judgement:
Appeal No. 204/1956.
Appeal from the judgment and decree dated February 23, 1951, of the Madras High Court in O. section Appeal No. 13/1948.
R. Keshva Aiyangar and M. section K. Aiyangar, for the appellant.
A. V. Viswanatha Sastri and Naunit Lal, for .respondent No. 1.
B. K. B. Naidu, for respondent No. 6. 1961.
January 27.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises out of a suit filed by the respondent M. Raghava Mudaliar who claims to be the reversioner of Madhava Ramanuja Mudaliar.
In his suit the respondent alleges that after the death of Madhava Ramanuja Mudaliar which took place on March 22, 1893, his property came into the possession of his widow Manickammal.
Sub sequently the said Manickammal and Rengammal, the widowed mother of the deceased Madhava Ramanuja Mudaliar alienated the properties without any legal necessity.
According to the respondent the said alienation was not binding on him and so he was entitled to recover possession of the said property free of any encumbrance or charge.
Manickammal died on October 18, 1941, whereas Rengammal died in June, 1921.
On the death of the widow Manickammal reversion fell open and that has given a cause of action to the respondent for his present suit.
Madhava Ramanuja Mudaliar died issueless and was survived by his widow, his widowed mother, his sister Andalammal and the respondent and his sister Apurupammal who are the children of Ammakannu Ammal the second sister of Madhava Ramanuja Mudaliar, and Ethirajammal the daughter of the third sister of Madhava Ramanuja Mudaliar.
To his suit the respondent impleaded the appellant Andalammal, Krishnasami Mudaliar, son of the said Apurupammal (defendant 1) and Susila Bai Ammal daughter of 626 Ethirajammal as defendants 2 to 4.
The Udayavar Temple by the sole trustee Bysani Krishnaiah Chetty was joined as defendant 5.
After her husband 's death Manickammal obtained letters of administration to his estate from the High Court at Madras.
It appears that the relations of the widow with her mother in law were embittered, and that led to disputes between them.
These disputes were settled by the two widows in pursuance of the advice of certain arbitrators who mediated between them.
The settlement thus reached was recorded in writing on May 27, 1893 (exhibit D 2).
It would be relevent to refer to the main terms of the settlement at this stage.
This settlement set out the properties covered by it as Serial Nos. 1 to 5.
Item No. 1 which was a house in three blocks was divided between the respondent and his sister Apurupammal who were to take one share; Ethirajammal who was to take another share; and Andalammal who was to take the third share.
House No. 62, which, was Serial No. 2, and houses and shops Nos. 126 and 127 which were shown as Serial No. 3 were agreed to be sold, and it was settled that out of the sale proceeds the debts of the deceased Madhava Ramanuja Mudaliar and his father should be discharged; expenses incurred in obtaining the letters of administration should then be deducted along with the expenses of sale, and the balance should be divided equally between the two widows subject to a payment of Rs. 1,000/ to the mother in law in lieu of her jewels.
The two cawnies of lands which were Serial No. 4 were agreed to be given to the maternal uncle of the deceases Madhava Ramanuja Mudaliar, whereas the moveables which were shown as Serial No. 5 had to be divided half and half between the two widows.
This document con tained a clause which provided that " in case any one of us contravenes the terms the other party shall not only cancel this agreement but his title to the estate of Madhava Ramanuja Mudaliar prior to the agreement shall in no way be affected subject to.
which this agreement has been entered into.
" The document thus executed was attested by four attesting witnesses.
627 It appears that soon after this agreement was finalised, Krishnasamy Mudaliar, defendant 3, objected to its validity and disputed the right of the widows to deal with the property in the manner specified in it.
He was, however, persuaded to abandon his objections. ' and a sale deed was executed by him conveying his reversionary rights to the two widows for consideration ' on September 10, 1894.
By this document defendant 3 purported to recognise and grant an absolute title to the two widows in regard to the estate of the deceased (exhibit D 3).
Subsequent to this document the two widows began to enjoy the properties as agreed between them.
On February 4, 1895 the two widows sold item No. 1 in Schedule 11 attached to the plaint, i.e., Nos. 126 and 127, Anna Pillai Street and Audiappa Naick Street respectively to Thatha Venkata Raghava Subbu Chetty.
The appellant is the successor in title of the said division in respect of the said item No. 1 in Schedule II.
In the present appeal we are concerned only with this item.
On May 27, 1895, a composite deed of partition and administration of property of the deceased was executed by and between the two widows (exhibit D 5).
By this document the three blocks in the house shown as Serial No. 1 in exhibit D 2 were delivered into the possession of the respective donees.
The maternal uncle of the deceased was given two cawnies of lands as therein stipulated and the debts of the deceased were discharged and expenses incurred in respect of the letters of administration were met.
It is under these circumstances that the respondent filed his present Suit No. 56 of 1946 on the Original Side of the Madras High Court;.
and he claimed that the alienations made by the two widows were not binding on him and he was entitled to the possession of the property left by the deceased Madhava Ramanuja.
The schedule attached to the plaint referred to four items of property, and as we have already pointed out it is only with item No. 1 out of these four items with which we are concerned in the present appeal.
628 In regard to the said item the appellant urged that the agreement between the two widows (exhibit D 2) and the subsequent composite deed executed in pursuance of it (exhibit D 5) were in the nature of a family arrangement, and as such they were binding on the respondent.
In was also alleged by the appellant that the respondent had received benefit under the said arrangement and by his conduct had ratified it.
The appellant further pleaded that the transfer in favour of his predecessor was supported by legal necessity.
Incidentally a plea of surrender was also raised by the appellant.
Mr. Justice Kunhiraman, who tried the suit, held that there was a family arrangement which bound the respondent.
He also observed that the respondent had received benefit under the said arrangement and was therefore precluded from challenging its validity.
The learned Judge incidentally made some observations which showed that he was inclined to uphold the plea of surrender raised by the appellant.
In the result the respondent 's suit was dismissed.
The respondent then took the matter in appeal and succeeded.
The appeal court held that the impugned arrangement cannot be said to be a bona fide family settlement which would bind the respondent.
Before the appeal court it was conceded that the plea of surrender raised by the appellant could not be sustained, and that the contention that the respondent was bound by the family arrangement could not also be sustained.
It was, however, urged on behalf of the appellant that the respondent 's conduct precluded him from disputing the validity of the arrangement but this argument was rejected by the appeal court; likewise, the contentions that the transfer in favour of the appellant 's predecessor was justified by legal necessity also failed.
As a result of these findings the respondent 's appeal was allowed, the decree passed by the trial court was set aside, and the claim for possession made by the respondent was decreed.
The respondent 's suit was accordingly directed to go before the Official Referee for ascertainment of mesne profits 629 claimed by him.
It is against this decree that the appellant has come to this Court in appeal.
The principal point which has been urged before us by Mt% R. Keshav Aiyangar on behalf of the appellant is that in substance the respondent has ratified the impugned transaction, has received benefit under it, and by his conduct has affirmed it, and so it is not open to him to challenge its validity and binding character.
In support of this argument he has canvassed for our acceptance the proposition that if a person with full knowledge of his rights assents to a transaction which may otherwise be voidable at his instance and takes benefit under it, he is subsequently precluded from disputing its validity.
In support of this argument he has relied on a decision of this Court in Sahu Madho Das vs Pandit Mukand Ram (1).
In that case this Court has held that it is settled law that an alienation by a widow in exercise of her powers is not altogether void but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.
This Court also observed that it is a principle of general application underlying many branches of the law that a person who with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, cannot go back on that election and avoid it at a later stage ; having made his election he is bound by it.
The argument is that though the respondent may not be a party to the impugned transaction, if by his conduct it can be said that he has elected to uphold it and has received benefit under it he cannot be allowed to go back upon the election.
There is of course no doubt about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that case.
That is why it is necessary to refer very briefly to the findings of fact on which the decision in Sahu (1) ; , 630 Madho Das 's case (1) rests.
In that case this Court considered the question as to whether the plaintiff Mukand Ram had assented to the impugned family arrangement, and observed that as he was not a party to the arrangement his assent to the arrangement itself and not to something else must be clearly established, and also his knowledge of the facts.
Then, having thus posed the question the material evidence was examined, and it.
was held that the cumulative effect of the said evidence led to the reasonable inference that the plaintiff 's assent was to the very arrangement itself, and his conduct as well as the conduct of his brother Kanhaiya Lal was consistent only with that hypothesis; in other words, the examination of the material evidence justified the inference that Mukand Ram had in fact elected to assent to the transaction and had received benefit under it, and so the doctrine of election or ratification precluded him from disputing the validity of the said transaction.
