judgement:
Civil Miscellaneous Petition Nos.
2402 of 1964.
Applications for substitution for condonation of delay.
AND Civil Appeal No. 430 of 1963.
Appeal by special leave from the judgment and decree dated April 8, 1959, of the Bombay High Court in First Appeal No. 666 of 1954.
S.G. Patwardhan and A.G. Ratnaparkhi, for the appellant.
Naunit Lal, for the respondents.
ORDER Subba Rao, J. These are two applications, one for the substitution of the legal representatives of respondent No. 7 in Civil Appeal No. 430 of 1963 on the file of this Court and the other for the condonation of delay in filing the first application.
The first question is whether there is sufficient ground for excusing the delay in filing the application for bringing the legal representatives of the 7th respondent on record.
The facts are as follows: Sakharam Maruti Jedhe and others filed Special Suit 10 of 1964 in the Court of the Civil Judge, Senior Division Poona, against Rangubai Kom Shanker Jagtap for possession of the plaint schedule property and for mesne profits and obtained a decree therein.
Against the said decree defendant preferred an appeal to the High Court of Bombay.
The High Court by its judgment dated April 8, 1959, dismissed the appeal.
The defendant filed an application for special leave to prefer an appeal to this Court and the same was granted on June 16, 1959.
The appeal was admitted on July 27, 1961.
Between these two dates, on November 12, 1959, the 7th respondent, Keshavarao Marutirao Jedhe died.
Thereafter.
on March 7, 1964, the defendant filed Civil Application No. 1118 of 1964 in the High Court of Bombay for bringing on record the legal representatives of the 7th respondent and for necessary certificate to that effect.
On August 11, 1964, a Division Bench of the High Court granted the certificate.
On February 19, 1964, the defendant filed in this Court Civil Miscellaneous Petition No. 2401 of 1964 for bringing on record the legal representatives of the 7th respondent and on October 8, 1964, filed Civil Miscellaneous Petition No. 2402 of 1964 for condoning the delay of 4 years and 19 days in filing the aforesaid first petition.
In the said petition the petitioner gave two reasons for condoning the delay.
namely, (i) the petitioner is a poor widow living in Poona with her daughters and there is no male member in the family of the petitioner to look after the proceedings, and (ii) after the preliminary decree in the proceedings for the determination of the mesne profits, the plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record within the time prescribed and 213 as the legal representatives were brought on record at one stage of the suit, no question of abatement would arise in respect of the appeal.
The respondents filed a counter affidavit pointing out that there were no grounds for excusing the inordinate delay, that the appellant had been conducting this long drawn litigation from the year 1946, that she had a son in law who was helping her, that the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in the same locality and she must have had knowledge of his death soon after it occurred.
It was further pleaded that the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings could not in law prevent the abatement of the appeal, if they were not brought on record in the appeal in time.
Under O.XVI, r. 14, of the Supreme Court Rules, 1950, an application to bring on record the legal representatives of a deceased appellant or respondent shall be made within 90 days of the death of the said appellant or respondent.
Under the proviso thereto.
in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded.
Even if the said time is excluded, there will be a delay of about 31/2 years in filing the application to bring the legal representatives of the deceased 7th respondent on record.
From the counter affidavit filed by the respondents it is clear that the 7th respondent was a prominent citizen of Poona and the fact of his death was published in all newspapers; and the petitioner resides very near the place where the 7th respondent was living.
She has been conducting this litigation from the year 1946 and was in cop, tact with her Advocates from time to time in connection with the appeal.
She has also a son in law who is helping her in the litigation.
She had also the knowledge of the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings.
In the circumstances the fact that she is an illiterate woman cannot possibly be a ground for excusing this inordinate delay in bringing the legal representatives of the 7th respondent on record in the appeal.
therefore, hold that there is no sufficient ground for excusing the delay in bringing the legal representatives of the 7th respondent on record.
The next question raised is an interesting one of law.
From the aforesaid narration of facts it will be seen that the legal representatives of the 7th respondent were brought on record within the prescribed time in the final decree proceedings.
The question is whether it would enure for the benefit of the appeal; that is to say whether by reason of that fact there is no abatement of the appeal.
The relevant provisions of the Supreme Court Rules, 1950, reads thus: We have already given the gist of O.XVI, r. 14 of the said Rules.
Rule 14 A thereof reads: 214 "The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act.
1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 13 in the High Court and in the Supreme Court.
" Rule 14 A by reference incorporates the rules of abatement in the Code of Civil Procedure and also article 171 in the First Schedule to the Indian Limitation Act in the Supreme Court Rules.
Under O.XXII, rr. 3 and 4 of the Code of Civil Procedure, if the plaintiff or the defendant dies and the right to sue does not survive to the surviving plaintiff or against the surviving defendant, as the case may be, his legal representatives shall be brought on record within the prescribed time; and where within the time limited by law no application is made the suit shall abate so far as the deceased plaintiff is concerned or against the deceased defendant, as the case may be.
Under r. 11 thereof.
"in the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include the appellant.
the word "defendant" a respondent, and the word "suit" an "appeal".
The result is that for the purpose of abatement a suit and an appeal are treated as different proceedings and the suit or the appeal, as the case may be, abates if the legal representatives of the deceased plaintiff or defendant are not brought on record within the time prescribed.
Under article 171 of the First Schedule to the Limitation Act, an application to set aside an order of abatement shall be made within 60 days from the date of abatement.
The result of these provisions is that if an application to bring on record the legal representatives of a respondent is not made within 90 days from the date of death of the said respondent, the appeal abates; but an application to set aside that abatement can be made within 60 days from the date of abatement.
