judgement:
Appeal No. 316 of 1959.
Appeal by special leave from the judgment and decree dated August 22, 1959 of the Madras High Court in Appeal No. 282 of 1952.
G.S. Pathak, B. Dutta, T.R. Ramchandra, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
H.N. Sanyal, Solicitor General of India, K. Jayaram and R. Ganapathy Iyer, for respondent No. 1 N. Panchapagesa Iyer, M.P. Swami and R. Thiagarajan, for respondent No. 2.
December 11, 1963.
The Judgment of the Court was delivered by DAS GUPTA J.
Thirteen month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father V.R. Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendents 2 to 10.
His case is that Padmavathi and Sadagopa were validly married on June 24, 1948 and of that marriage he was born.
The main contention of the contesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa 's son.
On both these points the Trial Court found the plaintiffs ' case proved and rejected the defence pleas.
At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa 913 did take place that was not a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra.
The Trial Court was of opinion that Padmavathi was a Brahmin, and as admittedly Sadagopa was a Shudra, the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949.
It held however that the position had been entirely changed by section 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and not to the caste to which Sadagopa belonged the marriage is valid under the existing law.
The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected.
In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint.
Some other directions were also given in the decree, with which however we are not concerned.
On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathasalam was the issue of that marriage, being born of Padmavathi to Sadagopa.
The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa.
Assuming however for argument 's sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act, 1949, and so, the plaintiff would have all the rights of legitimate son vis a vis the coparcenary to which his father belonged.
The validity of the Act was unsuccessfully challenged.
Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal.
Against this decision of the High Court the present appeal has been filed by the defendants with special leave.
In support of the appeal, Mr. Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa 914 and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage.
Learned counsel wanted to.
say that the findings of the High Court on these points were vitiated by misreading of important items of evidence.
He could not however point out any such misreading nor any other error to justify our re assessment of the evidence Having failed in this attempt Mr. Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa inspite of the provisions of the Hindu Marriages Validity Act, 1949.
According to the learned counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act.
The relevant provisions of the Act is in section 3 and is in these words: "Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub castes or sects.
" For his proposition the learned counsel could not cite any authority; and that is natural because the contention raised is entirely misconceived and can be characterised as extravagant.
He tried to persuade us however that a proper construction of the words used in the section,justifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected.
He conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, 'but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegiti 915 mate then.
The illegitimate children , he argues, were not made legitimate by this Act.
For that purpose an express provision was necessary, according to the learned counsel.
In support of his arguments he has drawn our attention to the wordings of section 1 of the Hindu Widows ' Re Marriage Act, 1856, which is in these words: "No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the women having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any inter pretation of Hindu law to the contrary notwithstanding.
" The absence of any phrase similar to "the issue of no such marriage shall be illegitimate" in the Hindu Marriages Validity Act, 1949, is claimed by the learned counsel to support his contention.
We cannot agree.
In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in section 1 of the Hindu Widows ' Re Marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the, issue of the marriage was legitimate.
These words were put in the section.
, by the legislature in 1856 as a matter of abundant, caution.
The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence.
If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate.
The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different,, castes, sub castes and sects.
It is idle to contend that the object of the legislature was only to regu larise the status of the husband and the wife.
That ' certainly was part of the object.
But equally important, or perhaps more important object was that the children of the marriages would become legitimate.
916 We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the courts below, viz., it was a valid Hindu marriage and Bhakthavathasalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.
No other point was urged in appeal.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The minor respondent No. I brought a suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendants 2 to 10.
His case was that Padmavathi and Sada Gopa were validly married on June 24, 1948 and of that marriage he was born.
The case of the defendant was that the impugned marriage was not a valid marriage as Padmavathi was a Brahmin girl and Sada Gopa a Shudra.
On these facts the Trial Court passed a preliminary decree for partition in favour of the respondent No. 1.
The Trial Court was of opinion that the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949.
It held however that the position had been entirely changed by section 3 of the Hindu Marriages Validity Act, 1949 and that the marriage was validated by the Act of 1949.
On appeal by the defendants, the High Court affirmed the judgment and decree passed by the trial court.
Hence this appeal.
Held: (i) The Hindu Marriages Validity Act, 1949 was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different 912 castes, sub castes and sects.
It is idle to say that the object of the legislature was only to regularise the status of the Husband and the Wife.
That certainly was part of the object.
But equally important, or perhaps more important object was that the children of the marriages would become legitimate.
On the facts of this case it was held that the impugned marriage was a valid Hindu marriage and the respondent No. 1 a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.


judgement:
Appeal No. 528 of 1961.
Appeal by special leave from the judgment and decree dated October 10, 1956 of the Mysore High Court in Regular Appeal No. 171 of 1951 52.
K. P. Bhatt and R. Thiagarajan, for the appellant.
section T. Desai, K. Jayaram and R. Ganapathy Iyer for the respondents.
3 December, 18, 1963 The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ. was delivered by Gajendragadkar, J. J. R. Mudholkar J. delivered a dissenting opinion.
GAJENDRAGADKAR J.
This appeal arises from a suit filed by the appellant Kanakarathanammal in the Court of the IInd Additional District Judge, Bangalore (O.S. No. 39 of 1947 48) in which she claimed to recover possession of the properties described in the Schedules attached to the plaint.
Schedules 1 and 2 consist of movable and immovable properties, while Schedule 3 refers to jewels and silver ware.
The appellant laid a claim to these properties as the sole heir of her mother Rajambal who died on the 13th September, 1946.
Her case was that she was entitled to these properties exclusively under sub clause (i) of Clause (1) of section 12 of the Mysore Hindu Law Women 's Rights Act, 1933 (No. X of 1933) (hereinafter called the Act).
A gold belt which is an item of jewellery was described by her in Schedule 4 and the same was claimed by her on the ground that it had been presented to her by her father before he died on the 20th March, 1947.
The case set out in the plaint showed that according to the appellant, the properties in Schedules 1, 2 and 3 belonged exclusively to her mother and when she made a claim against the respondents in that behalf, they challenged her title.
