications, applied to the Second Labour Court, West Bengal, for determination of the amounts due to them under section 33C(2) of the (No. 14 of 1947) (hereinafter referred to as "the Act").
The Companies challenged the jurisdiction of the Second Labour Court on the ground that that Court had not been specified for the purpose of determining the amount at which the benefit claimed by the workmen is to be computed in terms of money under section 33C(2) of the Act.
This preliminary objection was accepted by the Second Labour Court which held that it had no jurisdiction to make any order on the applications presented by the appellants.
The appellants then filed a petition under Article 226 of the Constitution in the High Court of Calcutta challenging the correctness of the view taken by the Second Labour Court.
A learned single Judge of that Court came to the decision that the Second Labour Court had jurisdiction to take proceedings on the applications of the appellants under section 33C(2) of the Act, and 99 consequently, issued, a writ of certiorari vacating the order made by the Second Labour Court and a writ of mandamum directing the Second Labour Court to decide on merits the applications presented on behalf of the appellants.
The Companies then went before a Division Bench by a Letters Patent Appeal and, in that appeal, the decision of the learned single Judge was set aside and that of the Second Labour Court was restored.
The appellants have now come up to this Court by special leave against this order of the Division Bench of the Calcutta High Court by which it has been held that the Second Labour Court had no jurisdiction to deal with these applications of the appellants.
For convenience, the provisions of sub sections
(1) and (2) of section 33C of the Act, as they stood at the relevant time, are reproduced below: "33C. Recovery of money due from the Employer (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA, the workman may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.
(2)Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in sub section (1).
" The language of Sub section
(2) of section 33C is perfectly clear in laying down that the computation in terms of money of the benefit claimed by a workman is to be made by such Labour Court as may be specified in this behalf by the appropriate Government and, consequently, the only question that falls for determination is whether it can be held that the Second Labour Court, to which applications were presented by the appellants, bad been specified as "the Court" to make the determination under section 33C(2).
It was conceded by counsel for both parties that there was no general or specific order mentioning the Second Labour Court, West Bengal as the 100 Court specified for purposes of making the determination under section 33C(2).
On behalf of the appellants, it was urged that the Second Labour Court should be held to have jurisdiction to deal with these applications, because it was constituted under section 7(1) of the Act and every Labour Court constituted under the Act would be competent to make the determination under section 33C(2) by virtue of the provision contained in that sub section itself.
Section 7(1) of the Act lays down that: "The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act.
" The submission which was made before the High Court was that the matter which was raised by the applications presented on behalf of the appellants related to one of the matters specified in the Second Schedule, because the Second Schedule at Item No. 6 contained the entry "all matters other than those specified in the Third Schedule" and determination of money value of a benefit claimed by a workman is not one of the matters specified in the Third Schedule.
This contention was rejected by the appellate Bench of the High Court.
It was not sought to be pressed before us by learned counsel for the appellants when it was pointed out to him that even if it be held that the matter raised by the appellants him their applications related to one of those enumerated in the Second Schedule, that would be immaterial, because, tinder s.7(1) of the Act, a Labour Court is constituted for the purpose of adjudication of industrial disputes relating to those matters, and it cannot possibly be contended that these disputes raised by in dividual workmen for determination of amounts due to them under the award constituted industrial disputes.
In fact, this Court, in the Central Bank of India Ltd. vs P.S. Rajagopalan etc.
,(1) clearly held that proceedings under section 33C of the Act are in the nature of execution proceedings and are not meant to include in them proceedings for adjudication of industrial disputes which can only be competently decided by a Labour Court on reference by the appropriate Government under s 10(1) of the Act.
It was in view of this clear legal position that the counsel appearing for the appellants relied on the second part of s.7(1) of the Act, under which Labour Courts are constituted "for performing such other functions as may be assigned to them under this Act".
Labour Court, West Bengal, having been constituted for performing such other functions also as may be assigned to it under the (1)[1964] 3 S.C.R. 140.
101 Act, it should be held that it was competent to decide the dispute raised by these applications of the appellants, because this function of deciding the applications had been assigned to it by section 33C(2) of the Act.
The submission of learned counsel was that section 33(C)(2) should be read as containing a general assignment to all Labour Courts of the function of determining the money value of a benefit claimed by a workman under that provision.
We are unable to accept this interpretation.
The language of section 33C(2) itself makes it clear that the appropriate Government has to specify the Labour Court which is to discharge the functions under this sub section.
The use of the expression "specified in this behalf" is significant.
The words "in this behalf" must be given their full import and effect.
They clearly indicate that there must be a specification by the appropriate Government that a particular Court is to discharge the function under section 33C(2) and, thereupon, it is that Court alone which will have jurisdiction to proceed under that provision.
The more fact that a Labour Court has been constituted under section 7(1) of the Act for the purpose of adjudication of industrial disputes as well as for performing other functions that may be assigned to it under the Act does not mean that that Court is automatically specified as the Court for the purpose of exercising jurisdiction under section 33C(2) of the Act.
section 33(C)(2) confers jurisdiction only on those Labour Courts which are specified in this behalf, i.e., such Labour Courts which are specifically designated by the State Government for the purpose of computing the money value of the benefit claimed by a workman.
The Second Labour Court, West Bengal, was in fact, never specified by any order of the State Government as one of those Labour Courts which is to exercise the powers or discharge the functions under section 33C(2).
In this connection, learned counsel appearing for the appel lants wanted to draw an analogy with section 13 of the Bengal, Agra and Assam Civil Courts Act XII of 1887, under which a State Government may, by notification in the Official Gazette, fix and alter the local limits of the jurisdiction of any Civil Court under that Act.
It was urged by him that this provision was similar to the provision contained in section 7(1) of the Act.
Section 13(2) of the Bengal, Agra and Assam Civil Courts Act thereafter gives the power to the District Judge, in cases where same local jurisdiction is assigned to two or more Subordinate Judges or to two or more Munsifs, to assign to each of them such civil business cognizable by the Subordinate Judge or Munsif, as the case may be, as, subject to any general or special orders of the High Court, he thinks fit.
It was suggested that s.33C(2) of the Act makes a provision in respect of Labour Courts of the same nature as the provision made by s.13(2) of the Bengal, Agra and Assam Civil Courts Act in respect of Subordinate Judges or Munsifs, and since Subordinate Judges and Munsifs can exercise jurisdiction by virtue of section 13(1) of that Act to decide civil suits, it should be held that Labour 102 Courts, by virtue of their constitution under s.7(1) of the Act, get the jurisdiction to decide applications under s.33C(2) also, and the specification of Courts mentioned in that sub section is only for the purpose of deciding which Labour Court should exercise jurisdiction where there may be more than one Labour Court.
We do not think that this comparison is correct or justified.
Though Civil Courts are constituted under s.13 of the Bengal, Agra and Assam Civil Courts Act, it has to be remembered that the power of those Courts to take cognizance of civil suits and decide them is conferred by the Code of Civil Procedure.
It is not by virtue of their constitution under s.13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance of civil suits and decide them.
Section 33C(2), in the matter of applications made by individual workmen, is, therefore, not comparable with s.13(2) of the Benaal, Agra and Assam Civil Courts Act, but, in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workmen.
Section 33C(2) would, thus, serve the purpose in the case of Labour Courts which is served by the provisions of the Code of Civil Procedure relating to cognizance in respect of.
civil courts.
section 33C(2), by its language, makes it clear that the jurisdiction under that provision is to be exercised only by those particular Courts which are specified in that behalf by the State Government and, in fact, confers jurisdiction on only those Courts and not on all Labour Courts, which may have been constituted under s.7(1) of the Act.
It was also urged by learned counsel before us that we should give a liberal construction to the provisions of s.33C(2) so as to ensure that the benefits of that provision are not denied to a workman even if a State Government neglects to specify a Labour Court in that behalf.
We do not think that there is any force in this submission.
When a provision has been made in s.33C(2) for specification of a Labour Court in that behalf by the appropriate Government, it is presumed that that Government will carry out its duty and will make the necessary specification.
Even under s.7(1) of the Act, the power is granted to a State Government to constitute Labour Courts, and if the State Government neglects to constitute Labour Courts, the provisions of s.33C(2) would automatically become ineffective.
This would be no ground for giving an interpretation to s.7(1) which would do away with the necessity of the Labour Court being constituted by a State Government.
It may also be incidentally mentioned that in West Bengal the State Government had made Rules in 1958 under s.38 of the Act and Rule 74 was as follows: "74.
Application for recovery of dues An application under section 33C shall be delivered personally or forwarded by registered post in triplicate to the Secretary 103 to the Government of West Bengal in the Department of Labour or to such officers to whom powers have been delegated under section 39 of the ." This Rule lays down that all applications under s.33C are to be delivered to the Secretary to the Government of West Bengal in the Department of Labour, or to such officers to whom powers may have been delegated under s.39 of the Act.
The purpose of the application being sent to the Government is clear.
If the application is under s.33C(1), the Government is to take action on that application itself and is to realise the money claimed in that application.
On the other hand, if the application happens to be under s.33C(2), the purpose of delivery of that application to the Secretary to the Government clearly would be that, on that applica tion, the Government would specify the Labour Court which is to deal with that application.
