judgement:
Civil Appeal No. 1118 of 1972 (Appeal by Special Leave from the Judgment and Order dated 18 1 72 of the Jammu and Kashmir High Court in L.P.A. No. 6 of 1969.) L.N. Sinha, Satish Gupta, K.J. John and P.P. Singh, for the appellant R.K. Bhat and D.C. Anand for respondent 1B 1K.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave has arisen out of a suit brought by Smt.
Punna, respondent No. 1, against the two appellants and respondent No. 2 for the issuance of a perpetual injunction restraining the three defendants from interfering with her right to recover her father 's share of six annas in a rupee in the offerings made 211 at the sacred shrine of Shri Vaishno Devi Ji which is situated on the Trikutta Hills.
The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, in a second appeal by a learned Single Judge of the High Court of Jammu & Kashmir and in a Letters Patent Appeal by a Full Bench of that Court.
It is the judgment of the Full Bench (which is dated the 18th of January, 1972) that is impugned before us.
The averments made in the plaint may be summarised thus.
The plaintiff is the daughter of one Bagu who died in or about the year 1959.
During his life time Bagu and the three defendants were entitled to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain days falling within every seventh Bikrami year so that Bagu would have 6/16th share therein and the defendants collectively a similar share.
After the death of the plaintiff 's father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff having succeeded to the share of her father both under the law of inheritance and by virtue of a will executed by him in her favour.
The plaintiff had to resort to the suit as the defendants had started interfering with her right to collect her share of the offerings.
The defendants contested the suit.
They challenged the will set up by the plaintiff as a forged one and further pleaded that only members of four sub castes namely, Khas Thakars, Darora Thakars, Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings and that while Bagu was entitled to a share in the same, the plaintiff was not as she had lost her original sub caste by marriage outside the four sub castes mentioned above.
The offerings, according to the defendants, were also not liable to devolve by inheritance or demise.
The findings arrived at by the trial court were these: (i) On the death of a baridar (which expression, when literally translated, means turn holder) belonging to any of the aforementioned sub castes, his heirs inherited his right to receive offerings just as they inherited his other property.
(ii) Under section 4 of the Hindu Succession Act, any custom or usage inconsistent with the provisions of that Act becomes ineffective.
(iii)Even under section 6 of the Hindu Succession Act read with the Schedule appended therto the pro 212 perty of Bagu would devolve on the plaintiff in case Bagu died intestate.
(iv) Gagu executed a valid will in favour of the plaintiff devising to her the right to receive the offerings, apart from other properties.
(v) The plaintiff was entitled, in view of the above four findings to inherit the right to receive offerings not only by reason of the provision of sections 4 and 6 of the Hindu Succession Act, but also because of the will.
(5) At the hearing of the Letters Patent Appeal by the Full Bench, the following four contentions were raised on behalf of the defendants: (i) The chance of future worshippers making offerings to the deity is a mere possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act and is not property which can be transferred or inherited.
(ii) The right to receive offerings is not a transferable or heritable right.
(iii)The provisions of the Hindu Succession Act do not apply to the case in hand.
(iv) According to the custom governing the shrine of Shri Vaishno Devi Ji, only the abovementioned four subcastes were entitled to share the offerings.
All these contentious were rejected by the Full Bench as untenable.
In regard to the first of them the Full Bench followed Balmukand and Others vs Tula Ram and Others in which it was held that the right to receive offerings when made is a definite and fixed right and does not depend on any possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act, because the fact that offerings whether large or small are bound to be made is a certainty.
In relation to the second contention, the Full Bench noted the contents of paragraph 422 of "Principles of Hindu Law" by Mulla which states, inter alia, that where offerings, though made to idols, are received by persons independently of any obligation to render ser 213 vices, they are alienable and attachable.
Reference in this connection was also made to Balmukand and Others vs Tulla Ram and Others (supra) wherein the following passage occurs: "but when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature, such as officiating at the worship we are unable to discover any justification for holding that such a right is not transferable.
That the right to receive the offerings when made is a valuable right and is property, admits of no doubt and, therefore, that right must, in view of the provisions of section 6 of Transfer of Property Act, be held to be transferable, unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force.
" In view of these observations which were adopted and followed in Nand Kumar Dutt vs Ganesh Dass, the Full Bench, being in agreement therewith, proceeded to determine whether the right to receive the offerings in the present case was or was not independent of services of a priestly or personal nature.
The following translation of an extract from the Wajib ul Arz relating to village Purana Daiur wherein the holy shrine is situated, was then taken up for consideration : "Leaving aside cash, whatever is the 'Charatth ' at the temples of 'Ad Kanwari ' and 'Sri Trikutta Devi ' the entire Darora community distributes that among itself and of (?) other attached areas of Pangal, Sarron, Batan, Kotli, Gran, Parhtal etc.
according to hereditary shares.
And the castes 'Thakar Khas ' and 'Minotra ' are included in it.
Darora caste take two shares and Manotra and Khas castes also take one equal share of Charatth '.
That is divided as per hereditary shares.
There is no service in lieu thereof.
Only it is described as the blessings of Goddess.
Rupees twenty one hundred (two thousand one hundred rupees) go to the Government.
Every baridar keeps his man present in the temple who receives the 'Charatth '.
Pujaries get pay from us." and it was interpreted to mean that the right to share in the offerings made at the holy shrine had no connection with any priestly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as allenable right.
This very con 214 clusion was reached by the Full Bench on a consideration of the deposition of the Patwari of the concerned circle and the Ain i Dharamarth which purports to be the constitution of a Board of Trustees appointed by the State to manage the shrine.
In relation to the third contention, the Full Bench noted that the properties to which the Hindu Succession Act does not apply are only those which find enumeration in section 5 thereof, that the right to share the offerings is not one of those properties and that, therefore, such a right could not but be governed by the provisions of the Act.
In repelling the last contention the Full Bench relied upon the provisions of the Hindu Succession Act which over rides all customs or usage being part of the Hindu Law as in force immediately prior to the commencement of the Act and concluded that the custom of the right to share in the offerings being restricted to members of the four sub castes abovementioned could not be given effect to and that the plaintiff was fully entitled to succeed to that right in spite of the fact that she did not belong to any of those sub castes.
It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.
At the very outset Mr. L.N. Sinha, learned counsel for the appellant, has drawn our attention to the fact that the extract from the Wajib ul Arz taken note of by the Full Bench of the High Court relates not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity, namely, the temples of 'Ad Kanwari ' and 'Sri Trikutta Devi ' and has urged that the extract could not possibly relate to the temple of Shri Vaishno Devi Ji which was the main temple in the complex and a reference to which could not have been omitted from the extract in case it was intended to apply to that temple also.
A careful perusal of the extract shows that Mr. Sinha 's contention is well founded because there is not so much as a hint to the main temple in the extract.
According to Mr. Sinha, the duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965 66 Bikrami and a resolution passed by the Dharamarth Committee on Sawan 27, 1983 Bikrami.
These documents may be set out in extenso: Settlement Record "In the column of ownership, the State is entered as owner; in the column of possession Dharmarth Trust entered as in possession. 'Mandir Gupha ' situate on land compris 215 ing 7 marlas bearing Khasra No. 166 and 'Bhawan ' situate on land comprising 4 marlas bearing Khasra No. 167.
The sub caste Thakar Darora, Manotra, Khas, and Brahmin Samnotra have been sharing the offerings according to the shares mentioned below from the very beginning.
Thakar Daroras and Brahmin Samnotra are entitled to three shares and one share respectively out of 2/3 of the total offerings whereas Thakar Manotras and Khas are entitled to share equally in the rest 1/3 of the total offerings. "Darora Thakars are sub divided into further four subcastes namely; (i) Darora Sunk (ii) Darora Jaga (iii) Darora Pai and (iv) Darora Deoch and each one of them has one equal share.
Similarly Brahmin (Samnotra) have also divided their share into four shares which are received as under: Samnotra Brahmins from the branch of 'Darya ' one share, Brahmins from the branch of 'Bairaj ' one share; Brahmins from the branch of 'Gobind ' one share; and Brahmins from the branch of 'Ganesh ' one share.
