judgement:
Appeal No. 729 of 1964.
Appeal by special leave from the order dated February 1964 of the Rajasthan High Court in D.B. Civil Appeal No. 2 of 1963.
O. P. Varma, for the appellants.
Mohan Behari Lal, for the respondent.
The Judgment of the Court was delivered by Gajendradkar, C.J.
This appeal by special leave arises from an application made by the respondent Puniya in the Court of the Senior Civil Judge at Jhalawar under section 25 of the (No. 8 of 1890) (hereinafter called 'the Act '), for the custody of his daughter Mt. Chitra.
To this application, the 103 respondent had impleaded the two appellants, Gulab Bai and her, husband Onkar Lal.
The respondent is a Kumhar by caste, whereas the appellants are fat.
The respondent 's case was that the minor Chitra who was about 11 years of age at the date of the application, had been living with the appellants for the last 4 or 5 years with his consent.
Whilst the minor girl was living with the appellants, she used to come to spend some time with the respondent and his wife; but for some time past, the appellants did not allow Chitra to visit her parents.
That is why the respondent thought it necessary to move the Court for an order under section 25 of the Act.
The claim thus made by the respondent was disputed by the appellants.
They alleged that the respondent and his wife had lost some children in their infancy, and so, they decided to leave the minor in the custody of the appellants, in the hope that their custody would save the child.
Accordingly, the minor was entrusted to the appellants a few hours after her birth and in fact, she was given away by the respondent and his wife to the appellants to be looked after as if she was their adopted child.
During all these years, the appellants have looked after the minor as their own child, have taken fond care of her, and have looked after her education.
The appellants.
and the respondent and his wife are neighbours, and the appellants denied the allegation made by the respondent that they ever obstructed the minor from visiting her parents.
According to the appellants, recently an unfortunate incident had taken place between appellant No. 1 and the wife of the respondent and that was the real cause of the present application.
They pleaded that as a result of the ugly incident that took place between the two ladies, the minor was frightened and appeared to be disinclined to visit her parents any longer.
On these pleadings, the parties led evidence to support their respective contentions.
The learned trial Judge held that the child had been entrusted to the appellants soon after she was born, and that she was looked after by the appellants as if she was their daughter.
He felt satisfied that in case the child was removed from the homely atmosphere which she enjoyed in the house of the appellants, that would definitely be detrimental to her welfare and would also affect her health, because she had come to look upon the appellants as her parents.
The learned trial Judge examined the child in order to ascertain her own wishes, because he thought that she had attained the age of discretion and could express her wishes intelligently.
He was convinced that the child definitely preferred to stay with the appellants.
Having come to the conclusion that it would be inconsistent with the interests of the child to allow the application made by the respondent, the learned Judge ordered that 104 appellant No. 2 should be appointed the guardian of the person of the minor under sections 7 and 8 of the Act.
He directed that the said Guardian shall give an undertaking to the.
Court not to remove the child from the territorial jurisdiction of the Court and not to marry her without the permission of the Court.
A direction was also issued that the child shall not, of course, be married outside her caste without the consent of her parents even if she so desires.
Against this order, the respondent preferred an appeal before the Rajasthan High Court.
This appeal was heard by a learned single Judge of the said High Court who reversed the decision of the trial Judge.
He came to the conclusion that it would be in the interests of the minor to deliver her to the custody of the respondent and his wife.
He held that under section 6 (a) of the Hindu Minority and Guardianship Act, 1958, the respondent was entitled to be the guardian of his daughter in the absence of any allegation or proof that he was in any way unsuitable to be such a guardian.
The learned single Judge also took into account the fact that the appellants and the respondent belonged to different castes.
and he held that since the minor was then about 12 years of age, it was in her interest that she went back to be looked after by her own parents.
ion this view, the learned single Judge set aside the order passed by the learned trial Judge by which appellant No. 2 was appointed the guardian of the minor and directed him to deliver the minor to the custody of the respondent.
The order passed by the learned Judge further provided that if the appellants did not deliver the minor Chitra to her parents on the expiry of three months, the respondent shall apply for execution of the order and that it would be executed as a decree under section 25 (2) of the Act by issue of a warrant under section 100 of the Code of Criminal Procedure.
Against this decision, the appellants preferred an appeal under clause 18 of the Rajasthan High Court Ordinance, 1949 (No. 15 of 1949) (hereafter called 'the Ordinance ').
This appeal was dismissed by a Division Bench of the High Court on the ground that the appeal was incompetent having regard to the provisions of sections 47 and 48 of the Act.
The appellants then moved the High Court for certificate to prefer an appeal to this Court, but the said application was dismissed.
That is how the appellants applied for and obtained special leave from this Court, and it is with the said leave that this appeal has come before us.
The short question of law which arises for our decision is whether the High Court was right in holding that the appeal under clause 18 (1) of the Ordinance was incompetent and that raises the question about the construction of sections 47 and 48 of the Act.
105 Before dealing with this point, two relevant facts ought to be mentioned.
The Act was extended to Rajasthan by the Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951; but before the Act was thus extended to Rajasthan, the Ordinance had already been promulgated.
Clause 18(1) of the Ordinance provides, inter alia, that an appeal shall lie to the High Court from the judgment of one Judge of the High Court; it excepts from the purview of this provision certain other judgments with which we are not concerned.
It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court, does not fall within the category of the exceptions provided by clause 1 8 ( 1 ) of the ordinance; so that if the question about the competence of the appeal preferred by the appellants before the Division Bench of the High Court had fallen to be considered solely by reference to clause 18(1), the answer to the point raised by the appellants before us would have to be given in their favour.
The High Court has, however, held that the result of reading sections 47 and 48 together is to make the present appeal under clause 18(1) of the Ordinance incompetent.
The question which arises before us is : is this view of the High Court right ? Section 47 of the Act provides that an appeal shall lie to the High Court from an order made by a Court under sections specified in clauses (a) to (j) thereof.
Clause (c) of the said section refers to an appeal against.
an order made under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian.
It is thus clear that the order passed by the learned trial Judge in the present proceedings was an order under section 25 of the Act, and as such, is appealable under section 47; and when as a result of the rules framed by the Rajasthan High Court the present appeal was placed before a learned single Judge of the said High Court for hearing and was decided by him, his decision became appealable to a Division Bench of the said High Court under cl. 1 8 (1 ) of the Ordinance.
Thus far, there is no difficulty or doubt.
But the High Court has held that section 48 of the Act, in substance, amounts to a prohibition against an appeal to a Division Bench under cl.
18(1) of the Ordinance; and that makes it necessary to examine the provisions of section 48 carefully.
Section 48 reads thus "Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, an order made under this Act I shall be final, and shall not be liable to be contested by suit or otherwise.
" 106 It is clear that what is made final by section 48 is an order made under this Act; and the context shows that it is an order made by the trial Court under one or the other provision of the Act.
This position is made perfectly clear if the first part of section 48 is examined.
The finality prescribed for the order made under this Act is subject to the provisions of section 47 and section 622 of the earlier Code which corresponds to section 115 of the present Code.
In other words, the saving clause unambiguously means that an order passed by the trial Court shall be final, except in cases where an appeal is taken against the said order under section 47 of the Act, or the propriety, validity, or legality of the said order is challenged by a revision application preferred under section II 5 of the Code.
It is, therefore, essential to bear in mind that the scope and purpose of 'section 48 is to make the orders passed by the trial Court under the relevant provisions of the Act final, subject to the result of the appeals which may be preferred against them, or subject to the result of the revision applications which may be filed against them.
In other words, an order passed on appeal under section 47 of the Act, or an order passed in revision under section II 5 of the Code, are, strictly speaking, outside the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provision, subject, of course, to any appeal provided by law or by a constitutional pro vision, as for instance, article 136.
The construction of section 48, therefore, is that it attaches finality to the orders passed by the trial Court subject to the provisions prescribed by section 47 of the Act, and section 115 of the Code.
That is one aspect of the matter which is material.
The other aspect of the matter which is equally material is that the provisions of section 47 are expressly saved by section 48, and that means that section 47 will work out in an ordinary way without any restriction imposed by, section 48.
In considering the question as to whether a judgment pronounced by a single Judge in an appeal preferred before the High Court against one or the other of the orders which are made appealable by section 47 will be subject to an appeal under clause 1 8 (1) of the Ordinance, section 48 will have no restrictive impact.
The competence of an appeal before the Division Bench will have to be judged by the provisions of cl. 18 itself.