It appears that, in some States, the appropriate Government has.
by general orders, specified Labour Courts for the purpose of exercising jurisdiction under s.33C(2).
So far as the Government of West Bengal is concerned, it did not issue any similar general order, and the intention of Rule 74 was that any workman wishing to obtain relief under s.33C(2) should apply to the State Government when the Government would specify the Labour Court for the purpose of dealing with that application.
This position has been further clarified by a subsequent amendment of Rule 74 under which it is clearly provided that where any work.
man is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the workman concerned may apply to the State Government in the prescribed Form for the specification of a Labour Court for determining the amount of his dues.
It is true that this Rule 74 did not in this form exist at the relevant time, with which we are concerned in the pro sent case, but we agree with the Bench of the Calcutta High Court that Rule 74, as it stood at that time, was also intended to lay down that a workman claiming relief under s.33C(2) must present his application to the State Government, whereupon the State Government would specify the Labour Court which was to deal with it under s.33C(2) of the Act.
For the reasons given above, we hold that the decision of the Division Bench of the Calcutta High Court is correct and must be upheld.
The appeal fails and is dismissed, but, in the circumstances of this case, we make no order as to costs.
Y. P. Appeal dismissed.

summary/full:
Under an award in an industrial dispute, it was held that the appellants workmen were entitled to half wages from a certain date to the date they resumed duty.
After the final disposal of the companies ' appeal, the workmen were allowed to resume duties.
Thereafter, a dispute arose as to the amount to which the workmen were entitled.
The workmen, by separate applications, applied to the Second Labour Court, West Bengal for determination of the amounts due to them under section 33C(2) of the .
The companies challenged the jurisdiction of the Second Labour Court on the ground that the court had not been specified for the purpose of determining the amount at which the benefit claimed by the workmen was to be computed in terms of money under section 33C(2) of the Act.
The preliminary objection was accepted by the Second Labour Court, against which the workmen filed a writ petition.
This petition was accepted by the High Court, but in appeal, the High Court dismissed the petition.
HELD: The appeal must fail.
The mere fact that a Labour Court has been constituted under section 7(1) of the Act, for the purpose of adjudication of Industrial Disputes as well as for performing other functions that may be assigned to it under the Act does not mean that the court is automatically specified as the Court for the purpose of exercising jurisdiction under section 33C(2) of the Act.
Section 33C(2) confers jurisdiction only on those Labour Courts which are specified in this behalf, i.e., such Labour Courts which are specifically designated by the State Government for the purpose of computing the money value of the benefit claimed by a workman.
The Second Labour Court, West Bengal, was never specified by any order of the State Government as one of those Labour Courts which was to exercise the powers or discharge the functions under section 33C(2).
[10OC E].
Though the Civil Courts are constituted under section 13 of the Bengal, Agra and Assam Civil Courts Act, the power of those courts to take cognizance of civil suits, and decide them is conferred by the Code of Civil Procedure.
It is not by virtue of their constitution under section 13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance (of civil suits and decide them.
Section 33C (2), in the matter of applications made by individual workmen, is therefore, not comparable with section 13(2) of the Bengal, Agra and Assam Civil Courts Act, but in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workman section 33C(2) would, thus, serve the purpose in the case of Labour Courts which is served by the provisions of the Code of Civil Procedure re lating to cognizance in respect of Civil Courts.
[102B D] 98


judgement:
il Appeals Nos. 2178 to 2182 of 1966.
Appeals by special leave from the judgment and order dated August 28, 1961 of the Bombay.
High Court in Income tax Reference No. 5 of 1961.
section T. Desai, R. Ganapathy Iyer, R. N. Sachthey and section P. Nayar, for the appellant (in all the appeals).
T. V. Viswanatha Iyer, O. C. Mathur, and, B. Parthasarathy, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Sikri, J.
These appeals by special leave are directed against the judgment of the High Court of Judicature at Bombay answering the following question (Question No. 3) against the Commissioner of Income tax, Bombay City and Suburban District, appellant before us: "3.
Whether on the facts and in the circumstances of the applicant 's case the Tribunal was right in holding that a proportionate part of the profits determined on sales grouped under Items 3, 4, 5 and 9 in the assessment order by the application of Rule 33 was assessable to Income tax? The High Court, in view of its answer to this question did not answer the following question (Question No 2): "Whether on the facts and in the circumstances of the applicant 's case, the Tribunal was right in holding that in respect of sales of Rs. 14,80,059 the profit was correctly determined by the application of Rule 53 and one third of the profits so determined could be said to accrue or arise in British India?" We are not concerned with the remaining question (Question No. 1) which related to sales to the Government of India, as that question was answered in favour of the appellant.
Relevant facts are as follows: The respondent, Hukamchand Mills Ltd., Indore, hereinafter referred to as the assessee, is a limited company incorporated in the State of Indore and had a textile mill at Tadore.
It carried on the business of manufacture and sale of textiles in the calendar years 1941, 1942, 1944, 1945 and 1946.
For the relevant assessment years, namely, 1942 43, 1943 44, 1945 46, 1946 47 and 1947 48, the Income tax Officer found that the assessee effected certain sales to merchants and others in British India.
For the assessment year 1942 43, the Income tax Officer classified the total sales of Rs. 92,45,151 into four categories.
Out of the total sales, sales 49 Rs. 14,80,059 formed the subject matter of the two questions reproduced above.
The statement of the case details the categories in the following chart: Sales Balance Sales effected of pursu Total and columns ant to Category of Sales Sales received II and cent.
Balance in British III racts India bearing Stamps of Indore State (a,) Sales in pursuance of business canvassed by company 's represemita.
tives in British India 10,02,642 3,35,855 6,66,787 20,759 6,46,028 (3) (b) Sales to British Indian merebants through birokers and agents in British India. .2,91,891 2,91,891 2,91,891 (4) (c) Sales to British Indian merchants and brokers during their visit at lndore 3,85,214 3,85,214 2,86,224 (5) (d) Sales to British Indian merchants at the time of their own or their brokers ' visit at Indore 3,13,306 3,13,306 57,390 2,55,916 (9) ____________________________________________________________ 19,93,0533,35,855 16,57,1981,77,13914,80,059 ____________________________________________________________ (The figures at the extreme right show the item numbers used by the Income tax officer in para 2.of the assessment order).
The modus operandi for effecting the sales enumerated in the chart referred to above is described as follows in the statement of the case: "(a) Sales of Rs. 6,66,787: The assessee had a paid representative at Bombay who canvassed on behalf of the Company to British Indian Merchants.
The orders were sent by such merchants to Indore.
On acceptance of orders by the Company at Indore the Company prepared the contracts, signed them and forwarded the same for being signed by the customer.
One contract was signed by the customer and returned to the assessee.
Thus 'the Company signed at Indore and the customer signed, in British India.
The contracts were signed on company 's forms.
On some contracts there were stamps of Holkar State.
On the remainder there were 'British India ' stamps.
Sales on which Holkar Stamps were affixed aggregated to Rs. 20,759 which were deleted by the Appellate L/P(N)1SCI 5 50 Assistant Commissioner from the said sales of Rs. 6,66,787.
Sales of Rs. 3,35,855 under this category received in British India by the representative of the assessee at Bombay were taxed on receipt basis and the same was not contested, as stated above.
The goods under the contracts referred to hereinabove were delivered F.O.R. Indore.
The relevant railway receipt made in the name of 'self ' was endorsed in favour of the customer and was handed over to Imperial Bank of India, Indore, for being delivered to the merchant.
Sale proceeds were received at Indore through the Imperial Bank of India, Indore.
(b)Sales of Rs. 2,91,891 : The brokers in British India who were described as free lance brokers transmitted the offers to the company.
These offers were made on the brokers ' own forms and were communicated to the merchants through the brokers.
Such orders were placed by the brokers in the normal course of business of these brokers who were not en, aged by the Mill as such.
The goods were delivered F.O.R. Indore.
The relevant railway receipt made in the name of 'Self ' was endorsed by the assessee in favour of the merchants and handed over to the Imperial Bank of India.
(c)Sales of Rs. 3,85,214: These sales were made to British Indian merchants and customers, who came to Indore to negotiate and place orders.
The orders were accepted at Indore.
On some contracts made for sales under this item, stamps of Holkar State were affixed.
Sales pursuant to contracts on which stamps at Holkar State were affixed aggregated to Rs. 98,990 which was deleted by the, Appellate Assistant Commissioner from the aforesaid sales of Rs. 3,85,214.
The goods were delivered, F.O.R. Indore.
The railway receipt was made out in the name of 'Self ' and was endorsed by the assessee in favour of the customer and handed over to the Imperial Bank of India for being delivered to the party concerned.
The sale proceeds were received at Indore as in other cases.
(d)Sales of Rs. 3,13,306: Sales under this category were made to British Indian merchants on their or their broker 's personal visit to Indore.
Contracts for such sales were made in the same manner as stated hereinbefore.
Such sales, in respect of which relevant contracts bore the Holkar State stamps aggregated to Rs. 57,390 which were deleted by the Appellate Assistant Commissioner from the aforesaid sales of Rs. 3,13,306.