Therefore 'Darora Sunk ' and Samnotras from the branch of 'Bairaj ' have their turn together in the one year and they divide the offerings for that in the proportion of 3.1 (i.e. 3 shares of Darora Sunk and 1 share to Samnotras from the branch of Bairaj).
Similarly Brahmins from the branch of 'Darya ' have their turn with 'Darora Jaga ' Brahmins from the branch of 'Ganesh ' with 'Darora Parath ' and Brahmins from the branch of 'Ganesh ' with 'Darora Deoch ' and Brahmins in each case receive 1/4th share and Darora Thakars have 3/4th share.
"In the beginning nothing was taken from these persons (baridaran) in consideration of their receiving the offering.
But because the Sadhus would often go to the shrine and due to the mismanagement of their stay and meals over there, there were always riots at the shrine.
Therefore, in the year 1907 Bikrami during the regime of Maharaja Gulab Singh an amount of Rs. 1150/ was fixed as 'Aian ' to be paid by the baridars for the management of stay and meals for Sadhus at the shrine.
The said amount was to be deposited in the State Treasury.
Thereafter in 1920 Bikrami another hundred rupees were added to the above said amount and thenceforth Rs. 1250/ were fixed per annum which was being deposited in the State Treasury.
After 1940 Bikrami the said 216 amount of Rs. 1250/ was being deposited with the Dharmarth Trust and this continues till today.
The said amount is recovered from Thakar sub castes.
Besides this, so many other things (such as silk chunis etc.) are received from the said Thakar baridars.
Thakar baridars are also liable to provide three permanent servants and six more peons during the season and will be liable to pay them.
The said Thakars are liable to arrange the carriage and pay for the 'Parshad ', etc., from Katra to Vaishno Devi temple.
With regard to the cattle kept by the Dharmarth Trustees, the said Thakars are liable to arrange for taking them from one place to another.
If any Government servant visits the shrine the said Thakars will be liable to arrange for the carriage of his luggage, etc.
The said Thakars are also liable to perform the following duties: (1) Cleanliness of the Gupha (Vaishno Devi temple) and the compound appurtenant thereto.
(2) To carry Puja material inside the Gupha (temple along with the Pujari.
(3) If during mela season there is any trouble to any pilgrim or he becomes, sick, etc, the said Thakars are liable to make proper arrangements for the removal of any such trouble.
" RESOLUTION OF THE DHARMARTH COMMITTEE "(a) Dharmarth Trust shall charge its usual Aian (rent) from the baridaran which shall be paid by them before they distribute their share of the offering.
The baridar who refuses or avoids the payment of rent to Dharmarth shall not be entitled to receive his share of the offering and the same shall be attached and deposited with the manager, Dharmarth Trust.
The baridar whose share has been thus attached can receive his share on payment of the rent due to the Dharmarth Trust." "(b) Unanimously it is passed that the strangers or persons other than baridars (i.e. four sub castes) shall have no right to get the Puja performed in the shrine." "(c) In case any baridar or his legal representative, due to any reason, cannot attend in person then it will be the duty of other co sharer to deposit the absentee 's share with 217 the Manager, Dharmarth Trust and when that baridar comes present, the Manager, Dharmarth Trust shall, after deducting the due, if any, from him to the Dharmarth, pay his share to him.
The baridaran shall be bound to perform the duties (such as Kah, Kunda, Argi etc.
as being performed by them previously).
" According to these documents the right to share the offerings is restricted to members of the four sub castes abovementioned, and although to begin with baridars did not perform any duties in return, certain obligations were superimposed on the right from the year 1907 Bikarmi onwards.
Those obligations are: (a) A duty to deposit a fixed annual sum with the Dharmarth Trust to be spent on arrangements for lodging and boarding of Sadhus visiting the shrine.
(b) To provide three permanent servants, in addition to six peons, during the "season".
(c) To pay for the 'prasad ' and to arrange its transport from Katra to Vaishno Devi temple.
(d) To arrange for the cattle owned by the Dharmarth Trust being taken from one place to another.
(e) To arrange for the carriage of the luggage of Government servants visiting the shrine.
(f) To keep the temple and the compound appurtenant thereto in a state of cleanliness.
(g) To carry inside the temple the material required for worship by the priest.
(h) To look after visitors to the shrine who fall ill and to make proper arrangements for the restoration or their health.
There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties.
But then it is apparent that none of those duties is in nature priestly or requiring a personal qualification.
On the other hand all of them are of a non religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense.
If the baridar chooses to perform those duties personally he is at liberty to do so.
But then the obligation extends merely to the making of necessary arrangements which may be secured on payment 218 of money to others, the actual physical or mental effort involved being undertaken by those others.
The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukand and other vs Tula Ram and others (supra) which has not been challenged before us as erroneous and which we regard as laying down the law correctly.
The contentions raised by Mr. Sinha to the contrary is thus repelled.
Another challenge made by Mr. Sinha to the impugned judgment is that the right to share offerings coupled with the duties to which it was subject must in its totality be regarded as an office (like that of a shebait) only and not as property and that therefore no question of its heritability could arise.
In this connection reference was made to the following observations made by Mukherjea, J., who delivered the judgment of the majority of this Court in Angurbala Mullick vs Debabrata Mullick. "In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager.
" There is nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge.
On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights and duties of a shebait.
However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right to property.
This is a proposition on which emphasis was laid by this Court in Angurbala 's case (supra) itself.
Mukherjea, J., observed in this connection: "But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebtaitship as a mere office.
The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property.
As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage.
Even 219 where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right.
Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other.
It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.
This was elaborately discussed by a Full Bench of the Calcutta High Court in Monohar Mukherji vs Bhupendra Nath Mukherji and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur vs Lal Behary, and again in Bhabatarini vs Ashalata.
The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejee vs Rumanlollji Gossammee "when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usase, course of dealing, or some circumstances to show a different dealing, or some circumstances to show a different mode of devolution.
" Unless, therefore, the founder has disposed of the shebaitship in any particular manner and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder.
" Angurbala 's case was followed by this Court in a recent decision reported as Ram Rattan vs Bajrang Lal & Others wherein Desai, J., who delivered the judgment of the Court observed: 220 "In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other.
Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable, property, and it has all along been treated as immovable property almost uniformly.
While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period.
It is, therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property." These observations as also those made in Angurbala 's case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing more or less than an office and is not heritable property.
The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that Act, Sub section (1) of which state: (a) Save as otherwise expressly provided in this Act any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision 's contained in this Act.
" The requirements of the custom relied upon by the appellants to the effect that the right could not be exercised by a person who is not a member of any of the four sub castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the 221 order of succession laid down in Chapter II of the Hindu Succession Act under which the right devolves on the plaintiff respondent.
The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to a decree.
This contention must be repelled for the simple reason that it was not raised before the High Court.
Besides, there being no repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point.
In the result the appeal fails and is dismissed, but the parties are left to bear their own costs throughout.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The plaintiff 's (respondent 's) father and the defendants (appellants) were entitled to receive a defined share in the offerings made at a holy shrine.
On her father 's death the plaintiff claimed his share in the offerings alleging that both under the law of inheritance and by virtue of her father 's will executed in her favour, she was entitled to his share; but the defendants interfered with her right to collect that share.
In the plaintiff 's suit the defendants contended that only members belonging to four specified sub castes were entitled to receive the offerings and the plaintiff having lost her sub caste by reason of her marriage outside those sub castes she was not entitled to her father 's share.
But this argument was rejected by the trial court which held that on the death of the baridar (turnholder) his heirs inherited his right to receive offerings just as they inherited his other property and that therefore, the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father.
On appeal a Division Bench of the High Court held that where offerings were received by persons independently of any obligation to render services, they were alienable and attachable and that the custom which restricted the right to a share in the offerings only to members of the four specified subcastes, could not be given effect to in view of the provisions of the Hindu Succession Act and that therefore, the plaintiff was entitled to succeed to the right though she did not belong to any of the sub castes.
On further appeal to this Court it was contended on behalf of the appellant that (1) the right of the baridar was not a transferable right and (2) the right to a share in the offerings and the duties attached to it must be regarded as an office like that of a shebait and cannot be regarded as heritable property.
Dismissing the appeal, ^ HELD: The right of the baridar was a transferable right.
To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and a resolution passed by the Dharmarth Committee, was restricted to the four sub castes, and similarly the baridars did not perform any duties in return.
