judgement:
N: Criminal Appeal Nos.
212 213/71.
Appeal from the Judgment and order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969.
section N. Anand and M. N. Shroff for the Appellant.
N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J.
Controversy in these appeals centres round the interpretation of the words "specially empowered" appearing in section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (to be (hereinafter referred to as the Act).
The facts giving rise to these appeals are as follows: Chaturbhuj Maganlal and Bai Sabita, respondents herein, are husband and wife residing together at Parvati Bhuvan, Rajkot.
Both 1078 of them together with Bai Hamida Basi Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under sections 5 and 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr.
Cases Nos. 1372 and 1404 of 1968.
When the trial was about to commence in these cases, the accused moved applications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by section 2(c) of the Act.
The Magistrate rejected those applications whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.
Aggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gujarat.
A learned Judge of the High Court allowed the revisions on the ground that Mr. Modha, Magistrate 1st Class Rajkot, before whom these cases were pending, had no jurisdiction to try the same because the State Government notification, dated February 19, 1959 did not have the effect of making him a "Magistrate of the first class specially empowered" within the meaning of section 2(c) of the Act.
Accordingly, the Magistrate was directed to drop the proceedings pending against the revision petitioners.
Against that decision of the High Court, the State has now filed these appeals on a certificate granted by the High Court under Article 134 (1) (c) of the Constitution.
Section 2(c) of the Act defines a "Magistrate" to mean "a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government, by notification in the Official Gazette, to exercise jurisdiction under the Act".
Section 22 further says: "No court inferior to that of a magistrate as defined in Clause (c) of Section 2 shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8".
The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under section 2(c), runs as follows: "In the exercise of the powers conferred by section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under sections 12(1), 18(1), 19, 20(1) and (3) of the Act.
" The question is, whether this notification has the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under sections 3, 4, 5, 6, 7 and or 8 of the Act? 1079 Answer to this question depends on a correct interpretation of the expression "specially empowered" in Section 2(c).
There has been a sharp conflict of judicial opinion in regard to the meaning of this expression.
One line of decisions has taken the view (hereafter referred to us the narrow view) that the word "specially" in this expression has reference only to the mode of empowerment as indicated in section 39(1) of the Code of Criminal Procedure, 1898.
According to this view the word "specially" stands in contrast to the word "generally".
Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered"; but if the powers are conferred on particular individuals by name or by virtue of their office, they are "specially empowered".
On this reasoning it is deduced that the words "specially empowered" imply "the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred".
Some of the cases in which this view has been expounded are: Mohd. Qasim and anr.
vs Emperor; Emperor vs Udho Chandumal; Polubha Vajubha vs Tapu Ruda; and Sabuddin Sheikh Mansur vs J. section Thakkar and anr.
A different view (hereafter referred to as the broad view) has been taken in these decisions: K. N. Vijavan vs State; State vs Judhabir Caetri; State of Mysore vs Kashambi and anr.
; Ashaq Hussain Khan vs section D. O. Monghir, C. V. Madhava Mannadiar vs District Collector and ors.
According to this view, the word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view, the State Government is within its competence to confer powers under section 2(c) of the Act on some or all the Magistrates of the First Class in the State, in any of the modes known to law, and the Magistrate or Magistrates whom powers are so conferred will be "specially empowered" within the meaning of section 2(c).
In our opinion, this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view.
It is will recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample 1080 discretion on the Government for a specific purpose to enable it to bring about an effective result.
The Act has been enacted to suppress a special kind of mischief.
With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement.
Th narrow view taken in the decision led by Mohd. Qasim 's case, which reads, with external aid, into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act.
It tends to introduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision.
It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided in full measure to the Government.
In the context of section 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression "specially empowered" has to be eschewed.
Incidently, it may be noticed that none of the decisions expounding the narrow view, was concerned with the interpretation of the expression "specially empowered" in the context of the Suppression of Immoral Traffic in Women and Girls Act.
In Mohammed Qasim vs Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in section 3 of the Opium Act.
Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra) (the ratio of which has been followed by the Judgment under appeal), turns on an interpretation of this expression in the context of section 56 of the Bombay Police Act.
On the other hand, in State of Mysore vs Kashambi and anr.