The goods were delivered F.O.R. Indore.
The railway receipt was made in the name of 'self ' and was endorsed in favour 51 of the customer and handed over to the Imperial Bank of India for being delivered to the merchants.
The sale proceeds were recovered from the Imperial Bank of India, Indore, at Indore as in other cases.
" The Income tax Officer held that profits apportionable on sales of Rs. 16,57,198 accrued or arose in British India and as such taxed the same on accrual basis.
Rs. 3,35,855 having been received in British India were taxed on accrual cum receipt basis.
The Appellate Assistant Commissioner on appeal held that taking into account all facts of the case it would be fair to take 3 3 1/3 % of the profits realised on sales amounting to Rs. 16,57,198 as attributable to activities in British India.
Out of this amount he deducted sales totalling Rs. 1,77,139 as the contracts in respect of these were signed at Indore and accepted at Indore.
On the balance of sales of Rs. 14,80,059 the Appellate Assistant Commissioner held that, on the analogy of Rule 33 of the Indian Income tax Rules, 3 1/3% profits out of the total profits apportionable to such sales should be attributable to the activities in British India and as such taxed in the hands of the assessee.
The Tribunal confirmed the order of the Appellate Assistant Commissioner.
In compliance with the order of the Bombay High Court, the Appellate Tribunal drew up a statement of the case under section 66(4) of the Indian Income tax Act, and referred three questions mentioned above.
The High Court, as stated above, answered Question No. 3 in favour of the assessee, and the appellant having obtained special leave, the appeal is now before us.
Mr. section T. Desai the learned counsel for the appellant, con tends that the High Court was wrong in holding that no part of the profits of the sales could be said to have accrued or arisen in British India.
He says that on the facts and circumstances of the case, the property in the goods passed in British India in all the four categories.
He says that the method of delivery in the four categories was similar, namely, that the railway receipts were made in the name of 'self ' and endorsed in favour of the customers and were handed over to the Imperial Bank of India, Indore, for being delivered to the merchant and sale proceeds were received at Indore through the Imperial Bank of India, Indore.
He further says that the fact that the goods were to be delivered F.O.R. at Indore does not make the property in the goods pass at Indore.
There.
is considerable force in the learned counsel 's submissions.
In Pushanlal Mansinghka (P) Ltd. vs The Commissioner of Income Tax.
Delhi,(1), this Court, on similar facts, held that the property in the goods passed in Part A and Part C States where the delivery was made.
This Court further held that the income accrued only (1) Civil Appeals Nos.
557 558 of 1966; judgement delivered on May 5, 1967.
52 when the purchaser paid the price through the bank.
The method of delivery.
in that case was as follows: "The appellant consigned the goods to 'self ' and the railway receipts alongwith the bills of exchange were presented by the appellant to the Rajasthan Bank.
Bhilwara, for collection after endorsing the railway receipts in favour of the Bank.
It has also been found that the Rajasthan Bank in its turn endorsed the railway receipts in favour of its branches in Part 'A ' and Part 'C ' States and that the goods were delivered to the buyers only when they paid the price to the Bank and obtained the railway receipts.
" We may mention that in Commissioner of Income tax, Delhi vs P. M. Rathod & Co.(1) Kapur, J., speaking for the Court, on similar facts, observed: "The railway receipts in favour of self could not be delivered to the buyer till the money was paid and although the goods had been handed over to a common carrier the appropriation to the contract was only conditional and the performance was completed only when the monies were paid and the railway receipts delivered." This case was followed in Commissioner of Income tax vs Bhopal Textiles Ltd.(2).
It is true that the Court in these cases was concerned with the question of the receipt of income, but there is no difference in principle as in both cases the question of passing the property in the goods or performance of the contract had to be considered .
The learned counsel for the assessee contends that no such point was raised before the Appellate Tribunal and we should not allow the appellant to raise this point at this stage.
It seems to us that before the High Court stress was laid on the "formation of the contract and its complete performance" and not on the aspect of the passing of property in the goods.
These questions are perhaps relevant to the answering of Question No. 2 but we are unable to regard this aspect as a new question.
Following our judgment in Pushanlal Mansinghka (P) Ltd. vs The Commissioner of Income tax, Delhi(1) we hold that income accrued within British India and that a proportionate part of the income was assessable to incometax.
In view of this the answer to the question (Question No. 3) must be in the affirmative.
(1) , 150.
(2) (3) Civil Appeals Nos.
557 558 of 1966; judgment delivered on May 5,1967.
53 Regarding Question No. 2, the learned counsel for the appel lant invited us to answer the question.
The learned counsel for the assessee raised a number of points on which the High Court has not expressed its views.
Under the circumstances we think it would be proper if we remand the case to the High Court for answering Question No. 2 according to law.
In the result the appeals are allowed and question No. 3 answered in the affirmative, and the case remitted to the High Court to answer question No. 2 in accordance with law.
The High Court did not allow any costs.
Under the circum stances there will be no order as to costs in this Court.
R.K.P.S. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The respondent was a limited company incorporated in the State of Indore where it had a textile mill.
During the years from 1941 to 1946, it effected sales in British India through canvassing by its own representatives,.
through brokers or through the purchasers ' brokers or representatives visiting Indore.
The sales in British India in all categories were made F.O.R, Indore; the Railway Receipts were made out in the name of 'self ' and were endorsed in favour of the customer concerned and handed over to the Bank for delivery to the customer against payment of the sale price which was received at Indore through the Bank 's local branch.
In the course of its assessment to Indian Income tax for some of the years during the period 1942 43 to 1947 48, the Income tax Officer, apart from taxing the income actually received in India, also held that the profits apportionable to all the other sales made in British India accrued or arose in the taxable territories and were therefore liable to Indian Income tax.
He accordingly taxed the same on accrual basis.
The Appellate Assistant Commissioner in appeal held that taking into account the fact of the case, it would be fair.
on the analogy of Rule 33 of the Indian Income tax Rules 1922 to attribute 331 per cent of the profits to the activities in British India and to assess them to Indian Income Tax.
The Tribunal confirmed this order but the High Court, on a reference under section 66 of the Indian Income tax Act, held in favour of the respondent.
In the appeal to Supreme Court it was contended on behalf of the appellant that on the procedure adopted for the sales, the property in the goods passed in British India in all the categories of sales and that the fact that the goods were sold F.O.R. at Indore did not make any difference to that position.
The High Court had therefore wrongly taken the view that the sales were not taxable in India.
HELD: Allowing the appeal: the income accrued within British India and a proportionate part of it was assessable to Indian Incometax.
[52G H] Pushanlal Mansingka (P) Ltd.
The Commissioner of Income Tax, Delhi, Civil Appeal Nos.
557 558 of 1966, decided on May 5, 1967; followed.
Commissioner of Income tax, Delhi vs P.M. Rathod & Co. , 150: Commissioner of Income tax vs Bhopal Textiles Ltd., , referred to. 48


judgement:
Appeals Nos.
256 267 of 1966.
Appeals by special leave from the Award dated April 6, 1964 of the Central Government Labour Court, Dhanbad in Ap plications L.C. Nos.
237 / 245, 228 / 247, 238 / 250, 230 / 252, 239 / 254, 229/255 of 1962.
H.R. Gokhale and D. N. Gupta, for the appellant (in all the appeals).
Janardan Sharma, for the respondents (in all the appeals).
The Judgment of the Court was delivered by Shelat, J.
These appeals by the special leave arise out of applications filed by workmen of the appellant company claiming bonus under the Scheme framed by the Central Government under the, Coal Mines Provident Fund and Bonus Schemes Act, 46 of 1948 and railway fares and leave wages under the award of the Industrial Tribunal (Colliery Disputes) which came into effect as from February 22, 1954.
The Central Government Labour Court at Dhanbad allowed their claim under section 33C (2) of the .
Mr. Gokhale for the appellant company challenged the correctness of the Labour Court 's decision and raised the following contentions : (1) that the Labour Court had no jurisdiction to try these applications under section 33C (2): (a)because section 33C(2) contemplates recovery of money payable under an award, settlement or under the provisions of Chapter VA of the only 142 and not under any other statute or scheme framed there under; (b)that under section 33C(2) the benefit capable of being computed in terms of money is a non monetary benefit and not a claim for money itself; and (c)that the proceedings under section 33C(2) being in the nature of execution proceedings substantial questions between an employer and his employee cannot be adjudicated by the Labour Court under this section; (2)that in any case these applications were barred by limitation prescribed by the said bonus Scheme and/or due to laches on the part of the respondents , (3)that under the said Scheme the respondents are not entitled to bonus as they were employed as domestic servants and were during the relevant period performing domestic and personal work; and (4)that the direction to pay bonus for the period prior to the dates on which these respondents were employed was in valid.
The contention as to jurisdiction of the Labour Court depends on the true construction of section 33C(2) as it stood in 1962 when these applications were filed and before its amendment by Act 36 of 1964.
Section 33C(2) has so far been the subject matter of decision by this Court in three cases, viz., Punjab National Bank Ltd. vs Kharbanda(1), Central Bank of India vs Rajagopalan(2) and Bombay Gas Co. Ltd. vs Gopal Bhiva(3).