Sometime later, however, certain obligations, such as to provide permanent servants, to look after visitors and the like, were superimposed on that right.
Though the right to receive a share in the offerings was subject to the performance of those duties none of them 210 was in nature priestly or required a personal qualification.
All of them were of a non religious or secular character which could be performed by the baridar 's agents or servants incurring expense on his account.
When the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of personal nature, (such as officiating the worship) such a right is heritable as well as alienable.
[217 B H] Balmukand & ors.
vs Tula Ram & ors., AIR 1928 All. 721 approved.
(a) The right of the baridars cannot be equated with the right and duties of a shebait.
The baridars were not managers of the shrine in the sense that a shebait is in relation to a temple in his charge.
The overall management of the temple vested in the Board of Trustees known as Dharmarth Committee.
[218 E] (b) It is not correct to say that shebaitship is neither more nor less than an office and is not heritable property.
Shebaitship cannot be described as a mere office.
In addition to certain responsibilities it carries with it a definite right to property.
It is well established that in the concept of Shebait, both the elements of office and property, duties and personal interest are mixed up and one element cannot be detached from the other.
Old texts as courts have recognised heriditary office of shebaitship as immovable property.
A B] Angurbala Mullick vs Debabrata Mullick, ; Ram Rattan vs Bajrang Lal & ors. ; followed.
The right to share the offerings being a right coupled with duties other than those involving personal qualifications and being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act in supersession of all customs to the contrary in view of section 4 of that Act.
[220 H] In the instant case, in the light of section 4 of the Hindu Succession Act the requirement that the right could not be exercised by a person not belonging to any of the four sub castes becomes ineffective.
[220 H]


judgement:
Appeal No. 199 of 1955.
Appeal by special leave from the judgment and order dated the 17th day of April 1953 of the Nagpur High Court in Miscellaneous Civil Case No. 53 of 1950.
Nur ud din Ahmad and Naunit Lal, for the appellant.
C. K. Daphtary, Solicitor General of India, G. N. Joshi and B. H. Dhebar, for the respondent.
February section The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal with special leave from the Judgment and Order of the High Court of Judicature at Nagpur on a reference made by the Income tax Appellate Tribunal, Bombay Branch 'A ' under section 66(1) of the Indian Income tax Act XI of 1922 whereby the High Court answered the ref erred question against the appellant.
The appellant, a firm of Messrs Pratapmal Laxmichand of Betul consisted of 7 partners, viz., Misrilal Goti, Meghraj Goti, Panraj Goti, Phulchand, Basantibai, Ratanbai and Gokulchand Goti.
A deed of partnership was executed on the 12th February 1944 by all the partners except Gokulchand Goti who happened to be in the Seoni Jail being a security prisoner under the Defence of India Rules.
He was unable to sign the same in spite of all efforts to obtain his signature in prison.
An application for registration of the firm under section 26 A of the Act for the assessment year 1943 44 was made on the 24th March 1944 personally signed by the other 6 partners of the firm and was accompanied by the deed of partnership which also had been signed by those 6 partners.
The Special Income tax Officer, Nagpur, rejected the application on the ground that the deed itself was not valid inasmuch as it had not been signed 93 by all the partners mentioned in the body and there was no signature of Gokulchand on the deed and the application.
An appeal was taken to the Appellate Assistant Commissioner against this decision of the Special Income tax Officer on the 24th April 1944.
Gokulchand appended his signature to the deed of partnership in Seoni Jail on the 9th January 1945.
The appeal was heard before the Appellate Assistant Commissioner on the 20th March 1947 and he passed an order on the 17th February 1948 cancelling the order of the Special Income tax Officer and directing him to register the firm after obtaining the signature of Gokulchand both on the application for registration and the deed of partnership.
At the instance of the Commissioner of Income tax, C. P. and Berar, an appeal was filed against this order of the Appel late Assistant Commissioner by the Income tax Officer, Spl.
I.T. cum E.P.T. Circle, Nagpur, before the Income tax Appellate Tribunal.
The Tribunal allowed the appeal by its order dated 11/16 October 1948 observing that the Special Income tax Officer was justified in refusing to register the firm as the application for registration was not signed by Gokulchand, that Rule 2(c) of the Indian Income tax Rules, 922, on which the Appellate Assistant Commissioner teems to have relied did not apply and the Appellate Assistant Commissioner was not justified in directing the Income tax Officer "to register the firm after obtaining the signature of Seth Gokulchand both in the application for registration and the deed of partnership".
The appellant applied for a reference to the High Court under section 66(1) of the Act and the Tribunal referred the following question arising out of its order for the opinion of the High Court: "Whether on the facts and in the circumstances of the case the Appellate Assistant Commissioner was legally competent to direct the Income tax Officer to register the firm after obtaining the signature of Seth Gokulchand both in the application for registration and in the deed of partnership".
When the statement of the case was being drawn up by the Tribunal, counsel for the appellant suggested that the words 94 appearing in para 6 of the statement, viz., "No application was submitted to the Appellate Assistant Commissioner seeking his permission under Rule 2(c) of the Indian Income tax Rules" be deleted.
He also suggested that the concluding words in the question referred to the High Court, viz., "after obtaining the signature of Seth Gokulchand both in the application for registration and in the deed of partnership" be deleted.
With regard to the latter suggestion the Tribunal observed that they were unable to delete the same inasmuch as the words sought to be deleted were the concluding words appearing in the Appellate Assistant, Commissioner 's order dated the 17th February, 1948 giving directions to the Income tax Officer and were words which were material to the question before the High Court.
With regard to the first suggestion counsel for the appellant had stated that the appellant had submitted three applications to the Appellate Assistant Commissioner all dated 20th March, 1947 and that it would be wrong to state that no application was submitted to the Appellate Assistant Commissioner.
The allegation made by the appellant was properly investigated subsequently and the Tribunal was satisfied that the appellant did not appear to have put in the application dated 20th March, 1947 as alleged.
This being the position the Tribunal stated that no change in the statement of case was called for as suggested by the appellant.
It was on this statement of case by the Tribunal that the referred question came to be determined by the High Court.
Before the High Court the appellant had applied on the 27th November, 1950 that the three certified copies of the three applications dated 20th March, 1947 made by the appellant to the Appellate Assistant Commissioner with their originals should be sent for by the High Court from the Incomeax Tribunal and an order had been made accordingly.
he High Court was of the opinion that the Appelate Assistant Commissioner should have ordered egistration of the firm provided there was an application before him duly signed by all the partners.
As, 95 however, there was no such application, he could not have directed the Income tax Officer to register the firm after obtaining the signature of Gokulchand on the application and also in the partnership deed .
The High Court accordingly answered the referred question in the negative.
An application under section 66 A(2) of the Act for a certificate for leave to appeal to this Court against that order was dismissed by the High Court but the appellant obtained special leave to appeal against the same from this Court on the 6th December, 1954.
The main question that arises for our determination in this appeal is: What are the powers of the Appellate Assistant Commissioner on the hearing of an appeal against the refusal by the Income tax Officer to register a firm under section 26 A of the Act and Rule 2 of the Indian Incometax Rules, 1922? Section 26 A of the Act provides: " (1) Application maybe made to the Income tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or supertax.
(2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed; and it shall be dealt with by the Income tax Officer in such manner as may be prescribed".
Rule 2 of the Indian Income tax Rules, 1922, which was in force at the relevant period, in so far as is material for the purpose of this appeal, provided: "Any firm constituted under an Instrument of Partnership specifying the individual shares of the partners may, under the provisions of section 26 A of the Indian Income tax Act, 1922 register with the Income tax Officer the particulars contained in the said Instrument on application made in this behalf.
Such application shall be signed by all the partners 96 (not being minis) personally and shall be made (a) before he income of the firm is assessed for any year under section 23 of the Act, or (b). . or (c) with the permission of the Appellate Assistant Commissioner hearing an appeal under section 30 of the Act, before the assessment is confirmed, reduced, enhanced or annulled, or (d) (e) The decision of the Income tax Officer in regard to the invalidity of the deed of partnership inasmuch as it did not bear the signature of Gokulchand was not challenged by the appellant at any stage of the proceedings nor in the statement of case before us.
