judgement:
Appeal No. 1043 of 1976.
Appeal by Special Leave from the Judgment and Order dated 9 3 1976 of the Allahabad High Court in Civil Misc., Petn.
No. 6938/74.
K.P. Kapur and A.L. Trehan, for the appellant.
S.C. Agrawal and M.M.D. Srivastava, for respondent No. 2.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is by the tenant (to be described hereinafter as the appellant) and is directed against the judgment of the High Court of Allahabad in a writ petition at his 171 instance which was dismissed.
The District Judge, Dehradun, who had earlier dismissed his appeal, has been impleaded as respondent No. 1.
The facts may briefly be stated: The appellant is admittedly the tenant under the 2nd respondent (to be described herinafter as the respondent) in respect of two rooms of House No. 11, Rajput Road, Dehradun.
This house has four rooms of which only two rooms are in occupation of the appellant.
The other two rooms are in occupation of the respondent whose two sons stay there; the eider one living with his wife.
The respondent is an old lady with an ailing husband and wants to have vacant posses sion of the two rooms so that the entire family can reside at the same place.
With that end in view, on June 22, 1972, the respondent filed an application under section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U.P. Act No. III of 1947) for permission to bring a suit against the appellant for his eviction on the ground of bona fide personal requirement.
During the pendency of this application before the Rent Control and Eviction Offi cer, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U.P. Act No. 13 of 1972) (hereinaf ter to be referred to as the Act) came into force with effect from July 15, 1972, repealing the earlier Act of 1947 with certain savings as mentioned in section 43 of the Act.
As a consequence of enforcement of the Act the proceedings under section 3 that were pending under the earlier Act converted into one under section 21 of the new Act (U.P. Act No. 13 of 1972).
The prescribed authority (The Additional District Magistrate) rejected the application.
The respond ent then preferred an appeal to the District Judge, Dehra dun, who allowed the same on the ground of bona fide re quirement relying on the sole ground that Explanation (iv) to section 21(1) of the Act was applicable to the facts of the case.
The appellant being aggrieved by the order of 'the District Judge preferred a writ application before the High Court which, as stated earlier, was disallowed.
Before we deal with the question of law raised in this appeal we may note the findings of fact reached by the District Judge.
The District Judge found as follows : "It will appear that the house in question is a residential building.
It has been built for residential purposes and is being primarily used therefor.
Simply because the tenant is also carrying on the business of tailoring in one of the rooms will not convert it into non residential building.
The landlady is admittedly occupying the remaining portion thereof.
" Even the prescribed authority at the first instance had observed as follows in his order : "I have inspected the demised premises situated at 11, Rajpur Road, Dehradun in the presence of both the parties.
On inspection it was found that disputed house is one building fin which one portion is in the possession of the respondent tenant.
The one portion of the building is in the occupation of the applicant for residential purposes.
The respondent has two small rooms and a very small courtyard.
Out of those two rooms each one is about 8 wide and 8 long, there is a tailoring shop of the respondent.
The other room is being used for residential purposes.
The applicant has two rooms of the same size and one additional courtyard.
" The question that arises for consideration is whether Explanation (iv) of clause (1) of section 21 of the Act has been correctly held to be applicable by the District Judge and the High Court to the facts as found.
Explanation (iv) of section 21 (1) reads as follows : "In the case of a residential building (iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shah be conclusive to prove that the building is bona fide required by the landlord.
" It is submitted by the appellant that the building under tenancy is not a residential building and, therefore, the condition precedent to the application of Explanation (iv) is absent in this case.
According to counsel since the tenant is admittedly running a tailoring shop in one of the two rooms under his occupation the house ceases to be a residential building.
We are unable to accept this submission.
The appellant has only two small rooms in which he resides with his wife, two young sons and one daughter and although he may have a tailoring shop in one of his rooms it is not unlikely that that very room is utilised as bed room for one or two mem bers of his family at night.
The fact that he runs a tai loring shop in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building into a non residential building.
The tests for application of Explanation (iv) are as follows : (1) the building should be a residential building; and (2) the landlord must be in occupation of a.part of the building for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a case it will furnish under the law a conclusive proof that the building is, bona fide, required by the Landlord.
There is no need for the landlord to establish any other requirement.
Expla nation (iv) provides a conclusive and irrebuttable presump tion of bona fide requirement once the conditions mentioned therein are established.
The two tests are fulfil.led in this case on the findings of fact as noted above.
We are of opinion that the District 173 Judge was right in his finding that Explanation (iv) of section 21 (1) was applicable which view was also later upheld by the High Court.
The High Court was, therefore, right in dismissing the writ application.
We may observe that we are not required to consider, in this appeal, the effect of the Amendment Act 28 of 1976, which came into force on July 5, 1976, whereby Explanation (iv) was omitted; nor has any argument been advanced in that connection.
There is no merit in this appeal which is dismissed.
We will, however, make no order as to costs.
The appellant may continue in possession of the suit premises till 30th April, 1977.
He shall hand over vacant and peaceful posses sion thereof on May 1, 1977, to the respondent.
M.R. Appeal dis missed.

summary/full:
The appellant was a tenant occupying two rooms in the residential house of respondent No. 2.
He used one room for living purposes and the other as a tailoring shop.
The landlady brought a suit for his eviction on the ground of personal requirement.
but the same was dismissed by the District Magistrate.
An appeal to the District Judge Dehra dun was allowed, and Explanation (iv) to section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 was held applicable.
The view was upheld by the High Court in petition filed by the appellant who con tended that due to his shop the house under tenancy had ceased to be a residential building and that Explanation (iv) was not applicable.
The High Court rejected the peti tion.
Dismissing the appeal, the Court HELD: Explanation (iv) provides a conclusive and irre buttable presumption of bona fide requirement once the conditions mentioned therein are established.
The tests for application of Explanation (iv) are as follows: (1) The building should be a residential building; and (2) The landlord must be in occupation of a part of the building for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a case, there is no need for the landlord to establish any other requirement.
[172F H] (2) The fact that a tailoring shop is run in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building, into a non residential building.
[172E F]


judgement:
Civil Appeal Nos.
1805 to 1808 of 1968.
Appeal from the Judgment and Decree dated the 24th May, 1963 of the Allahabad High Court in Special Appeals Nos.
108 to 111 of 1963.
R.S. Gae, (in CA.
1805/68) and 1.
John, for the Appel lants in all the Appeals.
Ex parte, for Respondents in all the appeals.
192 The Judgment of the Court was delivered by RAY, C.J.
These four appeals by certificate raise two questions.
First, whether the provisions of section 108 of the are mandatory in regard to transfer of shares.
Second, can.a company having been served with notice of attachment of shares.
register transfer of shares in contravention of the order of attachment.
The appellant Mannalal Khetan and the respondents Kedar Nath Khetan and Durga Prasad Khetan are members belonging to two branches of the Khetan Family.
The respondent Lakshmi Devi Sugar Mills Private Ltd. is a private company.
It was incorporated on 7 April 1934 under the Indian Companies Act, 1913.
The Khetan family held shares in the respondent company and in two other companies Maheshwari Khetan Sugar Mills Private Ltd. and Ishwari Khetan Sugar Mills Private Ltd. the shares stood in the names of (1) M/s. Ganeshnarayan Onkarmal Khetan, (2) M/s. Sagarmal Hariram Khetan, (3) Sri Mannalal Khetan and (4) Sri Radhakrishna Khetan.