But, if by reason of the fact that the legal representatives of the deceased 7th respondent were brought on record in the final decree proceedings, there was no abatement, this Court no doubt will exercise its discretion liberally in condoning the delay in not formally getting the legal representatives of a deceased party, recorded in appeal in time.
The main contention therefore, is that by reason of the fact that they were brought on record in the final decree proceedings, there was no abatement of the appeal.
It is said that the final decree proceeding is a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit including the appeal.
This conclusion, the argument proceeds, flows from the reasoning of the judgment of the Judicial Committee in Brij Inder Singh vs Kanshi Ram(1).
The relevant facts of that case were these: Pending a suit an application was made for ,directing a party to produce (1) [1917] L.R. 44 I.A. 218, 228. 215 certain books and that was ordered by the District Judge.
Thereafter an application was made to the Chief Court to revise the order of the District Judge.
Pending the revision the plaintiff and the 2nd defendant died.
Within the prescribed time their legal representatives were brought on record in the revision.
Subsequently that revision was dismissed as withdrawn.
The legal representatives of the plaintiff and the 2nd defendant were not brought on record in the suit within the time prescribed.
The question was whether the suit had abated.
The Judicial Committee held that the suit did not abate and the following reasons were given for that view: "The plaintiff as representative of the original plaintiff, and the defendant 's representatives of Joti Lal, had been introduced in the Chief Court.
No doubt that was only done in the course of an interlocutory application as to the production of books.
But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have been made ab majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under section 365, was superfluous and of no effect.
Coates, the judgment debtor, was only formally called, and the nonpresence of his representatives would afford no ground for the abatement of the suit.
" This judgment is an authority for the position that if the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit.
that would enure for all subsequent stages of the suit.
The same principle was sought to be extended in a Madras decision to a cross appeal: see Shankaranaraina Saralaya v, Laxmi Hengsu(1).
There, two appeals were independently filed against the decree in a suit one was flied by the plaintiff and the other by the defendant.
The plaintiff appellant died and in the appeal filed by him his legal representatives were brought on record in time, whereas it was not so done in the appeal filed by the defendant respondent.
It was argued that by reason of the fact that the legal representatives of the plaintiff were brought on record in the appeal filed by him there was no abatement in the appeal filed by the defendant.
The Court negatived the contention and when the aforesaid decision of the Privy Council was cited, it was distinguished on the following grounds: "Their Lordships have held that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages.
When the subject matter of the interlocutory application was pending in the appellate Court it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at a further stage of the suit when it came on for trial before the first Court.
Can it be said in the present case that (t) A.I.R. 1931 Mad. 277, 278. 216 what was done in one appeal could enure for the benefit of another appeal unless the latter appeal can be deemed to be a continuation or a further stage of the appeal in which the legal representatives were brought on record? I am constrained to say that it is difficult to extend the principle of the decision of the Privy Council to the facts of this case.
" This decision accepts the principle laid down by the Privy Council but distinguishes the case before it on the ground that the interlocutory appeal is not a continuation or a further stage of the appeal in which the legal representatives were brought on record.
Many other decisions were cited at the Bar, but they only support the position that in bringing the legal representatives of a deceased party on record in one appeal will not enure for the benefit of a cross appeal.
Let us now consider the question on principle.
A combined reading of Order XXII, rr. 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal.
In the application of the said rr. 3 and 4 to an appeal, instead of "plaintiff" and "defendant", "appellant" and "respondent" have to be read in those rules.
Prima facie.
therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r.4, read with r.11, of O.XXII of the Code of Civil Procedure.
But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule.
The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit.
The application of this principle to different situations will help to answer the problem presented in the present case.
(1) A flied a suit against B for the recovery of possession and mesne profits.
After the issues were framed.
B died.
At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed.
The order bringing them on record would enure for the benefit of the entire suit.
(2) The suit was decreed and an appeal was filed in the High Court and was pending therein.
The defendant died and his legal representatives were brought on record.
The suit was subsequently remanded to the trial Court.
The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit.
(3) An appeal was flied against an interlocutory order made in a suit.
Pending the appeal the defendant died and his legal representatives were brought on record.
The appeal was dismissed.
The appeal being a continuation or a stage of the suit.
the order bringing the legal representatives on record would enure for the subsequent stages of the suit.
This would be so whether in the appeal the trial Court 's 217 order was confirmed, modified or reversed.
In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit.
be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit.
Whether the appellate order confirms that of the first Court, modifies or reverses it replaces or substitutes the order appealed against.
It takes its place in the suit and becomes a part of it.
It is as it were the suit was brought to the appellate Court at one stage anti the orders made therein were made in the suit itself.
Therefore, that order inures for the subsequent stages of the suit.
But the same legal position cannot be invoked in the reverse or converse situation.
A suit is not a continuation of an appeal.
An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom; but it cannot be projected backwards into the appeal that has already been filed.
It cannot possibly become an order in the appeal.
Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree.
We, therefore, hold that the appeal abated so far as the 7th respondent was concerned.
In the result, the petitions are dismissed.
Petitions dismissed.

summary/full:
The respondents filed a suit against the petitioner in 1954 for the possession of certain property and for mesne profits and obtained decree in their favour.
The petitioner 's appeal to the High Court was dismissed in April 1959 and a petition for special leave to appeal to this Court was granted in June, 1959.
Thereafter, the 7th respondent died in November 1959.
The petitioner filed the present applications in October 1964 for bringing on record the legal representatives of the 7th respondent and for condonation of delay on various grounds.
It was also contended on behalf of the petitioner that in view of the fact that after the preliminary decree for mesne profits had been passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final decree proceedings within the time prescribed, and as the legal representatives were brought on record at one stage of the suit on the basis of the rule laid down by the Privy Council in Brij Inder Singh vs Kanshi Ram, 44 I.A. 218, no question of abatement would arise in respect of the appeal; that the final decree proceedings are a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit.