(supra) which is a prominent exponent of the broad view, the construction of section 2(c) of the Act was directly in issue before the Mysore High Court.
Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act.
The accused, Kashambi and Mohadinbi were being prosecuted under section 8(a) of the Act in the court of Judicial Magistrate First Class, Saundatti.
The accused raised an objection that the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective to confer the jurisdiction on him as it did not satisfy the requirement of section 2(c) regarding "special empowerment".
Hegde, J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha vs Tepu Buda (supra) and Mohammed Qasim vs Emperor (supra) and held that the language of section 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special conferment of power as required by section 2(c) and therefore enlarges the scope of that section.
In the opinion of the Bench, the word "specially" is an adjective (adverb ?) to the verb "empowered" and not an adjective to the noun "Magistrate" and that this word means "specifically" or "for a particular purpose".
The Bench did not accept the contention that the word "specially" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose 1081 of conferring the additional powers.
It was emphasised that the conferment of power under section 2(c) of the Act is not made by having recourse to section 39, Cr.
Procedure Code.
In our opinion, the view taken by the Mysore High Court in Kashambi 's case is the correct one.
It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for construction.
In this connection, the first case to be noticed is Sindhi Lohana Chaithram vs State of Gujarat.
Therein the meaning of the expression "specially empowered" occurring in s.6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration.
By a notification, dated January 22, 1955.
the Saurahtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander, to authorise by issue of special warrants in each case, a police officer not below the rank of Sub Inspector of Police to do the Varios things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, room or place was suspected us being used as a common gaming house.
The appellant 's house was raided by a Sub Inspector of Police,and on the basis of incriminating evidence the appellant and six others were charged under sections 4 and 6 of the Act.
At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search warrant, was not authorised to do so because the aforesaid notification did not specially empower Shri Pandhya within the contemplation of section 6.
This Court expressed that in view of the principle embodied in section 15 of the Bombay General Clauses Act, 1904 when power is conferred on a person by name or by virture of his office, the individual designated by name or as the holder of the office for the time being is empowered specially.
Judging by this test, the Court held that the notification, dated January 22, 1955, "specially empowered" Shri Pandhya, holder of the office of the Dy.
Superintendent of Police,Porbander to issue the search warrant under section 6.
The Court noticed the conflict of judicial opinion on the question whether a notification empowering all Magistrates of certain class to try certain class, can be said to be empowered specially every Magistrate of that class to try those cases,but left that question open.
However, it settled that a person can be specially empowered even by virtue of his office.
Again, in Abdul Husein Tayabali and ors.
vs State of Gujarat and ors.
decided on September 20, 1967, the construction of the expression "specially appointed" within the meaning of section 3(c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acquisition (Company 's) Rules, came up for consideration before this Court.
By a notification, dated October 1, 1963, issued under section 3(c) of the Land Acquisition Act, the State Government authorised all Special Land Acquisition Officers in the State to perform the functions of 1082 Collectors under that Act within the area of their respective jurisdiction.
Question arose whether that notification satisfied the requirements of section 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act.
Shelat, J., speaking for a Bench of three learned Judges, answered this question in the affirmative and made these apposite observations: "In our view, these words (specially appointed) simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed ', that is, appointed for the specific purpose of performing those functions.
The word specially 'has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment.
The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act.
It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector.
It is the appointment therefore which is special and not the person from amongst several such officers.
Besides sec.
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function such power can be exercised either by name or by virtue of office.
" There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.
" The above observations are an apt guide to the interpretation of the expression "specially empowered" in section 2(c) of the Act with which we are concerned.
Although the word in section 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Hussain 's case, were "specially appointed", their connotation is the same as conveyed by the expression "specially authorised" or "specially empowered" (see Oxford Dictionary according to which the word "authorised" means "empowered" "appointed").
In constructing the expression "specially empowered" in the instant case, therefore,we can safely adopt the reasoning in Abdul Hussain 's case.
Thus considered, the term "specially" must be taken to have reference to the special purpose of the empowerment.
Even according to Oxford Dictionary, one sense of this word is "of special purpose".
It qualifies the word "empowered".
It is used in an attributive sense to highlight the special nature of the power.