The members of the Khetan family did partnership business at various places.
Civil Suit No. 337 of 1948 was filed in the Bombay High Court for dissolution of the part nership and for taking the accounts.
On 3 July 1953 the Official Receiver of the Bombay High Court was appointed Receiver of the properties of the partnership firms.
There were large income tax arrears and other tax li abilities outstanding against the firms and individual partners.
For the realisation of the income tax dues the Income Tax Department issued in 1950 a notice under section 46(5)(a) of the Indian Income Tax Act, 1922 requiring the respondent company to pay any amount due to the firm of Ganesh Narayan Onkarmal or its partners to that department.
On 16 June, 1953 a Receiver was appointed by the Collec tor of Bombay in execution of the tax recovery certificate issued by the Income Tax Officer section VI Central Bombay.
Subsequently under orders of the Bombay High Court the Receiver appointed by the Collector of Bombay took over papers of the dissolved firm from the Receiver appointed by the Bombay High Court.
The Receiver appointed by the Collector of Bombay also took possession of shares standing in the names of M/s. Sagarmal Hariram Khetan, Sri Mannalal Khetan and Sri Radhakrishna Khetan along with blank transfer deeds signed by them.
The Additional Collector of Bombay issued to the Collec tor of Deoria two certificates under which on 8 March 1954 and 18/31 October 1955 certain shares of the respondent company belonging to the Khetans were attached under Order 21 Rule 46 of the Code of Civil Procedure.
On 31 July, 1957 the members of the Khetan family entered into agreement among them for exchange of blocks of shares held by them in the respondent company and other.
companies in settlement of their differences and disputes.
These agreements provided for 193 transfer of shares in the respondent company and in the Maheshwari Khetan Sugar Mills Private Ltd. belonging to Sugarreal Hariram and Ganesh Narayan Onkarnath groups to which the appellants belonged to the group of Kedarnath Khetan to which respondents 1 and 2 belonged.
These trans fers were in lieu of shares in Ishwari Khetan Sugar Mills Private Ltd. to be transferred by the group of respondents 1 and 2 to the group of the appellant.
It is significant to notice that the agreements recited that the shares in the respondent company were under attachment of the Income Tax authorities, and, therefore, they could not be immediately transferred.
The agreement was that as soon as the transfer of the shares became permissible or if the Income Tax au thorities so permitted, transfers as agreed and contemplated would be effective.
On 8 April, 1958 and 3 October, 1959 the Board of Direc tors of the respondent company passed a resolution for transfer of the shares belonging to the appellant group to the group of respondents No. 1 and 2.
These resolutions were passed on the applications made on behalf of respond ents No. 1 and 2 and others of their group.
The shares were thereafter entered in the respondent company 's register in the names of respondents No. 1 and 2 and others of their group.
On 14 January, 1962 the appellant along with Kamla Prasad Khetan and Mataden Khetan gave notice to respondent No. 1 and Durga Prasad Khetan that the shares of the Ishwari Khetan Sugar Mills Private Ltd. which were under attachment of the Income Tax authorities had been sold by the Addition al Collector of Bombay on 23 September, 1961.
The notice stated that the agreements had become impossible of per formance and the consideration of reciprocal promises disap peared.
The notice further stated that the powers of attor ney executed in favour of the respondent company by the appellant in respect of their shares in the Maheshwari Khetan Sugar Mills Private Ltd. and Laxmi Devi Sugar Mills Private Ltd. were revoked and cancelled.
The notice con cluded by saying that the respondents had no right, authori ty, or power to act on behalf of or in the name of the appellants in pursuance of the said power of attorney.
By another notice dated 14 January, 1962 the appellants informed the respondent company that the transfer of shares in the company 's register had been made illegally and with out authority because no proper instruments of transfer duly stamped and executed by and/or on behalf of the appellants were delivered to the respondent company and that the shares were under attachment by the Collector of Deoria for recov ery of income tax arrears on the certificate issued by the Additional Collector of Bombay.
The notice to the respond ent company also said that certain shares in blank transfer forms were in possession of the Receiver appointed by the Additional Collector of Bombay in the income tax recovery proceedings.
The notice concluded by stating that the respondent company was informed that the alleged transfer of shares from the names of the appellants as well as the deletion of their names from the register was illegal and void.
Respondent No. 1 and Durga Prasad Khetan contended in answer to the notice that the appellant had no right, title or interest in the 14 1458SCI/76 194 shares mentioned in the notice, that the shares had not been transferred but had been transmitted subject to the orders of the Income Tax authorities under section 46(5)(a) of the Income Tax Act, and that the shares of the Ishwari Khetan Sugar Mills Ltd. were sold by the Additional Collector of Bombay in recovery of the income tax arrears in spite of.
the protests lodged by the respondent and that the power of attorney in respect of the shares could not be cancelled by the appellant.
The respondents denied that the transfers were illegal and without authority.
In this background the appellant on 17 July, 1962 filed a petition in the High Court of Allahabad under section 155 of the referred to as the Act against the respondents.
The appellant contended first that the trans fers of all the shares in the respondent company 's register were illegal because the transfers were without any proper instrument of transfer.
The appellant also contended that the transfers were in contravention of the mandatory provi sions of section 108 of the Act and articles of the respond ent company.
The second contention of the appellant was that no legal transfer of the 'shares in question should have been made because at the time of the alleged transfer the shares had been surrendered along with blank transfer forms to the Receiver appointed by the Collector of Bombay in execution proceedings for recovery of the income tax dues.
The appellant also alleged that other shares had been attached by the Collector of Deoria in pursuance of the two certificates issued by the Collector of Bombay under Order 21 Rule 46 of the Code of Civil Procedure.
The learned Single Judge directed the. respondent company to , rectify the register of its members by remov ing the names of respondents No. 1 and 2 and ' to restore the names of the original share holders.
The learned Single Judge rejected the contention of the respondents that it was a case of transmission of shares.
The learned Judge said that the transmission of shares occurred only by operation of law and this was a case of transfer by voluntary act of the parties which could not amount to transmission.
The learned Judge also held that although the transferees di vested themselves of all powers and control in respect of the shares in question by executing irrevocable powers of attorney in favour of the transferees, mere transfer of control did not amount to transfer of possession.
The learned Judge further held that the agreements to which reference has already been made were not instruments of transfer and the transfer of shares which were under attach ment in pursuance of the certificate issued by the Addition al Collector under Order 21 Rule 46 of the Code of Civil Procedure was illegal and void.
The transfer of the shares which had been surrendered to the Receiver appointed by the Collector of Bombay was also held by the learned Judge to be bad on the same ground.
The respondents preferred an appeal.
The Division Bench of the High Court set aside the order passed by the Company Judge and dismissed the applications of the appel lant.
The Division Bench held that the provisions contained in section 108 of the Act were directory and not mandatory.
The Division Bench also held that the provisions of section 64 of the Code of Civil Procedure and Order 21 Rule 46 195 prevailed over the prohibitory order contained in Form 18 in Appendix E of Schedule I of the Code.
The Division Bench held that the appointment of the.
Receiver did not divest a party of his right to property and the mere fact that shares were handed over to the Receiver with blank in struments of transfer did not make any difference.
The provision contained in section 108 of the Act states that "a company shall not register a transfer of share 's . unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee . . has been deliv ered to the company along with the certificate relating to the shares or debentures . . or if no such certifi cate is in existence along with the letter of allotment of the shares".