The following propositions on the question as to the scope of section 33C(2) are deducible from these three decisions: (1)The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing, individual rights and therefore inserted section 33A in 1950 and section 33C in 1956.
These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to section 10(1) and without having to depend on their union to espouse their case.
(2)In view of this history two considerations are relevant while construing the scope of section 33C.
Where industrial disputes arise between workmen acting collec tively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for (1) [1962] Supp. 2 S.C.R. 977.
(2) ; (3) ; 143 instance under section 10(1).
But having regard to the legislative policy to provide a speedy remedy to Individual ' workmen for enforcing their existing rights, it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen.
Therefore though in determining the scope of section 33C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under section 10(1), cannot be brought under section 33C; (3)Section 33C which is in terms similar to those in section 20 ofthe Industrial Disputes (Appellate Tribunal) Act,, 1950 is a provision in the nature of an executing provision; (4)Section 33C(1) applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertained and therefore there is no dispute about its computation.
But sub section 2 applies both to non monetary as well as monetary benefits.
In the case of monetary benefit it applies where such benefit though due is not calculated and there is a dispute about its calculation; (5)Section 33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers.
It is open to the Labour Court to interpret the award or settlement on which the workmen 's right rests.
(6) The fact that the words of limitation used in section 20(2) of the Industrial Disputes (Appellate Tribunal Act.
1950 are omitted in section 33C(2) shows that the scope, of section 33C(2) is wider than that of section 33C(1).
Therefore, whereas sub section 1 is confined to claims arising under an award or settlement or Chapter VA.
claims which can be entertained under sub section are not so confined to those under an award, settlement or Chapter VA.
(7)Though the court did not indicate which cases other than those under subsection would fall under sub section 2.
it pointed out illustrative cases which would not fall under sub section 2, viz., cases which Would ap propriately be adjudicated under section 10(1) or claims which have already been the subject matter of settlement to which sections 18 and 19 would apply.
(8)Since proceedings under section 33C(2) are analogous to execution proceeding and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court.
the Labour Court like the executing court 144 in execution proceedings governed by the Code of Civil Procedure, is competent under section 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction.
It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer.
Since the scope of sub sec.
2 is wider than that of subsec.
1 and the sub section is not confined to cases arising under an award, settlement or under the, provisions of Chapter VA.
there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary tinder such statute or section 33C(2), cannot fall within sub section 2.
Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub section 2 and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.
The contention that the Labour Court had no jurisdiction because the claim arose under the said scheme or because the benefit was monetary or because it involved any substantial question between the Company and the workmen must, in view of the said decisions, fail.
These applications were made in 1962 though they related to claims for the years commencing from 1948 and onwards.
The contention therefore was that part of these claims, at any rate, must be held to be barred either by limitation or by reason of laches on the part of the workmen.
The answer to this contention is clearly provided in the case of Bombay Gas Co.(1) where a distinction was drawn between considerations which would prevail in an industrial adjudication and those which must prevail in a case filed under a statutory provision such as section 33C(2).
This court pointed out there that whereas an industrial dispute is entertained on grounds of social justice and therefore a Tribunal would in such a case take into consideration factors such as delay or laches, such considerations are irrelevant to claims made under a statutory provision unless such provision lays down any period of limitation.
The Court held that there is no justification in inductina period of limitation provided in the Limitation Act into the provisions of section 33C(2) which do not lay down any limitation and that such a provision can only be made by legislature if it thought fit and not by the court on an analogy or any other such consideration.
It is a matter of some significance that though the legislature (1)[1964] 3 S.C.R. 709. 145 amended section 33C by Act 36 of 1964 and introduced limitation in the section, it did so by means of a proviso only in respect of claims made under sub sec.
1 but did not provide any limitation for claims under sub section 2.
In view of this fact and the decision in Bombay Gas Company 's case(1) Mr. Gokhale conceded that he could not press the contention that the present claims were barred by limitation or laches.
Some reliance however was sought to be placed on cl. 3 of section 9A of the Bonus Scheme.
Section 9(A) contemplates that the employer has first to tender the bonus payable to the workman under the Scheme.
If the bonus, in spite of the tender, remains unclaimed for six months after such tender, he is required to have it credited in the Reserve Account established under the Scheme.
The section then provides by cl. 2 that the bonus amount shall be paid in the seventh month from the end of the quarter to which it relates by depositing it in such government treasury as may be prescribed and the original chalan of such deposit shall be sent within the time set out therein to the Coal Mines Provident Fund Commissioner.
Clause (3) then provides that a workman who desires payment of arrears of bonus payable to him shall apply to the said Commissioner within three years from the last date of the quarter to which the bonus relates.
The period of three years of limitation thus applies to applications for payment by the Commissioner from the deposit made in the treasury and has no application to claims under section 33C(2) which as aforesaid makes no provision for limitation The contention that the respondents workmen, though admittedly the employees of the appellant company, were not entitled to bonus under the Scheme as they were doing domestic and personal work, viz., of supplying water at the residence of certain junior officers of the Company throughout the relevant period, is also not tenable.
The relevant portion of section 1 of the Bonus Scheme relied on by the Company reads as follows: "1.
Class of employees eligible to qualify for bonus Except as hereinafter provided, every employee in a coal mine to which this Scheme applies shall be eligible to qualify for bonus.
Exceptions An employee in a coal mine shall not be entitled to a bonus under the Scheme for the period during which (a). . . . . (b)he is employed as a mali, sweeper or domestic servant on domestic or personal work. . " (1) ; my(N)ISCI 12 146 Under this section every employee of the Company except as therein provided is eligible for bonus.
The exception provides that a person though an employee in a colliery is not entitled to bonus inter alia for the period during which he is employed as a mali, sweeper or domestic servant on domestic and personal work.
Two conditions are therefore necessary to render an employee ineligible for bonus : (1) that he is employed as a mali, a sweeper or a domestic servant and (2) that he performs during the relevant period domestic or personal work.
To render an employee ineligible for bonus under this exception both the capacity and the nature of work are relevant factors.
It follows that even though an employee is employed as a mali, a sweeper or a domestic servant if he does non domestic or non personal work he will be entitled to bonus and would lose his right to it only during that period that he does domestic or personal work.
In Bhowra Collicry vs Its Workmen(1) this Court construed this very exception and held that if the concerned workmen were employed and worked as garden mazdoors and malis to look after the gardens attached to the bungalows occupied by the Colliery officers they would not be eligible for the bonus notwithstanding the fact that the bungalows were owned by the Colliery, the workmen were Colliery 's employees and worked under the Company 's orders and were liable to be transferred from one job to another.
Thus the employment of a person as a mali, sweeper or a domestic servant and discharge by him of domestic or personal work as distinguished from non domestic and non personal work, i.e., work relating to the colliery, are necessary conditions before the exception can apply.
In view of the admitted position that the respondents work men were employees of the Company the burden of proof that they fell within the exception is clearly on the Company.
In its written statement the Company no doubt averred that these workmen were employed as domestic servants and carried out domestic and personal duties and were therefore not eligible for the bonus.
But it is clear from the evidence of the two witnesses examined by the Company that the Company failed to establish either that the respondents were employed as domestic servants or that they were exclusively en aged on domestic or personal, work.
On the other hand, from the evidence of Sibu, one of the respondent workmen, it appears that the respondents were employed in the colliery, that they were not assigned the exclusive duty of supplying water, at the residence of the junior officers but that they supplied water at certain pit heads.
On this evidence the Labour Court has given a finding that they were engaged in supplying water at certain points in the colliery.
In these circumstances the Labour Court was justified in coming to the conclusion that the exception did not apply.
(1) 147 The last contention which remains to be considered was that the Labour Court was not right in awarding the claim of the workmen in full, both as regards bonus and railway fares and leave wages.
According to the Company, none of these workmen was in its employment in 1948, that they were appointed at different dates and that they would at best be entitled to bonus for the period during which they were so employed.
This contention has, however, no force in view of the Company not having disputed the quantum of relief claimed by the workmen both as regards bonus as also the railway fares and leave wages.
The appeals are dismissed with costs.
Appeal dismissed.

summary/full:
The respondents workmen filed applications in 1962 claiming bonus under the Scheme framed by the Central Government under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 and railway fares and leave wages from 1948 onwards.
The Labour Court, Dhanbad allowed their claims under section 33C(2) of the , which, in appeals to this Court, the appellant Company challenged, contending, that (1) the Labour Court had no jurisdiction to try these applications under section 33C(2); (ii) the applications were barred by Limitation prescribed by the bonus Scheme and/or due to laches.
and (iii) under the said Scheme the workmen were not entitled to bonus as they were employed as domestic servants.
HELD:The appeals must fail.
(i)The right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship ' between an industrial workman and his employer.
Since the scope of sub see.
2 of section 33C is wider than that of sub s 1, and the sub section is not confined to cases arising under an award settlement or under the provisions of Chapter VA there is no reason to hold that a benefit provided by statute or a Scheme made thereunder, without there being anything contrary under such statute or section 33C(2), cannot fall within sub section 2.
Consequently.
the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remained to be computed must fall under sub section 2 and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.