Counsel for the appellant, however, relying on a passage in the "Law and Practice of Income tax by Kanga and Palkhivala", 3rd Ed., at page 754, urged that it was not necessary that the partnership agree ment should be signed by all the partners and if the agreement had not been signed by one of the partners but that partner had assented to the agreement and put it forward along with the other partners for registration, the agreement would be admissible for registration.
In the first instance, it was not open to the appellant to urge any point which was not taken in the statement of case and even if it was open to him to urge that contention we do not think it necessary to express any opinion on the correctness or otherwise of the statement above referred to in view of the construction which we put on Rule 2 of the Indian Income tax Rules, 1922.
The Rules were framed under section 26 A(2) of the Act and bad statutory force.
Under Rule 2, the application for registration of the firm was to be made to, the Income tax Officer and the particulars contained in the Instrument of Partnership specifying the individual shares of the partners were to be registered with him on an application made in that behalf signed by all the partners (not being minors) personally.
No such application was submitted to the Special Income tax Officer in this case before he 97 made his order on the 18th March 1944, and on the materials as they stood on record then, the order of the Special Income tax Officer was perfectly justified.
No such application signed by all the partners of the firm including Gokulchand was also available before the Appellate Assistant Commissioner when he heard the appeal on the 20th March 1947.
The appellant contended that he had in fact filed in the office of the Appellate Assistant Commissioner on the said 20th March 1947 three applications one of which was such an application signed by all the partners personally including Gokulchand and it was strenuously urged on his behalf that the Appellate Assistant Commissioner passed his order dated the 17th February 1948 ignoring the said application which had been filed in his office.
It was urged that, if the Appellate Assistant Commissioner had before him the said application dated the 20th March 1947 signed by all the partners personally including Gokulchand, it was his duty to direct a registration of the firm himself without anything more inasmuch as the deed of partnership had been signed by Gokulchand on the 9th January 1945 and the application for registration of the firm dated the 20th March 1947 bore his signature.
The direction given by the Appellate Assistant Commissioner to the Income tax Officer to register the firm was, it was contended, therefore proper and we were asked to treat the words "after obtaining the signature of Seth Gokulchand in the application for regis tration and in the deed of partnership" as superfluous.
We are not impressed with this argument.
As appears abundantly clear from the terms of the order made by the Appellate Assistant Commissioner himself and also from the statement of case prepared by the Tribunal, the application signed by all the partners personally including Gokulchand was not before the Appellate Assistant Commissioner.
An application had been made by the appellant before the Tri bunal to amend the statement of case by deleting from para 6 thereof the words "no application was submitted to the Appellate Assistant Commissioner 13 98 seeking his permission under Rule 2(c) of the Indian Income tax Rules" but the same had been rejected by the Tribunal as a result of proper investigation conducted by it subsequently, the Tribunal stating that they were satisfied that the assessee did not appear to have put in an application dated the 20th March 1947 as alleged.
The reference was beard by the High Court on this statement of case prepared by the Tribunal and no steps were taken by the appellant before the High Court for having the statement of case amended by the Tribunal or for having a further statement of case submitted by the Tribunal recording therein the facts alleged by the appellant.
We must, therefore, decide this appeal on the facts stated in the statement of case by the Tribunal and on the basis that the application for registration dated the 20th March 1947 signed by all the partners personally including Gokulchand was not before the, Appellate Assistant Commissioner.
If that was the position, the only power which the Appellate Assistant Commissioner bad under Rule 2(c) was to accord permission to the appellant to make the application in proper form to the Incometax Officer signed by all the partners personally including Gokulchand before the assessment was confirmed, reduced, enhanced or annulled.
The Appellate Assistant Commissioner had, under the Rule, no power to direct the Income tax Officer to register the firm after obtaining the signature of Gokulcband both in the application for registration and in the deed of partnership as he did.
As a matter of fact the appellant did not ask for such permission from the Appellate Assistant Commissioner nor was any revision taken by the appellant before the Commissioner under section 33 A of the Act against the said order of the Appellate Assistant Commissioner.
The appellant contented himself with arguing that the order made by the Appellate Assistant Commissioner was justified and the sole controversy which arose between the parties and was the subject matter of the referred question was whether the Appellate Assistant Commissioner was legally competent to direct the Income 99 tax Officer to register the firm after obtaining the signature of Gokulchand both in the application for registration and in the deed of partnership.
The appellant attempted no doubt to have the words "after obtaining the signature of Seth Gokulchand both in the application for registration and in the deed of partnership" deleted from the referred question.
That attempt, however, failed and no steps were taken by the appellant before the High Court at the hearing of the reference to either have the referred question amended or reframed in order to bring into prominence his contention in regard to the powers of the Appellate Assistant Commissioner.
On the question as framed, the only answer which the High Court could give was that the Appellate Assistant Commissioner was not legally competent to direct the Income tax Officer to register the firm after obtaining the signature of Gokulchand both in the application for registration and in the deed of partnership.
Rule 2(c) above quoted did not empower the Appellate Assistant Commissioner to do anything of the sort and we are of the opinion that the answer given by the High Court in the negative was, therefore, correct.
Counsel for the appellant tried to support his argument by referring to the provisions of the earlier partnership deeds between the several partners of this firm in the years 1929 and 1941 which specifically provided that in the event of retirement, or death of, or relinquishment, of his share by a partner, the partnership will not be dissolved but will be continued, in case of death of any of the partners, by such of the partners as remained and the legal representatives or nominees of the deceased partner and in the case of retirement of any of the partners by such of the partners as remained.
We fail to understand what bearing these clauses have on the determination of the referred question.
In the result, the appeal of the appellant fails and must stand dismissed with costs.

summary/full:
The appellant (a firm) consisted of seven partners and a deed of partnership was executed by all the partners except one who happened to be in Jail being a security prisoner under the Defence of India Rules.
An application for registration of the firm under section 26 A of the Indian Income tax Act was made before the Incometax Officer, who, however, rejected it on the ground that the deed of partnership and the application for registration were not signed by all the partners.
On appeal, the Appellate Assistant Commissioner cancelled the order of the Income tax Officer and directed him to register the firm after obtaining the signature of the partner who had not signed before, both on the application for registration and the deed of partnership.
Held, that under Rule 2(c) of the Indian Income tax Rules, 1922, framed under section 26 A(2) of the Indian Income tax Act, the Appellate Assistant Commissioner had only the power to direct registration of the firm if an application duly signed by all the partners had been presented to him before the assessment was confirmed, reduced, enhanced or annulled and that he was not legally 92 competent to direct the Income tax Officer to register the firm after obtaining the signature of the partner who had not signed before.


judgement:
Civil Appeal No. 2010 of 1969.
(From the Judgment and Decree dt.
11 7 68 of the Bombay High Court in Appeal No. 534 of 1960).
Girish Chandra and M. N. Shroff for the appellant.
A. G. Ratnaparkhi for the respondent.
The Judgment of the Court was delivered by KOSHAL, J.
The facts giving rise to this appeal by the two defendants (who are the State of Maharashtra and one of its Executive Engineers) on certificate granted by the High Court of Bombay against its judgment dated 11th July 1968 may be briefly stated.
In the year 1955, defendant No. 1 decided to construct an aqueduct over Kulthi Nala situated in Malegaon Sub Division of Nasik district.
The Executive Engineer, Nasik Irrigation Division, invited tenders for the work which was entrusted to the plaintiff in acceptance of his tender on conditions reduced to writing in the form of exhibit 66.
The estimated cost of the work was Rs. 1,55,854.00 and it was to be completed within 12 months from the date of the written order to commence it which happened to be the 16th of May 1955.
The plaintiff paid a sum of Rs. 1558/ as earnest money and another of Rs. 3896/ as security deposit to defendant No. 1.
Clauses (2) and (3) of the contract in accordance with which the work was to be executed provided as follows: "(2): The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor xx xx The work shall throughout the stipulated period of the contract be proceeded with all due diligence (time being deemed to be of the essence of the contract on the part of the contractor) and the contractor shall pay as compensation an amount equal to one per cent or such smaller amount as the Superintending Engineer xx xx xx may decide xx for every day that the work remains uncommenced, or unfinished after the proper dates.