HELD: (i) On the facts of the case there were no sufficient grounds for condoning the delay in bringing the legal representatives of the 7th respondent on the record.
(ii) The order bringing the legal representatives of the respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree.
The appeal therefore abated so far as the 7th respondent was concerned.
[217D] An order bringing the legal representatives of a deceased party on the record passed at the stage of an interlocutory application in a suit, or passed while an appeal is pending where the suit is subsequently remanded to the trial court or if passed while an appeal is pending against an interlocutory order in passed while an appeal the subsequent stages of the suit ' in all that suit, would enure for made at one stage of the suit be it the suit these.
cases the order is final appeal against the interlocutory order or final order in the suit, for here the appeal is only a continuation of the suit.
But the same legal position cannot be invoked where an order is made in a suit subsequent to the filing of an appeal at an earlier stage.
Such an order cannot be Projected,backwards into the appeal that has already been filed so as to become an order in that appeal [216F 217D] Brij Inder Singh vs Kanshi Ram, 44 I.A. 218 distinguished.
Shankarnaraina Saralaya vs Laxmi Hengsu, A.I.R. 1931 referred to.
N)3S.C.I. 1 212


judgement:
vil Appeal No. 998 of 1963.
Appeal from the judgment and decree dated January 12, 1962 of the Madras High Court in Appeal Suit No. 292 of 1958.
A.V. Viswanatha Sastri, V.S. Ramaswami lyengar and R. Thiagarajan, for the appellants.
S.V. Gupte, Solicitor General, and R. Ganapathy lyer, for the respondent.
The Judgment of the Court was delivered by Bachawat J.
One Sivasubramania Pillai died in the year 1924 leaving him surviving his mother.
two widows, Thialaiachi and Karpagathachi, and a daughter, Nagarathinathachi (respondent herein) born of Thialaiachi.
The two widows inherited the properties left by Sivasubramania.
in July 1927, they divided the bulk of the properties and each entered into separate possession and enjoyment of the properties allotted to her.
The partition is evidenced by two partition lists called partition deeds, Exs A I and B 45 dated July 14.
1927 and signed by both of them.
Under this partition, two veils of land were set apart for the maintenance 336 of Sivasubramania 's mother, to be enjoyed ' by her during her lifetime, and on her death, to be taken and enjoyed by the two widows in separate portions as mentioned in the partition lists.
On August 26.
1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927.
On December 8, 1954, Karpagathachi instituted against the respondent the suit, out of which this appeal arises, claiming possession of the suit properties.
The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Thialaiachi, the respondent as her daughter was entitled to take her share as her heir and to enjoy the same during the life of Karpagathachi.
By his judgment dated August 18, 1958, the District Judge, East Thanjavur, rejected ' the defendant 's contention, and held that the division between the two widows was for convenience of enjoyment only, and decreed the suit in respect of the properties held by Thialaiachi under the partition of July, 1927.
On appeal, the Madras High Court by its judgment dated January, 12, 1962 held that under the partition each widow gave up her life interest in the properties allotted to the other and consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit.
Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal under a certificate granted by the High Court to this court under article 133 of the Constitution.
Mr. Viswanatha Sastry appearing on behalf of the appellants contends that: (1) the right of survivorship of each widow in respect of her husband 's estate is the chance of the surviving widow to take the entire estate of her husband on the death of the cowidow, and in view of s.6(a) of the , the widows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship; (2) the partition lists, Exs.
A I and B 45 not being registered, are not admissible in evidence; (3) the partition between the widows was for convenience of enjoyment only, and the respondent has failed to establish that each co widow gave up her right of survivorship in respect of the properties allotted to the other.
The learned ' Solicitor General appearing on behalf of the respondent disputed these contention.
We are of opinion that the first contention of Mr. Viswanatha Sastry should be rejected.
Under the Hindu law as it stood in 1924.
two widows inheriting their husband 's properties took together one estate as joint tenants with rights of survivorship and equal beneficial enjoyment.
They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Bhugwan Deen Doobey vs Myna Baee (1) [1867] 11 M .I. A. 487 337 Gauri Nath Kakaji vs Gaya Kuar(1).
Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income tax vs Smt.
Indira Balakrishna(2) But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the widow 's estate, and could absolutely divide the properties, so as to preclude the right of survivorship of each to the portion allotted to the other.
See Ramakkal vs Ramasami Naickan(3), Sudalai Ammal vs Gomathi Ammal(4).
Likewise, two daughters succeeding ,to their father 's estate as joint tenants with rights of survivorship could enter into a similar arrangement.
See Kailash Chandra Chuckerbutty vs Kashi Chandra Chuckerbutty(5) Subbammal vs Lakshmana lyer (6), Ammani Ammal vs Periasami Udayan(7).
Such an arrangement was not repugnant to s.6(a) of the .
The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully transferred.
Section 6(a) of the prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her husband on the death of the co widow, but it does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship.
The widows were competent to partition the properties and allot separate portions to each, and incidental to such an allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other.
The first contention of Mr. Viswanatha Sastry must be rejected.
The second contention of Mr. Viswanatha Sastry must also be rejected.
A partition may be effected orally.
By an oral partition, the two widows could adjust their diverse rights in the entire estate, and as part of this arrangement, each could orally agree to relinquish her right of survivorship to the portion allotted to the other.
In the trial Court, the suit was tried on the footing that the partition was oral, and that the two partition lists were merely pieces of evidence of the oral partition, and no objection was raised with regard to their admissibility in evidence.