[144B D].
Punjab National Bank Ldt.
vs Kharbanda [1962] Supp.
2 S.C.R. 977 Central Bank of India vs Rajagopalan [1964] 3 S.C.R. 140, and Bombay Gas Co., Ltd. vs Gopal Bhiva [1964] 3 S.C.R. 709 relied on, (ii)There is no justification for inducting a period of limitation provided in the Limitation Act into the provisions of section 33C(2) which do not lay down any limitation.
It is a matter of some significance that though the legislature amended section 33C by Act 36 of 1964 and introduced limitation in that Section, it did so by means of a proviso only in respect of claims made under sub sec.
1 but did not provide any such limitation for claims under sub sec.
[14 4H 145B].
Bombay Gas Co. Ltd. vs Gopal Bhiva ; relied on.
141 The period of three years of limitation provided for by clause (3) of section 9A of ;the Bonus Scheme applies to applications for payment by the Coal Mines Provident Fund Commissioner from the deposit made in the Government treasury and has no application to claims under section 33C(2) which makes no provision for limitation.
[145D E].
(iii)Two conditions are necessary to render an employee ineligible for Bonus under section 1 of the Bonus Scheme: (1) that he is employed as a mali, a sweeper or a domestic servant, and (2) that he performs during the relevant period domestic or personal work.
To render an employee ineligible for bonus under this exception both the capacity and the nature of work are relevant factors.
It follows that even though an employee is employed as a mali, a sweeper or a domestic servant if he does non domestic or non personal work he will be entitled to bonus and would lose his right to A only during that period that he does domestic or personal work.
[146B C].
Bhowra Colliery vs Its Workmen, , relied on.
On the evidence, the respondents were employed in the colliery, they were not assigned the exclusive duty of supplying water at the residence of the junior officers but they supplied water at certain pit heads.
So the exception did not apply.


judgement:
Appeal No. 2399 of 1966.
Appeal from the judgment aid decree dated June 16, 1964 of the Mysore High Court in Regular Appeal No. 229 of 1958.
Sarjoo Prasad, O. P. Malhotra, and 0.
C. Mathur, for the appellants.
A. K. Sen, B. P. Singh and R. B. Datar, for the respondent.
126 The Judgment of BACHAWAT and BHARGAVA, JJ. was delivered by BHARGAVA, J. SHELAT, J. delivered a dissenting Opinion.
Bhargava, J. We have had the benefit of reading the judg ment proposed to be delivered by our brother Shelat, J., but regret that we are unable to agree with him.
The facts of this case have already been given in his judgment and need not be reproduced.
As held by him, it is correct that until the Hindu Law Wo men 's Rights Act, 1933 (Mysore Act X of 1933) (hereinafter referred to as "the Act") was passed, no female in Mysore had a right to share in joint Hindu family property under the Mitaksbara Law as applied in that area.
The right of Hindu woman in it joint Hindu family was confined to maintenance, residence and marriage expenses.
The Act for the first time enlarged her rights.
The Mysore High Court in Venkatachaliah vs Ramalingiah(1) stated this principle and, in our opinion, correctly.
It was also correctly held by that Court that the object of section 8 ,of the Act is to confer larger rights on females by giving them a share in the joint family property.
It is, however, to be noticed that section 8, in conferring rights on females, envisages two different circumstances in which that right is to accrue to them.
The first circumstance is when there is a partition of the joint family property between any co parceners, and the other is when, though there is no partition, the entire joint Hindu family property passes to a single male owner.
It is in both these cases that the Act envisages that the property may lose its character of co parcenary property, because the co parcenary body may cease to exist on partition or on survival of a single male member of the family.
It seems that the purpose of section 8 was to safeguard the interests of females in such contingencies where the co parcenary property is to disappear either by partition or by survival of a sole male member.
The legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc, at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship.
For the first contingency, when there is a partition, provision was made in clauses (a), (b) & (c) of sub section (1) of section 8 under which a right was granted to the females to ask for separation of their shares if the male members decided to have a partition.
Unless the male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as co parcenary property until the male members of the family sought partition.
The right of the females under clauses (a), (b) & (c) of section 8(1), therefore, only arises at a partition between the male co parceners forming the joint Hindu family.
127 For the second contingency, when the co parcenary property passes to a sole, survivor.
provision has been made in clause (d) of section 8(1).
This clause, in protecting the rights of females, had necessarily to give to the females the right to the share in the coparcenary property even if there be no partition at all, because, on the passing of the property to a sole survivor, there could not possibly be any partition sought by the male members of the coparcenary body.
This right conferred by clause (d) is not, therefore ' in any way dependent on any partition being sought, or on any right accruing to the females earlier under clauses (a), (b) and (c).
The latter three clauses relate to the right arising and being exercised simultaneously at the time of a partition between the male members of the co parcenary body, while the right under cl.
(d) has been given for those cases when there can be no partition at all.
The right conferred by clause (d) is, therefore, an independent right and not connected with the rights granted to the females under clauses (a), (b) & (c).
In these circumstances, it appears to us that, when determining the scope of the right under clause (d), there is no need to envisage an assumed, parti tion and there is no justification for holding that clause (d) must be interpreted on the basis of an assumed partition between the sole surviving member of the family and the co parcener who immediately pre deceased as a result of whose death the property passed to the sole survivor.
The reference to clauses (a), (b) & (c) clause (d) seems to have created an impression that such a partition must be assumed in order to determine the rights of the females accruing to them under clause (d).
It is true that the language in which cl.
(d) is expressed is a little ambiguous, but it seems to us that the reference to clauses (a), (b) and (c) in clause (d) is for the sole purpose of determining all the females who are to get benefit under that clause.
The females who are to get benefit are all those to whom a right to a share in the joint family property would have accrued if there had been a partition either under clause (a), or clause (b) or clause (c).
The scheme of section 8(1), thus, is that if there is a partition as envisaged in clause (a), the females mentioned in that clause only get a right to the share in the property.
If there is a partition between male members mentioned in clause (b), then the right to the share accrues to the females mentioned in that clause.
Clause (c) is wider, because it does not specifically enumerate the females who are to get a share.
Clause (c) only lays down that clauses (a) and (b) are to apply mutatis mutandiv to a partition among other co parceners in a joint family.
This language itself means that, even though under clause (c) a partition will be between members of a joint family who are not related to each other in the manner given in clauses (a) and (b), yet the females who are to 128 receive a share are to be ascertained with reference to clauses (a) & (b).
Under clause (a), a partition envisaged is between a person and his son or sons, and the females who are to received a share are his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue.
The question arises how the females entitled to a share in clause (c) are to be ascertained with reference to this clause when the partition is not between ' a person and his son or sons.
Clause (c) clearly applies only to a case where the partition is between members of the family not related in the manner laid down in clause (a), and yet the ascertainment of the females who are to receive a share at that partition is to be by reference to clause (a).
The same applies when the partition under clause (c) is between persons not related in the manner envisaged in clause (b) and yet the females mentioned in clause (b) are to be ascertained for the purpose of being granted the share mentioned in clause (c).
An example may be taken.
Supposing there is a partition between, a person and his brother 's son.
In such a case, clause (c) lays down that the females entitled to a share are to be ascertained by reference to clauses (a) and (b).
The result is that, in such a case, by applying clause (a), the females entitled would be the mother, the unmarried daughters, the widows and unmarried daughters of predeceased undivided sons and brothers of both the uncle as well as the nephew.
Simi larly, in ascertaining the females by reference to clause (b) in such a partition, the females included will be the mothers, the unmarried sisters, the widows and unmarried daughters of the predeceased undivided brothers of both the uncle and the nephew.
This example makes it clear that the scope of ascertainment of the females who are to receive a share under clause (d) must be very wide, because cl.
(d) mentions that when the joint family property passes to a single co parcener by survivorship, the right to shares is vested in all the clauses of females enumerated in all the three clauses (a), (b) and (c).
That being the position, we do not think that clause (d) can be interpreted narrowly as giving a right to only those females who happen to be related to one or the other of the last two male co parceners in the manner laid down in clauses (a) and (b).
In fact, the language of clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been partition in the family in any of the three manners laid down in clauses (a), (b) and (c).
This intention can only be given effect to on the basis that clause (d) does not restrict itself to finding out females on the basis of an assumed partition between the last two male co parceners.
It is significant that clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition.
The reference to 129 the earlier clauses in this clause must be held to be restricted to the sole purpose of ascertainment of the females falling under clauses (a), (b) and (c), and once they are ascertained, it has to be held that each one of them becomes entitled to a share under this clause.
The object of clause (d) is to give to all females entitled to maintenance 'from the co parcenary property a right to claim a share in the joint family property instead of a right to maintenance, and that is why reference is made in it to all the females enumerated ' in clauses (a).
(b) and (c).
Clauses (a) and (b) refer to four classes of females, viz, the mother, the widow.
the unmarried daughter and the unmarried sister.
All these four classes of females are within clause (d).