And further to ensure good progress during the execution of the work, the contractor shall be bound, in all cases in which the time allowed for any work exceeds one month, to complete 190 in 1/4 of time 1/10 of the work, in 1/2 of time 4/10 of the work, in 3/4 of time 8/10 of the work xx xx xx xx xx xx" "(3): In any case in which under any clause or clauses of this contract the contractor shall have rendered himself liable to pay compensation amounting to the whole of his security deposit xx xx xx xx or in the case of abandonment of the work owing to serious illness or death of the contractor or any other cause, the Executive Engineer xx xx xx shall have power to adopt any of the following courses: (a) to rescind the contract (of which rescission notice in writing to the contractor under the hand of the Executive Engineer shall be conclusive evidence) and in that case the security deposit of the contractor shall stand forfeited and be absolutely at the disposal of the Government.
(b) xx xx xx xx xx xx (c) xx xx xx xx xx xx In the event of any of the above courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him.
" Clauses (4) and (5) of the contract related to action to be taken when the progress of any particular portion of the work was found unsatisfactory.
Provision was made in the contract for interim payments of running bills submitted by the plaintiff and for final payment to him against a certificate of completion of the work.
Clause (6) of the contract provided for extension of time during which the work was to be completed, in pursuance of applications to be made by the plaintiff.
A provision was made in clause (14) of the contract for extension of time as a consequence of additions to or alteration in the work.
The plaintiff started executing the work and by December 1955, running payments amounting to Rs. 13,967/ in all had been made to him against bills submitted by him.
In the month of March 1956, Shri Y. A. Shinde, defendant No. 2, came to occupy the post of Executive Engineer in Nasik Irrigation Division and called upon the plaintiff to speed up the execution of the work as the progress thereof was not satisfactory.
However, the work continued to be executed at a snail 's pace and on May 9, 1956 the plaintiff made an application 191 (exhibit 54) for extension of the time fixed for completion of the work by a period of six months.
That application was rejected by defendant No. 2 who informed the plaintiff accordingly through a letter dated June 15, 1956 (exhibit 55) which stated inter alia that the reasons put forth by the plaintiff for extension of the time limit were not convincing, that the application had not been received within the time prescribed in that behalf by clause (6) of the contract and that the proportion of the work executed did not conform to the condition contained in clause (2) of the contract, the value of the work executed till then being only Rs. 25,000/ .
The letter further informed the plaintiff that he had become liable to pay compensation under clause (2) of the contract and called upon him to show cause why action should not be taken against him under clause (3) thereof.
Ultimately, by letter dated October 30, 1956 (exhibit 48) the plaintiff was informed that it had been decided to burden him with compensation at the rate of Rs. 5/ per day for the entire period commencing on the 16th of May 1956 and ending with the completion of the work and that if the plaintiff failed to show satisfactory progress within a month of the date of the letter, defendant No. 2 would be compelled to increase the rate of compensation and take suitable penal action against the plaintiff.
The work not having made much progress and the plaintiff having stopped its execution, he was informed by a letter dated January 17, 1957 (exhibit 49) that the contract stood rescinded under clause (3) thereof.
The defendants also forfeited the security deposit which had by then swelled, presumably on account of the addition of interest, to Rs. 4679/ (although this amount has been erroneously described by the High Court as consisting of the earnest money of Rs. 1558/ and the security deposit of Rs. 3896/ ).
In his suit, the plaintiff claimed a refund of the said amount of Rs. 4679/ , another sum of Rs. 2500/ on account of the balance due to him for part execution of the work and still another sum of Rs. 4000/ by way of damages.
The trial court found that the plaintiff had failed to prove that any sum was due to him for execution of the work or by way of damages, but further held that the forfeiture of the security deposit was illegal.
It therefore granted a decree to the plaintiff for the sum of Rs. 4679/ only with interest at 3 per cent per annum from the date of the suit till realisation and also proportionate costs of the suit.
Aggrieved by the decree passed by the trial court, the defendants went up in appeal to the High Court and the plaintiff filed his cross objections to the decree appealed from which was maintained by the 192 High Court in its entirety.
The High Court agreed with the findings of the trial court and on the question of rescission of the contract observed as follows: "In our view in law the contract could not be rescinded subsequent to the expiry of the due date for the performance thereof.
The right to rescind a contract is the right to put it to an end and such right cannot exist after due date for the performance expires.
The right to rescind the contract is the right to accept anticipatory breach thereof by the promissor, i.e., prior to the expiry of the date of the performance of the contract.
This right arises in favour of the promisee under section 39 of the Contract Act.
A contract cannot be abandoned by either side either by a promissor or a promisee after the expiry of the due date for performance thereof.
For the above reasons in our view the abandonment of the work of the contract as mentioned in sub clause (a) of the clause relate to (anticipatory) breach of the contract by the contractor before the due date for the performance thereof.
In this case the Executive Engineer purported to rescind the contract which had become dead some time in August 1956.
He purported to do so on the ground that the contractor had abandoned the contract some time in October 1956.
The Executive Engineer in our view, had no power under clause (3) to rescind the contract having regard to the facts and circumstances which we have already pointed out above.
The forfeiture of the security deposit on the footing that the contract was validly rescinded must be held to be unjustified and untenable.
" It was on the basis of this conclusion that the trial court 's decree for Rs. 4679/ passed in favour of the plaintiff was affirmed.
On the 9th of June 1969 however, the High Court certified the case to be a fit one for appeal by the defendants to the Supreme Court under sub clause (c) of clause (1) of article 133 of the Constitution of India.
At that stage defendant No. 1 agreed to pay the costs of the respondent in the proceedings before the Supreme Court.
Learned counsel for the appellants has challenged the correctness of the observations made by the High Court and reproduced above.
Those observations, according to him, run counter to the tenor of clauses (2) and (3) of the contract governing the execution of the work and we are of the opinion that his criticism thereof is justified.
Although in clause (2) of the contract it was specifically mentioned that time was of the essence of the agreement between the parties, all 193 that was meant was that in case the work was not completed within the time originally specified in that behalf, the plaintiff would be liable to pay such compensation for delay in execution as was fixed by the Superintending Engineer within the limits laid down in the clause.
This becomes clear not only from the provision appearing in clause (2) and stating that "the contractor shall pay as compensation an amount equal to 1 per cent or such smaller amount as the Superintending Engineer may decide for every day that the work remains uncommenced, or unfinished after the proper dates" but also from the contents of clause (3) of the contract, which would become operative only if the plaintiff renders himself liable to pay compensation [in accordance with clause (2)] or abandons the work either on account of serious illness or death or for any other cause and it is then that the contract would become liable to rescission.
Clauses (2) and (3) have to be read together and interpreted with reference to each other and their provisions, read as one single whole, clearly mean that the contract was to continue to be in force till the completion of the work or its abandonment.
The time was of the essence of the contract only in the sense that if the plaintiff completed it within the original period of one year, he would not be liable to pay any compensation but that in case he overstepped the said time limit he would have to compensate the defendants for every day of the delay in completing the work and that the right to rescission would accrue to the defendant No. 2 only when the compensation due exceeded the amount of the security deposit or the plaintiff abandoned the work.
Till the time the contract was rescinded therefore, it was fully in force and the rescission was consequently well founded, being squarely covered by clause (3) of the contract, sub clause (a) of which conferred on the Executive Engineer the right to forfeit the security deposit Far from being illegal, the forfeiture was fully justified and the High Court 's finding to the contrary is liable to be reversed.
In the result the appeal succeeds and is accepted, the decree of the High Court is set aside and the suit of the plaintiff is dismissed in its entirety.
In accordance with the undertaking given by defendant No. 1 on the 9th June 1969 to the High Court when it certified the case to be a fit one for appeal to this Court, the plaintiff shall be entitled to the costs incurred by him in this Court.
In respect of costs in the two courts below, we make no order.
P.B.R. Appeal allowed.

summary/full:
Clause (2) of a works contract entered into by the plaintiff (respondent) with the defendant (appellant) stipulated that time was of the essence of the contract, that time (of one year) allowed for carrying out the work shall be strictly observed by the contractor, and that the contractor shall pay compensation at a certain percentage for every day when the work remained unfinished after the proper dates.
One of the three courses open to the defendant under cl.