In that connection, the appellant relied on the fact that a sale deed had been executed in favour of her mother on the 1st April, 1942 for a consideration of Rs. 28,000 by Mr. Gibs under which several pieces of land together with all buildings and erections standing thereon and movable property consisting of articles of furniture and other things set out in the Schedules attached to the sale deed (Exhbt.
F), were covered.
Respondent No. 1 Loganatha Mudaliar alleged that on the 17th February, 1947, the father of the appellant had executed a will under which he had been appointed an executor and that as such executor, he obtained a probate under the said will, got possession of the properties and handed them 4 over to Respondent No. 2 Mudaliar Sangham, by its President, as directed under the will.
Respondents 1 and 2 thus set up a title in respect of the suit properties in the appellant 's father.
Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession the said property would devolve upon the appellant and her brothers; and the appellant 's failure to join her brothers made the suit incompetent for non joinder of necessary parties.
The third respondent, Vasudeva Setty & Sons, admitted that he was in possession of the gold belt described in Schedule 4, but urged that the appellant 's father had given it to him for purpose of sale and that a sum of Rs. 109 7 9 was due to him.
He pleaded that he had no objection to hand it over to the rightful claimant, provided the amount due to him was repaid to him.
On these pleadings, the trial Court framed six substantive issues, three of which were important.
These three issues were: ( 1) whether the appellant 's father or mother was the real owner of the property described in Schedules 1 and 2; (2) whether the will set up by respondents 1 & 2 was genuine and valid in law; and (3) whether the suit was not maintainable on the ground that necessary parties had not been joined by the appellant.
The learned trial Judge held that the appellant 's mother was the owner of the property described in Sch.
Regarding the movable property, the trial Judge held with some variation that the items admitted by the respondents also belonged to the appellant.
As regards the jewels, he found that they had never gone into the possession of respondents 1 and 2, and so, the appel lant 's claim in respect of the said jewels was rejected.
As to the gold belt mentioned in Sch. 4, the decision of the trial Court was that the appellant should recover the same from respondent No. 3 on her paying to him Rs. 109 7 9 claimed by him.
Having found the title of the appellant 's mother proved, the trial Judge came to the conclusion that the will executed by the appellant 's father was invalid.
These findings, however, did not materially assist the appellant, because the learned Judge upheld the respondent 's plea that the suit was bad for non joinder of necessary parties.
In 5 the result, the appellant 's suit was dismissed in regard to the main relief claimed by her.
Against this decision, the appellant preferred an appeal before the High Court of Mysore (R.A. No. 171 of 195152).
The High Court has held that the main property described in Sch.
I did not belong to the appellant 's mother, but to her father.
It found that the sale deed in respect of the property was taken by the appellant 's father in the name of the appellant 's mother benami.
Having held that the appel lant had not established her title to the said property, the High Court did not think it necessary to consider the validity of the finding of the trial Judge that the suit was bad for non joinder of necessary parties.
It also did not think it necessary to consider whether the will had been proved or not.
The appellant, however, succeeded before the High Court in respect of one minor point and that was in relation to her claim for the gold belt.
The High Court has ordered that Respondent No. 3 should return the said gold belt to the appellant and that the appellant was not bound to pay to Respondent No. 3 the amount claimed by him.
The result was that with a very slight modification, the decree passed by the trial Court was confirmed, though on a different ground.
It is against this decree that the appellant has come to this Court by special leave.
It appears that respondents 1 & 2 had also preferred an appeal in the High Court against a part of the decree passed by the trial Judge, and the said appeal was dismissed.
With that part of the case, we are not concerned in the present appeal.
The first point which has been urged before us by the appellant is that the High Court was in error in holding that the immovable property described in Sch.
I had been purchased by the appellant 's father benami in the name of his wife.
Some facts material to this issue are not in dispute.
It has been found by both the Courts below that the consideration which was paid for the sale transaction proceeded entirely from the appellant 's father; so that in dealing with the question as to whether the title to the property vested in the appellant 's mother or not, we have to proceed on the basis that the whole of the consideration was paid by the appellant 's father and not by her mother.
The case of the 6 appellant, however, is that the subsequent conduct of the parties and particularly the correspondence produced by the appellant clearly showed that the appellant 's father admitted the title of the appellant 's mother, and it is urged that the High Court was in error in reversing the finding of the trial Court that the property really belonged to the appellant 's mother.
In order to deal with the merits of this argument, it is necessary to refer to the material correspondence on which the appellant relies.
Exhibit B is a letter written by the appellant 's father to her (appellant 's) husband on the 1st August, 1944.
In this letter, the appellant 's father has used words which clearly show that he, treated the property as belonging to his wife.
He says "she (the appellant 's mother) tells me that you almost agreed to come and stay in the estate and for that purpose she has asked me not to let out both the houses occupied by Iyer", and then he adds, "she says that she will give Rs. 50 a month with the above free quarters".
Then on the 21st June, 1945, a letter was addressed to the Sub Division Officer, Bangalore Sub Division, Bangalore, by the appellant 's mother (Exbt.
This letter is in relation to the properties with which we are concerned, and it has been addressed clearly and unambiguously on the basis that the title to the property vests in the appellant 's mother.
In the course of this letter, she says that about the 10th May, 1945, the authorities of the Hindustan Aircraft approached her through her husband for permission to put up and install a few electric lights against the runway to the length of about 700 or thereabouts, and that she gave them the permission on the strict understanding that the rest of her plantation should not be disturbed.
Similarly, on the 28th May, 1946, the appellant 's father wrote to the Officer in charge Claims, Bangalore, acknow ledging receipt of a cheque which had been issued by the said Officer in favour of the appellant 's mother for Rs. 2511 3 0.
On the 23rd May, 1946, the appellant 's father wrote a letter to his wife, and some of the statements made in it clearly suggest that the appellant 's father admitted his wife 's title to the properties in question. "Mr. Loganatha Mudaliar," says the letter, "told me that you had said to write some Estate Will.
We have talked about this already.
You ought not 7 to have told him without telling me again .
Money also should be given along with estate.
I will see to all as per ,,convenience.
If you be without sorrow, you may come out happily early.