It does not convey the sense of a contradistinction or contrast between "special" empowerment and "general" empowerment.
All that this word signifies is the investment of some or all the Magistrates of the First Class with powers which are 'special 'and are not part of the 'ordinary ' or 'additional 'powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
In short, the word "specially" 1083 cannotes that it is the empowerment which is special and not the person.
Thus considered, special empowerment does not necessarily involve selection of individuals by name or ex offico from the Magistrates of the 1st Class.
The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under section 2(c) of the Act,and not under the Code of Criminal Procedure.
Be that as it may,s.39 of the Code of Criminal Procedure, 1898 and s.32 of the Code of Criminal Procedure,1973, are concerned with the mode of conferring power.
"Power may be conferred on any person either by name or in virtue of his office", or "on classes of official generally by their official title".
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purpose of the power,as seems to have been done in the cases taking the narrow view.
The narrow view can be tested yet from another angle.
According to it if a Magistrate of the 1st Class is selected by name or by virtue of his office and invested with these powers to try offences under the Act,he would be "specially empowered".
If no such pick and chose is made and the power is conferred on all the Magistrates of the same class, they would be "generally empowered".
This distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition.
If the empowering of a Magistrate of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of section 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.
In Abdul Hussain 's case, the contention canvassed for the narrow view was considered from this aspect, also.
It was observed: ". even if the meaning of the word 'specially ' were to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.
Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer.
Such a notification would mean that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas.
" 1084 On parity of reasoning ,it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notification ,by virtue of their office to try offences under the Act in the area of their respective jurisdiction, must be held to be "special" and not "general".
It will not be out of place to mention here that Abdul Hussain 's case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra), Consequently, the Bench did not have the advantage of the guidance furnished by Abdul Hussain 's case.
In the light of the construction put by us on the expression "specially empowered" as used in section 2(c) of the Act, we hold that by virtue of the State Government Notification dated July 22, 1958, the Judicial Magistrate First Class Rajkot has the jurisdiction to try the offences under the Act.
Accordingly, we allow these appeals, set aside the judgment of the High Court.
The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law.
The cases, being very old, it is directed that they be disposed of on top priority basis, with utmost expedition, if possible, within three months from today.
V.P.S. Appeals allowed.

summary/full:
Section 2(c), Suppression of Immoral Traffic in Women and Girls Act, 1956, defines a Magistrate to mean a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government by notification in the official Gazette, to exercise jurisdiction under the Act.
The appellant State issued a notification under the section empowering all the Judicial Magistrates of the 1st Class to exercise jurisdiction to try certain offences under the Act.
The High Court held that the notification did not have the effect of making a Magistrate one specially empowered within the meaning of section 2(c).
Allowing the appeal to this Court, ^ HELD: It is not necessary that the State Government should pick and choose individual Magistrates and confer special power on them.
The notification had the effect of making every Judicial Magistrate of the First Class in the State, within the area of his respective jurisdiction, a Magistrate specially empowered to try those offences.
[1083E; 1084C] Mohd. Qasim & Anr.
vs Emperor, AIR, ; Emperor vs Udho Chandumal, AIR 1943 Sind 107; Polubha Vajubha vs Tapu Buda, AIR 1956 Sau.
73 and Sabuddin Sheikh Mansur vs J. section Thakkar & Anr.
ILR [1968] Guj. 4, disapproved.
K. N. Vijayan vs State, AIR 1953 Tr.
Co. 402.
State vs Judhabir Caetri AIR 1953 Assam 35; (F.B.); State of Mysore vs Kashambi & Anr: ; Ashaq Hussain Khan vs S.D.O. Manghir.
ATR 1965 Pat 446 and C. V. Madhava Mannadiar vs Distt.
Collector & Ors., AIR 1970 Kerala 50.
approved.
(1) Where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision.
comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result.
[1079G 1080A] (2) The word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as Contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view the State Government is within its competence to confer powers under the section on some or all of the Magistrates of the First Class in the State in any of the modes known to law and the Magistrate or Magistrates.
On whom Powers are so conferred, will be "specially empowered" within the meaning of the section.
This broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view, namely.
That the word "specially" stands in contrast to the word "generally".