(3) was to rescind the contract in case the contractor rendered himself liable to pay compensation or abandoned the work owing to serious illness or death of the contractor or any other cause and in that event security deposit of the contractor was to stand forfeited.
It was also provided in that clause that in the event of any of the above courses being adopted by the defendant the contractor shall have no claim to compensation for any loss sustained by him.
The work remained unfinished beyond the stipulated time.
The defendant rejected the contractor 's request for extension of time and eventually rescinded the contract under cl.
(3) and forfeited the security deposit.
In the plaintiff 's suit for refund of security deposit and payment of certain other sums, the trial court, holding that the forfeiture of security deposit was legal, granted a decree for its refund.
On appeal the High Court held that the right to rescind a contract being a right to put an end to it, it could not exist after the date for its performance had expired and that in this case the right of rescission having been exercised after the expiry of the date of contract, the impugned action of the defendant in rescinding the contract was unjustified.
Allowing the appeal, ^ HELD: 1.
The rescission of the contract was well founded and the forfeiture of the security deposit was justified.
[193 F] 2.
Although cl.
(2) specifically mentioned that time was of the essence of the contract, all that was meant was that in case the work was not completed within the originally specified time, the plaintiff would be liable to pay such compensation for delay in execution as was fixed within the limits of that clause.
This is clear not only from clause (2) but also from clause (3).
These two clauses must be read together.
So read, the contract was to continue to be in force till the completion of the work or its abandonment.
Time was of the essence only in the sense that if the plaintiff completed it within the original period of one year, he would not be liable to pay any compensation but in case he overstepped that limit he would have to compensate for every day of delay and that the right 189 to rescission would accrue only when compensation due exceeded the amount of the security deposit or the plaintiff abandoned the work.
Till the time it was rescined, the contract was in force.
[193 A C]


judgement:
N: Criminal Appeal No. 245 of 1975.
Appeal by Special Leave from the Judgement and order dated 25 3 1975 of the Delhi High Court in Criminal Appeal No. 122/72.
Harjinder Singh for the Appellant.
E. C. Agarwala and R. N. Sachthey for Respondent No. 1 V. section Desai, B. P. Maheshwari and Suresh Sethi for Respondent No. 2.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by special leave against a judgment of the High Court of Delhi dated 25th March, 1975 convicting the appellant of an offence under clause (i) of sub section (1) of section 16 read with clause (i) of section 7 of the (hereinafter called the Act) and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1000/ , the sentence in default of payment of fine being rigorous imprisonment for three months.
The facts giving rise to the appeal may be briefly stated.
Food Inspector V. P. Anand, (P.W.2) visited the premises of Messrs Mebrose Ice Cream and Frozen Food Co. (which carries on business in Greater Kailash No.1, a locality of New Delhi and is hereinafter referred to as the Company) on the 22nd May 1970 and bought for 315 purposes of analysis a sample of chocolate ice cream from the appellant who was one of the employees of the Company.
An inventory of the sample was prepared by the Food Inspector and at the foot of the same the appellant made the following endorsement: "A sample of Chocbar Ice Cream (Chocolate Ice Cream) manufactured by Mebrose Ice Cream and Frozen Food Co., M 67, Greater Kailash, given as per above.
This Ice Cream Chocolate is of one lot.
This is prepared of covering Chocolate, vegetable ghee and Ice Cream.
" The sample was forwarded to the Public Analyst who thus details the conclusions arrived at by him on analysis thereof, in report exhibit PE: "Total solids by Weight : 45 per cent.
Protein by weight: 4.4 per cent.
Chocolate: Present.
Butyro refractometer reading at 40 degree C of the fat extracted from ice cream: 49.4.
Baudouin test of the extracted fat: Positive.
Melting point of the extracted fat: 34 degree C." In his report the Public Analyst further stated that in his opinion the sample was adulterated "as the Butyro refractometer reading at 40 degree C was round 6.4 in excess and the Baudouin test was found positive of the extracted fat. . " A complaint was lodged by the Municipal Corporation of Delhi against the appellant, the Company and its managing partner Avtar Singh in respect of an offence under section 7 read with section 16 of the Act.
The trial court acquitted the Company but convicted the other two accused, sentencing each of them to rigorous imprisonment for six months and a fine of Rs. 1000/ , the sentence in default of payment of fine being rigorous imprisonment for four months.
Both the convicts appealed to the Sessions Court and were acquitted by an order dated 9th March 1972 passed by an Additional Sessions Judge.
The Municipal Corporation of Delhi then knocked at the door of the High Court which upheld the acquittal of Avtar Singh but convicted and sentenced the appellant as aforesaid by the impugned judgment, mainly for the reasons reproduced below: "It is established on the record beyond doubt that this endorsement was made by Kishan Chand and it contains an admission that vegetable ghee was used in the preparation of 316 the ice cream sold by him.
The judgment of the learned Additional Sessions Judge reveals that the contention of the defence before him was that Vanaspati was used in the preparation of the relevant ice cream by way of emulsifier but the plea was misconceived because vegetable ghee cannot be made to serve as an emulsifying agent.
A reference to the Prevention of Food Adulteration Rules, 1955 shows that as per Rule 60 'brominated ' vegetable oil is one of the recognised emulsifying and stabilising agents but Rule 61 forbids addition of brominated vegetable oil to milk or cream and without milk and/or cream manufacture of ice cream is inconceivable.
Moreover, the stand of the accused from the very start has been that 'vegetable ghee ' had been used in the preparation of ice cream and not that any 'brominated ' vegetable oil got into the ice cream by way of an emulsifying or stabilising agent.
The evidence would not countenance the contention raised before us.
" 3. Having heard learned counsel for the parties at length we are of the opinion that the sample in question is not shown to have been adulterated within the meaning of the Act.
The case is admittedly governed by the Prevention of Food Adulteration Rules 1955 which have been framed by the Central Government in exercise of the powers conferred on it by section 23 of the Act and which are hereinafter called the Rules.
Rule 60 defines "emulsifying agents" and "stabilising agents" to mean substances which, when added to food, are capable of facilitating a uniform dispersion of oils and fats in aqueous media, or vice versa, and/or stabilising such emulsions.
The rule then proceeds to specify numerous agents of the type mentioned and they include brominated vegetable oils.
Rule 61 declares that no emulsifying or stabilising agents shall be used in any food except where their use is specifically permitted.
A proviso added to the rule states that certain emulsifying or stabilising agents, including brominated vegetable oils, shall not be used in milk and cream.
Appendix B to the Rules specifies the standard of quality of various articles of food.
Milk and milk products are dealt with in that Appendix under Group A.11 which is divided into various items.
Item A.11.01 which is further divided into sub items A 11.01.01 to A 11.01.11 contains definitions and standards of purity of various kinds of milk.
Item A.11.02 defines milk products thus: "MILK PRODUCTS means the products obtained from milk such as cream, malai, curd, skimmed milk curd, 317 chhanna, skimmed milk chhanna, cheese, processed cheese, ice cream, milk ices, condensed milk sweetened and unsweetened, condensed skimmed milk sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi butter.
" Then follow definitions of different kinds of milk products in sub items A.11.02.01 to A.11.02.21.
"Cream" is defined as follows in sub item A.11.02.02: "CREAM excluding sterilised cream means the product of cow or buffalo milk or of a combination thereof which contains not less than 25.0 per cent milk fat.
" Chocolate ice cream forms the subject matter of sub item A.11.02.08 which runs thus: "ICE CREAM, KULFI, AND CHOCOLATE ICE CREAM mean the frozen product obtained from cow or buffalo milk or a combination thereof or from cream, and/or other milk products, with or without the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts, chocolate, edible flavours and permitted food colours.
It may contain permitted stabilizers and emulsifiers not exceeding 0.5 per cent by weight.
The mixture shall be suitably heated before freezing.
The product shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when any of the aforesaid preparations contain fruits or nuts or both, the content of milk fat may proportionately reduced but shall not be less than 8.0 per cent by weight.
"Starch may be added to a maximum extent of 5.0 per cent under a declaration on a label as specified in sub rule (2) of Rule 43. "The standards for ice cream shall also apply to softy ice cream." From the above examination of the provisions of Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice cream, kulfi and chocolate ice cream are treated as a class by themselves, which is different, for the purpose of purity from other milk products including cream.