It is, however, significant that dealing with the case of the minor sons, who were not parties either personally or through their guardians, and who did not claim title either through Pato or her daughters, this Court expressly observed that so far as they were concerned what they received were gifts pure and simple and the only assent that could be inferred from the mere acceptance of the gifts and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others.
This observation brings out in bold relief by contrast the relevant findings in the light of which the plaintiff was held precluded from disputing the validity of the impugned transaction.
The appellant has also relied on another decision of this Court in Dhiyan Singh vs Jugal Kishore (2).
In that case it was held that even if the impugned award was invalid the plaintiff who disputed its validity was barred from making that claim by reason of estoppel.
Brijlal against whom the plea of estoppel was effectively raised appeared to have made a claim to the estate in question in 1884 when the impugned (1) [1955] a S.C.R. 22.
(2) [1952] S.C.R. 478.
631 transaction took place,, and it was as a result of this claim that settlement was reached and the impugned transaction effected.
This Court held that even if the award which was challenged was invalid Brijlal by his conduct had precluded himself from raising the contention against the validity of the award.
In , coming to this conclusion this Court observed that, the case before it was very similar to the one which the Privy Council had decided in Kanhai Lal vs Brij Lal (1).
When we turn to the Privy Council decision itself we find that Kanhai Lal, who was held by the Privy Council to be precluded from challenging the arrangement to which he was a party, had set up a title in himself on the strength of an alleged adoption, and when, having regard to the said title, a settlement was reached and a compromise arrangement was made, it was held by the Privy Council that the doctrine of estoppel came into play.
Kanhai Lal, who subsequently became a reversioner according to the Privy Council, was bound by the previous arrangement and " cannot now claim as a reversioner.
" These two decisions also emphasise, the fact that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settlers his claim as well as the claim of his opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open.
There are two other decisions of the Privy Council to which reference may be made.
In Rangaswami Gounden vs Nachiappa Gounden (2) the Privy Council had to deal mainly with the question of surrender, its theory and its essential features.
Incidentally it had also to deal with the case of reversioner who had taken from an alienee from a Hindu widow a mortgage of a property which included a part of the property alienated, and the question raised was whether by reason of the fact that the reversioner had a mortgage of the said property he was precluded from challenging the validity of the said alienation; and the Privy Council held that he was not so precluded.
In dealing with this aspect of the question the Privy Council (1) (1919) L.R. 45 I.A. 118.
(2) (1918) L.R. 40 I.A. 72.
632 observed that it is well settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alienation at its inception, he need not do so, but is entitled to wait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption The Privy Council then examined the nature of the mortgage, the properties included in it, and observed that the said mortgage consisted of 2/14ths of the mitta which had come to the mortgagors in right of their own succession, and the remaining share had come to them through the impugned deed of gift.
Then it was observed that at the time of the mortgage the mortgagee did not know whether he would ever be such a reversioner in fact as would give him a practical interest to quarrel with the deed of gift; and the Privy Council asked "why should he not take all that the mortgagers could give or propose to give. " " To hold that by doing so ", observed the Privy Council, " he barred himself from asserting his own title to a part of what was mortgaged seems to their Lordships a quite unwarrantable proposition." This decision shows that the principle of election or estoppel or ratification must be applied with due circumspection and the mere fact that the reversioner has received some benefit under the transaction or has not challenged the validity of the transaction when it took place cannot bar his rights as a reversioner when reversion in his favour falls open.
The last case on which reliance has been placed by the appellant is the decision of the Privy Council in Ramgouda Annagouda vs Bhausaheb (1).
In this case the widow of the last male holder had alienated nearly the whole of the property of her husband by three deeds executed and registered on the same day.
One of the deeds was in favour of a presumptive reversioner.
The Privy Council held that the three deeds had to be regarded as forming one transaction entered into by all the persons interested in the properties, and that after the reversion fell open, the reversioners who were parties to the said transactions (1) (1927) L.R. 54 I.A. 396. 633 were precluded from disputing the two alienations by reason of their conduct.
According to the Privy Council the three deeds in question were inseparably connected together and in that view Annagouda, the reversioner, who challenged two of the three transactions, not only consented to the sale to Shivgouda and the gift to Basappa which were the two transactions impeached but these dispositions formed part of the same transaction by which he himself acquired a part of the estate.
Thus it may be taken to be well settled that if a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner.
The doctrine of ratification may also be invoked against a presumptive reversioner who, though not a party to the transaction, subsequently ratifies it with full knowledge of his rights by assenting to it and taking benefit under it.
It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would not preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner.
It must always be a question of fact as to whether the conduct of the said reversioner on which the plea of ratification is based does in law amount to ratification properly so called.
It is in the light of these principles that we must now consider the relevant facts in the present appeal.
There can be no doubt that the transaction which took place on May 27, 1893, as a result of the dispute between the two widows and with the intervention of the well wishers of the family is not a family arrangement as understood under Hindu Law.
This position was conceded before the High Court and is not disputed before us (exhibit D 2).
Similarly, the sale deed which was executed by defendant 3 in favour of the two widows is of no assistance because it was obviously a sale by defendant 3 of his reversionary rights which were then no better than spes suwessionis and as 634 such this transaction (exhibit D 3) cannot help to validate the earlier arrangement between the two widows.
The composite document (exhibit D 5) of May 27, 1895, is in substance no more than an alienation no doubt executed for the purpose of carrying out the original arrangement between the two widows.
Thus in dealing with the question as to whether the respondent is precluded from challenging the validity of the impugned transaction it is necessary to bear in mind that the original transaction is not a transaction in the nature of a family arrangement.
Besides, he was then a minor and admittedly he was not a party to any of the said transactions.
It is, however, urged that the respondent obtained a certificate or a patta from the Collector in regard to the property conveyed to him under exhibit D 5, and the argument is that he has deliberately withheld the said patta because he apprehended that if produced the patta would go against him.
The explanation given by the respondent for not producing the patta is attacked as unsatisfactory, and it is urged that the said explanation cannot possibly conceal his intention to keep back the document from the Court.
In his cross examination the respondent stated that the Collector 's certificate which had been given to him by his grandmother had been filed by him in Suit No. 495 of 1916 in the City Civil Court, and he added that his advocate in the said suit had not returned the document to him.
We may assume that the respondent has not produced the document though it was in his possession; but we have on the record two documents which were issued to the other donees, and all that the appellant is entitled to assume is that a similar document had been issued in favour of the respondent.
In our opinion, the two documents on the record do not assist the appellant 's argument that any representation had been made by the respondent to the Collector before he obtained a patta in his favour.
In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed (exhibit D 5).
On the registration of the said document persons who got certain immoveable properties 635 under it were given the certificates by the Collector in ordinary course, and so no argument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of sale.
It is then urged that in Civil Suit No. 495 of 1916 filed in the City Civil Court at Madras by Apurupammal against tile respondent and another, the respondent filed the written statement in which he admitted the validity of the impugned transaction.
It appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in consequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a compromise settlement was arrived at in pursuance of which some transfers were effected.
This, it is said, amounts to an admission of the validity of the said transaction (exhibit D 15).
This argument, however, fails to take notice of the fact that while referring to the said compromise settlement the respondent had expressly added that the said compromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar (exhibit P 3).
In other words, taking the statement as a whole, as we must, the respondent looked upon the said compromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and no more.
In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the ,Lifetime of the widow, and as such he had no occasion to challenge its, validity whilst the widow was alive.
A somewhat similar argument is based on the conduct of the respondent in relation to Civil Suit No. 1117 of 1921 filed by Masilamani Mudaly, the sister 's son, and the deceased Govinda Mudaliar in the Madras High Court (exhibit P.16).
To this suit the 636 respondent was impleaded as defendant 7.
In this suit the said plaintiff had challenged the validity of the arrangement, and asked for appropriate injunctions against defendant 6 to the suit, Thuggi Kondiah Chetty, Trustee of Udayavar Koil, and other defendants from dealing with the property to the prejudice of the reversionary right of the plaintiff.
It is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed.
The only point which is relevant to consider is that the reversioner had challenged the arrangement in question.
The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was not personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment.
This suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non prosecution.
In our opinion, this argument is far fetched and cannot possibly sustain the plea of ratification against the respondent.
If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 11 17 of 1921 or should in fact have challenged the said arrangement at all.
The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case.
The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them.
Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collector 's certificate and told him that she 637 was going to die soon and so he may take the house.
The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income.
The respondent then stated that he was not aware of the document of 1895 until 1916, and that he came to know about the division between the two widows( only in 1910.
It is urged that this statement should not be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of reifying the whole transaction.
In our opinion there is no ,substance in this argument.
In this connection it is relevant to remember that until Act II of 1929 was passed a sister 's son, like the respondent, would have had very few chances of becoming an actual reversioner; he would have come in the list of bandhus; and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner.
Besides, the benefit which he obtained under the impugned transaction could also in substance have been claimed by him under an earlier arrangement entered into between Govinda Mudaliar and Madhava Ramanuja Mudaliar on February 7, 1887 (exhibit D 1).
Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs.
D 2 and D 5).
Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferee under 638 the said transaction.
He also could not have known about his rights as a possible reversioner.
Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ,ratification against the respondent.
Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition " (1) (p. 87).
That leaves the question of legal necessity to be considered.
The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity; and, in our opinion, the finding of the High Court on this point is obviously right.
In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction.
There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother in law to enter into the impugned transaction under the guise of a family arrangement.
The document itself (exhibit D 5) does not purport to be justified by legal necessity.
In terms it purports to give effect to the original arrangement of 1893 (exhibit D 2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid.
Besides, out of a total consideration of about Rs. 10,000/ the amount of Rs. 776/ can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all.
The amount of Rs. 558/ was the expense incurred for executing the document; similarly the amount of Rs. 409/representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity.
The other items of consideration do (1) (1918) L.R. 46 I.A. 72.
639 not even purport to be for legal necessity.
Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
M, a Hindu, died leaving his mother, widow, sisters and sisters ' son and daughters.
There were disputes between the mother and the widow which were settled at the instance of certain arbitrators.
Under this settlement a portion of one of the houses was given to a sister of M, another portion to R son of another sister and his sister and a third portion to the daughter of the third sister.
Certain properties , which had been agreed to be sold under the settlement were sold to the appellant by the mother and the widow.
After the death of the mother and the widow R filed a suit as the next reversioner of M for recovery of the properties sold on the ground that the alienation was without necessity and was not binding on him.
The appellant contended (i) that R was precluded from disputing the settlement between the mother and the widow as he had received a benefit under it and had ratified it by his conduct and (ii) that the transfer was for legal necessity.
Held, that the transfer was not binding on R and he was entitled to avoid it.
The settlement between the mother and the widow was also not binding on R.
If a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open.
But the mere fact that the reversioner has received some benefit under the transaction or has not challenged its validity when it took place cannot bar his rights as a reversioner.
It will always be a question of fact as to whether the conduct of the reversioner on which the plea of ratification is based does in law amount to ratification properly so called.
In the present case the settlement was not in the nature of a family arrangement; at that time R was a minor and was not a party to any of the said transactions.
There was no conduct of R which could amount to ratification of the settlement or of the alienation.
At the time when he accepted the gift he could not know about his rights as a possible reversioner.
Further, there was no legal necessity for the transfer.
Sahu Madho Das vs Pandit Mukand Ram ; , Dhiyan Singh vs Jugal Kishore, [1952] S.C.R. 478, Kanhai Lal vs Brij Lal (1918) L.R. 45 I.A. 118.
Rangasami Gounden vs Nachiappa Gounden (1918) L.R. 46 I.A. 72 and Ramgouda Annagouda vs Bhausakeb (1927) L.R. 54 I.A. 396, referred to 625


judgement:
: Criminal Appeal No. 100 of 1958.
Appeal from the judgment and order dated April 24, 1958, of the Calcutta High Court in Criminal Misc Case No. 38 of 1958.
G. section Pathak and D. N. Mukherjee, for the appellants.
L. K. Jha and R. C. Datta, for respondent No. 1.
K. B. Bagchi and P. K. Bose, for respondent No. 2. 1961.
January 13.
The Judgment of Imam and Raghubar Dayal, JJ. was delivered by Imam, J., Subba Rao, J. delivered a separate judgment.
IMAM, J.
The appellants were convicted for contempt of court and each of them was sentenced to pay a find of Rs., 500 by, the Calcutta High Court.
They applied to the High Court for a certificate that 463 the case was a fit one for appeal to this Court which was granted.
Hence the present appeal.
On March 19, 1955, one Bimala Kanta Roy Choudhury filed a complaint before the Sub Divisional Magistrate, Alipore, against the respondent B. K. Sen under section 497 of the Indian Penal Code.
The Magistrate after examining numerous witnesses declined to frame a charge and discharged the accused under section 253(1) of the Code of Criminal Procedure by his order dated July 13, 1957.
Against the order of discharge Bimala Kanta Roy Choudhury filed a revisional application before the Sessions Judge of 24 Parganas, who by his order dated November 22, 1957, directed further enquiry.
On January 3, 1958, the Magistrate while holding further enquiry, as directed, allowed the prosecution to tender further evidence.
On February 3, 1958, the accused B. K. Sen filed a revision petition in the Calcutta High Court against the order of the Sessions Judge directing further enquiry as well as the order of the Magistrate permitting the prosecution to lead further evidence.
The High Court thereupon issued a Rule and stayed further proceedings.
The respondent B. K. Sen held the office of Commissioner of the Calcutta Corporation at the time he filed his petition in the Calcutta High Court for proceedings against the appellants for contempt of court.
According to that petition, at a special meeting of the Calcutta Corporation held on January 16, 1958, the Mayor suggested the formation of a committee for discussion of necessary and appropriate steps to be taken with 'a view to eradicate alleged malpractices prevailing in different departments of the Corporation.
At this meeting Satyananda Bhattacharjee made certain wild allegations against B. K. Sen. Two resolutions were passed at the meeting, one of which, authorised the Mayor to constitute a Special.
Committee to give effect to the suggestions and objectives indicated by the Mayor in his statement dated January 10, 1958.
On February 14, 1958, at an ordinary meeting of the Calcutta Corporation.
the aforesaid Bhattacharjee repeated his allegations made at the previous meeting of January 16.
At the meeting 464 it was resolved that a Special Committee be set up and the appellants were elected as members of the committee.
The Special Committee was to enquire into certain allegations made against certain officials of the Corporation who are said to have taken advantage of their office in carrying on business in their own names.
The resolution was in the following terms: "That a Special Committee consisting of Councillors Shri section K. Gupta, Shri R. N. Majumdar and Shri section K. Roy be set up to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names.
The Committee will take up only those matters that relate to the Corporation.
" The record of the contempt proceedings in the High Court shows that at a meeting of the Calcutta, Corporation, on March 26, 1958, Bhattacharjee informed the Mayor that on February 14, 1958, he had mentioned on the floor of the House certain charges against some high officials of the Corporation and that the Mayor had asked him to submit his papers to the Special Committee.
Bhattacharjee further informed the Mayor that the day before, at a sitting of the Special Committee, he wanted to hand over to the Special Committee some papers that were with him, but the Special Committee would not take them and had stated that they would enquire into "open case only ".
Bhattacharjee then asked the Mayor to request the Special Committee to enquire into all the allegations made by him.
On this, the Mayor asked Bhattacharjee to hand over the papers to him.
Then the Mayor stated that if that was not written in the proceedings he would take it that day that all the papers would he sent to the Special Committee.
According to B. K. Sen, on April 11, 1958, Bimala Kanta Roy was examined by the Committee and he admitted Chat his case against B. K. Sen under section 497 of the Indian Penal Code was at that time pending consideration before the High Court.
Bimala Kanta Roy Choudhury then alleged that either the witnesses 465 themselves or their near relations got appointments in the Corporation of Calcutta.
Bimala Kanta Roy Choudhury had specifically mentioned one Tarak Nath Dey.
The entire purpose of the statement of Bimala Kanta Roy Choudhury was to prove the truth of his allegations that B. K. Sen had abused his official position and had created a situation which made it impossible for him to produce relevant witnesses to prove his case.
The Special Committee then caused the production of Tarak Nath Dey and confronted him with Bimala Kanta Roy Choudhury.
Tarak Nath Dey was then examined but denied that he was the agent of the wife of Bimala Kanta Roy Choudhury or the Tadbirkar of B. K. Sen.
The Special Committee went out of their way to traverse the grounds and take evidence on matters which were directly and substantially in issue and were pending in the Calcutta High Court.
B. K. Sen further alleged in his petition, that the appellants had set up a parallel court of enquiry for ascertaining the truth or otherwise of the allegations made by Bimala Kanta Roy Choudhury.