" At this time, the appellant 's mother was ill and was presumably thinking of making a will of her own properties.
In that context, the letter sent by the appellant 's father to his wife is very significant.
It is true that the actual management of the property was done by the appellant 's father; but that would inevitably be so having regard to the fact that in ordinary Hindu fami lies, the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that the appellant 's mother did not take actual part in the management of the property would not materially affect the appellant 's case that the property belonged to her mother.
The rent was paid by the tenants ,and accepted by the appellant 's father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family.
If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties.
What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience.
We are satisfied that the High Court did not correctly ;appreciate the effect of the several admissions made by the appellant 's father in respect of the title of his wife to the property in question.
Therefore, we hold that the property had been purchased by the appellant 's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband.
As soon as we reach this conclusion, it becomes necessary to consider whether the appellant 's suit must fail for nonjoinder of necessary parties.
It is common ground that the appellant has brothers alive, and even in the trial Court respondents 1 and 2 took the alternative plea that if the property was found to belong to the appellant 's mother, under 8 the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the non joinder of the brothers was, therefore, fatal to the suit.
In fact, as we have already indicated, the trial Court had dismissed the appellant 's suit on this ground.
The decision about the question as to the appellant 's title to this property would thus depend upon the construction of the relevant provisions of the Act.
Section 10 is relevant for the purpose.
Section 10(1) defines 'Stridhan ' as meaning property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate.
Section 10(2) prescribes an inclusive definition of the word 'Stridhan ' by clauses (a) to (g).
The appellant contends that the property in question falls under section 10(2) (b), whereas according to the respondents it falls under section 10(2) (d).
There is no doubt that if section 10(2) (b) takes in the property, the appellant would be exclusively entitled to it and the plea of non joinder of her brothers would fail.
On the other hand, if section 10 (2) (d) applies to the property, the appellant will not be exclusively entitled to the property and her brothers would be necessary parties to the suit.
In that case the plea of non joinder would succeed and the appellant 's suit would be dismissed on that account.
The position with regard to the heirs who succeed to stridhan property belonging to a Hindu female dying intestate has been provided for by section 12 of the Act and there is no dispute on that account.
Let us, therefore, consider under which clause of section 10 (2) the property in question falls.
Section 10 (2) (b) refers to all gifts received by a female at any time (whether before, at or after her marriage) and from any person (whether her husband or other relative or a stranger).
It is thus clear that all gifts received from the husband at any time would fall under section 10(2) (b).
The appellant 's argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellant 's father it must follow that the property purchased with the said consideration is a gift by the husband to his wife.
The fact that the property has been purchased in the name of the wife does not make any difference in substance.
Two transactions have taken place, 9 one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife.
Treating the two transactions as inte grally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to the wife.
On the other hand, the respondents contend that section 10 (2) (b) can take in only gifts and not properties purchased with the assistance of the gifts.
If the appellant 's father gave to his wife the amount with which the property was purchased, all that can be said is that the amount given by the husband to his wife was a gift under section 10 (2) (b).
What the wife purported or chose to do with the amount gifted to her by her husband is entirely a different matter.
She might have purchased the property, or she might have kept the amount in bank.
If the amount had continued in the bank and its identity was not in dispute, it may have been impressed with the character of Stridhan as described in section 10 (2) (b).
But if the amount was utilised by the wife for purchasing the property in her own name, the purchase is hers and the purchased property cannot be said to be gift from the husband to his wife.
Section 10(2 ) (d) refers to property acquired by a female by purchase, agreement, com promise, finding or adverse possession.
The respondents urged that one has merely to read clause 10(2)(d) to be satisfied that the purchase of the property in this case falls squarely under it.
We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of section 10(2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under section 10(2) (b).
The argument about the substance of the transaction is of no assistance in the present case, because the requirement of section 10(2) (b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife.
Can we say that the property purchased under the sale deed was such a gift from the husband to his wife? The 10 answer to this question must clearly be in the negative.
With what funds the property is purchased by the female is irrelevant for the purpose of section 10(2)(d); so too the source of the title to the fund with which the said property was purchased.
All that is relevant to enquire is: has the property been purchased by the female, or has it been gifted to her by her husband? Now, it seems clear that in deciding under which class of properties specified by clauses (b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that we must treat the gift of the money and the purchase of the property as one transaction and hold on that basis that the property itself has been gifted by the husband to his wife.
The obvious question to ask in this connection is, has the property been gifted by the husband to his wife, and quite clearly a gift of immovable property worth more +.ban
Rs. 100 can be made only by registered deed.
The enquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to section 10 (2) (d) ; gift of money which would fall under section IO (2) (b) if converted into another kind of property would not help to take the property under the same clause, because the con verted property assumes a different character and falls under section 10(2) (d).
Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale.
It is, we think, difficult to accede to the argument that the land purchased with the sale proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellant 's argument will inevitably mean.
The gift that is contemplated by section 10 (2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned.
Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property along with her makes the suit incompetent.
It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of section 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court.
Facts which are necessary to 11 decide the question under section 10 (2) have been found and there is no dispute about them.
The only point to decide is, on a fair construction of section 10(2) (b) and (d) which of the said two clauses takes in the property in question.
This appeal was argued before us on the, 22nd August, 1963.
At the said hearing, we had suggested to the parties to consider whether they could amicably settle the dispute between themselves.
Accordingly, we allowed the matter to stand over to enable the parties to negotiate the settle ment, if possible.
Ultimately, on the 13th September, 1963, the Appellant 's counsel reported to the office that no settlement was possible.
However, in the meanwhile, on the 6th September, 1963, the appellant 's counsel filed an application for leave to add the appellant 's two brothers T. Narayanaswamy and T. Vasudevan as co plaintiffs to the plaint, or if they are not willing to join as co plaintiffs, then as defendants 4 and 5.
This application is opposed by respondents 1 and 2.
That is how this appeal was placed before the same Bench once again on the 13th December, 1963.
We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage.
We have already noticed that the plea of non joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention.
While the suit was being tried, the appellant might have applied to the trial ,Court to add her brothers, but no such application was made.