According to 1077 the narrow view if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered '; but if the powers are conferred on particular individuals by name or by virtue of their office, as a result of selection by the Government, they are 'specially empowered".
This view which reads into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act, and tends to reduce its efficacy and to impede the exercise of the discretionary power which the legislature has confided in full measure to the Government.[1079B D, E G; 1080B C, H; 1082G] (3) The word "specially" signifies the investment of some or all the Magistrates of the First Class with powers which are "special ' and are not part of the "ordinary" or "additional" powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
The fallacy in the narrow view stems from the undue stress it lavs on the mode empowerment at the cost of the special purpose of the empowerment ignoring the fact that the Act is a code by itself which creates new offences triable only by those Magistrates of the First Class who are specially empowered under section 2(c) of the Act, and not under the Code of Criminal Procedure.
Power may be conferred under section 39 of the Code of Criminal Procedure, 1898, corresponding to section 32 of the Code of Criminal Procedure, 1973, on any person either by name or in virtue of his office or on classes of officials generally by their official title.
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purposes of the power.
[1082H; 1083B D] (4) A person can be specially empowered even by virtue of his office.
If empowering a Magistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of section 2(c), there is no reason why the empowerment of all the Magistrates of the First Class in the State under the notification by virtue of their office to try offences under the Act in the areas of their respective jurisdictions should not be held to be special but treated as general.
The Government could have issued separate notifications for each Magistrate.
Instead of doing so if one notification were to be issued authorising each of them to perform those functions, there could be no valid objection.
[1081F G; 1083E F, G 1084B] Sindhi Lokana Chajthram vs State of Gujarat, ; and Abdul Hussain Tayabali and ors.
vs State of Gujarat and ors.
; , followed.


judgement:
Civil Appeal No. 1101 of 1969.
From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964.
section T. Desai, B. B. Ahuja, S P. Nayar and R. N. Sachthey, for the Appellant.
section K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance.
The facts giving rise to the appeal are quite simple and may be shortly stated.
One Bireswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income tax as an individual.
He died intestate on January 7, 1957, leaving his widow, sons and daughters.
The Wealth tax officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958 59.
On appeal, the Appellate Assistant Commissioner held that since the assesses was governed by the Dayabhaga School of Hindu law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co sharers separately.
" The department took an appeal to the Income tax Appellate Tribunal, 'B ' Bench, Calcutta.
There was difference of opinion between the members of the Tribunal, and in accordance with the opinion of the majority of the members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu undivided family.
" The Tribunal however referred the following question of law to the Calcutta High Court for decision "Whether on the facts and in circumstances of the case, the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" 1098 The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu undivided family governed by the Dayabhaga School of Hindu law, and reframed it as follows, "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" It took the view that the matter was covered by its earlier decisions including Commissioner of Wealth tax.
West Bengal vs Gouri Shankar Bhar where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family.
The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative.
As has been stated, the High Court has certified this to be fit case for appeal to this Court.
Mr. section T. Desai appearing for the Commissioner of Wealth tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existence by operation of law.
He has accordingly argued that the father 's property is liable to be taxed under section 3 of the Wealth tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds.
Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.
Section 3 of the Act is the charging section and the correctness or otherwise of the view taken by the High Court depends on its meaning and content.
The section provides for the charge of wealth tax in these terms. "3.
Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as Wealth tax) in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule.
" The liability to wealth tax therefore arises in respect of the "net wealth" of the assessee, which expression has been defined as follows in section 2(m), "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions 1099 of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owned by the assessee on the valuation date other than, . " The expression "belong" has been defined as follows in the Oxford English Dictionary. "To be the property or rightful possession of.
" So it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax.
In other words, the liability to wealth tax arises out of ownership of the asset, and not otherwise.
Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth" for it would not then be an asset "belonging" to the assessee.
The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death? It is not in controversy, and is in fact admitted, that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income tax as an individual.
His family consisted of his widow, sons and daughters and was governed by the Dayabhaga School of Hindu law.
Bireswar Chatterjee 's property was therefore the heritage, or the wealth, which vested in his heirs on his death.
According to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for "sons have not ownership while the father is alive and free from defect." (Hindu Law by Colebrooke, P.9) ownership of wealth is however vested in the heirs "by the death of their father" (page 54, supra) when they become coheirs and can claim partition.