That the action of the Special Committee was calculated to create an atmosphere of prejudice against him and amounted to unwarranted inter ference with the free flow of justice.
The action of the Special Committee had a tendency to prejudice the trial and/or to influence the decision of the case by the trial Court or by the High Court.
The Special Committee thereafter issued to him a questionnaire.
The relevant portions of the questionnaire are in the following terms : " III (a).
It is alleged that between 4th January, 1956, and 20th September, 1957; i.e., at or about the time when the case under section 497, I.P.C., was being tried, you gave appointments to the following persons: (1) Anil Koyal (2) Jogendra Nath Mondal (3) Ahi Kanta Choudhury (4) Govinda Banerjee (5) Narendra Nath Naskar, who are related respectively to Palan Koyal, Haradhan (alias Haridhan) Mondal, Tripti Choudhury, Thakur Raj Smriti Tirtha and Upendra Naskar who were cited as witnesses in the case.
59 466 (b)It is alleged that about the same time you gave appointments to Tarak Nath Dey, Hardhan Dey, Pradip Bhaduri, Ardhangsu Mondal etc.
and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case.
(c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghosh against whom a demolition case was pending.
" The case of B. K. Sen before the High Court was that the action of the appellants as members of the Special Committee amounted to gross contempt of the High Court as well as of the Court of trial.
Accordingly, B. K. Sen filed on April 16, 1958, his petition in the High Court for proceedings against the appellants for contempt of court.
Notice was issued to the appellants by the High Court returnable the same day to show cause why they should not be proceeded against for contempt of court.
On April 17, 1958, the appellants showed cause.
The ' High Court, however, issued a Rule returnable by April 23.
After hearing the parties the High Court on April 24, convicted the appellants as already stated.
The only question for determination is whether the conduct of the appellants as members of the Special Committee amounted to contempt of court.
On behalf of the appellants it was urged that the enquiry held by the Special Committee was not to determine the guilt or the innocence of B. K. Sen in the case under section 497 pending against him.
It was impossible to characterise the enquiry by the Committee as a parallel enquiry.
The Special Committee had been constituted specially for the purpose of determining whether the employees of the Calcutta Corporation had abused their position in the discharge of the powers vested in them.
The Special Committee was not constituted to enquire into the conduct of B. K. Sen only.
Even the questionnaire sent to him referred to three incidents which have nothing to do with the case under a. 497 against him pending in the 467 Magistrate 's court.
The first incident was concerned with an agreement with some lady to build a house for Rs. 40,000, and to sell it to her for Rs. 50,000 and that thereby he had engaged in a business for profit which was contrary to his conditions of service.
The second incident related to the reduction of the valuation of certain premises, belonging to some persons described as the Guptas who were either his relations or friends, long after their appeal had been disposed of and without recording any adequate reasons for such reduction.
The third incident related to I the assessment of his own house when he had reduced its letting value to Rs. 90 per month and on that basis had been paying the Corporation tax whereas he actually received as house rent for the same at Rs. 250 per month.
The opinion expressed by the Land Acquisition Collector was that the proper letting value of the premises would be Rs. 281 per month.
The entire purpose of the enquiry was to ascertain whether B. K. Sen, as Commissioner of the Corporation, had been abusing his position as such.
Even the questionnaire under III(a), (b) and (c) does not state that B. K. Sen had so acted with a view to suborning prosecution witnesses in the case against him under section 497 or that he had acted in a manner so as to suppress the evidence which might be led against him.
It was pointed out that the questionnaire throughout stated " it is alleged " and there was no assertion therein that B. K. Sen had actually acted in an improper manner.
The letter which accompanied the questionnaire expressly requested B. K. Sen to give the Committee some time between 10 a.m. and 1 1 a. m. on April 16 so that they could get the facts from him.
In other words, the Special Committee had not accepted the allega tions against B. K. Sen but had merely pointed out to him the nature of the allegations and desired to get from him the actual facts.
This conduct of the appellants as members of the Special Committee could not in any way amount to their converting themselves into a tribunal holding a parallel enquiry to the real matter in issue in ' the case under section 497 against B. K. Sen. 468 It was further urged that if the question at all arose in the enquiry that B. K. Sen had acted with the ulterior motives in the matters stated in questionnaire 111(a), (b) and (c) that would be merely incidental to the main purpose of the enquiry whether he, as Commissioner of the Calcutta Corporation, had abused his position.
Before the conduct of the appellants could be characterised as contempt of court it had to be established that their conduct tended to prejudice mankind against B. K. Sen or it tended or was calculated to interfere with the due course of justice.
It was further argued that before a person can be convicted for contempt of court it must be found that his act amounted to real contempt and was of a kind that necessitated action being taken by the court against him.
In the present case, the incidental question whether B. K. Sen had acted in, an improper way ,in making the appointments under questionnaire 111(a), (b) and (c) with a view to suit his own end,% was something too remote for a court to hold that it tended to or was calculated to interfere with the course of justice and that it amounted to such contempt which required the taking of proceedings for contempt against the appellants.
Reliance was also placed on section 99(1) of the Calcutta Municipal Act, 1951, which states that "Every Special Committee shall conform to any instructions that may from time to time be given to it by the Corporation.
" The appellants as members of the Special Committee had merely performed their public duty in obeying the instructions of the Corporation when at the meeting of the Corporation on March 26, 1958, the papers presented by Bhattacharjee were sent to the Special Committee.
If the action of the appellants at &II amounted in law to contempt of court it was so slight that it did not call for proceedings for contempt being instituted against them.
The respondents in this appeal are B. K. Sen and the State of West Bengal.
On behalf of the State of West Bengal no submissions were made.
On behalf of B. K. Sen, however, it wait contended that the facts asserted in his petition for contempt filed in the High 460 Court had not been controverted by the appellants.
All that the appellants had stated in their affidavit was that they did not admit the assertions of fact in the petition for contempt other than those stated in their affidavit.
It was strongly urged on behalf of B. K. Sen that he protested at the meeting of the Corporation on February 14, 1958, that Bhattacharjee 's allegations ought not to be entertained as the subject matter of his allegations was at the time sub judice in the Calcutta High Court.
Several members of the Corporation had also raised a similar objection.
Apparently, from Bhattacharjee 's statement at the meeting of the Corporation on March 26, 1958, the Committee had refused to take the papers submitted by him and the Committee had stated that they would enquire into " open case only ".
In spite of the knowledge which the appellants had about the matter being sub judice in the Calcutta, High Court they bad none the less at the meeting of the Special Committee on the 11th of April, 1958, examined Bimala Kanta Roy Choudhury, the complainant in the case under a. 497, Indian Penal Code, against B. K. Sen. Furthermore, they had also examined Tarak Nath Dey with reference to the allegations made by Bhattacharjee.
The appellants had thus entered into a parallel enquiry into a matter which was at that time in issue in the proceedings in the Calcutta High Court.
That Court had before it a petition of B. K. Sen questioning the validity of the order of the Sessions Judge directing further enquiry in the case under section 497, Indian Penal Code.
An important question to be decided in that proceeding was whether it was correct that B. K. Sen had suborned the prosecution witnesses in the case under section 497, Indian Penal Code, against him or had prevented witnesses for the prosecution from appearing against him.
It was clear from paragraphs 7 and 15 of Annex.
C, the charges made by Bhattacharjee against B. K. Sen, that his case was that B. K. Sen had been tampering with prosecution witnesses of Garia with the aid of Dhiren Mondal.
Some of the sets of alleged adultery are said to have been committed at Garia.
B. K. Sen had also won over a 470 prosecution witness Kamakshya Chatterjee by procuring an appointment for him in the Central Bank of India Ltd., Calcutta.
The action of the appellants in thus holding a parallel enquiry tended to interfere with the course of justice as well as to prejudice mankind against B. K. Sen.
The action of the appellants could not be regarded as slight because it had been a deliberate action.
It was not enough to say that the appellants had merely sent a questionnaire to B. K. Sen and had not made any comment on the allegations made before them by Bhattacharjee and Bimala Kanta Roy Choudhury.
It was the act of holding an enquiry into a matter which was directly in issue and which was pending for determination in the Calcutta High Court which amounted to contempt of court, Mr. Jha, on behalf of B. K. Sen, further contended that the provisions of section 99(1) of the Calcutta Municipal Act could not be pleaded in defence to a charge of contempt if the action of the appellants amounted to contempt of court.
Furthermore, as the direction given to the appellants was by the Mayor and not the Calcutta Corporation section 99(1) did not apply.