Section 48 saves the provisions of section 47, and as we have already indicated, considered by themselves the provisions of section 47 undoubtedly do not create any bar against the competence of an appeal under cl.
18(1) of the Ordinance where the appeal permitted by section 47 is heard by a learned single Judge of the High Court.
Therefore, we are satisfied that the High Court was in error in coming to the conclusion that an appeal before a Division Bench of the said High Court under clause 18 (1) of the Ordinance was incompetent.
107 It is true that in upholding the respondent 's plea that the appeal preferred by the appellants under clause 18(1) of the Ordinance was incompetent, the High Court has no doubt purported to rely upon and apply its earlier decision in the case of Temple of Shri Bankteshwar Balai Through Rampal vs The Collector, Ajmer(1).
The said decision, however, was concerned with the effect of the provisions prescribed by section 66(3) of the Ajmer Abolition of Intermediaries and Land Reforms Act (No. III of 1955) in relation to clause 18 of the Ordinance, and since we are not called upon to consider the correctness of the conclusion reached in that behalf, it is unnecessary for us to examine whether the High Court was right in holding that the provisions of the said section 66(3) created a bar against the competence of the appeal under cl.
18(1) of the Ordinance.
All that we are concerned to deal with in the present appeal is the effect of section 48 of the Act, and in our opinion, the High Court was in error in holding that section 48 excluded the application of clause 1 8 (1) of the Ordinance to the decision of the learned single Judge in the present proceedings.
In this connection, we may incidentally refer to the decision of this Court in Union of India vs Mohindra Supply Company(1).
In that case, this Court has held that an appeal against the appellate order of the single Judge was barred under section 39(2) of the Indian , because the expression "second appeal" in section 39(2) means a further appeal from an order passed in appeal under section 39 (1) and not an appeal under section 100 of the Code, and as such, the said expression "second appeal" includes an appeal under the Letters Patent.
In substance.
the effect of the decision of this Court in the case of Mohindra Supply Co.(2) is that by enacting section 39(2) the has prohibited an appeal under the Letters Patent against an order passed under section 39 (1).
This decision again turned upon the specific words used it section 39(1) & (2) of the and is not of any assistance in interpreting the provisions of section 48 of the Act with which.
we are concerned in the present proceedings.
The question a,, to whether an appeal permitted by the relevant clause of the Letters Patent of a High Court can be taken away by implication, had been considered in relation to the provisions of section 588 of the Codes of Civil Procedure of 1877 and 1882.
The first part of the said section had provided for an appeal from the orders specified by clauses (1) to (29) thereof, and the latter part of the said section had laid down that the orders passed in appeals under this section shall be final.
Before the enactment of (1) LL.R. (2) ; Sup CI/66 8 108 the present Code, High Courts in India had occasion to consider whether the provision as to the finality of the appellate orders prescribed by section 588 precluded an appeal under the relevant clauses of the Letters Patent of different High Courts.
There was a conflict of decisions on this point.
When the matter was raised before the Privy Council in Harrish Chunder Chowdhry vs Kali Sundari Debia(1), the Privy Council thus tersely expressed its conclusion: "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court".
Basing themselves on these observations, the High Courts of Calcutta, Madras, and Bombay had held that section 588 did not take away the right of appeal given by clause 15 of the Letters Patent, vide Toolsee Money Dassee & Others vs Sudevi Dassee & Others(2), Sabhapathi Chetti & Others vs Narayanasami Chetti(3), and The Secretary of State for India in Council vs Jehangir Maneckji Cursetji (4 ) respectively.
On the other hand, the Allahabad High Court took a different view, vide Banno Bibi and others vs Mehdi Husain and Others(5), and Muhammad Naim ul Lah Khan vs Ihsan Ullah Khan(6).
Ultimately, when the present Code was enacted, section 104 took the place of section 588 of the earlier Code.
Section 104(1) provides that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.
It will be noticed that the saving clause which refers to the provisions of the Code, or to the provi sions of an law for the time being in force, gives effect to the view taken by the Calcutta, Madras and Bombay High Courts.
In fact, later, the Allahabad High Court itself has accepted the same view in L. Ram Sarup vs Mt. Kaniz Ummehani (7 ).
We have referred to these decisions to emphasise the fact that even where the relevant provision of section 5 8 8 of the earlier Code made certain appellate orders final, the consensus of judicial opinion was that the said provision did not preclude an appeal being filed under the relevant clause of the Letters Patent of the High Court.
In the present case, as we have already indicated, section 48 in terms saves the provisions of section 47 of the Act as well as those of section 115 of the (1) 10 I.A. 4 at p. 17.
(2) (3) (1902))5 Mad.
(4) (5) (1889) 11 Alld.
(6) (1892) 14 AIId.
226 (F.P.) (7) A.I.R. 1937 Alld.
109 Code, and that gives full scope to an appeal under clause 18 of the Ordinance which would be competent when we deal with the question about appeals under section 47 of the Act considered by itself.
The result is, the appeal is allowed, the order passed by the Division Bench of the High Court dismissing the appeal preferred by the appellants under cl.
18(1) of the Ordinance on the ground that it is incompetent, is set aside, and the said appeal is remitted to the High Court for disposal in accordance with law.
In view of the unusual circumstances of this case, we direct that parties should bear their own costs incurred so far.

summary/full:
The respondent 's application under section 25 of the Guardians and Wards Act for the custody of respondent 's daughter was rejected by the Civil Judge.
When the decision was reversed in appeal by a single Judge of the Rajasthan High Court, the appellants preferred an appeal to the Division Bench under cl. 18 of the Rajasthan High Court Ordinance.
This was dismissed on the ground that the appeal was incompetent having regard to sq. 47 and 48 of the Guardians and Wards Act.
In appeal to this Court, HELD:The appeal before the Division Bench of the Rajasthan High Court under cl.
18(1) of the Ordinance was competent.
[106 H] The competence of an appeal before the Division Bench will have to be judged by the provisions of cl. 18 of the Ordinance itself and section 48 of the Act has no restrictive impact.
Section 48 saves the provisions of section 47 of the Act and section 115 of the Code of Civil Procedure; and considered by themselves the provisions of section 47 do not create any bar against the competence of an appeal under cl.
18(1) of the Ordinance where the appeal permitted by section 47 is heard by a single Judge.
[106 G] Section 48 attaches finality to the order passed by the trial Court subject to the provisions prescribed by section 47 of the Act and section 115 of the Code of Civil Procedure.
[106 E]


judgement:
Appeal No. 738 of 1963.
Appeal by special leave from the judgment and decree, dated December 16, 1960 of the Madhya Pradesh High Court in First Appeal No. 105 of 1957.
57 B. Sen. M. N. Shroff and I. N. Shroff, for the appellants.
G. section Pathak and C. P. Lal, for respondents 1 (a) 1(c).
K. L. Hathi and R. N. Sachthey, for respondents No. 2.
The Judgment of the Court was delivered by Sarkar, J.
This appeal arises out of a suit filed on August 10, 1956 by Shri Lal Saheb Bhargavendra Singh, now deceased and represented by his legal representatives, against the Union of India, the State of Vindhya Pradesh, now merged in the State of Madhya Pradesh, and the Collector of Satna, for a declaration that he was entitled to receive an allowance of Rs. 650 per month from the Union of India.
There was another claim but that depended on the declaratory relief claimed and need not, therefore, be referred to further.
Shri Lal Saheb was the brother of the Ruler of the former Indian State of Nagod and he contended that the Ruler had by a law passed on March 7, 1948 provided for an allowance for him at the rate of Rs. 650 per month and that law was binding on the defendants who had by an executive order illegally altered the amount of the maintenance.
It was on this basis that the claim was made.
The suit was dismissed by the trial Court but was decreed by the High Court of Madhya Pradesh on appeal by the plaintiff.
Hence this appeal.
Certain events that took place after March 7, 1948 when the allowance was fixed have now to be stated.
On March 18, 1948, the Ruler of Nagod along with the Rulers of various neighbouring ruling States formed a new State called the United State of Vindhya Pradesh into which the component States were merged thereby losing their sovereign status.
Thereafter the United State merged in India by an agreement and pursuant thereto the Government of India took over its administration on January 1, 1950.
Its territories then became the Indian province of Vindhya Pradesh The United State ceased to exist.
On the promulgation of the Constitution on January 26, 1950 the Province of Vindhya Pradesh became a Part C State of Independent India and later from November 1, 1956 it was merged with the State of Madhya Pradesh.