There are two provisos to section 108 of.
the Act.
We are not concerned With the first proviso 'in these appeals.
The second proviso states that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in, or debentures of, the company has been transmitted by operation of law.
The words "shall not register" are mandatory in character.
The mandatory charac ter is strengthened by the negative form of the language.
The prohibition against transfer without complying with the provisions of the Act is emphasised by the negative lan guage.
Negative language is worded 10 emphasise the insist ence of compliance with the provisions of the Act.
(See State of Bihar vs Maharajadhiraj Sir Kameshwar Singh of Darbhanga & Ors.(1), M. Pentiah & Ors.
vs Muddala Veeramal lappa & Ors.
(2) and Additional District Magistrate, Jabal pur vs Shivakant Shukla(3).
Negative words are clearly prohibitory and are Ordinarily used as a legislative.
device 'to make a statutory provision imperative.
In Raza Buland Sugar Co. Ltd. vs Municipal Board Rampur(4) this Court referred to various tests for finding out when a provision is mandatory or directory.
The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provi sion are all to be considered.
Prohibition and negative words can rarely be directory.
It has been aptly stated that there is one way to obey the command and that is com pletely to refrain from doing the forbidden act.
Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory.
(See Maxwell on Interpretation of Statutes 11th Ed.
p. 362 seq.; Crawford Statutory Construction, Interpretation of Laws p. 523 and Seth Bikhraj Jaipuria vs Union of India(5).
(1) , 988 89.
(2) ; , 308.
(3) [1976] Supp.
S.C.R. 172.
(4) ; (5) ; , 893 94.
196 The High Court said that the provisions contained in section 108 of the Act are directory because non compliance with section 108 of the Act is not declared an offence.
The reason given by the High Court is that when the law does not prescribe the consequences or does not lay down penalty for non compliance with the provision contained in section 108 of the Act the provision is to be considered as directory.
The High Court failed to consider the provision contained in section 629(A) of the Act.
Section 629(A) of the Act pre scribes the penalty where no specific penalty is provided elsewhere in the Act.
It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether, or namely to make the person who did it liable to pay the penalty.
Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect.
(See Mellis vs Shirley(1).
A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition.
The penalty may be imposed with intent merely to deter persons from entering into the contract.
or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law.
A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute.
The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable.
In the latter class, one has to consider not What act the statute prohibits, by what contracts it prohibits.
One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable.
(See St. John Shipping Corporation vs Joseph Rank(").
See also Halsbury 's Laws of England Third Edition Vol. 8, p.141).
It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void.
The legal maxim 'A pactis privatorum publico juri non derogatur means that 'private agreements cannot alter the general law.
Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect.
(See Mellis vs Shirley L.B.) (Supra).
What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action.
If anything is against law though it iS not prohibited in the statute but only a penalty is annexed the agreement is void.
In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act.
Penalties are imposed by statute for two distinct pur poses (1) for the protection of the public against fraud, or for some other object of public policy; (2) for the purpose of securing .certain sources of (1) (2) 197 revenue either to the state or to.
certain public bodies.
If it is clear that a penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty imposed is not enforceable.
The provisions contained in section 108 of the Act are for the reason indicated earlier mandatory.
The High Court erred in holding that the provisions are directly.
Some of the shares were attached by the Collector of Deoria pursuant to two certificates issued by the Collector of Bombay.
Other shares were surrendered along with blank transfer forms to the Receiver appointed by the Collector .of
Bombay in execution proceedings.
Order 21 Rule 46 of the Code of Civil Procedure lays down that in the case of shares in the capital of a corpora tion the attachment shall be made by a written order prohib iting in the case of the share, the person in whose name the share may be standing from transferring the same.
In the present case, in addition to the prohibition issued under Order 21 Rule 46 a separate prohibitory order was issued to the company in Form No. 18 in Appendix E of the First Sched ule of the Code of Civil Procedure.
Therefore, the company by registering the transfer of 'shares was obviously permit ting the transfer and such action on the part of the company being in violation of the prohibition is contrary to law.
Shares which had not been attached but had been surren dered to the Receiver appointed by the Collector of Bombay came from the possession of the Receiver in the partnership suit.
The Receiver in the partnership suit took possession of the shares along with blank transfer forms in the year 1953.
When the Receiver held the scrips and the transfer forms it was not open to the persons in whose names the shares originally stood to exercise rights of ownership in respect thereof or to transfer their ownership to anyone else.
For the foregoing reasons we set aside the decision of the High Court.
The order of the learned Single Judge dated 5 March, 1963 is restored.
There will be no order as to costs.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Section 108 of the provides that a company shall not register transfer of shares unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee has been delivered to the company along with the share certificate.
The appellants and the respondents were members of a family.
The family held shares in a company, and in addi tion, the members were doing partnership business.
To realise large sums of income tax dues from the firms and individual partners, the Income tax Department issued no tices to the company to pay to that department any amount due to the firm or its partners.
A receiver appointed by the Collector took possession of the appellants ' shares along with duly signed blank transfer deeds.
Later shares belonging to the family.
in the company were attached under O. 21, r. 46, C.P.C.
In the meantime the appel lants in settlement of their accounts with the respondents agreed for transfer of certain shares to the respondents as soon as the transfer became permissible.
At the instance of respondents 1 and 2, however, the company, by a resolution, transferred the appellants ' shares to the respondents.
The appellants gave notice to the respondents that the shares under attachment of the Incometax Department had been sold by the Collector and that the transfers were illegal and void.
The respondents contended that it was not a case of transfer but one of transmission.
In a petition under section 155 of the the appellants contended that tie transfer was in contravention of the mandatory provisions of section 108 and that the shares had been attached by the Collector under O. 21, r. 46 C.P.C. A single Judge of the High Court held the transfer to be illegal and void.
On appeal a Division Bench held that the provisions of section 108 were directory and not mandatory and that the provisions of section 64, C.P.C. and O. 21, r. 46 pre vailed over the prohibitory order contained in Form 18 in Appendix E of Schedule I of the C.P.C. but that the attach ment and appointment of Receiver did not divest a party of his right to his property.
Allowing the appeal, HELD: The provisions of section 108 of the are mandatory and the High Court erred in holding that they were directory.
[197B] (1)(a) The words "shall not register" are mandatory in character.
The mandatory character is strengthened by the negative form of the language which is used to emphasise the insistence of compliance with the provisions of the Act.
Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative.
(See State of Bihar vs Maharjdhiraja Sir Ka meshwar Singh of Darbhanga & Ors.
at pp.
988 89; M. Pentiah & ors.
vs Muddalal Veeramallappa & Ors. ; at p. 308 and Additional District Magis trate, Jabalpur vs Shivaknant Shukla [1976] Supp S.C.R. 172 followed.
[195D E] 191 (b) The tests for finding out when a provision is manda tory or directory are: the purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injus tice which may result to the person from reading the provi sion one way or the other, the relation of the particular provision to other provisions dealing 'with the same subject and the language of the provision.
Prohibition and negative words can rarely be directory.
Negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory.
[195F G] Raja Buland Sugar ' Co. Ltd. vs Municipal Board, Rampur ; and Seth Bikhral Jaipuria vs Union of India ; at pp.
89394, followed.