The actual share which a female becomes entitled to under clauses (a), (b), (c) or (d) has to be ascertained with reference to subsection (2) of section 8 Further, in ascertaining the females to whom rights accrue to shares in the joint family property either on partition under clauses (a), (b) or (c), or on passing of the property to a sole survivor under clause (d).
effect has to be given to sub section 3) of section 8 in which the scope of the words "widow", "mother", and " son" is enlarged and which, in addition, lays down that the provisions of this whole section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother.
Consequently, when the classes of females entitled to shares under clause (d) are to be ascertained and it is to be found out whether mother mentioned in clause (a) or clause (b) is entitled to a share, the persons included in the expression "mother" would be a "step mother" and, further, the provision conforming the right on the mother would also confer the right on paternal grandmother and great grandmother, because clauses (1) and (b), which relate to a mother, are to be applicable mutatis mutandis to paternal grandmother and great grandmother also.
It is clear that, on this interpretation of clause (d) read with clauses (a) (b) and (c) and sub section (3) of section 8, the decision given in the present case by the High Court is correct and the respondent is a person entitled to share as held by that Court.
As the widow of Mendappa, a co parcener, she was clearly entitled to a one fourth share.
In Dakshinamurthy vs Subbamma(1), the widow of one Sreekantachari sued her husband 's brother for partition and possession of a quarter share of property formerly belonging to the joint family of her husband, and his brother.
Reilly, C. J., and Venkataranga Iyengar, J., held that the plaintiff was clearly one of the women to whom clause (d) of sub section
(1) of s, 8 applied.
This ruling has always been followed in Mysore and is in accord with the view expressed by us above.
Referring to the last case, (1) L/P(N)ISCI 10 130 Venkataramana Rao, C. J., observed in Pogaku Venkatachall 'iah "But whatever may be said of the rights of the female member under clause (a.), her rights under clause (d) are different.
The right of a female member to share the property is not limited as under clause (a) to arise only on a partition of the joint family property, but her right as pointed out in Dakshinamurthy vs Subbamma arises from the moment when the property passes to a single co parcener.
" In Kolla Narasimha setty V. Nanjamma(2) Reilly, C.J. point ed out with reference to sub section (1)(a) of section 8: "The purpose of the sub section appears to me to be to give women of the family who otherwise would have a right to maintenance against the whole family right to claim a share in such a partition instead ' of.
having to be content with a right to maintenance." ' In Venkatagowda vs Sivanna(3), the facts were that R had a son K by the widow G. K.died leaving his widow L and his son M. Thereafter, R died leaving M as the sole surviving co parcener.
Clearly, G as, the widow of R was entitled to, a one fourth share.
The Mysore High Court also came to that conclusion, though we must say that we do not agree with all the observations made in the judgment.
The Court in that case was in error in postulating a partition taking place between M and R, treating the latter as alive.
As a result of our decision above.
the appeal fails and is dismissed with costs.
Shelat, J. One Mendappa died on October 29,1951 leaving him surviving his first wife Devamma the third defendant, Kem pananjamma the plaintiff, a grandson Mahendra the first defendant and Dakshaiyaniamma the widow of his predeceased son Guruswami, the second defendant.
The case of the said Kempananjamma was that on Mendappa 's death the family property passed to the first defendant, he being the sole surviving coparcener, subject to her rights and those of defendants 2 ' and 3.
The case of defendants 1 and 2, on the other hand.
was that the plaintiff as the step grandmother of the first defendant was not one of the female relatives entitled to any share in the property which vested on the death of Mendappa in the, 1st defendant as the sole surviving coparcener.
The Trial Court decreed the suit holding that the plaintiff was entitled to 18th share.
In an (1)49 My H.C.R.456 (2) at p. 474.
(3) 131 appeal to the High Court by Nagendra the parties agreed that the view of the former High Court of Mysore, that section 8(1) for the first time created a right to a share in favour of certain females in the circumstances set out therein, that under cls.
(a), (b) and (c) the right to such share can be exercised only in the event of a partition and that unlike cls.
(a), (b) and (c), cl.
(d) gave the female relatives covered by that clause a right to claim a partition when the joint family property passed on to the sole surviving coparcener, was correct.
The High Court stated that cl.
(d) contained two important expressions: (i) "subject to the right to shares" and (ii) "of the classes of females enumerated in the above subsections," i.e., the classes of females enumerated in cls.
(a), (b) and (c); that therefore the females in cl.
(d) did not constitute a sepa rate class independently of cls.
(a), (b), and (c).
In the High Court 's view cl.
(d) takes in not only the female relatives of the penultimate and the sole surviving coparcener but also of all those who predeceased them and that for ascertaining the females entitled to a share, one must assume that there was a partition under cls.
(a), (b) and (c).
Accordingly, it held that the widow of the grandfather of the sole surviving coparcener being the widow of a deceased coparcener fell under cl.
But since Mendappa left Nagendra, a male issue, who would be his son under the definition of a son in sub section 3.
the plaintiff would not be entitled to a share as the widow of the said Mendappa.
She would, however, be entitled to a right to a share as the step grandmother as sub section 3 defines a son as including a grandson and a mother as including a paternal grandmother.
Since a mother includes a step mother the plaintiff was the mother of Guruswamy and the paternal grandmother of Nagendra and therefore his mother under sub section 3 and was as such entitled to a right to a share under cl.
This appeal by certificate is directed against this interpretation of cl.
Before the Mysore Act X of 1933 was passed no female had a right to a share in the joint family property under the Mitakshara Law as applied to Mysore, her right being confined only to maintenance, residence or marriage expenses, The Act for the first time enlarged these rights and provided for a share at a partition between coparceners.
The Act, however.
does not entitle the female relatives to a share unless a partition takes place between coparceners.
Further.
the females entitled to a share are only those enumerated in section 8(1).
The Act gives them no right to demand partition if the coparceners choose to remain joint.
(See Mayne 's Hindu Law, IIth Ed.
p. 531.
Mulla 's Hindu Law, 13th Ed.
p. 98 and Venkatapathiah vs Saraswathamma(1).
Therefore the right of these female relatives is not a vested but a contingent right.
depending upon their falling under one or the other clauses (1) 16 My. HC.
Reports 273, 277.
132 of the sub section both as to persons and circumstances obtaining at the time of the partition or the passing of the property under cl.
(d) to the sole surviving coparcener.
Section 8(1) reads as follows: "8.
(1)(a) At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them.
(b)At a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them; (c)sub sections (a) and (b) shall also apply mutatis mutandis to a partition among other coparceners in a joint family.
(d)Where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to share of the classes of females enumerated in the above sub sections.
" Sub section 2 fixes the shares of the aforesaid female rela tives.
Sub section 3 inter alia defines the term "mother" as including, where there are both a mother and a step mother, all of them jointly and the term "son" as including a stepson, a grandson and a great grandson.
It also provides that the provisions ,of this section relating to the mother shall be applicable, mutatis mutandis, to the paternal grandmother and great grandmother.
Clause (a) applies on a partition between a person and his son or sons and the females entitled to a share thereunder are (a) the mother of that person, (b) his unmarried daughters, (c) the widows of his predeceased undivided sons who have left no male issue, (d) the unmarried daughters of his predeceased sons who have left no male issue and (e) the widows and unmarried daughters of his predeceased undivided brothers who have left no male, issue.
In Narasimha Setty vs Nagamma(1) the Mysore High Court interpreted the expression "who have left no male issue" in cl.
(a) as applicable to the time when the partition takes place.
The widow of a predeceased undivided son therefore has a share at a partition even if she had a son by her husband if such son has not survived at the time of the partition.
Under sub section 3 a son includes a stepson, grandson and great grandson, but a (1) 18 May L.J. 461.
133 mother though including a step mother does not include a grandmother or a great grandmother.
Therefore, if there is both a mother and a paternal grandmother the latter will not have a share.
But if the mother is not alive, then, by virtue of subsection 3 the paternal grandmother of that person, that is the father, gets a share.
Thus, all the female relatives in a family do not get shares.
A simple illustration will clarify this position.
A has two sons B and C and a predeceased son D4 At a partition between A, B and C, the wives and daughters of B and C do not get any share; so also the widow or widows and the unmarried daughters of D do not get any share if he left a male issue.
The wife of a coparcener participating in a partition has also no share.
Strangely, though the unmarried daughters of A get shares, though, he has a son.
the unmarried daughters of B and C do not get any share.
Clause (b) contemplates a partition between brothers.
The female relatives who have a right to a share at such partition are (a) their mother, (b) their unmarried sisters and (c) the widows and unmarried daughters of predeceased undivided brothers who have left no male issue.
No other female is entitled to a share.
Continuing the previous illustration, if A dies and a partition takes place between his sons, B and C, the case would fall under clause (b).
Under clause (a) the wife of A had no share but now that A is dead his widow has a share not as his widow but as the mother of B and C. The unmarried daughters of A who had a share under clause (a) now have a share but in a different capacity, as the unmarried sisters of B and C. Similarly, the widow and unmarried daughters of D, who had shares as the widow and unmarried daughters of a predeceased son would have shares as the widow and unmarried daughters of the predeceased brother of B and C.
It will be seen that the widows and unmarried daughters of the predeceased brothers of A would have no share though they would have had shares under clause (a) if A was alive and the partition was between him and his sons, B and C.