In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered.
The point could not be decided without further investigation into questions of fact, and in the circumstances, the High Court rightly ruled that this new contention could not be raised for the first time in appeal.
We (1) [1928] L.R. 55 I.A. 299.
; , 517.
(2) Mad.
(3) (4) Cal.
(5) 338 think that the appellants ought not to be allowed to raise this new contention.
We think that the third contention of Mr. Viswanatha Sastry is sound ' and should be accepted.
Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other.
The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement by clear and cogent evidence.
The respondent has failed to discharge this onus.
It is common case that the partition is evidenced by Exs.
A 1 and B. 45.
Exhibit B 45 is the list showing the properties allotted to Thialaiachi.
The relevant portion of exhibit B. 45 reads: "In accordance with the chit cast, Theiyalai Achi.
wife of Sivasubramania Pillai, residing at Karuppur, shall take the nanja, punja, house and ground, cattle shed, cattle, pathway for men, cattle and cart and shed where dried dung cakes are stored mentioned in the list and shall pay the Government kist for the aforesaid properties from the current fasli 1337 and enjoy them.
" Exhibit A 1 showing the properties allotted to Karpagathachi contains similar words.
Now the two lists show that each widow is to "take and enjoy" the properties allotted to her.
The corresponding Tamil words are "adainthu anuhavithu.
" These words do not either expressly or by necessary intendment exclude the right of survivorship of the other widow.
The Tamil words "Sarva Swantantra Badyamayum" and "Santhathi pravesamayum" and other words indicating relinquishment of the right of survivorship are conspicuous by their absence.
The words used in the two partition lists are wholly insufficient to show that the two widows relinquished their right of survivorship inter se.
The fact that two separate partition lists were drawn up and each was signed by the two widows does not carry the matter any further.
The two partition lists show that the two velis of land kept separately for the maintenance of the mother in taw were to be divided by metes and bounds on her death between the two widows.
The division of the two velis on the death of the mother in law was agreed upon to avoid future disputes.
The fact that Thialaiachi had a daughter and was older than Karpagathachi by 20 years does not show that Karpagathachi mush have agreed that Thialaiachi 's daughter should enjoy the properties allotted to Thialaiachi after her death.
After the partition, the pattas in respect of all the lands continued to be in the joint names of both the widows.
If there was an absolute partition between the two widows.
it is not explained why there was no separate mutation in the name of each widow in respect of the lands allotted to her.
The deeds executed by Thialaiachi.
B 3, B 4.
B 7 and B 8 to B 43 recite the partition, but they do not use words indicating that there was an absolute partition.
The sale 339 deeds, Exs.
A 3, A 4, and A 6 executed by both the widows are in respect of undivided properties and throw no light on the question at issue.
The evidence on the record does not show clearly whether the sale deed ', exhibit B 44, executed by both the widows relates to undivided properties, or whether it relates to properties as separately allotted to Thialaiachi.
From time to time, Thialaiachi executed three wills, Exs.
B I, B 2 and A 5 giving to the legatees and particularly the respondent certain properties absolutely with full powers of alienation.
The first two wills, Exs.
B I and B 2, refer separately to Thialaiachi 's separate properties and to the properties obtained by her on partition.
The recitals in the two wills do not indicate that Thialaiachi obtained her husband 's properties on partition with absolute rights.
The third will, exhibit A 5, does not purport to dispose of specifically the properties obtained by her on partition.
Karpagathachi knew that Thialaiachi had executed the wills, but it is not shown that she knew of the contents of the wills.
By exhibit A 2, both Thialaiachi and Karpagathachi made a free gift of some of the properties allotted to Thialaiachi.
D.W. 1 is unable to explain why Thialaiachi joined in this deed.
By sale deed, exhibit B 5, Thialaiachi sold absolutely some of the properties allotted to her and a notice, exhibit A 22, regarding the proposed transfer of the patta in the name of the vendee was served upon Karpagathachi.
It is not clear if the patta was actualy transferred in the name of the vendee.
The explanation of Karpagathachi that she protested against the transfer and ultimately received ' one half of the sale price has not been believed.
But assuming that Karpagathachi did not object to the transfer, this single circumstance does not establish that at the time of the partition, he had agreed to give up her right of survivorship in respect of he properties allotted to Thialaiachi.
Karpagathachi (P.W. 1) denied that there was an absolute partition.
She was not shaken in cross examination.
Nataraja Pillai P.W. 2) said that there was no talk that each should take the properties absolutely and it was agreed that each would enjoy separately.
We find nothing in the evidence of P.W. 2 to show that the widows agreed to partition the properties absolutely so as to destroy the right of survivorship.
Manickam Pillai (D.W. 1) said that at the time of the partition, Thialaiachi said that she had a daughter and if what was allotted for her share was given to her absolutely she would agree to the partition and Karpagathachi also wanted to have absolute rights.
The District Judge rightly rejected evidence of D.W. 1.
The partition lists were drawn up after consulting lawyers.
D.W. 1 is unable to explain why words indicating absolute partition were not used in the partition lists.
D.W. 1 had been in management of the properties of the respondent, yet he falsely denied this fact.
He had intimate dealings with Thialaiachi and the respondent.
On a meticulous examination of the oral and documentary evidence, the learned District Judge rejected the respondent 's case that the widows had orally agreed to relinquish their 3 SCI 9 340 right of survivorship.
We think that this finding is correct, and the High Court was in error in reversing this finding.
In the result, the appeal is allowed, the decree and judgment passed by the High Court are set aside and those of the trial Judge restored '.
In all the circumstances, we direct that the parties will pay and bear their own costs throughout, in this Court and also in the Courts below.