(2) (a) In holding that section 108 is directory and not mandatory for the reason that non compliance with the sec tion was not declared an offence, the High Court failed to consider the provisions of section 629 A of the Act which pre scribes a penalty where no specific penalty is provided in the Act.
It is a question of .construction in each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty.
[196B] (b) A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibi tion.
If a contract is made to do a prohibited act, that contract will be unenforceable.
If a contract is expressly or implied by prohibited by statute one has to see not what acts the statute prohibits but what contracts it prohibits.
One is not concerned with the intent of the parties.
[196C E] St. John Shipping Corporation vs Joseph Rank [1957] 1 Q.B. 267, referred to.
(c) The maxim a pactis privatorum publico juri non derogatur means that private agreement cannot alter the general law.
What is done in contravention of the provi sions of an Act of Legislature cannot be made the subject of action.
[196F] Mellis vs Shitlay L.B. referred to.
(d) In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful because it is not intended that a statute would inflict a penalty for a lawful act.
[196G] (e) If a penalty is imposed by statute for preventing something being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty imposed is not enforceable.
[197A] In the present case in addition to the prohibition issued under O. 21, r. 46, a separate prohibitory order was issued to the company in Form 18 in Appendix E of the First Schedule of the C.P.C. Therefore, the company by registering the transfer of shares was obviously permitting the transfer and such action being in violation of the prohibition is contrary to law.
[]97D] (3) When the receiver held the scrips and the transfer forms, it was not open to the owners to exercise rights of ownership or to transfer their ownership to anyone else.
[197F]


judgement:
: Criminal Appeal No. 282 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 12 4 1971 of the Allahabad High Court in Criminal Appeal No. 1909/68).
S.K. Mehta, for the appellants.
D.P. Uniyal and O.P. Rana, for the respondent, 233 R.L. Kohli, for the Intervener.
The Judgment of the Court was delivered by FAZAL ALI, J.
It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normal ly visited with the onerous penalty of law.
This is what appears to have happened in this appeal by special leave in which the appellants appear to have got themselves involved in an armed conflict with the prosecution party resulting in the death of the deceased, injuries to some of the prosecu tion witnesses and injuries to three of the accused them selves.
The prosecution case in short is that on July 18, 1966, at about 7 30 to 8 00 in the morning when Ram Khelawan and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of the Chak Road which had recently been encroached by the complainants ' party and amalgamated with their fields, Ram Ratan and Ram Samujh armed with lathis and Din Bandhu and Ram Sajiwan carrying a ballam and Biroo respectively entered the field of Ram Khelawan with their bullocks and insited on passing through the field along with their bullocks, which according to them was a public road.
The complainants protested against the highhanded action of the party of the accused on which Ram Ratan exhorted his companions to assault the deceased Murli as a consequence of which Ram Sajiwan as saulted Murli in the abdomen with his Biroo as a result of which MurIi sustained serious injuries and fell down in the field and ultimately succumbed to the injuries.
The other members of the complainants ' party, namely, Ram Khela wan Manohar Sarabjit, Mewa Lal and Satrohan were also assaulted by Ram Ratan and his party.
Soon after the occurrence Rameshwar Pathak, a police officer, who happened to be present at the spot recorded the statement of P.W. 1 Ram Khelawan which was treated as the F.I.R. and after conducting the usual investigation submitted a chargesheet against all the accused persons who were put on trial before the Sessions Judge, Barabanki.
The Learned Sessions Judge acquitted the accused Din Bandhu and convicted the appellant Ram Sajiwan under section 302 I.P.C. Ram Ratan and Ram Samujh were convicted under sections 326/34 I.P.C. and sentenced to eight years ' rigorous imprisonment.
Three appellants Ram Ratan, Ram Sajiwan and Ram Samujh were further convicted under section 447 I.P.C. to three months ' rigorous imprisonment and under sections 324/34 I.P.C. to two years 'rigorous imprison ment under each of the two counts.
and under sections 323/34 I.P.C. to six months ' rigorous imprisonment and ordered that all the sentences shall run concurrently.
The accused persons filed an appeal before the High Court of Allahabad which was also dismissed and thereafter they obtained spe cial leave of this Court and hence this appeal before us.
234 The defence of the accused was that shortly before the occurrence proceedings for consolidation of holdings had taken place in the village as a result of which the Revenue authorities provided a Chak Road which passed through plot Nos. 853, 854, 864, 823 and 887.
This Chak Road was meant to boa public road to enable the.
residents of the village to pass through this road with their cattle.
This road happened to be adjacent to the field of Ram Khelawan P.W. 1 and he took undue advantage of the proximity of the road and encroached upon the same and amalgamated it with his cultiv able field.
The accused persons wanted t0 assert their lawful right over the Chak Road and it was the prosecution party which was the aggressor and started assaulting the accused as a result of which three persons on the side of the accused received serious injuries.
The accused, there fore, assaulted the deceased in self defence.
Even other wise, the accused pleaded innocence.
Both the courts below have come to a concurrent finding of fact that the occurrence took place as alleged by the prosecution and that the accused persons were the aggressors and had opened the assault on the deceased.
The Trial Court has also the High Court have concurrently found, on a full and complete appreciation of the evidence., that although the place of occurrence was a part of the Chak Road, yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under culti vation over which he had grown paddy crop.
The evidence of the Sub Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 6 digits.
The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Ses sions Judge and the High Court on this point is in any way not borne out by the evidence.
The learned counsel for the appellants submitted two points before us.
In the first place, he submitted that the finding of the High Court impliedly shows that the accused were trying to, assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers.
The accused, therefore, had every right to throw out the complainants ' party who were trespassers by force.
The accused were, therefore, acting in the exercise of their right of private defence of person and property and were.
justified in causing the death of the deceased, particularly in view of the serious injuries received by three of the party of the accused.
Reliance was placed, particularly on the Injury Reports of Ram Samujh, Harnam and Ram Ratan.
It appears that Ram Samujh received two injuries one being a lacerated wound 3 cm X 3/4 cm X 1 cm deep on the posterior part of head and a contusion on the right side of the head, while Harnam had four contusions and Ram Ratan had two.
lacerated wounds in the region of the ear, one punctured wound in the left forearm and one contusion.
It was submitted that in view of the serious injuries, some of which were inflicted by sharp cutting weapons, it would not be said that the appellants had exceeded their right of private defence.
The argument is no doubt attractive, but on closer scrutiny we find that it is not tenable.
In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant Ram Khelawan 235 who rightly or wrongly encroached upon the road and convert ed it into his cultivable land the accused had no right to throw the complainant by force.
In fact the Sessions Judge found thus: "There is also no doubt that from the evidence on record adduced by the prosecution and the defence, it appears that the Chak Road, if any was existing, was encroached upon by Ram Khelawan and his family members.
So far as the question whether the Chak Road was encroached upon, there was hardly any discrepancy between the statements of the prosecution witnesses and the defence.
It has been admitted by Ram Khelawan P.W. 1 that before the occurrence Ram Rattan and several other villagers whose Chaks are situated in the east of Ram Khelawan Chak used to say that he had encroached upon the Chak Road, and that in the absence of that Chak Road, from where they should take their bullocks to their Chaks.
. . .From these admissions also it is amply proved that in fact there was a Chak Road but it was later encroached upon by the complainant Ram Khelawan.