Even after the suit was dismissed by the trial Court on this ground, it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point.
The fact that the High Court came to the contrary conclusion ,on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself.
In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard.
Under the circumstances, we do not 12 think it would be possible for us to entertain the said application.
In the result, the application for amendment is rejected.
It is unfortunate that the appellant 's claim has to be rejected on the ground that she failed to implead her two, brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under section 12 of the Act.
That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record.
It is true that under 0. 1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal.
Even in such cases, the Court can under 0. 1 r. 10, sub rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties ' plea of limitation.
Once it is held that the appellant 's two brothers are co heirs with her in respect of the properties left intestate by their mother,, the present suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.
The estate can be represented only when all the three heirs are before the Court.
If the appellant per sisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake.
In Naba Kumar Hazra & Anr.
vs Radheshyam Mahish & Ors.(1) the Privy Council had to deal with a similar situation, In the suit from which that appeal arose, the plaintiff had failed to implead co mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co mortgagors were necessary parties and in the end.
it was urged on his behalf that the said co mortgagors should be allowed to be impleaded before the Privy Council.
In (1) A.I.R 19 13 support of this plea, reliance was placed on the provisions of O. 1 r. 9 of the Code.
In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.
" In the result, the appeal fails and is dismissed.
The appellant has been granted special leave to file this appeal as a pauper.
In the circumstances of this case, however, we direct that she need not pay the Court fees which she would have hadto pay if she had not been allowed to appeal as a pauper.
There would be no order as to costs throughout.
MUDHOLKARJ.
I regret my inability lo agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him.
My reasons for taking a different view are these: The sale deed on which the appellant relies admittedly 'stands in the name of her mother.
It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father.
It was because of this latter circumstance that the respondents contended that the transaction was benami.
After examining the entire evi dence adduced by the parties,, the trial court negatived the respondent 's contention.
Though the High Court took a different view, my learned brother has held and in ,my opinion rightly, that the conclusion of the High Court was wrong and that of the trial court was correct on this point.
The position, therefore, is that the property in question was that of the appellant 's mother at her death.
The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co heirs of their mother along with her.
That would be the correct position under section 12 of the Mysore Hindu Women 's Rights Act provided the property is deemed to have been purchased by the mother herself.
The short question, therefore, is whether 14 upon the findings that the property was not purchased by the appellant 's father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother.
No doubt, the sale deed stands in her name.
But the fact remains that the consideration did not flow from her but from the appellant 's father.
It is interesting to mention that on February 9, 1948 the respon dent 's counsel made an application under 0.
VI, rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of section 12 of the Mysore Hindu Women 's Rights Act.
She furnished the following particulars on February 17, 1948: "The property detailed in Schedules 1 and 11 was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint.
She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents.
He was deeply attached to her, and indeed they were a loving couple.
Out of love, affection and gratitude and with a view to make her self sufficient, he provided the money to acquire the property for her own, absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately." The appellant 's case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother.
By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellant 's father with his own money for her mother.
In this state of affairs; it is difficult to see how the transaction could be split up into two parts, i.e.,, a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money.
In my judgment, upon the pleadings there is no scope for splitting up the transaction into two parts like this.
It is not even an alternative contention of the respondents that the trans 15 action was in two parts and that what the father gifted was the money and not the property.
It would be *indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts.
The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mother 's name.
Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother.
Such a transaction must therefore amount to a gift.
In that view the property would not fall under cl.
(d) of section 10 of the Act but under cl.
(b) of that section.
Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is conceded.
In the result I would set aside the decree of the courts below in so far as the property in question, Beverly Estates, is concerned and decree the appellant 's suit with respect to it in addition to the property with respect to which she has already obtained a decree in the courts below.
I would further direct that the respondents will pay to the appellant proportionate costs in all the courts.
ORDER BY COURT In accordance with the opinion of the majority the appeal is dismissed.
No order as to costs.
Appellant need not pay court fees.

summary/full:
The appellant in a suit against respondents claimed recovery of possession of the properties in Schedules 1, 2 and 3 as the sole heir of her mother.
She claimed these properties exclusively, under section 12(1) (i) of the Mysore Hindu Law Women 's Rights Act, 1933.
On challenge to her title by respondents she relied on a sale deed created in favour of her mother for a consideration of Rs. 28,000.
Respondents ,set up title in respect of the suit properties in the appellant 's father alleging that her father had executed a will under which respondent I had been appointed an executor and as such, he got possession of the properties and handed them over to Respondent 2, as directed under the will.
Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession it would devolve upon the appellant and her brothers; and her failure.
to join her brothers made the suit incompetent for non joinder of necessary parties.
The trial court dismissed the suit.
On appeal, the High Court confirmed the decree of the trial court, but held that the main property in Schedule 1 did not belong to the appellant 's mother, but to her father and the sale deed in respect of the property was taken by her father in the name of her mother benami.
On appeal by special leave, the appellant mainly contended that the property in question would fall under section 10(2)(b) :of the Act, and not under section 10(2)(d) as respondents had contended and therefore, she would be exclusively entitled to it and the plea of ,non joinder of her brothers would fail.
Held: (Per, P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ.).
It would be straining the language of section 10(2)(b) of the Act to hold that the property purchased in the name of the wife with the money gifted to her by her husband should 'be taken to amount to a property gifted under section 10(2)(b).
The re quirement of section 10(2)(b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife.
In deciding under which class of properties specified by cls.
(b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that the gift of the money and the purchase of the property must be treated as one transaction and held on that basis that the property itself has been gifted by the husband to his wife.
134 159 S.C. 1.
2 The gift that is contemplated by section 10(2)(b) must be a gift of the very property in specie made by the husband or other relations therein mentioned.
The trial court therefore, was right in holding that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property alongwith her made the suit incompetent.
In the present case, the estate could be represented only when all the three heirs were before the court.
When the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property she took the risk and it was now too late to allow her to amend the plaint by adding her brothers at this late stage.
Naba Kumar Hazra vs Radheshyam Mahish, A.I.R. 1931 P.C., 225 followed.