dataset_name: IN-Abs

summary/full:
Two co widows divided their husband 's property and each entered into separate possession of her share.
on the death of one of the widows her daughter the respondent took possession of her mother 's share.
The appellant the surviving widow filed a suit against the respondent claiming possession of that share.
The Trial Court decreed the suit, which on appeal was set aside by the High Court.
In appeal by certificate: HELD: (i) Under the Hindu Law the widows were competent to partition the properties and allot separate portions each, and incidental to such allotment each could agree to relinquish her right of survivorship in the portion allotted to the other.
Such an arrangement was not repugnant to section 6(a) of the .
[337 C D].
Case law referred to.
(ii) Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other.
The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement b.v clear and cogent evidence.
[338 B].
The respondent, in the instant case, had failed to discharge this onus.
[338 B C].


judgement:
Appeal No. 245 of 1964.
Appeal by special leave from the judgment and order dated February 13, 1963, of the Calcutta High Court in Award Case No. 8 of 1963.
A.V. Viswanatha Sastri and D.N. Gupta, for the appellant.
S.T. Desai and P.K. Mukherjee, for the respondent.
The Judgment of the Court was delivered by Subba Rao, J.
On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876 entered into an agreement in writing with Dillwyn Parrish, Alfresh Parrish and Robinson Souttar, hereinafter called the grantees 355 whereunder the Corporation granted to the said grantees the right to construct, maintain and use certain tramways in Calcutta on payment of certain rents as provided in the said agreement.
The agreement contained an arbitration clause which provided for referring any disputes arising under the said agreement to arbitration in the manner prescribed thereunder.
The said agreement further provided in cl. 28 that the words "the said Corporation" would include the Corporation and its successors.
Different agreements were entered into between the successors of the Corporation of Calcutta and the grantees from time to time, namely, on November 22, 1879, September 2, 1893 and December 9, 1899, and were confirmed by appropriate Acts.
In all these agreements the appellant 's predecessor in interest agreed to pay the rents to the respondent 's predecessors in interest in respect of the tramways constructed, maintained and used by them.
All the said agreements contained an arbitration clause similar to that contained in the first agreement.
The Corporation of Calcutta is now the successor of the properties of the Corporation of the town of Calcutta constituted under the Bengal Act IV of 1876.
It was constituted by Bengal Act II of 1888.
The appellant, i.e., the Calcutta Tramways Co. Ltd., is the successor or the assignee of the said grantees.
On August 30, 1951, the State of West Bengal entered into an agreement with the appellant whereby the Government agreed to purchase the undertaking of the appellant as provided in the said agreement.
The said agreement was subject to an Act being passed by the appropriate Legislature ratifying the agreement and giving effect to it.
The Calcutta Tramways Act, 1951 (W.B. Act XXV of 1951) was passed and it came into effect on October 18, 1951.
Under that Act the Government of West Bengal was practically substituted for the Corporation of Calcutta under the various agreements subject to a reservation that any sums payable under the said agreements shall be payable by the appellant to the Corporation.
Disputes arose as regards the track rent payable by the appellant to the Corporation and the dispute was referred to arbitration in accordance with the terms of the arbitration clause.
Though the parties appointed arbitrators in terms of the arbitration clause of the agreements, the appellant nominated its arbitrator without prejudice to its rights and filed on January 7, 1963, an application in the Original Side of the Calcutta High Court, inter alia, for the determination of the question whether there was a valid arbitration agreement between the appellant and the respondent and for other incidental reliefs.
The application was heared by A.N. Ray, J. who held that there was an agreement between the appellant and the respondent and that the appellant was a party to the arbitration clauses contained in the relevant agreements, that the respondent could make a reference to arbitration in terms of the said agreements and that the reference to the arbitrators was valid, legal and effective.
The appellant, by special leave, has filed the present appeal against the said order of the High Court.
L/B(N)3SCI 10 356 Mr. A.V. Viswanatha Shastri, learned counsel for the appellant, contended that all the rights of the Corporation of Calcutta under the various agreements stood transferred under the Tramways Act, 1951, and vested in the Government of West Bengal except only in regard to the sums payable to the Corporation and that, therefore, the Corporation could not rely on the arbitration clauses of the agreements and refer the disputes arising in respect of the sums payable in terms of the said agreements to arbitration.
The point raised is in a small compass and turns upon the relevant provisions of the West Bengal Act XXV of 1951, hereinafter called the Act.
Under the Act the agreement entered into on August 30, 1951, between the Governor of West Bengal on the one part and the Calcutta Tramways Co. Ltd. on the other part was confirmed.
Section 3 of the Act says, "The transfer agreement is hereby confirmed and made binding on the parties thereto and the several provisions thereof shall have effect as if the same had been enacted in this Act.
" "Section 4 enacts that notwithstanding anything to the contrary in any other law, all the powers and duties of the Corporation of Calcutta.
the Commissioners of the Howrah Municipality, the Commissioners of the South Suburban Municipality and the Commissioners for the New Howrah Bridge with respect to the construction, maintenance, use, leasing of or otherwise dealing with tramways are transferred to and vested in the Government".
Section 5, which is the crucial section, reads: (1) The several agreements particulars whereof are set out in the Second Schedule to this Act 'shall have effect as if the Government were parties thereto in lieu of the respective bodies and persons set out in column 2 of the said Schedule and any reference in any such agreement to any of such bodies or persons shall unless the subject matter or the context otherwise requires be deemed to be a reference to the Government: Provided that any sums payable under any such agreement to any of such bodies or persons shall continue to be payable as if this Act had not been passed.
The Second Schedule contains a list of the titles of the various agreements mentioned by us earlier.