" The High Court also found: "It is thus clear that assuming that the consolidation authorities had formed a Chak Road adjoining the Chak of Ram KheIawan, it had been taken possession of by Ram Khelawan included in his Chak ploughed by him and paddy crop had been sown therein.
It is thus obvi ous that Ram Khelawan had established his possession over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place.
" It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accom plished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.
In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occur rence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner.
While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, as this Court has indicated recently, one of the tests is to find out who had grown the crop on the land in dispute.
In Puran Singh & Others vs State 236 of Punjab(1), this matter was comprehensively considered and on of us (Fazal Ali, J.) who spoke for the Court observed as follows: "We, however, think that this is not what this Court meant in defining the nature of the settled possession.
It is indeed difficult to lay down any hard and fast rule as to.
when the possession of a trespasser can mature into a settled possession.
But what this Court really meant was that the posses sion of a trespasser must be effective, undis turbed and to the knowledge of the owner or without any attempt at concealment.
For instance a stray or a casual act of possession would not amount to settled possession.
There is no special charm or magic in the word 'settled possession ' nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner . . .
Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) that the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus pros sendie.
The nature of possession of the tres passer would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possessions, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop.
If the crop had been grown by the trespasser, then even the true Owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the tres passer will have a right of private defence and the true owner will have no right of private defence.
" In this case there is a clear finding of the High Court and the Sessions Judge that the complainant Ram Khelawan had encroached upon the land in dispute, had converted it into culturable field and had grown paddy crop which the com plainants ' party was trying to weed out on the day when the occurrence took place.
In these circumstances, therefore, the complainant was undoubtedly in posses (1) [1975] Supp.
S.C.R. 299.
237 sion of the land and the appellants had no right to commit trespass on the land and engage the complainants in a seri ous fight.
As the complainant Ram Khelawan was in peaceful possession of the land to the knowledge of the appellants, he was in law entitled to defend his possession.
The com plainant, therefore, was fully justified in protesting to the accused when they tried to pass through his field and caused damage to the paddy crop by forcibly taking the bullocks through the field.
In these circumstances the appellants who were undoubtedly the aggressors and had opened the.
assault could not claim any right of private defence either of person or property.
For these reasons, therefore, we agree with the finding of the High Court that the accused are not entitled to claim the right of private defence, nor can it be said that in causing the murderous assault on the deceased they had merely exercised their right of private defence of property.
It is true that the appellants were trying to exercise their lawful right over a portion of the land which had been left apart as a public road for the use of villagers by the Revenue authorities, but as a complaint had already been filed before the Pan chayat the appellant should have allowed the law to take its course instead of taking the law in their own hands by making an armed trespass into the property.
However, there can be no doubt that there was no common intention on the part of all the accused to cause the death of the deceased Murli or to cause grievous injuries to him which was an individual act of the appellant Ram Sajiwan.
The other appellants Ram Rattan and Ram Samujh, therefore, cannot be convicted under sections 325/34 I.P.C. Another point canvassed before us by counsel for the appellant was that although three persons on the side of the accused had sustained serious injuries, the prosecution has not given any explanation which shows that the origin of the prosecution is shrouded in mystery.
This contention is also without any substance.
The evidence of the eye witnesses examined by the prosecution clearly shows that some of them were also armed with lathis and sharp cutting weapons, and they have also stated that they wielded their weapons when the accused attached the complainants ' party and that this was done in selfdefence.
In view of the injuries on the person of the deceased and the prosecution witnesses, name ly, Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan, there can be No. doubt that there was a mutual fight.
Thus in the instant case, the prosecution has given sufficient explanation for the injuries sustained by the accused per sons and the prosecution case cannot be thrown out on this ground.
Lastly it was submitted that so far as Ram Sajiwan was concerned the evidence given by the eye witnesses regarding the manner of the assault is inconsistent with the medical evidence.
In this connection reliance was placed by counsel for the: appellants on the evidence of the Doctor which is to the effect that the injury on the deceased Mufti was undoubtedly caused by a Biroo but it could have been caused only if the Biroo after being struck in the abdomen was rotated.
Much capital has been made out of this admission made by the Doctor,but on a close scrutiny we find that this circumstance is not sufficient 238 to put the prosecution out of court.
There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo.
The medi cal evidence clearly shows that the deceased had an injury in the abdomen which could be caused by a Biroo.
The exact manner in which the Biroo was pierced in the abdomen of the deceased could not have been observed by the witnesses, particularly in view of the mutual fight.
Since the injury could be caused if the Biroo was rotated after being pierced, it must be presumed in the circumstances that the assailant must have rotated the Biroo after having pierced it in the abdomen of the deceased, otherwise the injuries could not have been caused to the deceased.
In these cir cumstances, therefore, we are not able to agree with counsel for the appellants that the assault on the deceased by Ram Sajiwan is in any way inconsistent with the medical evi dence.
For these reasons, therefore, we find ourselves in agreement with the High Court that the prosecution has proved its case against this accused beyond reasonable doubt.
The injuries caused by the other appellants on the person of Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan have been proved by the eye witness whose evidence has been accepted by the High Court as also the Sessions Judge.
We see no reason to interfere with the assessment of the evidence by the two Courts.
The only point that remains for consideration is as to the exact offence committed by the appellants.
In the first place, once it is held that the appellants had no right of private defence of person of property, appellant Ram Sajiwan cannot escape conviction under section 302 I.P.C. simpliciter, because the injury caused by him to the deceased was suffi cient to cause the death of the deceased.
The appellant Ram Sajiwan was rightly convicted under section 302 I.P.C. and as the minimum sentence is life imprisonment we cannot do anything about the sentence either.
We would like to observe, howev er, that the facts, of the case do raise some amount of sympathy for the accused Ram Sajiwan who was really trying to assert his lawful right against the complainant who was a trespasser.
The appellant was fighting for a just and righteous cause though not in a strictly lawful manner.
If the appellant had succeeded he would have been able to secure the right over the Chak Road which was left by the Revenue authorities for the benefit of the villagers.
These considerations, therefore, may weigh with the Government for considering the question of remitting a portion of the sentence imposed on the appellant Ram Sajiwan and the learned counsel appearing for the State has assured us that these considerations would be conveyed to the Government.
So far as the other appellants are concerned, as the object of the appellants was merely to assert a supposed or bona fide claim of right, it cannot be said that they had any common intention to cause grievous hurt.
In these circumstances, therefore, the charge under sections 326/34 I.P.C. must necessarily fall.
The conviction under section 447 I.P.C. as also that under sections 324/34 and 323/34 I.P.C. cannot be interfered with in view of the evidence of assault made by the appellants on the 239 witnesses Ram Khelawan, Manohar, Sarabjit, Mewa Lal, Satro han with their respective weapons.
Having regard to the fact that the appellants made a concerted attack either with a Biroo or lathis respectively on the aforesaid prosecution witnesses they had undoubtedly a common intention to cause simple hurt to these witnesses.
For these reasons, therefore, we would affirm the con victions and sentences passed on the appellant Ram Sajiwan but allow the appeal of the other appellants viz. Ram Rattan and Ram Samujh to this extent that their convictions and sentences under sections 326/34 I.P.C. are set aside, but their convictions and sentences under sections 324/34, 323/34 and 447 I.P.C. will stand.
If the appellants have already served out their sentences they may be released.
M. R. Appeal dismissed.

summary/full:
The complainant Ram Khelawan had illegally encroached upon a portion of a public road and grown a paddy crop on it.