By the agreement constituting the United State all laws in force in the constituent States were continued in force and likewise, the laws of the United State were by a statutory order continued in force when it merged in India.
Article 372 of the Constitution continued in force all laws which were in force in the territories of India immediately before the commencement of the Constitution.
58 Each succeeding State could, of course, alter the laws which were so continued in force in spite of the change of sovereignty, by a law duly made by it.
Neither the United State nor the Indian Province or States which successively administered the territories of the State of Nagod had made any law concerning any allowance to be paid to Shri Lal Saheb.
The Rajpramukh (the head) of the United State and the President of India had passed orders 'from time to time fixing his allowance at amounts lower than that at which it had been fixed by the Ruler of Nagod on March 7, 1948.
These were, however, executive orders and not laws.
They could not reduce the amount of allowance to Shri Lal Saheb fixed by the Ruler of Nagod on March 7, 1948, if he had done so by a law.
All this is not in controversy.
The only question in this appeal is whether the order of the Ruler of Nagod of March 7, 1948 was a law.
If it was, it is not in dispute that the claim made in the suit must be upheld.
The High Court observed that this Court had in various cases ending with the case of Madhaorao Phalka vs State of Madhya Pradesh (1) '.held that the line between the legislative, executive and judicial functions of absolute Rulers like the Ruler of Nagod was not at all clear cut and an attempt to place an order of such a Ruler in one class or the other was of no practical importance.
In this view of the judgments of this Court, the High Court said that it was futile to contend that the order of March 7, 1948 was an executive act of the Ruler and had not the force of law.
The High Court, therefore, held that the allowance had been fixed by law and decreed the suit.
The question whether, an order of a Ruler is law or not arises because an absolute Ruler combined in himself the capacities of the supreme executive, judicial and legislative authorities in the State; any particular action of his might have been in one or other of these capacities.
Therefore, it becomes necessary to decide, when the question arises as it has done.
in the present case, in what capacity the Ruler acted when he made a particular order.
At times, the question has presented some difficulty.
This Court had to discuss this question in many cases but, with respect, we think the High Court was under a misconception about the effect of the decisions in those cases.
It would be unprofitable to discuss these cases for their result may be quoted from the judgment in the recent case of Narsing Pratap Deo vs State of Orissa (2) : "The true legal position is that whenever a dispute arises as to whether an Orders passed by an absolute monarch represents a legislative (1) ; (2) A. I. R. ,1798.
59 act. . all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters win have to be examined before the character of the order is judicially determined.
" It is, therefore, not correct to say as the High Court did, that this Court has held that every order of the Ruler is a law made by him.
The question whether it is so or not, has to be determined in each case independently.
We then proceed to discuss whether the order of the Ruler of Nagod was law.
The question arises because, as earlier stated, the covenant constituting the United State, certain statutory orders made from time to time and lastly article 372 of the Constitution said that the existing laws would be so continued.
Now, these are instruments dealing with sovereign States and rights.
They are instruments based on legal ideas and notions founded on modern jurisprudence.
It would, therefore, be legitimate to hold that the word "law" was used in them in a sense acceptable, to modern jurisprudence.
The contention that the order of March 7, 1947 being a law could be set aside only by a law duly passed by the succeeding States, emphasises this view.
A law made by these succeeding States, the last of which is the Union of India, is fully a law as understood in modem jurisprudence.
A law which is to be set aside by such a law must, therefore, have been contemplated as a law of the same kind.
This aspect of the matter has to be kept in mind in approaching the question.
Many tests may be suggested for determining whether a parti cular thing would be considered law in modem jurisprudence.
In the decisions of this Court on the point, several of them have been referred to.
It may be that they are not all applicable, to every case.
It may also be that it is not possible to give an exhaustive list of all these tests.
None the less however the question is capable of decision in each case.
The order of the Ruler of Nagod which is said to be a law, is addressed to the Chief Minister of the State and directs him to do certain things.
It starts by reciting that Shri Lal Saheb 's financial position was deplorable and the Ruler felt it to be his duty to see that Shri Lal Saheb did not experience difficulties in his advancing years and as no permanent arrangement had been made for him till then, the ruler was making the order.
Then follows the operative part of the order which is in these terms SUP.
C.I/66 5 60 "Hence, I order that (the Kothi) (in which he is at present residing) be given to Shri Lal Saheb for generation to generation and an allowance of Rs ' 650 (Rupees six hundred and fifty), per month be granted, in addition to the same a tonga and a horse be given, the expenses for which shall be borne by himself and Rs. 5,000 (Rupees five thousand), be granted to him so that he may be able to make improvements in agriculture and satisfy his debts (partly).
" We think it quite impossible that this order was a law.
First, it is a direction to the Chief Minister.
It is an order by which the Ruler required the Chief Minister to do certain things.
It has not been shown to us, that a direction to an officer to be carried out by him, has ever been held to be a law or can be such.
It cannot be so according to notions of modem jurisprudence.
Then we find that a copy of the order was sent under the, direction of the Revenue Minister to Shri Lal Saheb and various parts of it, to the different departments of the Nagod Administration respectively concerned with them, obviously with the object that they might be carried out.
This would indicate that even the Administration was not treating it as law for it would be difficult to imagine different parts of a law being communicated to different branches of the Administration.
Further, it appears that the Revenue Minister directed the Accounts Officer to make a report regarding the provision to be made for the sum of Rs. 5,000 mentioned in the order.
This is not how a law is carried out.
The order was also an instrument granting something to Shri Lal Saheb.
Under it a kothi (house), a tonga (carriage) and horse and Rs. 5,000 in a lump were to be made available to Shri Lal Saheb.
In regard to these the order was only a grant; it gave him these things.
A grant is, of course, not a law.
That would follow from the decisions of this Court in Narsing Pratap Deo 's case(1) and State of Gujarat vs Vora Fiddali(2).
Now if the rest of the order was a grant, it would be strange that one part of it only, namely, the part providing for the monthly allowance only, was a law.
Obviously this was also intended to be a grant; the fact that the order provided for future payments cannot make it a law.
The context is overwhelmingly against the view that it was a law.
Again, the recitals in the order put it beyond doubt that the Ruler was only discharging what he considered his moral obligation.
After referring to Shri Lal Saheb 's deplorable financial (1) A.T.R. (2) ; 61 position, he said, "I take it to be my duty to, see that Shri Lal should not experience difficulties in his old days".
The Ruler was, therefore, providing for something out of his bounty and in discharge of his moral obligation.
A law is never made for these reasons.
It was said that the money was to be paid out of the State Exchequer.
There is nothing to show, however, that it was so or that in Nagod the private funds of the Ruler were separate from the State Exchequer.
But assume that the payment was to come from the State Exchequer.
That cannot turn a directive or a grant into a law.
Our attention was drawn to the decision of this Court in Promod Chandra Dev vs The State of Orissa(1) where a grant of an allowance was held to be law.
That case is clearly distinguishable.
There the nature and condition of allowances to be granted to persons entitled to them from the State had been laid down in Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars.
It was held that "those rules, regulations of Talcher etc.
(1937)" were the laws of the State and that the grants made by the Ruler in accordance with those laws became the absolute property of the grantee.
What bad happened there was that earlier lands had been granted to a certain Khorposhdar (maintenance holder) under Order 31 aforesaid and Subsequently these were commuted into payments of monthly amounts.
It was in those circumstances that it was held that the maintenance was payable under a law.
No such circumstances exist in the present case.
We should *fore concluding state that the Ruler of Nagod who made the order of March 7, 1948 himself gave evidence stating that lie had passed the order "under his legislative powers".
This statement obviously does not conclude the matter.
It was not relied upon in any of the Courts below.
The internal evidence to which we have earlier referred shows that the order was not a Legislative act.
For all these reasons we have come to the conclusion that the order of the Ruler of Nagod of March 7, 1948 was not a law.
It was not continued in force after the State of Nagod lost its sovereignty in the circumstances earlier mentioned.
The order was an executive act of the Ruler providing for certain allowance to Shri Lal Saheb.
It was, therefore, competent to the President (1) (1962] Supp.
1 section C. R. 405 62 acting in his executive capacity to reduce it to a sum of Rs. 530 per month as he did by his order of September 24, 1951 which was challenged in the, suit.
In the result, we hold that the appeal must be allowed and we direct accordingly.
There will be no 'order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
On 7th March 1948, the Ruler of a former Indian State, out of his bounty and in discharge of his moral obligation, passed an order providing for an allowance to his brother respondent herein.