Under section 5 of the Act the Government is statutorily substituted for the respondent or its predecessors in interest in the various agreements stated supra.
The fiction is a well defined one.
The Government replaces the Corporation and its predecessors in interest as a party to the agreements unless the subject matter or the context otherwise requires.
The natural presumption is that but for the proviso the enacting part of the section would have included the subject matter of the proviso also.
The proviso to section 5 saves from the operation of the substantive section the sums payable under any such agreements to any such bodies mentioned therein: it excludes the operation of the 357 fiction in respect of such sums payable.
In respect of the said sums payable the agreements entered into with the said bodies will remain intact as if the Act had not been passed; that is to say, the respondent would still continue to be a party to the said agreements for the said purpose.
The relevant agreements provided for the recovery of the rents and also for the procedure for the recovery of the sums so payable in accordance with the terms of the arbitration clauses of the agreements.
Had not the Act been passed and had the Government not been substituted in the place of the Corporation, it cannot be denied that the Corporation, if a dispute arose in regard to the rent, could have referred the dispute to arbitration.
The substantive right to the payment of rent and the procedural one to have any dispute arising in respect of that right referred to arbitration embodied in the agreements are interconnected and are not severable.
To preserve the substantive right and to withhold the procedural right to enforce it is to save the right and to deny the remedy.
To accept the contention of the appellant is to make out a new agreement between the parties in respect of the sums payable.
The acceptance of this suggestion compels the Corporation to give up its agreed remedy.
The alternative suggestion, namely, that in respect of the amounts payable to the Corporation the arbitration clauses of the agreements could be enforced by the Government against the appellant introduces an incongruity.
While the dispute would be between the appellant and the Corporation, the arbitration would be between the appellant and a third party.
The argument that the Government would be acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act.
A fair construction of the proviso to section 5 of the Act removes all the anomalies.
Further, in the substantive part of section 5 of the Act the fiction takes effect unless the subject matter or the context otherwise requires.
The proviso in terms as well as by necessary implication brings the subject matter of the sums payable under the agreements both under the substantive and procedural aspects within the scope of the said exception.
The fiction in section 5 of the Act shall yield.
to that extent, to the terms of the contract.
On such a construction we hold, as we have indicated earlier, that both the right to the said sums payable and the procedure of arbitration are saved thereunder.
In the result, we agree with the view expressed by the High Court and dismiss the appeal with costs.
Appeal dismissed.

summary/full:
By the enactment of Calcutta Tramways Act, 1951, the Government of West Bengal was substituted for the Corporation of Calcutta (Respondent) in various agreements entered into between the predecessors in interest of the appellant and the predecessors in interest of the respondent, subject to a reservation that any sum payable under the agreements shall be payable by the appellant to the respondent.
All the agreements contained an arbitration clause which provided for refering any disputes arising under the agreements to arbitration in the prescribed manner.
Disputes arose as regard the track rent payable by the appellant to the respondent and the dispute was referred to arbitration in accordance with the terms of the arbitration clause.
The appellant nominated its arbitrator without prejudice to its rights, and filed an application in the High Court, for the determination of the question whether there was a valid arbitration agreement between the appellant and respondent.
The High Court held that there was an agreement.
In appeal by special leave: HELD: Both the right to the sums payable to the respondent and the procedure of arbitration were saved under the Act.
The proviso to section 5 of the Act, in terms as well as by necessary implication brings the subject matter of the sums payable under the agreements both under the substantive and procedural aspects within the scope of the exception.
The substantive right to the payment of rent and the procedural one to have any dispute arising in respect of that right referred to arbitration embodied in the agreements are interconnected and are not severable.
To preserve the substantive right and to withhold the procedural right to enforce it is to save the right and deny the remedy.
[357 C D, F G]


judgement:
minal Appeal No. 154 of 1963.
Appeal from the judgment and order dated May 2, 1963 of the Bombay High Court (Nagpur Bench) at Nagpur in Criminal Appeal No. 234 of 1962.
M. N. Phadke and Naunit Lal, for the appellant.
O. P. Rana, B. R. G. K. Achar and R. H. Dhebar, for the respondent.
359 The Judgment of the Court was delivered by Subba Rao, J.
This appeal by certificate issued by the High Court of Judicature at Bombay raises the question of the construction of some of the provisions of the Bombay Prohibition Act, 1949, hereinafter called the Act.
On June 12, 1961, Vijaysingh, the appellant, and one Namdeo Shinde drove in a jeep at an excessive speed and dashed it against the wall of the office of the District Superintendent of Police, Akola.
Both of them appeared to be intoxicated.
In the jeep there was also a bottle with a label on it as "Tincture Zingeberis".
Vijaysingh was prosecuted before the Judicial Magistrate, First Class, Akola, under section 66(1)(b) and section 85(1) (1), (2), and (3) of the Act.
The said Magistrate convicted the appellant both under section 66(1)(b) and section 85(1)(1), (2) and (3) of the Act, but sentenced him only under sections 66(1)(b) and 85(1)(1) of the Act.
On appeal, the learned Sessions Judge, Akola, acquitted the appellant under section 66(1)(b) of the Act, but confirmed the conviction and sentence under section 85(1)(1) thereof.
Against the judgment of the Sessions Judge acquitting the appellant under section 66(1)(b) of the Act the State of Maharashtra preferred an appeal to the High Court; and against the order of conviction under section 85(1) (1) of the Act the appellant preferred a revision to the High Court.
The High Court heard both the matters together and allowed the appeal filed by the State and dismissed the revision petition preferred by the accused appellant.
In the result it set aside the order of acquittal made by the Sessions Judge under section 66(1)(b) of the Act and sentenced the accused to rigorous imprisonment for 3 months and a fine of Rs. 500 and confirmed the conviction and sentence of the accused under section 85(1)(1) of the Act.