A complaint against him was pending before the Panchay at.
He was in peaceful possession of the land to the knowl edge of the appellants who nevertheless went armed and tried to exercise their right over the public road, by passing through the field with their cattle and thereby damaging the crop.
The complainants protested and a fight ensued, as a result of which, one of the complainants ' party died and injuries were received by both sides.
The appellants plead ed the right of private defence of property and person, which they had exceeded, but were concurrently found guilty by both, the Trial Court and the High Court.
Dismissing the appeal the Court, HELD: (1) A true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under, the law.
[235 F G, 236 A] Puran Singh & Ors.
vs State of Punjab [1975] Supp.
S.C.R. 299, applied.
The Court further observed: It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normally visited with the onerous penalty of law.
[233 A B] (2) The complainant Ram Khelawan was in peaceful posses sion of the land to the knowledge of the appellants and he was in law entitled to defend his possession.
The appel lants who were the aggressors and had opened the assault, could not claim any right of private defence either of person or property.
[237 A B]


judgement:
306 of 1954.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
Kundan Lal Mehta and B.R.L. Iyengar, for the petitioner.
C.K. Daphtary, Solicitor General of India (Porus A. Mehta and R. H. Dhebar, with him) for the respondent.
October 28.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an application under article 32 of the Constitution which arises under the following circumstances.
The petitioner, Sadhu Ram, purchased from one Imam ud Din, a muslim evacuee, 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos.
2135 to 2139, 2158, 2159, 21715 2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab.
The sale deed was executed on the 6th September, 1947, and registered on the 9th September, 1947, before Imam ud Din left for Pakistan.
The consideration therefor was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub Registrar.
Possession also was transferred on the execution of the sale deed.
Mutation was made by the revenue authorities on the 23rd January, 1948.
East Punjab 1115 Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) came into force on the 12th of December, 1947.
It was amended by East Punjab Evacuees ' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) which came into force on the 16th January, 1948.
This gave place to East Punjab Evacuees '(Administration of Property) (Amendment) ' Act, 1948 (East Punjab Act XXVI of 1948) which came into force on the 11th April, 1948.
By these amendments a new section, section 5 A, was inserted in the East Punjab Act XIV of 1947.
It will be seen that these amendments were subsequent to the date of the execution and registration of the sale deed and the transfer of possession thereof.
Section 5 A, so far as it is relevant for our present purpose, is in the following terms: "5 A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person on or after the fifteenth day of August, 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.
(2)An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him".
This section purports to be retrospective.
Hence an application for confirmation was made by the petitioner on the 23rd March, 1948.
The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation.
But the Additional Custodian, Jullundur, by his order dated the 11th February, 1953, rejected the application for confirmation acting on the Custodian General 's circular dated the 9th March, 1950, under which a policy of not confirming transactions relating to agricultural property was enunciated.
This was 1116 affirmed by the Assistant Custodian General on an application to him for revision.
Learned counsel for the petitioner relies on the fact that his transaction which, on enquiry, was held to be genuine, was entered into.
before the East Punjab Act XIV of 1947 was enacted and before the amendment thereof by insertion of section 5 A came into operation.
He contends that the retrospective operation of section 5 A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by article 31 of the Constitution.
Whatever may have been the position if this matter had to be dealt with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force on the 27th April, 1955.
It is unnecessary, however, to base our decision on this ground.
It appears to us clear that section 5 A cannot be read as a legislative provision depriving the owner of his property.
There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, if is nothing more than a restriction on the transfer of property by the owner thereof.
Any transferee in such a situation takes the property subject to the requirement of confirmation.
The case would then, be one which falls under article 19 of the Constitution and not under article 31.
There can be no doubt that having regard to the purpose and policy underlying the law relating to Evacuee Property and the abnormal conditions which arose from and after the 15th August, 1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction.
If this requirement was in essence not a deprivation but a restriction in respect of future transactions, there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectivity being within the competence of the appropriate legislature.
The retrospectivity commencing from the 15th August, 1947, is 1117 also not only reasonable but called for in the circum stances, which occasioned the Evacuee Property laws.
In this case the petitioner is deprived of his bargain and incurs consequential loss, Dot by virtue of any unconstitutional law but by reason of the quasi judicial order of the Custodian declining to confirm the transaction.
The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be rejected.
Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian General is illegal and that it is not relevant material under section 5 A.
It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights.
If this is the sole ground, this application is misconceived.
This petition accordingly fails and is dismissed but in the circumstances without costs.

summary/full:
The applicant purchased certain agricultural lands from a Muslim evacuee.
The sale deed was executed, registered and possession was delivered to the applicant in September, 1947, before the East Punjab Evacuees ' (Administration of Property) Act of 1947 came into operation on the 12th of December, 1947.
By subsequent amendments a new section, section 5 A, was inserted into the Act with retrospective effect from the 15th of August, 1947, rendering transactions in respect of evacuee property ineffective unless confirmed by the Custodian.
The applicant applied for confirmation.
The Assistant Custodian recommended such confirmation but the Additional Custodian, acting in terms of a circular issued by the Custodian General enunciating a policy of non confirmation with regard to agricultural lands, refused to confirm the applicant 's purchase and this order was affirmed by the Assistant Custodian General in revision, It was contended on behalf of the applicant, inter alia, that the retrospective operation of section 5 A of the Act was in effect a deprivation of property without compensation and was hit by article 31 of the Constitution.
Held that 9.
5 A of the East Punjab Evacuees ' (Administration of Property) Act though retrospective in operation does not amount to deprivation of property in respect of past transactions and is valid.
, In respect of future transactions the requirement of con 1114 firmation is clearly a restriction and not a deprivation.
Such restriction was also reasonable having regard to the purpose and policy of the Evacuee Property Law.
The requirement of confirmation being thus in essence only a restriction and not a deprivation, retrospectivity in the operation of that restriction does not make it deprivation.
That the applicant 's loss was occasioned not by any unconstitutional law but by a quasi judicial order of the Custodian refusing confirmation and, consequently, his contention that any fundamental right had been violated must be rejected.
That even if the contention that the order was itself illegal being based on irrelevant material be correct, that did not by itself raise any question of violation of any fundamental right and would be no ground for an application under article 32 of the Constitution.


judgement:
ivil Appeal No. 501 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 28th April, 1975 of the Delhi High Court in Civil Revision No. 186 of 1975.
Hardayal Hardy, S.K. Bagga, (Mrs.) section Bagga, (Miss) Yesh Bagga and K.K. Mittal for the Appellant.
Bikramjit Nayar, B.P. Maheshwari and Suresh Sethi for Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This is an unfortunate litigation where a widow has been kept out of her monies for over six years by reason of wrong application of law by the courts.
Much of the travail of the widow could have been avoided if the courts had taken a common~ sense view of the law instead of adopting a rather technical and unimaginative approach.
The facts giving rise to this litigation are few and may be briefly stated as follows.
The respondent is the owner of a residential quarter bearing No. 1/20 situate at Old Rajendra Nagar, New Delhi.
He wanted a loan for the purpose of repaying an earlier debt and he, therefore, approached the appellant and as a result of negotiations between them, an agreement dated 27th September, 1967 was entered into 184 between the parties.