He directed the Chief Minister of the State to do, certain things, and the various parts of the order were sent to the different departments of the State Administration for carrying them out.
The order also granted to the respondent a house, conveyance etc.
On 18th March 1948, the State along with other States formed the United State of Vindhya Pradesh, the component States losing their sovereign status.
Later, the United State merged in India, and on the promulgation of the Constitution, the State became a Part of the Indian Union.
On 24th September, 1951, the President of India, in his executive capacity reduced the amount of allowance.
The respondent thereupon filed a suit for a declaration, against 'the State and Central Governments, that the allowance could not be reduced Because it was granted to him by a law passed by the former Ruler, which law was continued in force by the covenant constituting the United State, by certain statutory orders made from time to time and lastly by article 372 of the Constitution.
The trial court dismissed the suit, but the High Court, on appeal, decreed it.
In the appeal to this Court by the State and Central Governments, the question was whether the order of the former Ruler was a law.
HELD : It wag not a law and was not continued in force after the State lost its sovereignty.
The order was an executive act of the Ruler and it was competent to the President, in his executive capacity., to reduce the amount.
[66 H] The nature of the order shows it cannot be a law according to notions of modern jurisprudence.
It was a mere directive or grant, and even if the money was paid out of the State Exchequer, that fact would not turn the order into a law.
[60 C; F] Narsing Pratap Deo vs
State of Orissa; , , referred to.
Promod Chandra Dev vs State of Orissa, [1962] Supp. 1 S.C.R. 405, explained.


judgement:
iminal Appeal No. 53 of 1964.
143 Appeal by special leave from the judgment and order dated August 9, 1963 of the Bombay High Court (Nagpur Bench) in Criminal Revision Application No. 107 of 1963.
B. Sen, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
P. K. Chatterjee and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Ratan Lal appellant in this appeal is the pro prietor of a business in drugs styled "Anil Medical Stores" at Wani, District Yeotmal in the State of Maharashtra.
On September 14, 1960 the Station House Officer, Wani, raided the shop of the appellant and seized 12 bottles of an Ayurvedic preparation called Mahadrakshasva manufactured by the Brahma Aushadhalaya, Nagpur and 88 bottles of Dashmoolarishta manufactured by the Vedic Pharmaceutical Works, Nagpur.
At a trial held before the Magistrate, First Class, Kalapur, the appellant was convicted of the offence punishable under section 66(1)(b) of the Bombay Prohibition Act 25 of 1949, and was sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/ .
The order was confirmed in appeal by the Court of Session, Yeotmal.
The High Court of Bombay confirmed the conviction, but modified the sentence.
The appellant appeals to this Court, with special leave.
The following are the material facts found by the trial Court and confirmed by the Court of Appeal and the High Court.
Mahadrakshasava and Dashmoolarishta are Ayurvedic medicinal preparations containing alcohol, manufactured under licences granted under the Medicinal and Toilet Preparations (Excise Duties) Act 16 of 1955.
Mahadrakshasava attached from the shop of the appellant contained 52.3% alcohol v/v and Dashmoolarishta contained 54.5% alcohol v/v.
These preparations are manufactured by a process of distillation.
The appellant had purchased these preparations from a drug store in Nagpur called the Sharda Medical Stores who in their turn were supplied by the manufacturers the Brahma Aushadhalaya, Nagpur and the Vedic Pharmaceutical Works, Nagpur.
The Bombay Prohibition Act 25 of 1949 by section 66(1) (b) penalises contravention of the provisions of the Act, or of any rule, regulation, or order made, or of any licence, permit, pass or authorization issued thereunder by any person who consumes, uses, possesses or transports any intoxicant other than opium or hemp.
144 "Intoxicant" is defined by section 2 (22) as meaning "any liquor, into xicating drug, opium or any other substance, which the State Government may, by notification in the Official Gazette declare to be an intoxicant.
"Liquor" is defined in section 2(24) as including (a) spirits denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act.
Section 12 of the Act, insofar as it is material, provides that no person shall import, export, transport or possess liquor.
But these prohibitions are subject to certain exceptions.
By section 11 not with.
Standing anything contained in the provisions contained in Ch.
III (which includes sections 11 to 24 A) it is lawful to import, export, transport, manufacture, sell, buy, possess, use or consume any intoxicant to the extent provided by the provisions of the Act or any rules, regulations or orders made or in accordance with the terms and conditions of a licence, permit, pass or authorization granted thereunder.
The prohibitions are also inapplicable in respect of certain preparations under section 24A which provides in so far as it is material "Nothing in this Chapter shall be deemed to apply to (1) Any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; "(2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containg alcohol which is unfit for use as intoxicating liquor; (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor; Provided that such article corresponds with the description and limitations mentioned in section 59A :" Possession of a toilet, medicinal or antiseptic preparation, of flavouring article containing alcohol is therefore not an offence if it is unfit for use as an intoxicating liquor, and it corresponds with the description and limitations mentioned in section 59A.
The appellant did at the material time possess preparations which contained a large percentage of alcohol, and it is not the case of the appellant that he was protected by a licence, permit, 145 pass or authorization.
His case was that possession of the preparations by him was not in contravention of the Act, because the preparations were medicinal preparations containing alcohol which were unfit for use as intoxicating liquor within the meaning of section 24A of the Act.
This contention of the appellant has been uniformly rejected by all the Courts below.
The question which falls to be determined in this appeal is whether the preparations containing alcohol in respect of which the appellant is convicted were medicinal preparations which were unfit for use as intoxicating liquor.
That the preparations were medicinal according to the Ayurvedic system is not denied, and it is common ground that they contained alcohol.
Attention must therefore be directed to ascertain whether the preparations did correspond with the description and limitations mentioned in section 59A.
If they did not, exemption under section 24 A will be inoperative, even if they are medi cinal preparations.
In so far as it is material, section 59A which was added by Act 26 of 1952 at the relevant time provided : "(1) No manufacturer of any of the articles mentioned in section 24A shall sell, use or dispose of any liquor purchased or possessed for the purposes of such manufacture under the provisions of this Act otherwise than as an ingredient of the articles authorised to be manufactured therefrom.
No more alcohol shall be used in the manufacture of any of the articles mentioned in section 24A than the quantity necessary for extraction or solution of the elements contained therein and for the preservation of the articles : Provided that in the case of manufacture of any of the articles mentioned in section 24A in which the alcohol is generated by a process of fermentation the amount of such alcohol shall not exceed 12 per cent by volume.
(2) . . . . ." Sub section (1) directs the manufacturer not to use in the manufacture of any article mentioned in section 24A alcohol in excess of the quantity necessary for extraction or solution of the elements and for preservation of the article, and the proviso states that in the manufacture of articles in which alcohol is generated by a process of fermentation it shall not exceed 12 per cent by volume.
Therefore the quantity of alcohol in an article in which alcohol is added or produced by distillation is determined by what is necessary for extraction, or solution of the elements, and preservation of the article but in an article containing alcohol generated 146 by a process of fermentation the percentage of alcohol, it is directed, shall not exceed 12 per cent by volume.
The trial Court held that the offending articles were Ayurvedic preparations in which alcohol was generated by a process of fermentation and as alcohol exceeded 12 per cent by volume, the preparations did not correspond with the limitations prescribed by section 59A, and therefore the exemption prescribed by section 24A was inoperative.
_ The Court of Session and the High Court agreed with that view.
But it appears that in so holding, the Courts misconceived the evidence.
Articles containing alcohol may be prepared by a process of fermentation which generates alcohol or by a process of distillation or by addition of free alcohol.
The manufacturing processes which result in distillation of alcohol and generation of alcohol by fermentation are distinct, and there was on the record clear evidence that the offending preparations were manufactured by a process of distillation and were not preparations in which alcohol was generated by fermentation.
Palnitkar, Sub Inspector of Prohibition & Excise, said that Mahadrakshasava and Dashmoolarishta are distilled Ayurvedic products.
Apparently it was conceded on behalf of the State before the Court of session that the two preparation were Ayurvedic medicinal preparations which "contained alcohol produced by distillation", and before the High Court also the case was argued on that footing.
If the bottles of Mahadrakshasava and Dashmoolarishta attached from the shop of the appellant contained alcohol produced by distillation, the proviso to section 59A will have no application.
There is no evidence on the record to prove that the two preparations contained alcohol in excess of the quantity permissible under the first paragraph of section 59A.