Per Mudholkar J. (dissenting) Upon the pleadings there is no, scope for spliting up the transaction into two parts, ie., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money.
It was not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property.
It would be indeed an artificial way of looking at the transaction, as was done by the trial court, as being constituted of two parts.
Thus the transaction was one indivisible whole and that is, the father provided the money for acquiring the property in the mother 's name.
Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother.
Such a transaction must therefore amount to a gift.
In that view the property would not fall under cl.
(d) of section 10 of the Act but under cl.
(b) of that section.
Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is concerned.


judgement:
Appeal No. 496,of 1963.
Appeal by special leave front the Award dated August 26, 1961, of the Industrial Tribunal, Maharashtra in Reference (IT) No. 43 of 1961.
S.V. Gupte, Additional Solicitor General of India and I. N. Shroff, for the appellant.
K. R. Chaudhuri, for the respondents.
December 19, 1963.
The Judgment of the Court was ,delivered by: GAJENDRAGADKAR J.
This appeal arises from an, Industrial dispute between the appellant Podar Plastics (P) Ltd. and the respondents, its workmen, and it has reference ,to the claim made by the respondents for bonus for the year 1959.
The respondents claim that for the relevant year they should get bonus equivalent to three months ' salary includ ing dearness allowance.
On hearing the parties and on con sidering the evidence adduced by them, the Tribunal has ,directed that the appellant shall pay to the respondents bonus at the rate of half month 's basic wages excluding ,allowances and overtime for the said year.
It is against this ,award that the appellant has come to this Court by special leave.
The appellant is a private company and its registered ,office is situated at Podar Chambers, Parsee Bazar Street, Fort, Bombay.
It owns a factory at Supari Baug Road where it manufactures plastic products.
The appellants case before the Tribunal was that if proper accounts are made in accordance with the Full Bench Formula, it would be found that there is no available surplus from which any bonus can be paid to the respondents.
On the other hand, the respondents urged that the working of the Formula would show a substantial available surplus from which three months ' wages as bonus can be easily paid.
As usual, the controversy between the parties centered round prior charges which the appellant claimed ought to be deducted from the gross profits.
One of the points of dispute between the 134 159 S.C. 2.
18 parties was whether depreciation which has to be deducted 'as a prior charge should be statutory depreciation or notional normal depreciation.
The figure of the profit was.
admitted at Rs. 2.70 lacs.
The Tribunal made alternative calculations, one on the basis that statutory depreciation alone should be deducted, while the other was prepared on the basis that notional normal depreciation as claimed by the appellant should be deducted.
On the first calculation the available.
surplus was found to be Rs. 0.
44 lac.
On the alternative calculation, it was found to be Rs. 0.33 lac.
For the purpose of this appeal we will accept the latter calculation which is made on the basis that the notional normal depreciation has to be deducted.
It has been conceded before us by the learned Addl.
Solicitor General for the appellant that there are two mis takes in this calculation.
The amount of notional normal depreciation which has been shown as Rs. 0.
78 lac ought to be Rs. 0.
7 3 lac.
Similarly the amount of income tax which is shown as Rs. 0.
96 lac ought to be Rs. 0.
95 lac.
Thus, the two mistakes accounting for nearly Rs. 6,000 have been made in favour of the appellant by the Tribunal in making this calculation, and that would make the available surplus as Rs. 0.39 lac; that is one aspect of the matter which has to be borne in mind in dealing with the appeal before us.
The main point which has been urged before us by the learned Addl.
Solicitor General relates to the claim made by the appellant for the deduction as a prior charge of Rs. 60,000 by way of notional remuneration for Mr. K. R. Podar, one of the Directors of the Company.
We have already seen that the appellant is a Private Ltd. Co. and four of the major shareholders are members of the Podar family; they are: R.A. Podar, G.R. Podar, K.R. Podar and B.J. Podar; the 5th shareholder is M /s.
Podar Trading Co. Private Ltd., 6th is Jay Agents Private Ltd., 7th is the National Traders Private Ltd. and the 8th is Ratilal B. Desai.
According to the appellant, K.R. Podar devoted the whole of his time to the supervision and management of the appellant concern, and so, he was entitled to charge remuneration at the rate of Rs. 5,000 a month.
In sup 19 port of this claim, Mr. Gupta, the Manager of the concern, made an affidavit and offered himself for cross examination.
He stated that Mr. Podar attends the factory from 9 A.M. to 1 P.m. and 2 30 P.m. to 6 30 P.m.
In his cross examination, it was brought out that when the previous Director was paid Rs. 1000 per month as remuneration, a resolution had been passed by the Board of Directors in that behalf; but no such resolution has been passed in regard to the remuneration of Mr. K. R. Podar.
Besides, the appellant itself has urged that Mr. Podar did not actually charge any remuneration because it was thought that the financial position of the appellant was not very satisfactory, and so, Mr. Podar wanted to save expenditure on account of his remuneration.
It may be conceded that in a concern like the appellant 's if one of the Directors spends his time in supervising and managing the affairs of the concern, he would be entitled to charge a reasonable remuneration.
This position has not been and cannot be disputed in view of the decisions of this Court in Gujarat Engineering Company vs Ahmedabad Misc.
Industrial Workers ' Union(1), and Kodaneri Estate vs Its Workmen and Another 2 Relying on these decisions, it is urged on behalf of the appellant that the Tribunal was in error in not allowing any deduction on account of remuneration to Mr. Podar.
In our opinion, the appellant cannot seriously quarrel with the finding of the Tribunal, because it is conceded that Mr. Podar in fact has not charged any remuneration.
The working of the Formula is no doubt notional in some respects, but we think it would not be permissible for the employer to make it still more notional by introducing claims for prior charges on purely hypothetical and almost fictional basis.
If Mr. Podar had been paid remuneration regularly and it had been duly shown in the books of account, a claim in that behalf could have been made by the appellant, and subject to the scrutiny by the Industrial Tribunal as to reasonableness of the said payment, such a claim would have been allowed; but if for any reasons Mr. Podar did not charge any remuneration, it would be unfair to allow a deduction on that account to be made notionally (1) (2) 20 because the working of the Formula is sometimes described as notional.