We would now consider whether the action of the appellants amounts in law to real contempt of the Calcutta High Court and the Magistrate before whom the proceedings under section 497 were pending at the time the High Court passed its order convicting the appellants for contempt.
There is a controversy between the appellants and B. K. Sen whether Bimala Kanta Roy Choudhury and Tarak Nath Dey were examined by the appellants.
There is no clear statement on behalf of the appellants in denial.
Their mere assertion that " save and except what was stated in their affidavit nothing else was admitted " would not be enough to controvert this assertion of B. K. Sen. Even if it be assumed that these two persons were examined by the appellants what is stated in paragraph 10 of B. K. Sen 's affidavit in the High Court is that Bimala Kanta Roy Choudhury had mentioned names of the prosecution witnesses and had alleged that either the witnesses themselves or their near 471 relations had received appointments in the Corporation of Calcutta.
He had also alleged that Tarak Nath Dey was the agent of the wife of Bimala Kanta Roy Choudhury and Tadbirkar of B. K. Sen. Tarak Nath Dey when examined denied this.
He was certainly an employee of the Corporation.
Paragraph 10 further stated that the only purpose for which Bimala Kanta Roy Choudhury was examined was to prove the truth of the allegations made by him that B. K. Sen had abused his official position and had created a situation which had made it impossible for Bimala Kanta Roy Choudhury to produce relevant witnesses in proof of his case.
Concerning the examination of Tarak Nath Dey, in paragraph 11,B. K. Sen stated that the idea behind the examination of this individual was to prove B. K. Sen 's connection and association with the wife of B. K. Roy Choudhury, and to show that he had appointed Tarak Nath Dey due to services rendered in connection with the case under section 497, Indian Penal Code, against him.
It is clear, however, from the questionnaire III (a), (b) and (c) that the appellants in framing the same did not assert that B. K. Sen 's conduct in making the appointments mentioned therein was with a view to suborning prosecution evidence in the case under section 497, Indian Penal Code, against him or to make it impossible for Bimala Kanta Roy Choudhury to produce relevant witnesses in proof of his case.
The combined effect of the letter written by the appellants to B. K. Sen in sending the questionnaire and the manner in which the questionnaire III (a), (b) and (c) were framed would indicate that the appellants did not accept all the allegations made by Bimala Kanta Roy Choudhury or Bhattacharjee.
The record does not establish that at any time the appellants had made comments on the case under section 497, Indian Penal Code, pending against B. K. Son or in respect of any matter pending in connection with that case in the Calcutta High Court.
It was, however, said that in taking the papers filed by Bhattacharjee and thereupon examining Bimala Kanta Roy Choudhury and Tarak Nath Dey the 472 appellants had embarked upon a parallel enquiry on matters which were pending investigation in a court of law.
The Special Committee consisting of the appellants was constituted by the Corporation to conduct an enquiry into the conduct of the servants of the Corporation in matters relating to affairs of the Corporation.
The Special Committee was enquiring into not only the conduct of the Commissioner of the Corporation (B. K. Sen) but also into the conduct of other servants of the Corporation.
The questionnaire sent to B. K. Sen refers to his conduct in relation to matters in questionnaires 1 and 11.
These were matters which had no connection whatsoever with the case under section 497, Indian Penal Code, against B. K Sen.
Regarding questionnaire III (a), (b), and (c) the principal matter which the Special Committee were to enquire into was whether (1) B. K. Sen had made the appointments in question and (2) those appointments were of persons who were either related to the prosecution witnesses in the section 497 case or were helping B. K. Sen in conducting his defence in that case.
The questionnaire nowhere suggested that B. K. Sen had made these appointments in order to suborn prosecution witnesses in that case or that he had made the appointments with a view to preventing Bimala Kanta Roy Choudhury from producing witnesses to prove his case against B. K. Sen. Appointment of persons who were relations of witnesses for the prosecution in the section 497 case or of those who were helping B. K. Sen in his defence in that case would certainly be a relevant matter in ultimately deciding whether B. K. Sen had taken advantage of his position as Commissioner of the Calcutta Corporation in making undeserving appointments.
On the other hand, even if it were established that the appointments were made of relations of prosecution witnesses and of those who were helping him in his defence, the Special Committee may have, at the conclusion of their enquiry, found that the appointments in question were, in fact, of suitable and qualified persons and that B. K. Sen had not in making the appointments abused his position as a servant of the, Corporation, 473 The circumstances do not establish that the Special Committee had constituted itself as a court of parallel enquiry to look into matters in issue in the section 497 case against B. K. Sen or which were in issue in the pending proceedings in the High Court.
What exactly is meant by a court of parallel enquiry is not clear.
No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation.
This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented.
The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice whether the investigation tends to prejudice the accused or the prosecution.
There is no comparison between a trial by a newspaper and what has happened in this case.
The Special Committee had embarked upon an enquiry on the directions of the Corporation in order to discover malpractice on the part of the Corporation 's servants.
Malpractices on the part of a servant of the Corporation would presumably include making unworthy appointments.
The ascertainment of the motive for the appointments would be merely incidental to the main purpose of the enquiry.
It would be difficult to conclude therefrom that the Special Committee were holding a parallel enquiry on matters pending decision by a court of law and that thereby their action tended to interfere with the course of justice.
It was not asserted in the affidavit of B. K. Sen that the Special Committee had knowledge that one of the questions to be decided in the proceedings before the High Court was whether B. K. Son had suborned the prosecution witnesses in the case under section 497 against him.
There is no finding of the High Court in this respect either.
If the conduct of a particular party amounts to contempt of court usually lack of knowledge of pending proceedings may not be available to him by way of defence.
We have looked into the record of this case and have no hesitation in saying that the appellants at no 60 474 time intended to interfere with the course of justice ' and their conduct did not tend to interfere with the course of justice.
The appellants had been careful in making no comments on any proceedings pending in a court of law or the issues arising out of them.
In these circumstances,, we are of the opinion that the offence of contempt of court by the appellants has not been established.
The appeal is accordingly allowed and the conviction of the appellants for contempt of court is set aside.
The fines, if paid, must be refunded.
SUBBA RAO, J.
I have had the advantage of perusing the judgment prepared by my learned brother, Imam, J.
I regret my inability to agree with him.
In my view, this is one of the typical cases wherein a group of enlightened men constituting a committee did a purposive act which had a clear tendency to obstruct or interfere with the due process of justice.
On the facts, the following questions fall to be considered: (1) What was the nature of the criminal proceedings pending in the Court of the Sub Divisional Magistrate, Alipore, and in the High Court at Calcutta and what were the questions that were to be decided therein? (2) What was the nature of the inquiry initiated by the appellants and what was the subjectmatter of the said inquiry? (3) Whether the acts attributed to the appellants constituted contempt of court.
(4) If the appellants were guilty of contempt of court, was this an appropriate case for taking contempt proceedings against them ? (5) Whether the punishment imposed on the appellants was excessive.
The learned Judges of the High Court were in a position to ascertain the scope of the criminal proceedings taken against the appellants,.
for they had before them the entire record pertaining to the criminal revision case.
The judgment of the High Court discloses that the learned Judges had freely drawn from the said record the facts necessary to elucidate the question raised before them; but, unfortunately,, none of the parties thought fit to get the relevant portions of the criminal proceedings printed and placed before, us, 475 I would, therefore, proceed on the basis of the allegations made by the respondents in their petition filed before the High Court in so far as they were not specifically controverted by the appellants and on the facts given by the learned Judges in their judgment.
On March 19, 1955, one Bimala Kanta Roy Choudhury filed a complaint before the Sub Divisional Magistrate, Alipore, alleging that the first respondent, B. K. Sen, the then Commissioner of the Corporation of Calcutta, committed acts of adultery with his wife, Tripti Roy Choudhury and thereby committed an offence under section 497 of the Indian Penal Code.
After protracted trial and on an examination of many witnesses, the Sub Divisional Magistrate, by his order dated July 13, 1957, discharged the first respondent under section 253 (1) of the Code of Criminal Procedure.
Before the Sub Divisional Magistrate, it was contended that the case of the complainant was true but he was prevented from proving it by reason of the respondent 's interference with the prosecution witnesses.
The Sub Divisional Magistrate in discharging the respondent also found that some prosecution witnesses were won over by the said respondent.
Against the said order of discharge, Bimala Kanta Roy Choudhury filed a revision petition in the Court of the Sessions Judge, 24 Parganas, under section 436 of the Code of Criminal Procedure.