This agreement recited that a sum of Rs. 7500/was lent and advanced by the appellant to the respondent and it provided that in lieu of interest on his amount of Rs. 7500/ , the respondent would give to the appellant a portion of his residential quarter (hereinafter referred to as the premises) for temporary residence.
The agreement went on to say, and we are setting out the precise terms of the agreement since they are material for the decision of the controversy between the parties: "On, the expiry of two years as stated above the second party shall give one month 's notice in writing to the first party for the said room.
If after the expiry of two years fixed period, the first party wants to pay the amount he shall give one month 's notice in writing to the second party.
When the first party repays the above stated loan to the second party, then the second party shall vacate the room etc.
under temporary residence and give it to the first party.
If the first party pays the amount of Rs. 7500/ and the second party does not give possession of the room etc.
under her use, then the second party shall be liable to pay Rs. 110/ per month as damages.
If the first party does not pay the amount of Rs. 7500/ to the second party on the expiry of the two years period, the first party will not be entitled to recover damages of Rs. 110/ per month from the second party and the second party shall be entitled to take legal proceedings against the first party and also if the first party pays the amount of Rs. 7500/ and the second party does not give possession, the first party shall be entitled to take the legal proceedings regarding vacation of the room etc.
under the use of the second party.
" Pursuant to the agreement, the respondent handed over pos session of the premises to the appellant and the appellant started occupying the same against interest on the loan of Rs. 7500/ advanced by her to the respondent.
The period of the agreement expired on 27th September, 1969 and according to the terms of the agreement, the.
respondent could thereafter repay the loan of Rs. 7500/ to the appellant and claim back possession of the premises from her.
The case of the respondent was that he addressed a notice dated 26th August, 1969 to the appellant and tendered a ;sum of Rs. 7500/ to her in repayment of the loan, but the appellant refused to accept the same.
The 'respondent also addressed another notice dated 4th May, 1970 to the appellant but this notice also had no effect on her.
The respondent thereupon filed Suit No. 123 of 1973 in the Court of Sub Judge, 1st Class, Delhi seeking to recover possession of the premises from the appellant.
The appellant did not appear to contest the suit and it was decreed ex parte by a judgment dated 22nd May, 1973.
The learned subJudge passed a decree for possession of the premises in favour of the respondent but added the following rider: 185 "The plaintiff is ordered to tender the amount of Rs. 7500/ to the defendant within a period of 30 days from today in cash.
If the defendant refuses to accept the money, it should be deposited in the Court with notice to the defendant within the aforesaid period.
" Now, it appears that prior to the filing of this suit by the respondent, the appellant had filed a suit against the respondent for recovery of the loan of Rs. 7500/ advanced by her to the respondent.
The respondent had filed his defence to the suit and various grounds were taken by him, one of which was that the claim was barred by limitation.
This suit was pending on 22nd May, 1973 when the ex parte decree was passed against the appellant.
The respondent had obviously no desire and perhaps not even capacity to repay the loan of Rs. 7500/ to the appel lant and he, therefore, preferred an application for review under Order XLVII, Rule 1 of the Code of Civil Procedure seeking deletion of the direction given by the learned Sub Judge requiring him to deposit the sum of Rs. 7500/ .
The respondent contended that since the appellant has already filed a suit against him for recovery of the amount of Rs. 7500/ ' and he was resisting the suit inter alia on the ground of limitation, it was not competent to the learned Sub Judge to.
give such a direction for deposit of the amount of Rs. 7500/ and the giving of such direction was clearly an error of law apparent on the face of the record.
The respondent also claimed review on the ground of discov ery of new and important matter in the shape of Suit No. 123 of 1973 filed by the appellant against him.
The learned Sub Judge, by a judgment dated 3rd August, 1973 allowed the review application and held that the direction for deposit ing the amount of Rs. 7500/in court should be deleted from the ex parte decree passed against the appellant.
The result was that the respondent became entitled to recover possession of the premises from the appellant without paying to the appellant or .depositing in court the amount of Rs. 7500/ in repayment of the loan.
Now, unfortunately this order allowing the review appli cation was made by the learned Sub Judge without issuing notice to the appellant.
That was obviously bad and, there fore, on the application of the appellant, the learned Sub Judge had to set aside the order and reheat the review application.
The same order was, however, once again made by the learned Sub Judge after hearing the appellant and the direction requiring the respondent to deposit the sum of Rs. 7500/ in court was deleted on the ground that such direc tion nullified the effect of the ex parte decree for posses sion and forced the respondent to admit the claim of the appellant for repayment of the sum of Rs. 7500/ , which, according to the respondent, was time barred.
The appellant being aggrieved by the order allowing the review application, preferred a revision application to the High Court of Delhi under section 115 of the Code of Civil Procedure.
Mr. Justice Avadh Behari, who heard the revision application, took the view that the order allowing the review application was appealable and 'hence the revision application was not competent, but on the alternative view that the revision application lay before the High Court, 186 he proceeded to consider whether the review had been rightly granted and held that the respondent having brought a simple suit for possession, the learned Sub Judge had no jurisdiction to impose a condition requiring him to deposit the sum of Rs. 7500/ , particularly when the appellant 's suit for recovery of the same was pending in that very court and that under the terms of the agreement, all that he was required to do was to tender the sum of Rs. 7500/ and since that was done by him and the appellant had refused to accept the same, he was entitled to a decree for possession.
The learned Judge accordingly dismissed the revision applica tion.
That led to the filing of the present appeal with special leave obtained from this Court.
When the hearing of 'the appeal commenced a contention of a preliminary nature was advanced on behalf of the re spondent and it was that since the order of the learned Sub Judge impugned in revision before the High Court was an order allowing the review application, it was appealable under XLIII, rule 1.
(s) of the.
Code of Civil Procedure and hence no revision was competent to the High Court under section 115 of the Code of Civil Procedure and the High Court was right in rejecting the revision application.
Now, there can be no doubt that under section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court.
The words of limitation used ' in section 115 are "in which no appeal lies thereto" and these.
words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction.
The question, therefore, here is whether an appeal against the order made by the learned Sub Judge allowing the review application lay to the High Court.
If it did, the.
revision application would be clearly incompetent.
Now Order XLIII, Rule 1.
cI. (s) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned SubJudge, and hence an appeal against it lay to the District Court and ' not to the High Court, and, obviously, since no appeal lay against the order of the learned Sub Judge to the High Court, the revision application could not be rejected as incompetent.
The preliminary contention must.
in the circumstances, be decid ed against the respondent.
That takes us to the merits of the appeal and the ques tion which arises for consideration on merits is whether the direction requiring the respondent to deposit the sum of Rs. 7500/ in court as a condition of recovery of possession of the premises from the appellant was erroneous in law so as to justly its deletion on review.
determination of this question turns on the true interpretation of the agree ment between the parties.
If we turn to the agreement it is clear that the loan of Rs. 7500/ was advanced by the appel lant to the respondent for a period of two years and in lieu of interest on 187 the amount of the loan, the respondent handed over the possession of the premises to the appellant and the appel lant was entitled to occupy the same free of rent.
We have already set out the relevant portions of the agreement and it appears clearly from those provisions that the re spondent was not entitled to repay the amount of the loan and demand recovery of possession of the premises from the appellant before the expiry of the period of two years.
It was only of the expiration of the period of two ' years that the respondent was entitled to repay the amount of the loan and if he wanted to do so, he was required to give one month 's notice in writing to the appellant and on such repayment, the appellant was bound to hand over vacant possession of the premises to him.