The inclusion of such an item solely for the purpose of depressing the available surplus cannot, in our opinion, be allowed.
Besides, the Tribunal does not appear to have accepted the evidence for Mr. Gupta and it has made a significant comment that Mr. K. R. Podar has himself not stepped into the witness box to make a claim for his remuneration.
Mr. Gupta was asked whether Mr. Podar was going to give evidence, and he answered the question in the negative.
Therefore, if in the circumstances proved in this case, the Tribunal did not feel justified in allowing the claim for deduction made by the appellant in regard to the notional remuneration of Mr. Podar, the appellant cannot make a serious grievance.
The other point in controversy is in regard to the direction of the Tribunal that the appellant was not entitled to make any claim for rehabilitation.
It appears that the Tribunal was inclined to take the view that since the appellant had begun its business with second hand machinery, it was not entitled to make a claim for rehabilitation on the basis of replacement of the said machinery by brand new machinery.
In other words, the Tribunal seems to be of the opinion that in cases where an employer is carrying on his business with second hand machinery, rehabilitation should be calculated on the basis that the said second hand machinery would be replaced by second hand machinery and not by new machinery.
This view has been rejected by this Court in the case of South India Millowners ' Association and Ors.
vs Coimbatore District Textile Workers ' Union and Ors(1).
Therefore, the appellant is right in contending that the approach adopted by the Tribunal in dealing with the question of rehabilitation is erroneous.
That, however, does not help the appellant because in the present case the Tribunal has considered the evidence given by Mr. Dinshaw on behalf of the appellant In support of its claim that the rehabilitation requirement of the appellant would be of the order of Rs. 8,84,629.
It is true that one of the reasons given by the Tribunal is that the (1) [1962] 1.L.L.J. 223.
21 appellant is not justified in making a claim for rehabilita tion on the basis that new machinery would be purchased by him for rehabilitating his old one; but there are several other reasons which the Tribunal has discussed and these reasons indicate that the Tribunal was not satisfied with the accuracy of the statements made by Mr. Dinshaw and their reliability.
Incidentally, it appears that the appellant made a novel claim for rehabilitating his dead stock as one of the items under rehabilitation, and the Tribunal has re jected that claim.
In the result, the finding of the Tribunal is based on its appreciation of the evidence led by the appellant and that cannot be disturbed having regard to the material which is available on the record.
The Tribunal has taken the precaution of adding that if the appellant leads better evidence in future, its claim for rehabilitation would have to be judged on the merits and the present decision will not create any bar against it.
In our opinion, that is all that can be done in the present appeal.
The learned Addl.
Solicitor General, however, attempted to argue that the Tribunal should have made some allowance for rehabilitation on an ad hoc basis and in support of this contention, he has referred us to some of the observations made in the case of South India Millowners ' Association (1).
It appears that in that case, the appellant Mills had not adduced relevant evidence about the original price and subsequent depreciation of the machinery prior to its purchase by the appellant, and so, acting on the evidence available on the record, the Tribunal adopted some (id hoc basis.
No grievance was made about the ad hoc basis adopted by the Tribunal; the only grievance made was against certain observations made by the Tribunal that if the existing machinery is second hand.
it should be rehabilitated only by second hand machinery, and this Court held that the said observations did not represent the true position in the matter.
It would, we think, be erroneous to assume that this Court approved of or affirmed the ad hoc basis adopted by the Tribunal in that particular case.
On what material the said ad hoc basis was adopted is not known, and it would, we think, be unreasonable to suggest that if the employer does not adduce sufficient evidence to (i) 22 justify his claim for rehabilitation and the Tribunal is in clined to reject the evidence which has been adduced, the Tribunal must nevertheless award some rehabilitation on a purely hypothetical and imaginary ad hoc basis.
In such a case all that the Tribunal can do is to safeguard the posi tion of the employer by giving him opportunity to adduce better evidence in future, and that is what the Tribunal has done in the present case.
An attempt was then made by the learned Addl.
Solicitor General to make a claim for the deduction of the wealth tax.
It has been consistently held by this Court that in bonus calculations the employer is entitled to claim a deduction of the income tax as well as wealth tax; but, in the present case, there is no material to determine what the amount of wealth tax charged or paid is, and so, no relief can be granted to the appellant on that account.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
An Industrial Dispute arose between the appellant and its workmen in respect of the claim made by the workmen (respondents) for bonus for the year 1959.
The respondents claimed that they were entitled to get bonus equivalent to three months ' salary including dearness allowance, The appellant claimed deductions on the basis of the Full Bench 16 Formula.
The appellant claimed deduction of Rs. 60,000 by way of notional remuneration for Mr. K. R. Podar, one of the Directors of the company.
According to the appellant K. R. Podar devoted the whole of his time to the supervision and management of the appellant concern, and so, he was entitled to charge remuneration at the rate of Rs. 5,000 a month.
The appellant also made a claim for rehabilitation.
On these facts the Tribunal directed the appellant to pay to the respondents bonus at the rate of half month 's basic wages excluding allowances and overtime for the said year.
It is against this award that the appellant has come to this Court.
Held:(i) that in a concern like the appellant 's if one of the Directors spends his time in supervising and managing the affairs of the concern, he would be entitled to charge a reasonable remuneration.
But in the present case Mr. Podar did not actually charge any remuneration.
The working of the Full Bench Formula is no doubt notional in some respects, but it would not be permissible for the employer to make it still more notional by introducing claims for prior charges on purely hypothetical and almost fictional basis.
The Tribunal did not feel justified in allowing the claim for deduction made by the appellant in regard to the notional remuneration of Mr. Podar on the ground that Mr. Podar had not been paid remuneration regularly and it had not been duly shown in the books of account.
Gujarat Engineering Co. vs Ahmedabad Misc.
Industrial Workers ' Union, and Kodaneri Estate vs Its Work men, , relied on.
(ii)It is not the correct legal position that a second hand machinery should be rehabilitated only by second hand machinery.