It must be remembered that these preparation were manufactured within the State of Maharashtra by manufacturers licensed under the Medicinal and Toilet Preparations (Excise Duties) Act 16 of 1955 and were issued from a bonded warehouse.
This would justify the inference that they did correspond with the description and limitations mentioned in section 59A.
But it was urged for the State that a medicinal preparation which corresponds with the description and limitations under section 59A may still be a preparation which is fit to be used as intoxicating liquor.
A medicinal preparation which because of the high percentage of alcohol therein, even if taken in an ordinary or normal dose, may intoxicate a normal person would be a preparation fit to be used as an intoxicating liquor.
Where the preparation contains a small percentage of alcohol, but consumption of 147 large quantities may intoxicate, it would also be regarded as a preparation fit for use as intoxicating liquor, if such consumption is not likely to involve any deleterious effect or serious danger to health of the consumer.
Whether a preparation is fit to be used as intoxicating liquor would ordinarily depend upon evidence.
But the Legislature has by section 6A prescribed special rules of evidence in adjudging whether an article is unfit for use as intoxicating liquor.
Section 6A was added by Bombay 'Act 26 of 1952 after this Court declared in, The State of Bombay vs F. N. Balsara(1) amongst others, that cl.
(c) of section 12, insofar as it affected possession of medicinal and ' toilet preparations containing alcohol, as invalid.
As originally enacted section 6A, insofar as it is material, was in the following.
form "(1) For the purpose of determining whether (a) any medicinal or toilet preparation containing alcohol, or (b) any antiseptic preparation or solution containing alcohol, or (c) any flavoring extract, essence or syrup containing alcohol, is or is not an article unfit for use as intoxicating liquor,.
the State Government shall constitute a Board of Experts.
(2) (3) (4) (5) (6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section (1) containing alcohol is unfit for use as intoxicating liquor and on such other matters incidental to the said question as may be referred to it by the State Government.
On obtaining such advice the State Government shall determine whether any such article is fit or unfit for use as intoxicating liquor or not and such article shall be presumed accordingly to, (1) ; 148 be fit or unfit for use as intoxicating liquor, until the contrary is proved." This Court held in The State of Bombay (now Gujarat) vs Narandas Mangilal Agarwal & Another(1) that it was not obligatory upon the State to consult the Board of Experts constituted under section 6A before the State could establish in a prosecution for an offence under section 66(1) (b) that a medicinal preparation was unfit for use as intoxicating liquor.
Evidence that the preparation was unfit for use as intoxicating liquor can be adduced before the Court, and the prosecution need not rely upon section 6A(6) of the Act : in a prosecution for infringement of the prohibition contained in sections 12 and 13, the State could rely upon the presumption :after resorting to the machinery under section 6A(6), but there was no obligation to consult the Board under section 6A, nor was the consultation a condition 'precedent to the institution of proceeding for breach of the provisions of the Act.
In so holding, this Court disagreed with the view expressed by the Bombay High Court in D. K. Merchant, vs The State of Bombay(2) wherein the High Court had held that the prosecution for offence under sections 65 and 66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under section 6A that the article was fit to be used as intoxicating liquor.
The offence in Narandas Mangilal 's case(1) was committed in July 1955 and on the terms of sub section
(6) as it then stood it was open to the State in a prosecution for infringement of a prohibition contained in sections 12 and 13 to rely upon the presumption under section 6A or to establish that the medicinal preparation was fit for use as intoxicating liquor aliunde.
By Act 22 of 1960, which was brought into force on April 20, 1960, the Bombay Legislature amended, inter alia, sub section
(6) of section 6A, and incorporated sub section
(7) therein.
Sub sections (6) & (7) as amended and incorporated read as follows : "(6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section (1) is fit for use as intoxicating liquor and also on any matters incidental to the question, referred to it by the State Government.
On obtaining such advice, the State Government shall determine whether any such article is fit for use as intoxicating liquor, and upon determination of the State Government that it is so fit, such article shall, until the (1) [1962] Supp. 1 S.C.R. 15.
(2) 149 contrary is proved, be presumed to be fit for use as into xicating liquor.
(7) Until the State Government has determined as aforesaid any article mentioned in subsection (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use.
" The scheme of section 6A has by the amending Act been completely altered.
The Legislature has prescribed by sub section
(7) that until the State Government has determined 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.
The Legislature has therefore, prescribed a fiction which continues to function till the State Government has determined, on the report of the Board of Experts, that any article mentioned in sub section
(1) is fit for use as intoxicating liquor.
By sub section
(6) as amended it is provided that after the State Government has obtained the advice of the Board of Experts, the State Government shall determine whether such article is fit for use as intoxicating liquor and upon such determination of the State Government that it is so fit, such article shall, until the contrary is proved, be presumed to be unfit for use as intoxicating liquor.
Under the amended section 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor.
Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub section
(1) is to be deemed unfit for use as intoxicating liquor.
After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub section
(6) be presumed, that it is fit for use as intoxicating liquor.
But the presumption is rebuttable.
In the present case the offence is alleged to have been com mitted in September 1960.
After consulting the Board of Ex perts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor.
Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under section 66(1)(b) of the Bombay Prohibition Act.
But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor.
Possession of the medicinal preparations 150 which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence.
A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not, by subsequent act of the State, be declared as offending the statute.
It is unfortunate that the High Court lost sight of the change in the scheme of section 6A and followed the judgment of this Court in Narandas Mangilal 's case(1).
In Narandas Mangilal 's case at all material times when the question fell to be considered, the Court had to decide whether sub section
(6) of section 6A, as it then stood.
prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof.
But the incor poration of sub section
(7) by the Legislature has altered the scheme of the Act.
Sub section (6) incorporated in its second part both before and after the amendment, a rule of evidence : but the rule in sub section
(7), that until a declaration is made to the contrary by the State Government under sub section
(6), every article mentioned in sub section
(1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence.
It defines for the purpose of section 24A and related sections what an article unfit for use as intoxicating liquor is.
It is plain that in Narandas Mangilal 's case(1) the effect of sub section
(7) of section 6A did not fall to be considered.
The appellant was therefore wrongly convicted.
The appeal is allowed and the order of conviction and sentence are set aside.
The fine if paid will be refunded.
Appeal allowed.
(1) [1962] Supp. 1 S.C.R. 15.

summary/full:
The appellant was convicted of the offence under section 66(1) (b) of the Bombay Prohibition Act, 1949, for being in possession on September 21, 1960 of bottles of two different Ayurvedic medicinal preparations con training 52.3% and 54.5% alcohol respectively.
The appellant 's case that possession of the preparations by him was not in contravention of the Act, because the preparations were medicinal preparations containing alcohol which were unfit for use as intoxicating liquor within the meaning of section 24A of the Act, was rejected.
The trial court held that the offending articles were Ayurvedic preparations in which alcohol was generated by a process of fermentation and as alcohol exceeded 12 per cent by volume, the preparations did not correspond with the limitations prescribed by the provision to section 59A, and therefore the exemption prescribed by section 24A was inoperative.
The Court of Sessions and the High Court agreed with that view.
It was also contended on behalf of the respondents that even if the two medicinal preparations corresponded with the description and limitations under section 59A, they were still preparations fit for use as intoxicating liquor and therefore outside the exemption in section 24A.
HELD: The appellant was wrongly convicted and his conviction must he set aside.
(i) There was clear evidence on the record that the offending preparations were not preparations in which alcohol was generated by fermentation.
The proviso to section 59A Would therefore have no application.
[146 E F] (ii) On the date on which the two medicinal preparations were attached in September 1960, by vitrue of sub section (7) of section 6A they were deemed for the purpose of the Act to be unfit for use as intoxicating liquor and their possession was; not an offence.
A subsequent declaration by the State under section 6A(6) in October, 1960, that they were fit for use as intoxicating liquor, could not have retrospective operation, and possession which was innocent could not, by subsequent act of the State, be declared as offending the statute.
[150 A] The State of Bombay vs F. N. Balsara, ; , referred to.
The State of Bombay vs Narandas Mangild Agarwal & Anr.
[1962] Sup. 1 S.C.R. 15, distinguished.


judgement:
Appeal No. 431 of 1963.
Appeal from the judgment and decree dated May 21, 1958 of the Punjab High Court in Civil Regular Second Appeal No. 263 P of 1952.
Tarachand Brijmohanlal, for the appellants.
B.R.L. lyengar, S.K. Mehta and K.L. Mehta, for the respondents.
The Judgment of the Court was delivered by Mudholkar, J.