If, despite the repay ment of the amount of the loan by the respondent, the appel lant failed to hand over vacant possession of the premises to the respondent, she was liable to pay damages at the rate, of Rs. 110/ per month.
But if for any reason the respondent failed to repay the amount of the loan on the expiry of the period of two years, he could not claim to recover any damages from the appellant.
Clearly the obliga tion of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obliga tion of the respondent to repay the amount of loan to the appellant and the respondent could not claim possession of the premises from the appellant without making repayment of the amount of the loan.
It the respondent tendered a sum of Rs. 7500/ to the appellant in repayment of the amount of the loan and yet the appellant refused to accept the same, the appellant might incur liability to pay to the respondent damages for wrongful use and occupation of the premises, but the respondent could not say that he was exonerated from the obligation to repay the amount of the loan and was entitled to recover possession of the premises without making repay ment of the amount of the loan.
The respondent could seek to recover possession of the premises from the appellant only ion condition of making repayment of the loan, because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs. 7500/ from the respondent.
We may in this connection refer to the following passage from the judgment in Dixon vs Clark(1) when it said: "In action of debt and assumpsit, the principle of the plea of tender, in our apprehension is, that the defendant has been always ready (toujoure prist) to perform entirely the contract on which the action is rounded; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluded a complete performances, by refusing to receive it.
And, as in ordinary cases, the debt is not discharged by such tender and refusal, the plea must not only go on to.
allege that the defendant is still ready (incore prist) but must be accompanied by a profort in curiem of the money tendered.
If the defendant can maintain this plea, although he ,will not thereby (1) 188 bar the debt (for that would be inconsistent with uncore prist and profort in curiem) yet he will answer the action.
in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court.
And, as the plea is thus to constitute an answer to the action, it must, we conceive, be dificient in none of the requisite qualities of a good plea in bar.
This decision has been quoted with approval in Leaks on Contracts, 8th Ed.
at page 663 and it establishes beyond disputation that merely because the plaintiff or the defend ant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party, it does not absolve the first named party from its obligation to make payment of the amount and where the obligation to make payment of the amount is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount.
The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant.
We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/ by the respondent to the appellant.
The case of the respondent was that he tendered the sum of Rs. 7500/ in cash to the appel lant on 26th August, 1969 but the appellant refused to accept the sum.
Now ', we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/ in cash to the appellant on 26th August, 1969, but this was obvious ly not a valid tender, because under the terms of the agree ment the respondent could repay the amount of the loan to.
the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969.
The respondent could not validly tender the sum of Rs. 7500/ to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid.
It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/ .
Now, if the re spondent did not at any time validly tender payment of the sum of Rs. 7500/ to the appellant, the appellant obviously did not become liable to hand over possession of the prem ises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by 'the respondent against the appellant.
It was pointed out to us on behalf of the respondent that he had already filled.
suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the 189 Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/ to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date.
This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties.
More over, this decision is under appeal before the High Court.
But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/ to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises.
It is only if the respondent made a valid tender of the sum of Rs. 7500/ to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent.
The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/ in court in repayment of the amount of the loan.
The High Court as well as the learned Sub Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/ in repayment of the amount of the loan should be deleted.
It was a correct and valid direc tion and it was rightly introduced in the original ex parte decree passed by the learned Sub Judge.
We accordingly allow the appeal, set aside the order allowing the review application passed by the learned Sub Judge as also the order of the High Court rejecting the revision application.
The original ex parte decree for possession together with the direction requiring the re spondent to pay or deposit the sum of Rs. 7500/ in court will stand, but since possession of the premises has already been taken over by the respondent in pursuance of the ex parte decree for possession, we direct that the respondent do pay to the appellant the sum of Rs. 7500/together with interest thereon at the rate of 9 per cent per annum from the date when possession of the premises was taken by the respondent up to the date of payment.
The respondent will pay to the appellant costs of the appeal as also costs of the review application before the Sub Judge and the revision application before the High Court.
P.B.R. Appeal allowed.

summary/full:
The appellant and the respondent entered into an agreement by which the appellant advanced money to the respondent and the respondent in lieu of interest thereon gave a portion of his house for residence to the appellant for a period of two years.
The other terms were that if after the expiry of the two year period, the respondent wished to repay the amount, he should give one month 's notice in writing; that if after the payment of the sum, the appellant would not vacate the house, she would be liable to pay damages and that if the respondent did not repay the amount on the expiry of the two year period, he would not be entitled to recover dam ages.
The respondent alleged that before the expiry of the two year period on September 27, 1969, he addressed a notice to the appellant and tendered repayment of the loan which she refused to accept.
The respondent 's suit for recovery of possession of the premises was decreed ex parte with an order that he should tender payment to the appellant and that if she refused to accept the money, it should be depos ited in the court.
The appellant, on the other hand, filed a suit for recovery of the loan in which the respondent contended that the claim was barred by limitation.
The respondent filed a review application before the Subjective contending that the order directing deposit of money in the court was clearly an error apparent on the face of the record.
Allowing the review application, the Sub Judge or dered the deletion of the direction for depositing the money in court.
The appellant filed a revision application in the High Court against the order can the review application.
The High Court held that since the order allowing the review application was appealable, the revision application was not competent, but on the alternative view that the revision application lay before the High Court, it held (a) that the Sub Judge had no jurisdiction to impose a condition requir ing deposit of the loan money.
particularly when the suit for recovery of the money was pending before the same court and (b) since the respondent tendered the money to the appellant, but it was refused, he was entitled to a decree for possession.
Allowing the appeal, HELD: (1) Order XLIII r. 1(s) of the Code of Civil Procedure, provides an appeal against an order allowing a review application.
Since the order allowing the review application was made by a Sub Judge, the appeal against it lay to the District Court and not to the High Court and since no appeal lay against the order of the Sub Judge to the High CoUrt: the revision application could not be re jected as incompetent.
[186F] Under section 115 C.P.C. a revision application cart lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court.
The words of limitation used in that section, name ly, "in which no appeal lies thereto" clearly mean that no appeal must lie to the High Court from the order sought to be revised because an appeal is a much larger remedy than a revision application and if an appeal lies that would afford 183 sufficient relief and there would be no reason or justifica tion for invoking the revisional jurisdiction.
[186D E] (2) The High Court and the Sub Judge were in error in allowing the review application.
The direction requiring the respondent to pay the loan to the appellant or to depos it it in the court was a correct and valid direction and was rightly introduced in the original ex parte decree.
The courts below were in error in ordering its deletion.
[189 E] (3) Merely because one party has tendered the amount due and payable by him and such tender has been wrongly refused by the other party.
does not absolve the first party from its obligation to make payment and where the obligation to make payment is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount.
[188C] Dixon vs Clark E.R. 919, referred to.
In the instant case, the respondent could not validly tender the amount to the appellant ha repayment of the loan until September 27, 1969 and the tender made on August 26, 1969 was clearly invalid.
If the respondent did not at any time validly tender payment to the appellant, she was not liable to hand over possession of the premises and no claim for damages for wrongful use could be sustained against her.
The respondent was not entitled to possession unless he paid or deposited the money in court in repayment of the loan.
The respondent could seek to recover possession of the premises only on condition of making repayment of the loan because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the reason of the refusal on the appellant 's part to accept the tender of money.
[188E H]