But in the present case the finding of the Tribunal in respect of the claim for rehabilitation is based on its appreciation of the evidence led by the appellant and that cannot be disturbed having regard to the material which is available on the record.
SouthIndia Millowners"Association vs Coimbatore District Textile Workers 'Union, , relied on.
(iii)It would be erroneous to assume that this Court approved of or affirmedthe ad hoc basis adopted by the Tribunal in the case of South India Millowners ' Association.
(iv)It would be unreasonable to suggest that if the employer does not adduce sufficient evidence to justify his claim for rehabilitation and the Tribunal is inclined to reject the evidence which has been adduced, the Tribunal must nevertheless award some rehabilitation on a purely hypothetical and imaginary ad hoc basis.
In the present case the employer adduced evidence for rehabilitation and that was rejected by the Tribunal.
(v)It has been consistently held by this Court that in bonus calculations the employer is entitled to claim a deduction of the Income tax as well as wealth tax; but in the present case, there is, no material 17 to determine what the amount of wealth tax charged or paid is, and so, no relief can be granted to the appellant on that account.


judgement:
Petition No. Re. C. A. No. 33 of 1963.
Petition for Review of this Court 's judgment dated April 22, 19631, in Civil Appeal No. 707 of 1962.
C. K. Daphtary, Attorney General for India, H.N. Sanyal Solicitor General of India, H.L. Anand, Das Gupta and V. Sagar, for the appellant.
M K. Ramamurthy, R. K. Garg, section C. Agarwal and D. P. Singh, for the respondent.
December 19.
The Judgment of the Court was delivered by DAS GUPTA J.
This application for review of a judgment given by us on April 22 this year is by the Bank, which was the respondent in the appeal.
The appellant who had been appointed a clerk in the Bank on December 14, 1953, made an application under section 33 (b)(2) of the Industrial Disputes ,Act, before the Labour Court, Delhi.
He complained that in applying to him the award of the Sastry 282 Tribunal in the dispute between certain banks and their workmen as modified by the Labour Appellate Tribunal, the Bank had proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1.
According to the appellant, he was entitled under the award to have his annual increment in December each year, Accordingly, he prayed that the benefit of which he was being deprived by the Bank should be computed and directed to be paid to him.
At the hearing of the appeal it was contended before us on behalf of the appellant that on a proper interpretation of para.
292 of the Sastry Award which deals with the question of adjustment of clerks already in service into the scale of pay fixed by the award, he should get his increments on December 14, every year.
The Bank 's contention was that increments had been rightly given from April 1.
We did not however examine para.
292 as it appeared to us that when the appellant was first appointed by the Bank on December 14, 1953 the appointment was on the scale of pay as fixed by the Sastry Award.
There was, therefore, in our opinion, no question of adjustment.
We held that on those terms of appointment he was entitled to the pay as claimed by him in his application.
In this view we set aside the order of the Labour Court, Delhi, which had rejec ted the appellant 's application and computed the sum to which the appellant was entitled under the award at Rs. 146/ plus dearness allowance.
In asking us to review this judgment it is submitted by the learned Attorney General who appeared for the Bank, that it was an error to think that Daniel 's first appointment was on the pay scale as fixed by the Sastry Award.
He pointed out that the Labour Appellate Tribunal which decided the appeals from the award of the Sastry Tribunal gave a definite direction in para.
401 of its judgment that the Appellate Tribunal 's decision as to pa 283 scales, allowances and provident fund contributions will start from April 1, 1954.
This, according to the learned Attorney General, supersedes the direction by the Sastry Tribunal that the award will come into force on April 1, 1953.
When it was pointed out that the decision of the Appellate Tribunal was given long after the appellant 's appointment and so it might well be that the clerk was appointed on the scale under the Sastry Award which had already come into force on April 1, 1953, learned Counsel submitted that the operation of the award as to the pay scale had.
been stayed soon after the, award was pronounced and long before December 14, 1953.
We find it stated however in para.
42 of the Labour Appellate Tribunal 's decision that A and B Class Banks had not filed any appeals against the wage structure.
The reason is not far to seek.
This award had been preceded by the award of the Sen Tribunal that was published on August 12, 1950.
The Sen Award was declared void by the Supreme Court on April 9, 1951.
The Sen Tribunal gave the clerks for A and B Class Banks the following scales of pay Class A Banks Class I areas.
Rs. 96 6 132 7 174 9 190 205 9 250 10 290 Class II areas.
Rs. 82 5 112 6 148 7 162 172 8 212 9 248 Class III areas.
Rs. 70 4 94 5 124 6 136 145 7 180 8 212 Class B Banks Class I areas Rs. 92 6 128 7 170 8 186 200 9 245 10 285 284 Class II areas Rs. 78 5 108 6 144 7 158 167 8 207 9 243 Class III areas Rs. 66 4 90 5 120 6 132 140 7 175 8 207 The award of the Sastry Tribunal in this matter was less favourable to the clerks.
It gave the following scales: Class A Banks Area I Rs. 85 5 100 6 112 7 140 8164 9 245 10 265 15 280 Area II Rs. 73 4 .85 5 100 6 112 7 140 8 164 9 245 Area III Rs. 66 3 69 4 85 5 100 6112 7 140 8 164 9 227 Class B Banks Area I Rs. 73 4 85 100 6 112 7 140 8 164 9 245 Area II Rs. 66 3 69 4 85 100 6 1127 140 8 164 9 227 Area III Rs. 57 3 69 4 85 5 100 6112 7 140 8 164 9 200 It was in these circumstances that the A and B Class Banks were content to accept the award of the Sastry Tribunal as regards the wage structure and did not appeal; though the workmen being dissatisfied with the wage scale as awarded by the Sastry Tribunal appealed against it.
It does not seem to us unreasonable to think that having accepted the Sastry Award on wage structure the Bank an A Class Bank would make its appointment after April 1, 1953 285 on those scales or pay.
It has to be mentioned that the appointment letter is not on the record.
We are therefore still inclined to think that the appellant Daniel was appointed by the Bank on December 14, 1953 on the pay scale as fixed by the Sastry Tribunal.