The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and Pratap Singh is within time.
According to the appellants the suit is governed not by article 141 of the Limitation Act, 1908 (9 of 1908) as held by the High Court but either by article 142 or by article 144 and is on that basis barred by time.
While it is conceded on behalf of the respondents that the suit is not governed by article 141 it is contended that it is governed by article 144 and not by article 142 and is within time.
In order to appreciate the contentions it is necessary to set out the relevant facts which are no longer in dispute.
Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot.
Out of this land 481 kanals 7 marlas was in her possession as occupancy tenant, the landlord being the Raja of Faridkot while the remaining land was held by Smt.
Raj Kaur as Adna Malik, the Aala malik again being the said Raja of Faridkot.
In Samvat 1953 (A.D.1896) Smt.
Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the former 's son Bakshi Singh and put him in possession of the whole of the land.
Bakshi Singh transferred part of the land to Pratap Singh, second son of Mahan Kaur, who is respondent No. 2 in the appeal.
Mahan Kaur had one more son Lal Singh and he is respondent No. 1 in this appeal.
In the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the court of Sub Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid.
This suit was decreed on February 9, 1916.
Raj Kaur died on August 14, 1930.
On February 19, 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands, one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik.
These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja 65 took possession of the entire land in October 1938.
On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs. 84,357 5 0.
Thereupon Gurbinder Singh and Balbinder Singh.
who are the appellants before us, filed a suit for pre emption of the land against Kehar Singh and obtained a decree in their favour.
In execution of that decree they got possession of the land on June 22, 1950.
On October 20, 1948 Mst.
Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot.
Later she impleaded the appellants as defendants to that suit and discharged the Raja of Faridkot.
On February 17, 1950, Lal Singh, respondent No. 1, filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh.
To that suit he joined Prem Kaur and Pratap Singh as defendants.
Later, however, Pratap Singh was transposed as a plaintiff.
Both the suits were consolidated and were tried together.
The suit of Prem Kaur was dismissed by the trial court but that of the respondents was decreed to the extent of half share in the property.
Prem Kaur and the appellants preferred appeals before the District Court but that court dismissed both the appeals.
A second appeal was taken by the appellants as well as by Prem Kaur to the High Court and cross objections were preferred by the respondents.
The High Court dismissed these appeals as well as the cross objections.
In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj Kaur.
Their claim was resisted by the appellants on several grounds in the courts below.
Before us, however, only one ground is pressed and that is, the suit is barred by limitation.
As already stated, according to the appellants, the suit is governed either by article 142 or by article 144 of the Limitation Act and not by article 141.
Mr. lyengar for the respondents.
does not rely upon article 141 at all.
He also contends that article 142 has no application and that the suit is governed by article 144 only.
Mr. Tarachand Brijmohanlal for the appellants also relied on article 144 in the alternative.
In order that article 142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession.
It is no one 's case that Lal Singh ever was in possession of the property.
It is true that Pratap Singh was in possession of part of the property which particular part we do not know by reason of a transfer thereof in his favour by Bakshi Singh.
In the present suit both Lal Singh and Pratap Singh assert their claim to property by success on in accordance with the rules contained in the dastur ul amal whereas the possession of Pratap Singh for some 66 time was under a different title altogether.
So far as the present suit is concerned it must, therefore, be said that the plaintiffs respondents were never in possession as heirs of Raj Kaur and consequently article 142 would not be attracted to their suit.
It is in these circumstances that we have to consider whether under article 144 the suit is barred by time.
The starting point of limitation set out in col. 3 of article 144 is as follows: "When the possession of the defendant becomes adverse to the plaintiff".
To recapitulate the events.
Raj Kaur died on August 14, 1930 whereupon under dastur ul amal her daughters Prem Kaur and Mahan Kaur became entitled to the possession of the land.
According to the appellants the daughters succeeding their mother took an absolute estate.
Assuming that is so, what would be the position? As already stated, Bakshi Singh and Pratap Singh were in possession of the entire land belonging to Raj Kaur.
Ignoring for the time being their relationship with Raj Kaur, what can be said is that they were adversely in possession to the true owners, that is, Prem Kaur and Mahan Kaur, daughters of Raj Kaur as from August 14, 1930.
Before, however, they could perfect their title against Prem Kaur and Mahan Kaur the Raja instituted a suit for possession, obtained a decree thereunder and actually entered into possession to the entire land in October, 1938.
Though the Raja obtained possession under a decree of the court he was in the eye of law nothing but a trespasser in so far as the heirs of Raj Kaur, her daughters Prem Kaur and Mahan Kaur were concerned.
Mahan Kaur had in fact died on July 13, 1938, i.e. before the Raja obtained possession.
Therefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, 1938.
Kehar Singh who was a transferee from the Raja stood in the Raja 's position and got the benefit of the Raja 's adverse possession.
Similarly the appellants who had preempted these lands under the decree obtained against Kehar Singh got advantage not only of the Raja 's adverse possession but also of Kehar Singh 'section The sum total of the adverse possession of these three persons at the date of the respondent 's suit would, however, be less than 12 years and so the respondents ' suit could not be said to be barred by article 144 if the starting point of limitation is taken to be some day in October, 1938.
Mr. Tarachand Brijmohanlal, however, advanced an interesting argument to the effect that if persons entitled to immediate possession of land are somehow kept out of possession may be by different trespassers for a period of 12 years or over, their suit will be barred by time.
He points out that as from the death of Raj Kaur her daughters, through one of whom the respondents claim.
were kept out of possession by trespassers and that from the date of Raj Kaur 's death right up to the date of the respondents 67 suit, that is, for a period of nearly 20 years trespassers were in possession of Mahan Kaur 's, and after her death, the respondents share in the land, their suit must therefore be regarded ' as barred by time.
In other words the learned counsel wants to tack on the adverse possession of Bakshi Singh and Pratap Singh to the adverse possession of the Raja and those who claim through him.
In support of the contention reliance is placed by learned counsel on the decision in Ramayya vs Kotamma(1).
In order to appreciate what was decided in that case a brief resume of the facts of that case is necessary.
Mallabattudu, the last male holder of the properties to which the suit related, died in the 'year 1889 leaving two daughters Ramamma and Govindamma.
The former died in 1914.
The latter surrendered her estate to her two sons.
The plaintiff who was a transferee from the sons of Govindamma instituted a suit for recovery of possession of Mallabattudu 's property against Punnayya, the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death.
Punnayya was minor at the date of gift and his eider brother Subbarayudu was managing the property on his behalf.
Punnayya, however, died in 1894 while still a minor and thereafter his brothers Subbarayudu and two others were in possession of the property.
It would seem that the other brothers died and Subbarayudu was the last surviving member of Punnayya 's family.
Upon Subbarayudu 's death the properties were sold by his daughters to the third defendant.
The plaintiffs appellants suit failed on the ground of limitation.
It was argued on his behalf in the second appeal before the High Court that as the gift to Punnayya was oral it was invalid, that consequently Punnayya was in possession as trespasser, that on Punnayya 's death his heir would be his mother, that as Subbarayudu continued in possession Subbarayudu 's possession was also that of a trespasser, that as neither Subbarayudu nor Punnayya completed possession for 12 years they could not tack on one to the other and that the plaintiff claiming through the nearest reversioner is not barred.
The contention for the respondents was that there was no break in possession so as to retest the properties in the original owners, that Punnayya and Subbarayudu cannot be treated as successive trespassers and that in any event the real owner having been out of possession for over 12 years the suit was barred by limitation.
The High Court following the decision of Mookerjee J. in Mohendra Nath vs Shamsunnessa(3)held that time begins to run against the last full owner if he himself was dispossessed and the operation of the law of limitation would not :be arrested by the fact that on his death he was succeeded by his widow, daughter or mother, as the cause of action cannot be prolonged by the mere transfer of title.
It may be mentioned that as Mallabattudu had given up possession to Punnayya under an invalid gift article 142 of the Limitation Act was clearly attracted.
The (1) Mad. 370.
(2) , 164.
68 sons of Govindamma from whom the appellant had purchased the suit properties claimed through Mallabattudu and since time began to run against him from 1887 when he discontinued possession it did not cease to run by the mere fact of his death.
In a suit to which that article applies the plaintiff has to prove his possession within 12 years of his suit.
Therefore, so long as the total period of the plaintiff 's exclusion from possession is, at the date of the plaintiff 's suit, for a period of 12 years or over, the fact that this exclusion was by different trespassers will not help the plaintiff provided there was a continuity in the period of exclusion.