The learned Sessions Judge accepted the contention of Bimala Kanta Roy Choudhury that by the influence of respondent No. 1 many prosecution witnesses were withheld from the court, and by an order dated November 22, 1957, he set aside the order of the Sub Divisional Magistrate and directed further enquiry by Sri C. L. Choudhury, a Magistrate with 1st Class powers at Alipore.
On January 3, 1958, the said Magistrate passed an order enlarging the scope of the further enquiry and directed examination of new witnesses; in the result the prosecution was allowed to tender further evidence and the entire case was reopened and it was, awaiting the decision of that court.
On February 3,1958, respondent No. 1 filed a criminal revision, being Criminal Revision Case No. 149 of 1959, 476 in the High Court at Calcutta against the order of the Magistrate dated January 3,1958, directing the examination of new witnesses.
A division bench of the High Court issued a rule and stayed further proceedings in the Magistrate 's court.
It would be seen that one of the questions that fell to be decided by the High Court was whether there was any truth in the allegation that the respondent suborned the prosecution witnesses, with the result that some important witnesses did not attend the court and others perjured themselves to support the respondent.
If the criminal revision was dismissed and the trial before the Magistrate proceeded, a similar question would arise before the Magistrate, namely, whether the prosecution witnesses were kept back from the witness box because they were tampered with by respondent No. 1 and whether the prosecution witnesses examined, or some of them, had been influenced by the respondent.
This question would have an important bearing not only on the disposal of the criminal revision petition but also on the appreciation of the evidence before the Magistrate.
It may be recalled that on February 3, 1958, a division bench of the High Court issued a rule and stayed further proceedings in the Magistrate 's court.
On January 16, 1958, at a special meeting of the Corporation of Calcutta the Mayor suggested the formation of a committee for discussion of necessary and appropriate steps to be taken with a view to eradicate alleged malpractices prevailing in different departments of the Corporation.
The Mayor suggested that the Commissioner of the Corporation should place his suggestions on the subject before the Committee.
Satyananda Bhattacharjee, one of the councillors, made certain allegations against the Commissioner.
The meeting passed two resolutions, one of which authorized the Mayor to constitute a Special Committee.
On February 14, 1958, another meeting of the Corporation was held.
In that meeting Satyananda Bhattacharjee reiterated his allegations against the Commissioner and particularly referred to the criminal case pending in.
the High Court.
The respondent protested against 477 reference to matters which constituted the subjectmatter of a pending case in court.
After some debate the Corporation passed the following resolution appointing a Special Committee consisting of appellants 1, 2 and 3: Resolved:That a Special Committee consisting of Councillors Sri section K. Gupta, Sri.
R. N. Majumdar and Sri S.K. Roy be set up to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names.
The Committee will take up only those matters that relate to the Corporation.
" It will be seen from the resolution that the said Committee was only authorized to enquire against officials of the Corporation who were carrying on business in their own names.
It was further elucidated that the Committee would take up only those matters that related to the Corporation.
Neither expressly nor by necessary implication this resolution authorized the Committee to make an inquiry against the Commissioner of the Corporation in regard to any appointments made by him in the Corporation with a view to.suborn witnesses in the aforesaid criminal case.
Indeed, the last sentence of the resolution expressly prohibited the Committee from embarking upon any such inquiry in regard to matters that did not relate to the Corporation.
On March 29, 1958, a motion was tabled in the meeting of the Corporation for the removal of the Commissioner from his office under section 19(3) of the Calcutta Municipal Act, 1951.
Out of the 86 councillors only 38 supported the motion and, as the requisite number of votes was not obtained, the motion was dropped.
It appears that Satyananda Bhattacharjee intended to hand over to the Special Committee certain papers relevant to the allegations made against the Commissioner, but in view of the limited terms of the reference they could not be received by the Committee.
There.
after, on March 26, 1958, Satyananda Bhattacharjee made a complaint of the same in his speech in the meeting of the Corporation and the Mayor took over the 478 papers from him and promised to send them to the Special Committee and he accordingly handed them over to the Special Committee.
Two of the documents handed over by the Mayor to the Special Committee were annexed to the affidavit filed by each of the appellants and marked "C".
The first document contained various charges made by the said Satyananda Bhattacharjee against the respondent, and the second document purported to be a copy of the petition filed by Bimala Kanta Roy Choudhury in the Court of the Sub Divisional Magistrate, Alipore, on May 31, 1955.
In the first document Satyananda Bhattacharjee gave, inter alia, the names of various prosecution witnesses and the names of persons related to them to whom the Commissioner had given appointments.
He had also given the name of another prosecution witness and alleged that the Commissioner procured an appointment for him in the Central Bank Ltd., Calcutta, through the good offices of another officer of the Bank by promising the latter to drop a case in respect of his premises.
This document, therefore, contained in unambiguous terms specific allegations against the first respondent in the matter of suborning the prosecution witnesses in the criminal proceeding pending in the Magistrate 's court and in the High Court.
In the second document also specific allegations were made that the respondent was attempting to influence the Witnesses through the Corporation employees.
On the basis of the allegations made by Satyananda Bhattacharjee and Bimala Kanta Roy Choudhury, an inquiry was started by the Committee against the first respondent in respect of charges, among others, pertaining to criminal proceedings pending against him in the court.
It was disclosed in the affidavit filed in rejoinder by the respondent that the Special Committee held its deliberations in the lady councillors ' room and that from March 25, 1958, on a black board bung up outside that room it was written in chalk "Allegations Special Committee"; that the first sitting of the Special Committee was held _on March 251, 1958; that a Secretary and a steno grapher attended the meeting; that the notes of the 479 proceedings taken by the stenographer were typed and that Satyananda Bhattacharjee, Bimala Kanta Roy Choudhury and other Councillors attended the meetings: (see the affidavit in rejoinder filed by the first respondent in the High Court).
On April 11, 1958, Bimala Kanta Roy Choudhury was examined.
It was stated in the affidavit filed by the first respondent in the High Court that the said person admitted before the Committee that he had filed a complaint against the first respondent under section 497 of the Indian Penal Code and that was pending in the High Court and that he also gave the names of the witnesses whom he had cited in proof of his case and that either the witnesses themselves or their near relations got appointments in the Corporation of Calcutta.
He also mentioned that one Tarak Nath Dey was the agent of the wife of Bimala Kanta Roy Choudhury and Tadbirkar of the respondent.
The Committee thereafter examined Tarak Nath Dey and Bimala Kanta Roy Choudhury identified him as the person referred to by him in his statement.
Tarak Nath Dey in his examination denied the said allegations made against him.
Presumably on the basis of the allegations made by Satyananda Bhattacharjee and the evidence given before the Com.
mittee by Bimala Kanta, Roy Choudhury, the Committee issued the following notice dated April 15,1958, to the first respondent: " As you probably know, we have been appointed to make an enquiry into certain allegations relating to the administration of the Corporation of Calcutta and specially into certain steps taken by you in the matter of assessment and appointments and a few; other matters, we are giving you a synopsis of the cases in which the enquiry is being held and we shall be glad if you kindly give us some time between 10 a.m. and 11 a m. tomorrow (the 16th instant) so that we can get the facts from you.
" The synopsis of the cases served upon the first respondent consisted of three questions.
We are concerned only with the third question in this case and it reads: " III (a).
It is alleged that between 4th January, 1956, and 20th September, 1957, i.e., at or about the, 480 time when the case under section 497, I. P. C., was being tried, you gave appointments to the following persons: 1.
Anil Koyal.
Jogendra Nath Mondal.
Ahi Kanta Choudhury.
Govinda Banerjee.
Narendra Nath Naskar.
(b) It is alleged that about the time you gave appointments to Tarak Nath Dey, Haradhan Dey, Pradip Bhaduri, Ardhangsu Mondal etc., and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case.
(c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghosh against whom a demolition case was pending.
" Thereafter, on April 16, 1958, the respondent filed a petition in the High Court at Calcutta for contempt of court and the High Court by an order of the same date issued notice to show cause why the rule prayed for should not be issued.
The following crucial facts emerge from the fore.
going narration that led to the filing of the contempt petition: The resolution appointing the Special Committee did not authorize it either expressly or by necessary implication to make an inquiry in respect of the activities of the Commissioner in connection with the criminal case pending in the Magistrate 's Court as well as in the High Court.
The members of the Committee were the councillors of the Corporation, and one of them, namely, Saibal Kumar Gupta, belonged to the Indian Civil Service, another, it was represented, was a practising barrister and the third was also an educated person.