In any case, the Bank has not been able to satisfy us that any error was made in disposing of the appeal on the basis that Daniel 's appointment was on the pay scale as fixed by the Sastry Award.
This is sufficient to dispose of the review application.
As, however, arguments were addressed to us in this application as to what the position would be if the appellant had not been appointed on the pay scale as fixed by the Sastry Award and his pay had to be adjusted in accordance with the provisions of para.
292, we propose to give our decision on that point as well.
The question of adjustment to the new pay scales formed a distinct item Item No. 12 in the Government Order making the reference to the Sastry Tribunal.
This was dealt with in Chapter XIII of the award in four sections.
Section I sets out the different contentions raised by the employer and the workmen 's Counsel.
Thus, after mentioning that the employees generally asked for point to point adjustment, i.e., placing of each employee at that stage in the new scale to which he would have risen by reason of the length of his service if he had entered service on the new scale, the Tribunal stated that for the reasons given in paras.
113 to 117 of the Sen Award it agreed with the conclusion of the Sen Tribunal that a compromise between the two methods advocated by the parties should be adopted.
After a general discussion of the arguments in paras.
285 to 291, the Tribunal proceeded to give concrete directions in para.
292 dealing with the matter in six 286 sub paragraphs, as regards workmen who entered the service of the Bank before January 31, 1950; one sub para.
was as regards workmen who joined service of the bank after January 31, 1950; seven more sub paras.
8 to 14 laid down general rules applicable to all workmen whether appointed before or after January 31, 1950.
This scheme of adjustment was maintained by the Appellate Tribunal with the modification that 31st January 1953 in the Award was substituted by "31st January 1954 and 1st April, 1953 was substituted by title words 1st April, 1954.
Clause (d) of sub para.
4 was deleted and in its place sub para 4 (A) was substituted which ran thus: "After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953.
In addition, the workmen will be entitled to draw his normal increment for 1954 on the 1st of April 1954.
Thereafter, each succeeding year 's annual increment shall take effect as and from the 1st April of that year.
" For workmen appointed before January 31, 1950 there was thus a definite direction that succeeding year 's annual increment shall take effect from April 1, of that year.
Sub paragraph 7 dealing with the workmen who joined service after January 31, 1950 runs thus: "The workmen shall be fitted into the new scale of pay on a point to point basis as though it had been in force since he joined the service of the Bank, provided that his adjusted basic pay is not less than what it would be under a point to point adjustment on the corresponding "preSen" scale.
" 287 It is important to notice that in this provision as regards the workmen who joined service of the Bank after January 31, 1950, no direction has been given as regards the date from which annual increments should take effect.
Nor can we find anything in the remaining seven sub paras.
laying down generally the rules ' any directions whatsoever to justify the plea that the future increments of workmen who joined service of the Bank after January 31, 1950, would start from April 1, of the year.
The provision in para 12 that the adjusted pay shall have effect from April 1, 1954 has nothing to do with the commencement of future increments.
The reason why such a direction was given as regards the workmen who entered the service of the Bank before January 31, 1950 and none was given as regards workmen who joined after that date appears to be clear.
For workmen who entered the service of the Bank before January 31, 1950 detailed provisions for fitting them into the scales were made including the provisions for increments.
It was in view ' of this apparently that it was thought necessary to indicate the time from which further increments would commence.
As the Tribunal brought the new scales into force with effect from 1953 the direction that logically followed was that each succeeding year 's annual increment would take effect as and from April 1, of that year.
The Appellate Tribunal decided to adjust the pay up to April 1, 1954 instead of ' April 1, 1953.
But that did not change the logical position that each succeeding year 's increment would take effect as and from April 1 of that year.
The above considerations had no application to the workmen who were directed to be fitted into the new scale of pay on a point to point basis as though it had been in force since they joined the service of the Bank.
On the basis that the new scale was in force at the date when the workmen 288 joined the service of the Bank there can be no escape from the conclusion that the increments as provided in that scale would take effect from the anniversary of the date of appointment.
It is unnecessary for us to consider here why the workmen who joined the service of the Bank after January 31, 1950, were not being given increments in the same way as those who had entered the service before that date.
Some indication is given in the Tribunal 's observations that it would be proper to let bygones be bygones and there should be neither retrospective adjustment of pay or allowances actually paid nor further claims for more than what has been given already.
Whatever the reason be the fact remains that special directions were given as regards the adjustment into the pay scale of the workmen ' who had joined the service of the Bank after January, 1950, and in their case nothing was said as to the date from which future increments would take effect.
The necessary and inevitable consequence of the absence of any such direction in the matter is, as we have already indicated, that future increments would be on that date of the year when the workman was appointed.
We have thus reached the conclusion that even on application of the rules of adjustment into the new scale on the assumption that such adjustment was necessary, the appellant workman would be entitled to the relief he had asked for.
The application is accordingly dismissed with costs.
Review application dismissed.

summary/full:
The application for review arose out of a judgment passed by this Court it, Civil Appeal No. 707 of 1962.
The appeal arose out of an application filed by a workman of the State Bank under s.33(c)(2) of the industrial Disputes Act before the Labour Court.
He was appointed as a clerk in the Bank on December 14, 1953.
He complained that 'the Bank had not paid him the increment on the basis of the Sastry Award.
His case was that he was entitled under the award to have his annual increment in December each year.
The case of the Bank was that on the basis of the award the workman was entitled to get his annual increment in each year on April 1.
On these facts it was held that the workman would get the benefit of 281 the new scales of pay from the very day of his appointment i.e. from December 14, 1953.
Thus the appeal of the workman was allowed.
Hence the review.
Held that (i) this application failed as this Court did not commit any error in disposing of the appeals.
(ii) in para 292 of the Sastry Award special directions were given as regards the adjustment into the pay scale of the workmen who had joined the service of the Bank after January, 1950, but in their case nothing was said as to the date from which future increments would take effect.
The necessary and inevitable consequence of the absence of any such direction in the matter is that future increments would be on that date of the year when the workman was appointed.
On the facts of this case it was held that the appellant workman would get the increments under the new scale on December 14, each year.