That decision is not applicable to the facts of the case before us.
This is a suit to which article 144 is attracted and the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of this period he can avail of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers.
In so far as the adverse possession of Bakshi Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her life time.
That being so, article 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which article 142 applied.
No doubt, there, on behalf of the plaintiff appellant it was argued on the authority of Agency Co. vs Short( ') that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession; that on the death of Punnayya it must be taken that there was an interruption in the possession and that there was an interval between Punnayya 's death and Subbarayudu 's taking possession in his own right however minute the interval may be and that except in the case of succession or revolution all other cases would fall within the principle enunciated in Agency Co 's case(1).
The learned Judges did not accept the contention but relying upon the decision in Willis vs Earl Howe(2) and a passage 'in Dart on Vendors and Purchasers, Vol.
17th ed.
p. 474 held that the suit was barred by time.
It may be pointed out that on Punnayya 's death his mother would be the heir and that it was established in that case that she was living with his brother Subbarayudu and his other brothers.
Subbarayudu would therefore, be a presumptive reversioner on the death of his mother and there was evidence to show that she was a consenting party to Subbaryudu 's enjoying the properties after Punnayya 's death.
It is under these circumstances that the High Court found it difficult to hold that there was a fresh trespass by Subbarayudu after the death of Punnayya.
On the other hand, according to them, there was a continuity of possession because the person who continued to hold possession was the presumptive heir of the deceased.
From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all.
In the case before us what (1)[1888] 13 A.C. 793.
(2) 69 is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh.
The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers.
As it has turned out, the possession of the Raja, though obtained under the decree of a civil court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property.
Thus this is a case of one trespasser trespassing against another trespasser.
There is no connection between the two and, therefore, in law their possession cannot be tacked on to one another.
As pointed out by Varadachariar J., in Rajagopala Naidu vs Ramasubramania Ayyar(1).
"Further the doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession.
" Where it applies the principle laid down in Agency Co 's(1) case would apply and preclude the tacking of possession of successive trespassers.
The following observations of Lord Macnaghten in that case are pertinent and run thus: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place.
There is no one against whom he can bring an action.
He cannot make any entry upon himself.
There is no positive enactment, nor is there any principle of law.
which requires him to do any act.
to issue any notice or to perform ,my 'ceremony in order to rehabilitate himself.
No new departure is necessary.
The possession of the intruder, ineffectual for the purpose or transferring title, ceases upon its abandonment to be effectual for any purpose.
It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant.
There is not, in their Lord ships ' opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute.
There the statute 'continues to run ' because there is a person in possession in whose favour it is running.
" This view has not been departed from in any case.
At any rate none was brought to our notice where it has not been followed.
Apart from that what we are concerned with is the language used by the legislature in the third column of article 144.
The starting point of limitation there stated is the date when the possession of (1) A.LR. 70 the defendant becomes adverse to the plaintiff.
The word "defendant" is defined in section 2(4) of the Limitation Act thus: " 'defendant ' includes any person from or through whom a defendant derives his liability to be used".
No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons.
There can be no jural relationship between two independent trespassers.
Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period.
An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession.
In our opinion, therefore, the respondents ' suit is within time and has been rightly decreed by the courts below.
We dismiss this appeal with costs.
Appeal dismissed.

summary/full:
One Mst.
Raj Kaur was holding certain lands on different tenures under the Raja of Faridkot.
She had two daughters.
She adopted the son of one of them and put him in possession of all the lands.
He transferred a part of the lands to the second respondent who was son of the other daughter of Raj Kaur.
After Raj Kaur 's dearth the Raja filed suits for possession of the land, and in execution of the decree he obtained in those suits, took possession of the entire land, in October, 1938.
He then transferred the land, but the transferee was dispossessed by the appellants in June 1950, in execution of a decree they obtained, in a suit for preemption filed by them against the transferee.
The second respondent 's mother had died in 1938 and her sons the first and second respondents, filed a suit for possession of the entire land in February 1950, as heirs of Raj Kaur, but it was decreed only to the extent of their half share, and the decree was affirmed by the High Court.
In the appeal to this Court it was contended that the suit was governed either by article 142 or article 144 of the Indian Limitation Act, 1908, and on either basis, was barred by time.
HELD: (i) Article 142 would not be attracted to the suit.
In order that the article may be attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or some one through whom the defendant claims or alternatively, the plaintiff should have discontinued possession.
It was no one 's case that the first respondent was ever in possession of the property.
As regards the second respondent 's possession at one time of a part of the property, it was by reason of a transfer by the adopted son.
The claim in the instant case, however, was by succession, under a different title altogether, and so it must be held that the plaintiffs respondents, as heirs of Raj Kaur, were never in possession of the land.
[65H] (ii) Article 144 was applicable to the suit, but the suit was not barred by time.
Adverse possession against the respondents started in October.
1938, when the Raja took possession of the land.
To that adverse possession could be added that of his transferee and that of the appellants who had preempted the lands under the decree obtained by them against the transferee.
But, the sum total of the adverse possession of all those persons at the date of the respondent 's suit would be less than 12 years.
The adverse possession of the adopted son could not be tacked on to the adverse possession of the Raja and those who claim through him, because, in a suit to which Art 144 is attracted, the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit, and for computation of that period, he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent tres 64 passers.
The starting point of limitation in article 144 is the date when the possession of the defendant becomes adverse to the plaintiff.
The gist of the definition of the word "defendant" in section 2(4) of the Act is the existence of a jural relationship between the different persons referred to in the definition, and there can be no jural relationship between two independent trespassers.
[66 F H; 68C; 70B].
Ramayya vs Kotamma, Mad. 370, explained.


judgement:
Appeal No. 558 of 1963.
216 Appeal by special leave from the judgment and order dated January 19, 1961 of the Mysore High Court in Civil Petition No. 654 of 1960.
section G. Patwardhan and K. R. Chaudhury, for the appellant.
A. G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by Bachawat, J.
The appellant is the landlord and respondent No. 1 is the tenant of section Nos. 180 and 182 of village Dhanyal, taluk Bijapur.
Respondent No. 1 defaulted in payment of rent for the years 1951 52, 1953 54 and 1954 55.
On December 8, 1956, the appellant served on respondent No. I three months ' notice in writing under section 14(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. 57 of 1948) hereinafter referred to as the Tenancy Act, terminating the tenancy on the ground of default in payment of rent.
On June 24, 1957, the appellant filed an application under section 29(2) read with section 14(1) of the Tenancy Act for possession of the land.
The Tahsildar, Bijapur allowed the application, and directed possession of the land to be delivered to the appellant.
This order was affirmed on appeal by the Assistant Commissioner, Bijapur.
On revision, the Mysore Revenue Appellate Tribunal set aside the order of the first two tribunals and dismissed the application.
A petition by the appellant under article 227 of the Constitution was summarily rejected by the Mysore High Court.
The appellant now appeals to this Court by special leave.
The Tribunals below concurrently found that respondent No. I defaulted in payment of the rent for the years 1951 52, 1953 54 and 1954 55, the last default took place on May 20, 1955 and the tenancy was properly terminated by the appellant.
The first two Tribunals also held that the application was filed within the time, allowed by law.
The Revenue Appellate Tribunal, however, held that the application being filed more than two years after May 20, 1955 is barred by limitation.
The sole question before us is whether the application was filed within the two years ' period of limitation prescribed by section 29(2) of the Tenancy Act.
The appellant contends that the application was filed within the prescribed period of limitation because (1) the right of the appellant to obtain possession of the land is deemed to have accrued to him on the termination of the tenancy by the notice given on December 8, 1956, (2) in any event, in computing the two years ' period of limitation, the period of the three months ' notice should be excluded in view of section 15(2) read with section 29(2) of the Indian Limitation Act, 1908.
We are of the opinion that the first contention of the appellant 217 should be accepted.
In view of this conclusion, we do not think it necessary to express any opinion on the second contention advanced on behalf of the appellant.
Sections 14(1) and 29(2) of the Tenancy Act, as they stood at.
the relevant time, are as follows : "14.
(1) Notwithstanding any law, agreement or usage, or the decree or order of a court, the tenancy of any land shall not be terminated (a) unless the tenant (i) has failed to pay the rent for any revenue years.
before the 31st day of March thereof; (ii) has done any act which is destructive or permanently injurious to the land; (iii) has sub divided, sub let or assigned the land in , contravention of section 27; (iv) has failed to cultivate it personally; or (v) has used such land for a purpose other than agriculture or allied pursuits; and (b) unless the landlord has given three months ' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and, within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.