Being members of the Corporation, they must have known what all happened at the meeting of the Corporation and particularly the objections raised by the respondent and others that no inquiry should be made in respect of matters that were sub judice in courts, They must 481 have also known that in view of the said objections the resolution was precisely drawn to avoid any encroachment on the matters that were sub judice.
No further resolution was passed by the Corporation enlarging the scope of the enquiry.
Section 91 of the Calcutta Municipal Act, 1951, does not authorize the Mayor to enlarge its scope.
The members of the Committee who must be deemed to have had knowledge of the scope of its powers obviously initiated the inquiry which was beyond the scope of the resolution.
With the knowledge that criminal proceedings were pending, they examined witnesses, served questionnaire on the respondent, invited or at any rate permitted, apart from the staff which was assisting the committee in the discharge of its duties, councillors and others to attend the meeting.
The inquiry could not in any sense of the term be called confidential and was conducted in a manner that it would be known to everybody who was interested in it.
The inquiry against the Commissioner of the Corporation in the Corporation building in respect of a, criminal case for the offence of adultery alleged to have been committed by him must have been a sensational news item; at any rate, it must have attracted the attention of the vast staff of the Corporation and its innumerable visitors.
With this background I shall briefly consider the law of contempt relevant to the facts of this case.
The Contempt of Courts Act, 1926, has not defined the phrase " contempt of court ".
The judgment of Lord Hardwicke, L. C., in Re Read & Huggonson (1), which has always been regarded as the locus classics on the subject, declared " Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented : nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard." The learned Lord Chancellor characterized contempt as of three kinds, namely, scandalizing the court, abusing par ties in, court, prejudicing mankind against (1) ; 61 482 parties and the court before the cause is heard.
Adverting to the third category, which is germane to the present case, the Lord Chancellor proceeded to state at p. 471 thus: " There may also be a contempt of this court, in prejudicing mankind against persons before the cause is heard.
There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.
" But to constitute contempt of court, in the words of Lord Russel, C. J., " the applicant must show that something has been published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending " (See The Queen vs Payne (1)).
In The Queen vs Gray (2), the phrase " contempt of court " is defined as, inter alia, " something done calculated to obstruct or interfere with the due course of justice or the lawful process of the courts.
" Lord Goddard, C.J., in R. vs Odham 's Press Ltd. (3), after considering the relevant authority on the subject, laid down the following test to ascertain whether there is contempt of court in a given case, at p. 497: " The test is whether the matter complained of is calculated to interfere with the course of justice Words much to the same effect were used by Parker, C.J., in a recent decision in R. vs Duffy & Others (4) when he stated at p. 894 that: ". . . the question in every case is whether. the article was intended or calculated to prejudice the fair hearing of the proceedings.
" In Halsbury 's Laws of England, 3rd edition, Vol. 8, it is stated at p. 8, " It is sufficient if it is clear that the comment tends to prejudice the trial of the action.
" Adverting to the third category of contempt described by Lord Hardwicke, L. C., the learned author says at p. 8 thus: " The effect of such misrepresentations may be not only to deter persons from coming forward to (1) , 580.
(2) (3) (4) 483 give evidence on one side, but to induce witnesses to give evidence on the other side alone, to prejudice the minds of jurors, or to cause the parties to discontinue or compromise, or to deter other persons with good causes of action from coming to the court.
" The said view has been accepted and followed also in India: see State vs Biswanath Mohapatra (1) and Ganesh Shankar Vidyarthi 's case (2).
Learned counsel contends that every such act is not contempt of court, but it is a condition of the exercise of the jurisdiction to commit a person for contempt that it must seriously prejudice the course of justice.
It is not necessary to go into the question whether, even though an act constitutes a contempt of court, the seriousness of the offence is a condition of the exercise of the jurisdiction or is only an element that a judge has to take into consideration in exercising his discretion whether to take action for contempt of court or not, for in this case, on the facts, I am satisfied that the act of the appellants had a clear tendency to prejudice the fair hearing of the criminal proceedings pending against the first respondent.
In a criminal case, it is more strictly the duty of a court to prevent any interference with the course of justice than in civil cases.
On the said authorities it is settled law that a person will be guilty of contempt of court if the act done by him is intended or calculated or likely to interfere with the course of justice.
How can it be said that the inquiry initiated by the Committee to ascertain whether the witnesses cited or examined for the prosecution in the pending criminal case were suborned by the Commissioner by devious methods alleged to have been adopted by him could not have any serious repercussions on the proceedings pending in the Magistrate 's court as well as in the High Court? Assume for a moment that the High Court dismissed the revision and, as a result, the Magistrate took over the criminal case before him for trial, and the prosecution examined its witnesses with the knowledge that (1) I.L.R. [1955] Cuttack 305.
(2) A.I.R. 1929 All.
484 an inquiry would be held by a responsible committee in respect of conduct or credibility of witnesses to be examined in the criminal case.
Would it be possible to predicate that the witnesses could be in a position to depose truthfully in the witness box? A truthful witness, who would otherwise speak in favour of the accused, might be tempted to lie in the witness box either to avoid an ignominy that he perjured in the witness box as a relative of his was appointed in the Corporation or to protect the interests of his relation, though as a matter of fact the said relation had been appointed on his own merit& So too, an untruthful witness may perjure himself in the witness box with a view to harm the Commissioner in the inquiry before the Committee.
Some honest witnesses might be afraid to come into the witness box, for in the inquiry made by the Committee they might be attributed motives.
Though a strong willed Magistrate might exclude from his mind the fact that a high power committee is making an inquiry in respect of the witnesses that are being examined before him, the factum of the inquiry might unconsciously operate on a weaker mind.
The inquiry would, therefore, have an obvious tendency to obstruct the even course of justice.
Assume again that the High Court had not stayed the proceedings before the Committee and the Committee completed the proceedings and exonerated the Commissioner by holding that the witnesses were not suborned by him, even that finding would have an effect on witnesses and the Magistrate, for with the background of such a finding untruthful witnesses would depose to a false case with greater confidence than otherwise they would.
This finding might also affect the result of the case.
Assume once again that the Committee completed its inquiry but held that the witnesses were suborned; the effect of such finding would certainly have a far reaching impact on the credibility of witnesses and also would deflect the witnesses from ,speaking the truth.
From whatever angle it is looked at, the tendency to prejudice the course of justice is apparent.
Now taking the High Court, it may be said that, a Judge of a High Court can be relied upon not 485 to be influenced by what the Committee might or might not say.
But that would not prevent the public and the affected parties from reasonably apprehending that the inquiry initiated by a high power committee or the findings given therein would affect the fair hearing of the revision petition.
From the aforesaid facts it is manifest that the contempt in the instant case is not merely a technical but a serious one which is calculated to interfere with or obstruct the due course of justice.
In my view, therefore, this was preeminently a fit case for the court to take action.
The last question is whether the learned Judges were right in imposing a fine on the appellants.
The judgment of the High Court shows that the learned Judges were very considerate to the appellants.
They bad given them every opportunity to apologize for their conduct. 'The following passage appears in the judgment : "It may be observed at this stage that during, arguments each of the respondents was asked if be wished to apologize for any contempt that might be found against him.
Each of the respondents expressed his inability to apologize.
At the conclusion of the arguments we made known to the respondents that in our view they were guilty of contempt and asked if they or any of them desired to tender any apology to Court.
Respondent No. 4, Bimala Kanta Roy Choudhury, tendered an apology to the Court, but the other respondents refused to do so.
" In the circumstances the learned Judges, in my view, rightly convicted each of the appellants for contempt of court and sentenced each of them to pay a fine of Rs. 500/ .
In the result, the appeal fails and is dismissed.
BY THE COURT: In accordance with the opinion of the majority the appeal is allowed and the conviction of the appellants for contempt of Court is set aside.
The fine, if paid, must be refunded.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The first respondent, the then Commissioner of the Corpora tion of Calcutta, was after a protracted trial for an alleged offence under section 497 of the Indian Penal Code discharged by the Magistrate under section 253(1) of the Code of Criminal Procedure.
The Sessions judge, on a petition in revision filed by the complainant, holding that the said respondent had suborned the complainants witnesses, set aside the order of discharge and directed further enquiry by another Magistrate who permitted the complainant to tender further evidence.
The respondent moved the High Court in revision and a Division Bench issued a Rule and stayed further proceedings.