Thus, with the change in circumstances, certain females lose their right to shares while certain others though having a right to shares take in different capacity.
Clause (c) applies where there is a partition between copar ceners other than those under cis.
(a) and (b).
For instance, it applies to a partition between an uncle and a nephew or between cousins.
In such a case the clause enjoins application mutatis mutandis of the principles of cls.
(a) and (b).
The following illustration clarifies the meaning of cl.
A and B and C are brothers.
A and B has each a son, X and Y, but C has no son.
C dies leaving a widow, Z. A and B die.
There is a partition between X and Y. The provisions of cl.
(a) will not apply as they relate to the female relatives of the father in a partition between him and his son or sons.
Therefore, the females enumerated in clause (a) 134 will not have a right to shares.
In Nagendradasa vs Ramakrishnan(1) the Mysore High Court treated the mother of the coparcener concerned in the partition as entitled to a share except when she was the widowed daughter in law of the coparcener taking part in the partition.
On this basis the mothers of X and Y would be entitled to shares but even on this interpretation, Z, the widow of C will not have a share, she being neither the mother of the partitioning coparceners, X or Y, nor the widow of a predeceased brother of X and Y.
But if B were alive and the partition was between him, his son Y and nephew X, the widow of C would take a share under the principles of cl.
(b), as the widow of a predeceased brother provided C has not left a male issue.
If A has left a widow D she takes a share, not as A 's widow but as the mother of X.
If the mother of A and B were alive, she would take a share as the mother of B. The widow of C, the predeceased brother of B would be entitled under cl.
(b) to a share as the widow of the predeceased undivided brother who left no male issue.
Only certain females thus have a right to a share at a partition depending upon which of the clauses (a) or (b) or (c) applies and the situation obtaining at the time of such partition.
A female entitled to a share under clause (a) might lose that right if the situation changes from (a) to (b) or (c).
By reason of section 2(2), however, this would not mean that a female who had a right e.g., of maintenance or of marriage expenses or of residence, is deprived of that right.
That sub section expressly reserves such a right.
What section 8(1) does is to enlarge such a right into a right to a share for certain female relatives to whom one or the other clause applies.
Clause (d) applies to a case when the family property passes by survivorship to a sole surviving coparcener.
In such a case there can be no partition, as is the case under clause (a) or (b) or (c).
Indeed, the property becomes incapable of partition and but for clause (d) no female relative would have any right to a share.
To save such a result clause (d) provides that the rights of the female relatives should not be lost only by reason of the property passing to the sole surviving coparcener.
Sub section 5, furthermore, gives such female relatives as fall under sub section 1 a right to have their shares separated and thus makes them co sharers subject to whose rights the sole surviving coparcener takes the property.
Therefore, whereas under clauses (a), (b) and (c) the rights fluctuate according to the position of the female relatives in the family when the partition takes place there is no such uncertainty in the case falling under cl.
(d) as the sole surviving coparcener takes 'the property subject to the right to shares of female relatives falling under the provisions of clause (a) or (b) or (c).
Such is the scheme of section 8(1).
(1) 135 Certain decisions of the Mysore High Court under section 8(1) may at this stage be noticed.
In Dakshnaimurthy vs Subbamma(1) the widow of S sued her husband 's brother for partition and possession of her share.
The claim was on the footing that her husband and the defendant were the only coparceners of the joint family and that on S 's death the defendant became the sole Surviving coparcener.
S left no male issue.
The High Court held that cl.
(d) applied, and that under sub section 5 the widow had the right to sue for partition the moment section died and the property passed to the defendant by survivorship as the sole surviving coparcener.
This decision can only be justified on the round hat for purposes of ascertaining the females entitled to a right to a share one must assume as if there was a partition between the penultimate, coparcener and the sole surviving coparcener and that it is only then that one can ascertain the females subject to whose right to shares the property passes by survivorship.
Since the penultimate coparcener and the surviving coparcener were brothers, the Court for purposes of cl.
(d) assumed partition between brothers and applied the principles of cl.
(b) and held that S 's widow was entitled to a share in her capacity as the widow of the predeceased undivided brother.
In Venkatachaliah vs Ramalingiah(2) the High Court held that the object of section 8(1) being to confer larger rights on females by giving them a share in the family property clause (d) has effected a departure from the law which prevailed before the enactment by making the specified females co sharers along with the Single coparcener when the joint family property passes to him by survivorship.
In Venkategowda vs Sivanna(3) a SingleJudge of the 'High Court, however, went further than these decisions.
In that case R bad a son K by his wife G. K died in 1936 leaving his widow L and a son M. Later on R died whereupon the joint family property passed to M as the sole surviving coparcener.
The question was whether cl.
(d) applied and G. the widow of R, had a right to a share.
Narayana Pai J. held that G was entitled to 1/4th share, i.e., half of what R would have not if a partition had taken place between R and M. He observed: "The position contemplated under cl.
(d) of sub section 1 of section 8 is one where of the two coparceners living one dies survived by the other alone as the single coparcener.
When both were alive both had an interest in the joint family property.
Although upon the death of one of them.
the entire property passed by survivorship to the survivor, the interest that really passes is the interest of the deceased coparcener.
In strict theory of the Mitakshara Law nothing really passes on the death of the one but the death of one merely enlarges the interest of the survivor.
When however the section contemplates some (1) 45 My.
H.C. Reports 102.
(2) 49 My.
H.C. Reports 456.
(3) 136 property or interest as passing, the natural meaning is that what passes is the property or interest of the deceased coparcener to the surviving coparcener.
It is this interest that is made to pass subject to the right to shares of classes of females entitled to receive such shares.
The expression "share" necessarily contemplates a partition because it is upon partition that a share is ascertained.
It 'IS necessary therefore to theoretically postulate a partition to ascertain both the classes of females entitled to shares as well as the shares to which they are entitled.
From the wording of the section the appropriate time at which such a theoretical partition must be postulated to have taken place is the time of the death of the last but one coparcener.
At such a partition.
the male coparceners participating therein could only be the last two coparceners, the one that died and the other that survived treating the dead coparcener to be alive.
The purpose of treating the dead person to be alive at a partition though dead is obviously to determine the shares of his female relatives by applying the provisions of sub sections 2 and 4 because the shares of those female relatives have to be carved out of his share .
We must therefore in this case postulate a partition taking place between Rangiah treating him as alive and his grandson Mahima.
Although Mahima is grandson of Rangiah, as the term "son" includes a grandson (please see sub sec.
3) that partition would be a partition between a person and his son, that is.
a partition falling under clause (a) of sub section (1).
At that partition Rangiah would get one share and Mahima would get one share.
Mahima 's mother Lakshamma would be the widow of a predeceased son of Rangiah but because she has a son alive.
viz., Mahima.
she will not get a share.
As Rangiah died without partition, his share normally passes intact to the grandson Mahima.
His getting the entire share is prevented by cl.
(d) of sub section 1.
" So far there is no difficulty.
But the learned Judge further observed: "Rangiah did not leave any unmarried daughters; his widow steps in and takes one half of what he, if he were alive, would receive as his share.
In terms of the entire property her share will be 1/4th.
" If for ascertaining the females entitled to a right to a share under cl.
(d), cl.
(a) is applied as the learned Judge did, how would the widow of Rangiah be considered to be one entitled to a share? Clause (a) envisages partition between a person and his son or sons.
Under that clause the widow of that person is not entitled to a share.
But the learned Judge held: 137 "It must be remembered that in ascertaining the shares of the widows of pre deceased sons under cl.
(a) those sons are treated to be alive and have to be allotted one share and their widows will get a half carved out of that share reading cl.
(a) of sub section 2 and sub section 4 together.
In an actual partition under cl.
(a) between living male coparceners therefore the clause contemplates clearly a share being allotted to a widow of a deceased coparcener treated as alive and participating in that partition.
When therefore for the purposes of cl.
(d) we Postulate a theoretical partition between a living and a dead coparcener, there is no violence done to the language of either cl.
(a) or cl.
(d) in living out of the one share of the deceased last but one coparcener one half to his widow and also 1/4th to an unmarried daughter if alive at the time.
" This part of the judgment is contrary to the provisions of clause (a) Assuming that clause (d) postulates a theoretical partition between R and M, G the widow of R gets no share under clause (a).
The case of Dakshnaimurthy(1) relied on by the learned Judge is not applicable as the clause found relevant there was clause (b) under which the widow of a pre deceased undivided brother was held to be entitled to a share on the footing that the assumed partition was between brothers.
In that case the property passed by survivorship to the brother as the sole surviving coparcener.
If a theoretical partition were to be assumed between him and his deceased brother, that is, the plaintiff 's husband, it would be a partition between brothers under clause (b) and it was possible to hold that the widow of the predeceased undivided brother was entitled to a share.
Though Act X of 1933 is a social legislation and should be liberally construed the construction has to be in conformity with its language.
These decisions seem to show that the High Court has been inclined to the view that cl.
(d) properly construed requires assumption of a partition between the last but one and the sole surviving coparcener and that on such assumption the females entitled to a right to shares are to be ascertained depending upon which of the three cls.
(a), (b) or (c) applied considering, the relationship in which the last but one coparcener and the sole surviving coparcener stood.