The classification employed leaves no room for doubt that 318 when the proviso to rule 61 states that certain emulsifying and stabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice cream and chocolate ice cream.
Had the rule making authority meant by the proviso to prohibit the use of the said agents in all milk products, the expression used would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream".
The prohibition contained in the proviso thus does not apply to ice cream, kulfi, chocolate ice cream covered by sub item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabilisers and emulsifiers not exceeding, 0.5 per cent by weight.
In equating the words "milk and cream" with milk and all its products, the high Court was clearly in error and this is so in spite of the fact that ice cream, kulfi and chocolate ice cream must have milk or cream as a necessary ingredient.
It follows that brominated vegetable oils could have formed a part of the chocolate ice cream sold by the appellant, to the extent 0.5 per cent by weight, without the article being treated as adulterated under the Rules.
Before the appellant could be convicted, therefore, it was incumbent on the prosecution to establish that the sample taken from him contained either brominated vegetable oils or other permitted stabilisers and emulsifiers exceeding 0.5 per cent by weight or that it did not conform to the prescribed standard in some other detail.
Apart from falling into the error of misreading rules 60 and 61, the High Court considered the sample taken from the appellant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee" in the preparation of the chocolate ice cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil.
This is again an erroneous approach to the problem in hand.
It was for the prosecution to prove affirmatively that the sample in, question contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established which is not the case.
All that was made out from the evidence before the court was that the Butyro refractometer reading at 40 degree C was higher than the maximum prescribed for milk fat by 6.4 and that the Baudouin test was positive.
These two factors indicated that either vanaspati or milk fat to which til oil had been added was one of the ingredients of the sample.
There is not an iota of evidence on the record to show whether or not such til oil was brominated, which means that the prosecution had completely failed to prove that the ingredient objected to by it was a substance other than 319 a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight.
The Butyro refractometer reading did no doubt except the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils.
The sample of chocolate ice cream obtained by the Food Inspector from the appellant not having been shown to be adulterated, the appeal is accepted, the judgment of the High Court in so far as it relates to the appellant is reversed, the conviction recorded against and the sentence imposed upon the appellant by the High Court are set aside and he is acquitted of the charge.
The bail bond executed by him shall stand cancelled.
P.B.R. Appeal allowed.

summary/full:
Rule 60 of the Prevention of Food Adulteration Rules, 1955 defines "emulsifying agents" and "stabilising agents" to mean substances which, when added to food, are capable of facilitating a uniform dispersion of oils and fats in acqueous media or vice versa and/or stabilising such emulsions.
One of the agents mentioned, among others, in the rule is brominated vegetable oils.
Rules 61 declares that no emulsifying or stabilising agents shall be used in any food except where they are used as specifically permitted.
The proviso to the rule states that certain emulsifying or stabilising agents including brominated vegetable oils shall not be used in milk and cream.
A food inspector visited an Ice cream factory and collected a sample of chocolate ice cream.
In the inventory of the sample prepared by him it was stated that "this is prepared of covering chocolate, vegetable ghee and ice cream".
The Public Analyst, to whom the sample was sent for analysis, stated that the sample was adulterated "as the butyro refractometer reading at 40 degree C was found 6.4 in excess and the Baudouin test was found positive of the extracted fat.
" The factory, its owner and the employee who sold the ice cream, were prosecuted under the Prevention of Food Adulteration Act.
The trial court acquitted the factory but convicted and sentenced both its owner and the employee.
On appeal the Additional Sessions Judge acquitted both the accused.
On further appeal the High Court acquitted the factory owner but convicted the employee (appellant before this Court).
The High Court pointed out that vegetable ghee could not be made to serve as an emulsifying agent because r. 61 forbids addition of brominated vegetable oil to milk or cream and without milk and/or cream manufacture of ice cream was inconceivable and that the appellant 's stand had been that vegetable ghee had been used and not that any brominated vegetable oil got into the ice cream by way of an emulsifying or stabilising agent.
Allowing the appeal, ^ HELD: 1 (a) The sample of ice cream obtained from the appellant was not shown to have been adulterated within the meaning of the Act and the Rules.
[316 D] (b) The prohibition contained in the proviso to r. 61 does not apply to ice cream, kulfi and chocolate ice cream covered by sub item A.11.02.08, wherein it is clearly stated that these three milk products may contain permitted stabi 314 lisers and emulsifiers not exceeding 0.5 per cent by weight.
Clearly, therefore, brominated vegetable oils could have formed a part of the chocolate ice cream to the extent of 0.5 per cent by weight, without the article being treated as adulterated under the rules.
What the proviso to r. 61 prohibits is the use of certain emulsifying and stabilising agents only in milk and one of its products, namely, cream and not in other milk products such a malai, dahi, cheese, ice cream and chocolate ice cream.
Had the intention of the rule been to prohibit the use of the said agents in all milk products, the expression would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream".
[318 C E] 2.
It was for the prosecution to prove affirmatively that the sample contained an ingredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth was otherwise established.
The prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description, its quantity was in excess of 0.5% by weight.
The analyst 's report did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5% by weight or of unbrominated vegetable, oils.
[318G H]


judgement:
N: Criminal Appeal Nos.
126 127 of 1972.
(From the Judgment and Order dt.
21 4 72 of the Gujarat Court in Criminal Revision Appln.
490 491 of 1971).
section K. Dholakia and R. Ramachandran for the appellants.
section P. Nayar and M. N. Shroff for the respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal Appeals Nos. 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 134(1) (c) of the Constitution of India by the High Court of Gujarat against the judgment dated April 21, 1972 of a Division Bench of that Court upholding the conviction of each of the appellants under section 4 or section 5 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Bombay Acc) and a sentence of imprisonment coupled with fine.
Appeal No. 126 of 1972 has been filed by eight persons.
Appellant No. 1 has been convicted of an offence under section 4 of the Bombay Act for keeping a common gaming house, while his seven co appellants were found guilty of an offence under section 5 of that Act.
In Criminal Appeal No. 127 of 1972, appellant No. 1 is the same person who figures as appellant No. 1 in the former appeal and the conviction recorded against him is one for an offence under section or, in the alternative, under section 5 of the Bombay Act.
His two co appellants have earned a conviction under the section last mentioned.
The two appeals have arisen from Criminal Revisions Nos.
490 A and 491 of 1971 both of which were dismissed by the High Court through the impugned judgment.
In Appeal No. 126 of 1972, appellant No. 1 was said to be keeping or using house No. 1408 situate in Ward No. 1 of Himatnagar town as a common gaming house and appellants Nos. 2 and 3 were said to have been employed by him for carrying on in that house the business of betting on Worli Matka figures.
On a search by the police, appellants Nos. 2 to 8 were found present in the house from which numerous betting slips and boards indicating the opening and closing figures of Worli Matka betting were recovered.
A personal search of appellants Nos. 2 and 3 yielded counterfoils of the said slips.
The allegations against the three appellants in criminal appeal No. 127 of 1972 were that all of them were found present for the purpose of gaming in the said house which was, as already stated, being rum by appellant No. 1 as a common gaming house.
The only contention raised on behalf of the appellants before the High Court was that the said house had not been proved to be a "common gaming house" within the meaning of the definition of that expression occurring in section 3 of the Bombay Act.
That definition runs thus In this Act, "common gaming house" means (i) in the case of gaming (a) on the market price of cotton, opium or other commodity or on the digits of the number used is stating such price, or (b) on the amount of variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation, or (c) on the market price of any stock or share or on the digits of the number used in stating such price, or G (d) on the occurrence or non occurrence of rain or other natural event, or (e) on the quantity of rainfall or on the digits of the number used in stating such quantity, or (f) on the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers, or on the total of such digits 36 or figures, or on the basis of the occurrence or non occurrence of any uncertain future event, or on the result of any draw, or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming: (ii) in the case of any other form of gaming, any house, room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instrument or other wise howsoever.
" Clause (i) of the definition is obviously inapplicable to the cases in hand and the plea of the prosecution has throughout been that the house in question squarely falls within clause (ii) thereof.