Hence the present appeal.
Learned counsel for the appellant raised before us several contentions for dislodging the judgment of the High Court.
We shall now proceed to deal with them in the order in which they were addressed to us.
The first contention may be put thus.
Under section 66(2) of the Act all that an accused need prove is that he has consumed a medical preparation; if he established that, the burden of proving that the medicinal preparation is fit for use as an intoxicating liquor shifts to the prosecution.
In the present case the accused has established that he had taken "tincture zingeberis", which is a medicinal preparation, but the prosecution failed to prove that it was fit for use as an intoxicating liquor.
To appreciate this contention it is necessary to notice the relevant provisions.
Under section 66(1) of the Act, "Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made. . consumes. . any intoxicant shall, on conviction, be punished for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend 360 to one thousand rupees." "Intoxicant" is defined to mean, among other things, any liquor; and "liquor" is defined to include, among others, all liquids consisting of or containing alcohol.
Under section 13(b), no person shall consume or use liquor.
Relevant part of section 24A enacts that nothing in Ch.
III shall be deemed to apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor.
The effect of these sections, in so far as they are material for the present case, is that if a person consumes liquor, i.e., any liquid consisting of or containing alcohol, he commits an offence under section 66(1) of the Act and, therefore, is liable to be convicted thereunder.
But by reason of section 24A(2) of the Act if it is established that the liquor consumed is contained in any medicinal preparation which is unfit for use as intoxicating liquor, the consumption of such liquor is not an offence under the Act, for the Act itself does not apply to such medicinal preparations.
We shall revert to the question of burden of proof a little later.
The facts found in this case may now be noticed.
The accused says that he consumed "tincture zingeberis" and produced before the police a sample bottle out of which he says he had consumed tincture zingeberis.
A sample of the liquid was analysed by the Chemical Analyser.
His report shows that the liquor was a weak Ginger Tincture B.P. 1959 (Tincture Zingeberis Mitis); absolute alcohol content was 89.1 per cent.
The report further states as regards alcohol contents of the liquid that the sample contained 90.0 per cent.
of V/V of ethyl alcohol though the B.P. limits were 86 to 90 per cent.
V/V. "The analysis has also given the quantity of total solids as 0.62 per cent.
weight per ml.
at 20 degrees to be 0.825 g." In the opinion of the Chemical Analyser, the sample complied with pharmacopical specifications.
On the basis of the report, the High Court found that the accused consumed a medicinal preparation which was listed in the British Pharmacopia, 1958 edition, and which had alcohol contents to the extent of 90 per cent.
V/V of ethyle alcohol.
The Chemical Analyser to the Govern ment of Maharashtra examined the sample blood taken from The body of the accused by applying "modified Cavette 's method" and gave his report to the effect that the sample blood of the accused contained 0.207 mg.
w/v of ethyl alcohol.
The High Court also found on the expert evidence that blood alcohol concentration on taking a normal dose of tincture zingeberis mitis would be about 0.007 per cent.
W/V and the accused should have taken roughly about 125 c.c. of tincture zingeberis to induce an alcohol content of 0.207 per cent.
found in his blood by the Chemical Analyser.
On the basis of the evidence of Dr. Deshmukh, the High Court also found that Tincture Zingeberis Mitis was a preparation which might be consumed for intoxication and that intoxication would not be accompanied by any other harmful effects.
On the either hand the accused has not adduced any evidence that the said medicine is a medicinal preparation unfit for use as intoxicating liquor.
361 The question whether the prosecution has discharged its burden of proof in this case will have to be considered on the basis of the said facts found by the High Court.
Section 66(2) of the Act, which bears on the question of burden of proof, reads thus: "Subject to the provisions of sub section (3), where in any trial of an offence under clause (b) of sub section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent.
weight in volume then the burden of proving that the liquor consumed was a medicinal or toilet preparation. containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary.
" It has been proved in this case that the accused person consumed liquor and that the concentration of alcohol in his blood was more than 0.05 per cent.
weight in volume.
So in terms of sub section
(2) of section 66 of the Act the burden of proving that the liquor consumed was a medicinal preparation containing alcohol, the consumption of which was not in contravention of the Act etc.
or the rules made thereunder, shifted to the accused.
He could have discharged this burden by proving, inter alia, that the medicinal preparation containing, alcohol which he had taken was unfit for use as an intoxicating liquor; if so much had been established, as under section 24A of the Act, the Act itself does not apply to such medicinal preparations, the accused would not have committed any offence under the Act.
The High Court found that the accused had not placed any material to prove that tincture zincreberis mitis was unfit for use as an intoxicating liquor; indeed, it accepted the evidence adduced on behalf of the prosecution and held that it was fit for use as an intoxicating liquor.
In this case not only the accused failed to discharge the burden so shifted to him by the statute, but the prosecution had also established that the said medicinal preparation was fit for use as an intoxicating liquor.
Reliance is placed by the learned counsel for the appellant on the decision of this Court in The State of Bombay (now Gujarat) vs Narandas Mangilal Agarwal(1) wherein it was held, in the circumstances of the case, that it was for the State to prove that the medicinal preparation was not unfit for use as intoxicating liquor.
But that decision was given on the relevant provisions of the Act before it was amended by the Bombay Act XII of 1959.
Section 66(2) was added by the said Act which in express terms states that in the circumstances mentioned in the sub section the burden of proof shifts to the accused.
The said (1) [1962] Supp. 1 S.C.R. 15.
362 decision cannot, therefore, be invoked in the changed circumstances.
The present case falls to be decided on the interpretation of section 66(2) of the Act.