Is the step grandmother of Nagendra then entitled to a right to a share under cl.
(d)? Where clause (a) applies i.e., where partition takes place between a father and his son or sons the females entitled to a share are the mother the unmarried daughters of such a father and the unmarried daughters of his predeceased sons and brothers who have left no male issue.
The wife of such a father has no share.
Clause (b) cannot apply where the surviving coparcener (1) 138 and the last but one coparcener are the grandson and grandfather a,, the partition contemplated thereunder is between brothers.
Norwould cl.
(c) apply as the partition there is between coparcener, ,other than those under cl.
(a) and cl.
Under sub section a son includes a grandson and great grandson.
Nagendra would for purposes of this section therefore be a son.
Consequently the partition to be assumed for the purpose of cl.
(d) would be between a father and his son.
Though under sub section 3 a sorry includes a grandson and a great grandson and a mother include, a stepmother a grandmother is not included in the definition of " mother".
The expression " provisions of this section relating to the mother shall be applicable mutatis mutandis to the paternal grandmother and the great grandmother" mean only that the grandmother and the great grandmother of the father would have a share under cl.
(a) but not the grandmother of the son.
Nagendra 's grandmother therefore would have no right to a share.
The important words in clause (d) are: "subject to the right to shares of the classes of females enumerated in the above sub.
sections.
" These words indicate that in a case falling under cl.
(d) where there could be no partition one must ascertain the females entitled to a right to share as if there was a partition between the last but one.
coparcener and the sole surviving coparcener.
If that is not done there is no method by which female relatives subject to whose right the sole surviving coparcener takes the property can be ascertained and cl.
(d) would become infructuous.
There can be a right to a share only if there is a partition and not otherwise.
There is.
a distinct difference between cases falling under cls.
(a), (b) or (c) where a share vests in the female relatives enumerated therein when actual partition takes place and cl.
(d) where no partition can occur.
A partition has therefore to be assumed because it is only on such assumption that females or whom a right to a share is conferred can be ascertained, i.e., those females who on such partition, if one had taken place.
would have 'been entitled to a share.
The question as to who are those females entitled to such a share depend upon which of the clauses (a).
(b) or (c) applies to such a theoretical partition.
In the present case.
in view of the definition of a 'son ' in sub section 3 the assumed partition would be between a father and a son under cl.
(a) and .the plaintiff would be entitled to a share only if she is one of those enumerated in that clause.
Her claim was either as the widow of Mendappa.
the last but one coparcener or as the step grandmother of the appellants the sole surviving coparcener.
In whatever capacity she may claim a right to a share, as cl.
(d) is phrased she would have such a share provided she falls under one or the other enumerated classes under cl.
(a), (b) or (c) as the case may be.
For, clause (d) does nor create any independent class.
If the assumed partition were to be 139 between Mendappa and the appellant, the appellant by reason of sub sec.
3 being a son, the partition would be under cl.
In that case the respondent would have no right to a share either as the wife of Mendappa or as the grandmother of the appellant.
The High Court took the view that cl.
(d) would take in not only the female relatives of the last but one and the sole surviving coparcener but also of those who predeceased them and on the assumption that there was a partition between them and the surviving coparcener.
Therefore, according to the High Court, the respondent as the widow of the grandfather of the sole surviving coparcener falls under cl.
(d) as the widow of the predeceased undivided coparcener.
But there are two difficulties in accepting such a view.
Firstly, if a partition is assumed with Guruswamy, the predeceased son of Mendappa, such a partition would be between him and his father Mendappa or between him, Mendappa and the appellant.
Such a partition would attract cl.
(a) in which case the respondent would have no share as only the mother of Mendappa and the widow of the predeceased son i.e, Guruswamy, provided such a son left no male issue, would have a share.
The respondent does not fall in either of the two categories.
The second difficulty is that cl.
(d) does not warrant such a wide construction.
The words "subject to the right to shares of the classes of females enumerated in the above sub sections" must mean those females who fall under one or the other clause on an assumed partition between those coparceners, on the death of one of whom the property passes to the sole surviving coparcener.
The High Court was therefore in error in adopting such a wide interpretation.
The High Court was also in error in holding that the respondent was entitled to a share relying on the definition of a "son" as including a grandson and therefore a mother as meaning a paternal step grandmother.
The mother in cl.
(a) means the mother including the grandmother of Mendappa and not the grandmother of the appellant.
For the reasons aforesaid the judgment and decree of the High Court are set aside and the plaintiff 's suit is dismissed.
There will be no order as to costs.
ORDER in accordance with the opinion of the majority, the appeal is dismissed with costs.

summary/full:
Clause (a) of sub section
(1) of s 8 of the Hindu Law Women 's Rights Act 1933, provided that at a partition of joint family property between a person and his son or sons, those entitled to share with them would be his mother his unmarried daughters, and the widows and unmarried daughters of his predeceased undivided sons and brothers who had no male issue.
Clause (b) provided that when the partition was between brothers, those entitled to share with them would be their mother, their unmarried sisters, and the widows and unmarried daughters of their predeceased undivided brothers who had left no male issue.
According to cl.
(c) clauses (a) and (b) would apply, mutatis mutandis, to a partition among other coparceners in a joint family.
Clause (d) laid down that when a joint family property passed to a single coparcener by survivorship it would so pass subject to the right to share of the classes of females enumerated in the earlier clauses.
Sub s.(2) of section 8 fixed the shares of the aforesaid relatives.
Sub s.(3), inter alia, defined the term 'mother ' as including whether there were both a mother and a step mother, all of them jointly, and the term 'son ' as including a step son, a grandson and a great grandson.
It also provided that the Provisions of the section relating to the mother would be applicable, mutatis mutandis, to the paternal grandmother and great grandmother.
M died in 1951.
The plaintiff respondent was one of his widows and the appellant was his sole surviving grandson.
In a suit for her share filed by the respondent the question was whether in the terms of cl.
(d) of sub section
(1) of section 8 of the aforesaid Act, the respondents was entitled to a share.
The trial court decreed the suit and the High Court upheld the decree.
The appellant came to this Court by certifi cate.
It was contended on behalf of the appellant that cl.
(d) pre supposed a partition between the penultimate and the sole surviving coparceners and that therefore all the femalies in cl.
(a), (b) and (c) could not be said to be entitled to a share.
Held:Per Bachawat and Bhargava, JJ.
When determining the scope of the right under cl.
(d) there is no need to envisage an assumed partition and there is no justification for holding that cl.
(d) must be interpreted on the basis of an assumed partition between the sole surviving member of the family and the co oparcener who immediately pre deceased and as a result of whose death the property passed to the sole survivor.
[127].
The object of cl.
(d) is to give to all females entitled to maintenance from the coparcenary property a right to claim a share in the .joint family property instead of a right to maintenance and that is why reference is made in it to all the females enumerated, in cls.
(a), 125 (b)and (c), Clauses (a) and (b) refer to four classes of females viz. the mother, the widow, the unmarried daughter and the unmarried sister.
All these four classes of females are within el.
[129B C].
Sub section
(3) of section 8 lays down that the provisions of the who lie section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother.
Consequently when the classes of females entitled to shares under el.
(d) are to be ascertained and it is to be found out whether a mother mentioned in el.
(a) of (b).
is entitled to share, the persons included in the expression 'mother ' would be a 'step mother ' and further, the provision conferring the right on the mother would also confer the right on paternal 'grandmother and great grandmother, because cls.(a) and (b), which relate to a mother are to be applicable mutatis muttandis to paternal grandmother and great grandmother also.
On this interpretation of el.
(d) read with cls.
(a), (b) and (c) and sub section
(3) of s.8.
, the respondent must be held entitled to a share.
As the widow of M a coparcener, she was entitled to a one fourth share.
[ 124D G].
Venkatachaliah vs Ramalingiah, 49 Mysore H.C.R. 456, Dakshinamurthy vs Subbamma, and Kolla Natrasinha Setty vs Nanjamma, approved.
Venkatagowda vs Sivanna, , referred to.
Per Shelat J. (dissenting).
There can be a right to a share only if there is a partition and not otherwise.
There is a distinct difference between cases falling under el.
(a) (b) or (c) when a share vests in the female relatives enumerated therein when actual partition takes place and cl.(d) where no partition can occur.
A partition, has therefore to be assumed because it is only on such assumption that females on whom a right to share is conferred can be ascertained.
The question as to who are those females entitled to such a share depends upon which of the cls.
(a) (b) or (c) applies to such a theoretical partition.
In the present case in view of the definition of a 'son ' in sub section
(3) the assumed partition would be between a 'lather and a son under el.
Under that clause the respondent would have no right to a share either as the wife of M or as the grandmother of the appellant.
The extended meaning given to the word 'mother ' in s.8(3) would include the grandmother of M and not of the appellant.
[138E G: 139A 0].
Venkatapathiah vs Saraswathana, , Narasimha Setty vs Nagamma, , Nagendradasa vs Ramakrishnan, , Dakshnaimurthy vs Subbamma, , Venkatachaliah vs Ramalingiah.
and Venkatagowda vs Sivanna, [1960] My. L.J. 85, referred to.