While the matter was thus pending before the High Court, the Corporation of Calcutta by a resolution appointed the three appellants members of a Special Committee which ran as follows : " That a Special Committee consisting of Councillors Shri section K. Gupta, Shri R. N. Majumdar and Shri section K. Roy be set up to enquire into the allegations levelled against certain officials of the, Corporation who are alleged to have been taking advantage of, their high offices in carrying on business in their own names, The Committee will take up only those matters that relate to the Corporation.
" Subsequent to the passing of the said resolution, the Mayor handed over to the Committee certain papers from a Councillor containing certain allegations against the Commissioner.
It was the case of the said respondent that the Special Committee there, upon examined the complainant and another and issued to him a notice along with a questionnaire, the relevant portions of which were as follows: "As you probably know, we have been appointed to make an enquiry into certain allegations relating to the administration of the Corporation of Calcutta and specially into certain steps taken by you in the matter of assessment and appointments and few order matters, we are giving you a synopsis of the cases in which the enquiry is being held and we shall Se glad if you kindly give us some time between 10 a. m. and 11 a. m. tomorrow (the 16th instant) so that we can get the facts from you." * * * 461 " III (a).
It is alleged that between 4th January, 1956, and 20th September, 1957, i.e., at or about the time when the case under section 497, I.P.C., was being tried, you gave appointments to the following persons: (1) Anil Koyal (2) jogendra Nath Mondal (3) Ahi Kanta Choudhury (4) Govinda Banerjee (5) Narendra Nath Naskar, who are related respectively to Palan Koyal, Haradhan (alias Haridhan) Mondal, Tripti Choudhury, Thakur Raj Smriti Tirtha and Upendra Naskar, who were cited as witnesses in the case.
(b)It is alleged that about the same time you gave appoint ments to Tarak Nath Day, Hardhan Day, Pradip Bhaduri, Ardharigsu Mondal etc.
and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case.
(c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghose against whom a demolition case was pending.
" Thereupon the first respondent filed a complaint in the High Court charging the appellants with contempt of the High Court as well as the trial court.
The High Court found the appellants guilty and convicted them for contempt of Court.
Hence this appeal.
Held (per Imam and Raghubar Dayal, JJ., Subba Rao, J. dissenting), that the appellants were not guilty of contempt of Court and the appeal must succeed.
It could not be said that the Special Committee had consti tuted itself a court of parallel enquiry with regard to matters in issue either before the trial Magistrate or the High Court.
There can be no comparison between the present case and a trial conducted by a newspaper.
The Special Committee was directed by the Corporation to enquire into malpractices on the part of its employees, necessarily including unworthy appointments, and the ascertainment of the motive could only be incidental to the main purpose of the enquiry and could not lead to the conclusion that the Special Committee was holding a parallel enquiry on matters pending before the Court and thereby intended to interfere with the course of justice.
The record clearly showed that the appellants had at no time intended to interfere with the course of justice, nor had their conduct tended to do so.
They had taken care not to comment on any proceedings pending in I court or the issues arising out of them.
Per Subba Rao, J. The appellants obviously initiated an enquiry which went beyond the scope of the resolution passed by the Corporation.
With the knowledge that criminal proceedings were pending, they examined witnesses and served the 462 questionnaire.
They permitted councillors and others to attend the enquiry which was in no sense confidential.
It is settled law that a person is guilty of contempt of court if the act done by him is intended or calculated or likely to interfere with the course of justice.
Re Read & Huggonson, ; , The Queen V. Payne, , The Queen vs Gray, , R. V. Odham 's Press Ltd., , R. vs Duffy Mohapatra, I.L.R. [1955] Cuttack 305 and Ganesh Shankay Vidyarthi 's case, A.I.R. 1929 All.81, referred to.
It could not be said in the instant case that the enquiry, initiated by the committee to ascertain whether the first respondent had suborned witnesses cited or examined against him, could not have serious repercussions on the proceedings pending in the Magistrate 's court or in the High Court.
Although a strong willed ' Magistrate might not be influenced by the enquiry, it might unconsciously affect a weaker mind and thug obstruct the even course of justice.
Even though a judge of the High Court might withstand the effect of such an enquiry, that would not prevent the public and the parties, especially in a criminal case, from reasonably apprehending that the enquiry or the findings made by the committee might affect a fair hearing of the matter.
The contempt, in the instant case, was not merely of a technical nature but of a serious character calculated to interfere with and obstruct the due course of justice and as such was preeminently one against which the court must take action.


judgement:
Appeal No. 205 of 1956.
Appeal from the judgment and decree dated May 26, 1954, of the Calcutta High Court in Appeal from Original Decree No. 127 of 1950.
580 D. N. Mukherjee, for the appellants.
N. C. Chatterjee and R. B. Biswas, for respondents Nos.
1(a) and 2. 1961.
January 25.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta.
The appellant was the defendant in the suit out of which this appeal has arisen and respondent No. 1 was the plaintiff, and the second respondent was a proforma defendant.
The facts of this case are these: On February 4, 1941, the respondent sold the property in dispute to the appellant for a sum of Rs. 10,000.
On February 10, 1941, there was an agreement for reconveyance within a period up to February 10, 1943, for a sum of Rs. 10,001.
The relevant clause of this agreement was the third clause which was as follows : " Clause 3.
The purchase shall be completed by the purchasers within two years, i.e., to say on or before the 10th day of February, 1943, time being the essence of the contract.
If the purchasers shall on or before the 10th day of February, 1943, pay to the vendor a sum of Rs. 10,001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it.
" On November 26, 1942, the solicitor for respondent No. 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001.
Along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances, if any, created by the appellant.
On November 30, 1942, the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record.
581 Again on December 11, 1942, the respondent 's solicitor sent a letter stating : " My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting, the return of the relative draft conveyance as approved by you on your clients ' behalf.
" To this the reply of the appellant 's solicitors dated December 18, 1942, was: " Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises." On June 10, 1943, respondent No. 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage.
The trial court dismissed the suit oil May 16, 1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money " punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced ", and the court had no power 'to afford any relief against forfeiture of this breach.
The plaintiff respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does riot bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality.
The appeal was therefore allowed and the suit for specific performance decreed.
It is against this judgment and decree that the appellant has come in appeal to this Court.
The correspondence which has been proved in this case shows that when the respondent 's solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute.
This was a complete repudiation of the contract to reconvey which the 582 appellant had agreed to by cl. 3 of the agreement which has been set out above.
As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement.
But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance.
In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally, refused to carry out his part of the contract and intimated that money will be refused if tendered.
The principle laid down in Hunter vs Daniel (1) is applicable to cases of this kind.
In that case Wigram, V. C., stated the position as follows: " The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. " Lord Buckmaster in Chalikani Venkatarayanim vs Zamindar of Tuni (2) accepted this statement of the law and observed: " Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money. " This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was.
It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when (1) ; ; (2) (1922) 50 I.A. 41, 47.
583 the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so.
We are unable to accord our assent to this proposition.
The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim vs Adam Osman (1), in our opinion has no application to the facts and circumstances of this case.
It was held in that case that the offer made by a promiser through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the promisor is able and willing to perform his promise.
Unless there is something peculiar in the circumstances of that case that case does not lay down good law.
It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.
In our opinion the High Court rightly held that the respondents were entitled to a decree for specific per formance and we therefore dismiss this appeal with costs.
Appeal dismissed.

summary/full:
The appellant purchased the property in dispute from the respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two years for almost the same value for which it was 'sold.
The relevant clause of this agreement was as follows: " Clause 3 The purchase shall be completed by the purchasers within two years, i.e., to say on or before the 10th day of February, 1943, time being the essence of the contract.
If the purchasers shall on or before the 10th day of February, 1943, pay to the vendor a sum of Rs. 10,001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it.
" Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and intimating that the purchase money was ready to be paid, but after some correspondence the appellant 's solicitors totally repudiated the agreement for reconveyance.
The respondent did not then tender the price agreed to be paid and filed a suit for specific performance which was dismissed by the trial court on the ground that the respondent had not paid the money.
The High Court decreed the suit.
Held, that as the appellant had totally repudiated the con tract for reconveyance and had failed to perform his part of the contract it was open to the respondent to sue for its enforcement and the High Court was right in holding that the respondent was entitled to a decree for specific performance.
In a case of total repudiation of the agreement for sale it was useless to make a formal tender of the purchase money.
Hunter vs Daniel ; , and Chalikani vs Zamindar of Tuni and Others (1922) L.R. 50 I.A. 41.
followed.
Ismail Bhai Rahim vs Adam Osman I.L.R. , distinguished.