This plea was challenged before the High Court on behalf of the appellants with the contention that the house abovementioned had not been shown to be kept for use "for the profit or gain of the person owning, occupying . . " because, according to their learned counsel, the profit or gain mentioned in the definition must have a direct relation with the use of the premises or with the instruments of gaming and a mere expectation or probability of profit arising from gaming itself would not be sufficient to bring the place within the definition of a common gaming house.
The High Court noted that there was a clear distinction between the language employed in the two clauses of the definition so that while the element of profit or gain of the person owning or occupying the premises in question was immaterial under clause (i), it was an essential requirement of clause (ii) which deals with forms of gaming not covered by sub clauses (a) to (f) of clause (i).
The High Court therefore analyses the provisions of clause (ii) and formed the opinion that the expression "or otherwise howsoever" occurring therein had the widest amplitude and did not take its colour from the immediately preceding portion of the clause which employs the words "by way, of charge for the use of such house, room or place or instrument".
Discussing the matter further the High Court was of the opinion that the requirement of the expression "for the profit and gain of the person owning, occupying. " was that the purpose of occupying or using the premises must be such profit or gain as meant a probability 37 Or expectation of profit or gain and not necessarily a certainty of it A and that the expression would embrace even a case where the keeper of the premises expected to gain by the process of gaming itself.
In coming to this conclusion, the High Court relied upon two Division Bench judgments of the Bombay High Court reported in Emperor vs Dattatraya Shankar Paranjpe and another(1) and Emperor vs Chimanlal Sankalchand(Z) and rejected as untenable an opinion to the contrary expressed in some Allahabad cases and a single Bench decision of the Bombay High Court in State vs Vardilal Natuchand, (Criminal Appeal No. 551 of 1964 decided on the 14th of January 1965).
The argument raised before the High Court on behalf of the appellants has been reiterated before us by their learned counsel, Shri section K. Dholakia, but on a consideration of the definition extracted above, we cannot agree with him.
It is common ground between the parties that the present case is not covered by clause (i) of the definition so that what has to be considered is the language of clause (ii) thereof.
For the applicability of the clause last mentioned, the following conditions have to be fulfilled: D (1) Instruments of gaming must be kept or used in the premises in question.
(2) The keeping or using of the instruments aforesaid must be for the profit or gain of the person owning, occupying, using or keeping such premises.
(3) Such profit or gain may be by way of charge for the use of the premises or of the instruments or in any other manner whatsoever.
We fully agree with the High Court that the expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted F. in its scope by the words immediately preceding it which lay down that the profit or gain may be by way of charge for the use of the premises.
In this connection we may usefully quote from the judgment of Shah, Acting C.J., who delivered the judgment of the Division Bench in Emperor vs Dattatraya Shankar Paranjpe, (Supra).
"It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in he house, room or place for profit or gain of the person owning, occupying, using or keeping the house, room or place.
It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house, room or place, or otherwise howsoever.
The (1) 25 Bombay Law Reporter 1089 = A.I.R. 1924 Bombay 184.
(2) 47 Bombay Law Reporter 75 = A.I.R. 1945 Bombay 305.
38 expression "otherwise howsoever" appears to be very com prehensive, and does not suggest any limitation, such as is contended on behalf of the accused." . . . . . . . . . . . . . . . "We have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court; and after a careful consideration of the arguments urged on either side, and with great respect to the learned Judges, I have come to the conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction.
I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular house, room or place is a common gaming house, to the two alternatives mentioned in the case of Lachchi Ram vs Emperor( ').
It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knows that profit or gain 4 15 Will in all probability result from the use of the instruments of gaming.
The profit or gain may not actually result from such use.
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments, it would be sufficient, in my opinion, to bring the case within the scope of the definition.
At the same time it is clear that the prosecution must establish that the purpose is profit or gain.
This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place, or in any other manner that may be possible under the circumstances of the case, having regard to the nature of the game carried on in that house.
" The opinion of Shah, Acting C.J., was noted with approval in Emperor vs Chimanlal Sankalchand (supra), the reasoning adopted in which may be reproduced with advantage: "Lachchi Ram 's case was considered by a Division Bench of this Court in Emperor vs Dattatraya (1923) 25 Bombay (1) A.l.
R. 1922 All.
61. 39 Law Reporter (1089) and was dissented from.
It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming.
The profit or gain may not actually result from such use.
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments, it would be sufficient to bring the case within the scope of the definition.
C "It is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that 'the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner. ' The words 'or in any other manner, ' (which were used there instead of the words appearing at the end of the definition ' 'or otherwise howsoever ') cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what pre cedes those words, and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house.
It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit, although he may not necessarily make it every time.
Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house.
" We fully agree with the interpretation of the definition of the term "common gaming house" occurring in section 3 of the Bombay Act as propounded in, the two Bombay authorities cited above, as also in the impugned judgment, that interpretation being in conformity with the unambiguous language employed by the legislature.
The opinion to the contrary expressed in Lachchi Ram 's case (supra) and in other decisions is found to be incorrect.
The learned counsel for the appellants concedes that if the interpretation placed on clause (ii) of the definition by the impugned judgment be upheld, the conviction of the appellants in the two appeals 40 is well founded.
However, we may state that there is another good reason for up holding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which states: "When any instrument of gaming has been seized in any house, room of place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police Officer who entered such house, room or place had reason able grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no ' gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them: Provided that the aforesaid presumption shall be made, notwithstanding any defect in the warrant or order in pursuance of which the house, room or place was entered under section 6.
if the Court considers the defect not: to be a material one.
" It is not disputed that instruments of gaming were seized from the premises in question in both the appeals.
That circumstances, according to the section, "shall be evidence, until the contrary is proved, that such house, room or place is used as a comon gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen . " .
The profit or gain mentioned in clause (ii) of the definition and also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here.
Admittedly, there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants.
In the result both the appeals fail and are dismissed.
P.B.R. Appeals dismissed.

summary/full:
The term "common gaming house" has been defined in section 3 of the Bombay `Prevention of Gambling Act, 1887.
Under cl.
(i) of the section a house or place in which any of six different types of gaming enumerated therein takes place or in which instruments of gaming are kept or used for such gaming would fall within the definition.
Clause (ii) of that section states that in the case of any other form of gaming (a) any house, room or place whatsoever in which any instruments of gaming are kept or used (b) for the profit or gain of the person owning, occupying, using or keeping such house, etc., (c) by way of charge for the use of such house, room or instrument or otherwise howsover, would be a common gaming house.
Certain instruments of gaming were seized by the police from the premises of appellant No. 1 in both the appeals.
He was convicted for keeping a common gaming house while the other appellants were convicted of an offence under section 5 of the Act.
On appeal, rejecting the appellants ' contention that a mere expectation or probability of profit arising from gaming, without establishing a direct relation with the use of the premises or with instruments of gaming, would not be sufficient to bring the place within the scope of the definition, the High Court held that the purpose of occupying or using the premises must be such profit or gain as meant a probability or expectation of profit or gain and not necessarily a certainty of it.
F The argument urged before the High Court was reiterated in appeal before this Court.
Dismissing the appeals, ^ HELD: 1.
The expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted to the words immediately preceding it, namely, "for profit or gain. by way of charge for the use of the premises." [37F] 2.
For proving that a particular house, room or place was a common gaming house, it would be sufficient if it was shown that the house was one in which instruments of gaming were kept or were used for the profit or gain of the person keeping or using such place, that is, where the person keeping or using the house knew that profit or gain would in all probability la result from the use of the instruments of gaming.
Profit or gain may not actually result from such use.
Even the hope of making a profit out of the 34 gambling would be sufficient to satisfy the definition.
In given case the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making profit although he may not necessarily make it every time.
Such a hope would be sufficient to make the house a common gaming house and the occupier liable for keeping such a house.
At the same time the prosecution must establish that the purpose of keeping or using the instruments was profit or gain, which may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place or in any other manner that may be possible having regard to the nature of the game carried [38E, 39E F] 3.
The profit or gain and the other requirements mentioned in cl.
(ii) of the definition are a matter of peremptory presumption which has to be raised by the court as soon as seizure of instruments of gaming from the place is proved.
Section 7 which allows a presumption to be raised against the accused, provides that seizure of instruments of gaming from the premises shall be evidence, until the contrary was proved, that they were used as a common gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen.
In the instant case there is no evidence in rebuttal of the presumption.
[40F Gl