" 29(2) No landlord shall obtain possession of any land, or dwelling house held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to. have accrued to him.
" At first sight, it may appear that the Act gives no indication of the time when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord as contemplated by section 29(2).
But on a close scrutiny of the Act we are satisfied ' that this right must be deemed to have accrued to him on the date of the termination of the tenancy.
It is to be noticed that limitation for the application under section 29 (2) commences to run from the date when the right to obtain 218 possession of the land or dwelling house is deemed to have accrued to the landlord. 'Now, the legislature could not have intended that,, limitation would commence to run before the right to apply accrues.
It is reasonable to think that the right to apply also accrues to the ,landlord on the date when limitation for the application begins to run.
But the right to apply under section 29(2) read with section 14(1) accrues to the landlord when the tenancy is terminated by the notice under section 14 (1 ) (b).
In Raja Ram Mahadev Paranjype vs Aba Maruti Mali(1), this Court observed : "The statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession.
The statute recognises this right by providing by section 29(2) for its enforcement by an application to the Mamlatdar.
" It would follow that limitation for the application under section 29(2) read with section 14(1) begins to run from the date when the tenancy is terminated, by the notice under section 14(1)(b).
Consequently, the date of the termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord.
But it is argued that on the date of the termination of the tenancy, the right to obtain possession of the land actually accrues 'to the landlord, and, therefore, the legislature could not have intended that on that date this right is deemed to accrue to him.
This ,argument must be rejected.
In spite of the termination of the tenancy, the landlord has no right to obtain possession of the land without an order of the Mamlatdar under section 29(2).
Between the date of the termination of the tenancy and the date of the order for possession under section 29(2), the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits, see Ramchandra Avant vs Janardan(2).
Thus, on the termination of the tenancy, the right to obtain possession of the land, though in reality not accrued to the landlord, is, by a legal fiction, deemed to have accrued to him so that he may immediately apply under section 29(2) for an order for possession.
This conclusion is reinforced if we look at the history of the legislation.
The Tenancy Act, as originally passed in 1948, did not provide for a special period of limitation for the application to the Mamlatdar under section 29.
But it was thought that section 72 of the Tenancy Act attracted the period of limitation prescribed (1) [1961] 1 Supp.
S.C.R.730,747.
(2) 637, 641.
219 by sub sections
(3) and (4) of section 5 of the Mamlatdars ' Courts Act, 1906 (Bombay Act No. 2 of 1906), which are as follows : "5(3).
No suit shall be entertained by a Mamlatdar 's Court unless it is 'brought within six months from the date on which the cause of action arose.
5 (4).
The cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession, deprivation or determination, of tenancy or other right occurred, or on which the impediment, disturbance or obstruction, or the attempted impediment or disturbance or obstruction, first commenced." The Bombay Revenue Tribunal, therefore, ruled that an application under section 29(2) must be made within six months from the date when the cause of action accrues, see A. section Desai 's Bombay Tenancy and Agricultural Lands Act, Second Edn., pp. 137 38, 287 88; and in view of section 5(4) of the Mamlatdars ' Courts Act, 1906, this cause of action was deemed to accrue on the determination of the tenancy.
The six months ' period of limitation led to hardship, and the legislature decided to extend the period of limitation and enacted the Bombay Tenancy and Agricultural Lands (Third Amendment) Act, 1951 (Bombay Act No. 45 of 1951), which amended section 29 by providing for two years ' period of limitation and also section 72 by inserting the words "save as provided in section 29".
Thus, the Amending Act extended the period of limitation from six months to two years, but both before and after the Amending Act, the date of the termination of the tenancy is the starting point of limita tion; formerly because the right to apply was then deemed to accrue to the landlord and now because the right to obtain possession is then deemed to have accrued to him.
The Tenancy Act was amended from time to time.
The requirement of a notice for terminating the tenancy under section 14(1) was introduced by Bombay Act No. 33 of 1952, and is repeated in the new section 14 substituted for the original section by Bombay Act No. 13 of 1956.
Before the tenancy can be terminated under the new section 14(1), two conditions must be fulfilled.
Firstly, the tenant must be guilty of one of the breaches mentioned in section 14(1)(a).
Secondly, ' the landlord must give three months ' notice in writing under section 14(1)(b) and within that period the tenant must have failed to remedy the breach.
The tenancy is not terminated unless both these conditions are fulfilled.
Neither failure to pay rent nor sub letting nor any C.I./66 15 220 other breach is sufficient.
The breach must be followed by the requisite notice terminating the tenancy.
It is on the termination of the tenancy and not earlier that the right to obtain possession of the land is deemed to accrue to the landlord and limitation for the application under section 29(2) read with section 14(1) begins to run.
In Chimanbai Rama vs Ganpat Jagannath(1), a Full Bench of the Bombay High Court held that the period of limitation under section 29(2) for applying to the Mamlatdar for possession of the land on the ground that the tenant had sub let it, began from the date of sub letting, and that though the right to obtain possession actually accrues to the landlord on the date when he terminates the tenancy, under section 29(2) it is fictionally deemed to accrue as from an antecedent point of time, viz., the date of the sub letting.
With respect, we are unable to agree with this judgment.
On the termination of the tenancy by the notice under section 14 (1) (b) and before the order for possession under section 29(2), the landlord has no right to obtain possession of the land; nevertheless, this right is then deemed to accrue to him, so that he may apply immediately for an order for possession under section 29(2).
The sub letting alone does not give him ' this right to apply under section 29(2).
He may, if he likes, ignore the breach.
But where the breach is followed by a notice terminating the tenancy he acquires the right to apply under section 29(2).
It is difficult to impute to the legislature the intention that limitation would begin to run against the landlord immediately on the sub letting, though he is not aware of the breach and takes no steps for terminating the tenancy in consequence of the breach.
In our opinion, limitation, for the application under section 29(2) begins to run from the date of the termination of the tenancy and not from the date of the sub letting or the date of default in payment of rent.
In the instant case, three months ' notice in writing under section 14(1)(b) terminating the tenancy was given on December 8, 1956.
The application under section 29(2) read with section 14(1) being filed on June 24, 1957 within two years of the termination of the tenancy is not barred by limitation.
In the result, the appeal is allowed with costs, the order of the Mysore Revenue Appellate Tribunal, Belgaum Branch dated July 27, 1960 is set aside and the orders passed by the Tahsildar, Bijapur and the Assistant Commissioner, Bijapur are restored.
Appeal allowed.

summary/full:
On 8th December 1956, the appellant served on the respondent three months ' notice in writing under section 14(1) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, terminating the tenancy on the ground of default in payment of rent.
On 24th June 1957 the appellant filed an application under section 29(2) for possession.
The Tahsildar allowed he application and the order was confirmed on appeal.
But in revision, the Revenue Tribunal set aside the order on the ground, that the application was barred by limitation, because, it was filed more than two years, after 20th May 1955, which was the date of default.
A petition ay the appellant under article 227, was rejected by the High Court.
In the appeal to the Supreme Court, on the question whether the application was filed within the two yea& period of limitation prescribed by section 29 (2).
HELD : Limitation for the application began to run from the date of the termination of the tenancy and not from the antecedent date of default in payment of rent and so, the application, filed within two years of the termination of the tenancy was not barred by limitation.
220 G] The legislature could not have intended that limitation would commence to run before the right to apply under section 29(2) accrues.
The right to apply accrues to the landlord when the tenancy is terminated by notice under section 14(1)(b).
But in spite of the termination of the tenancy the landlord has no right to obtain possession without an order under section 29(2).
On the termination of the tenancy, the right to obtain possession, though in reality not accrued to the landlord, is, by a legal fiction, deemed to have accrued to him.
Consequently, the date of termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord.
Since the limitation for, the application under section 29(2) commences to run from the date when the right to obtain possession is deemed to have accrued to the landlord, it would follow that limitation begins to run from the date when the tenancy is terminated by the notice under section 14(1) (b).
[218 A B, C D, F G] The history of the legislation also shows that both before and after the Amendment Act, 1951 which provided the two years ' period of limitation the date of the termination of the tenancy is the starting point of limitation.
[218 H] Ramachandra Anant vs Janardan, approved.
Chimanbai Rama vs Ganpat Jagannath, I.L.R. [1958] Dom. 917 (F.B.) overruled.