We, therefore, hold that the High Court came to the correct conclusion on the question of burden of proof and gave its finding on the evidence adduced before it.
It was then argued that even if the burden of proof in the circumstances of the case shifted to the accused that burden was discharged by reason of section 6A of the Act.
Under section 6A of the Act for the purpose of enabling the State Government to determine whether any medicinal preparation containing alcohol is an article tit for use as intoxicating liquor, the State Government shall constitute a Board of Experts , and under sub section
(6) thereof, it shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section
(1) of section 6A is fit for use as intoxicating liquor and upon determination of the State Government that it is so fit, such article shall, until the contrary is proved.
be presumed to be fit for use as intoxicating liquor.
Under sub section
(7) thereof, "Until the State Government has determined as aforesaid any article mentioned in sub section (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use.
" On the basis of this section, the argument proceeded that the State Government did not determine under section 6A of the Act that 'Tincture Zingeberis Mitis ' was fit for use as intoxicating liquor and, therefore, the said article shall be deemed to be unfit for such use, with the result the burden which shifted to the accused under section 66(2) of the Act was statutorily discharged.
There is considerable force in this argument; but unfortunately this point was raised only for the first time before us.
There is nothing on the record to show that the State Government has not decided that the said article is fit for use as intoxicating liquor.
If this question had been raised at the appropriate time, the relevant material would have been placed before the Court.
Even though the argument was raised no attempt was made even after the filing of the appeal or even at the time of the arguments to place the relevant material before this Court to sustain the said legal argument.
We cannot, therefore, permit the appellant to raise the point for the first time before us, particularly when there is utter lack of factual basis.
The next argument 'of the learned counsel that the High Court came to the conclusion it did on irrelevant evidence has no force.
It is said that the prosecution did not adduce any evidence to prove that "Tincture Zingeberis Mitis" was not unfit for use as an intoxicating liquor.
To state it differently, the argument is that unless it was established by the prosecution that the consumption of a medicinal preparation had no harmful effects on the health of the person consuming it.
it could not be said that it was not unfit for use as intoxicating liquor.
In the present case the High Court found on the evidence that "Tincture Zingeberis Mitis" was a preparation 363 which might be consumed for intoxication and that intoxication would not be accompanied by any harmful effects.
This contention, therefore, must be rejected.
The last argument turns upon the provisions of section 85(1)(1) and 2) of the Act.
The relevant part of section 85 reads: (1) Whoever in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access (1) is drunk and incapable of taking care of himself, (2) In prosecution for an offence under sub section (1), it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose.
It was contended that section 85 of the Act laid down two condi tions, namely, that the accused should have been drunk and incapable of taking care of himself and also that he should have taken the drink for the purpose of being intoxicated and not for a medicinal purpose.
This conclusion, the argument proceeded, would low from sub section
(2), for otherwise, so it was said, the presumptive rule of evidence enacted in sub section
(2) would be unnecessary and even relevant if the purpose mentioned therein was not an ingredient of the offence.
This raises an interesting question of law, but, in view of the finding of fact arrived at by the High Court it does not call for a decision in this appeal.
Assuming without deciding that the argument has some substance, the finding of the High Court satisfies the lest suggested by the argument.
Whatever meaning is given to the Expression "drunk", in this case there is clear evidence that the accused had taken the drink for the purpose of intoxication and not for medication and that under the influence of drink he had rashly driven his jeep into the office of the District Superintendent of Police and dashed it against the wall of that office.
He was drunk and was, therefore, incapable of taking care of himself.
On the facts found the High Court rightly held that the accused committed an offence under section 85(1) of the Act.
In the result, the appeal fails and is dismissed.
Appeal dismissed.

summary/full:
The appellant, drove a jeep at an excessive speed and dashed against a wall.
In the jeep was also a bottle with a label on it as "Tincture Zingeberis".
On medical examination the appellant was found to be intoxicated.
He was prosecuted under sections 66(1)(b) and, 85(1)(1), (2) and (3) of the Bombay Prohibition Act, 1949; the Magistrate convicted him under the aforesaid sections and sentenced him under sections 66(1)(b) and 85(1) of the Act.
On appeal the Sessions Judge acquitted the appellant under section 66(1)(b) but confirmed the sentence under section 85(1)(1).
The respondent filed an appeal against the acquittal and the appellant filed a revision against the conviction, which the High Court heard together and allowed the respondent 's appeal and dismissed the revision of the appellant.
In appeal by certificate; HELD Whatever meaning may be given to the expression "drunk", in this case there was clear evidence that the appellant had taken the drink for the purpose of intoxication and not for indication and that under the influence of drink he had rashly driven his Jeep.
He was drunk and was, therefore, incapable of taking care of him self.
[363 G] If a person consumes liquor, i.e. any liquid consisting of or containing alcohol, he commits an offence under section 66(1) of the Act and, therefore, is liable to be convicted thereunder.
But by reason of section, 24A(2) of the Act, if it is established that the liquor consumed is contained in any medicinal preparation which is unfit for use as intoxicating liquor, the consumption of such liquor is not an offence under the Act, for the Act itself does not apply to such medicinal preparation.
[360 B, C] In terms of section 66(2) of the Act, the burden of proving that the, liquor consumed was a medicinal preparation containing alcohol, the consumption of which was not in contravention of the Act etc., or the rules made thereunder, shifted to the accused.
[361 E] In this case not only the accused failed to discharge the burden so shifted to him by the statute; but the prosecution had also established that the said medicinal preparation was fit for use as an intoxicating liquor.
[361 G] State of Borabay (Now Gujarat) vs Naraindas Mangilal Agarwal, (1962] Supp. 1 S.C.R. 15, held inapplicable.