It is on this basis that "Dayabhaga" (partition of heritage) has been expanded by Jimuta Vahana.
According to him, "since anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible." (page 16, supra).
The heritage does not therefore become the joint property of the heirs, or the joint family, on the demise of the last owner, but becomes the fractional property of the heirs in well defined shares.
This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his "Law relating to the Joint Hindu Family" (Tagore Law Lectures) with reference to the doctrine of negation of the son 's right by birth (page 168), "As a corollary of the doctrine set forth above, negativing the son 's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership ' of the heirs, contrasted with the doctrine of 'aggregate ownership expounded by all other schools.
" That is why 'partition ' in Dayabhaga is defined as an act of "particularising ownership", and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara.
The 1100 learned author has clarified the position in unmistakable terms as follows (pages 172 73), "From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession." (Emphasis added) This is why Mitashara is designated as the School of "aggregate ownership", while Dayabhaga is known as the School of "fractional ownership.
" As has been stated in Gopalchandra Sarkar Sastri 's "Hindu law" (eighth edition page 465), while the joint family system prevails in Bengal, "there cannot be a real joint family consisting of father and sons during the father 's life time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.
" This is why, according to the Bengal School, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
The position of joint family under the Dayabhaga law has been stated as follows in Mayne 's Treatise on "Hindu Law and Usage" (eleventh edition, page 364), "It follows therefore that under the Dayabhaga law, a father and his sons do not form a joint family in the technical sense having coparcenary property.
But as soon as it has made a descent, the brothers or other co heirs hold their shares in quasi severalty.
Each coparcener has full powers of disposal over his share which is defined and not fluctuating with births and deaths as in the case of a Mitakshara family and his interest, while still undivided, will on his death pass on to his own heirs male or female or even to his legatees.
" That was stated to be the law in Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick The position has been dealt with in Mulla 's "Principles of Hindu Law" (fourteenth edition, at page 348), as follows, "The essence of a coparcenary under the Mitakshara law is unity of ownership.
On the other hand, the essence of a coparcenary under the Dayabhaga law is unity of possession.
It is not unity of ownership at all.
The ownership of the coparcenary property is not in the whole body of coparceners.
Every coparcener takes a defined share in the property, and he is the owner of that share.
That share is defined immediately the inheritance falls in.
It does not fluctuate with births and deaths in the family.
Even before partition any coparcener can say that he is entitled to a particular share, one third or one fourth.
Thus if A dies leaving three sons, B, C, and D, each one will be the owner of his on third share.
The sons are coparceners in this sense that 1101 possession of the property inherited from A is joint.
It is the unity of possession that makes them coparceners.
So long as there is unity of possession, no coparcener can say that a particular third of the property belongs to him; that he can say only after a partition.
Partition then, according to the Dayabhaga law, consists in splitting up joint possession and assigning specific portions of the property to the several coparceners.
According to the Mitashara law, it consists in splitting up joint ownership and in defining the share of each coparcener.
" In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate.
His mother, widow, three sons and one daughter survived him.
Since the death took place before the came into operation, he was succeeded by his widow and three sons, each inheriting one fourth share in the estate.
Gouri Shankar Bhar, one of the sons, took out letters of administration and filed, a wealth tax return in his capacity as ad ministrator descrth the status of the assessee as a Hindu undivided family.
The Wealth Officer also treated the status as such, and made the assessment.
Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School,the shares of the coparceners in the property of the deceased were definite and ascertained and the assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property.
The Appellate Assistant Commissioner overruled the contention and took the view that even though the shares of the coparcencrs were definite and ascertained, the income from the prperty of the family did not belong to the several members in specified shares but continued to belong to the Hindu undivided family as a whole.
On further appeal, the Tribunal held that as the coparcener under the Dayabhaga law had a definite share in the property left by the deceased and was legally the owner thereof, he had a defined share and that since the wealth tax was levied on the basis of ownership, it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal.
The matter was referred to the High Court at the instance of the Commissioner of Wealth tax.
The High Court of Calcutta in Commissioner of Wealth tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari vs Income tax officer, F. Ward District, (2) Calcutta and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are.definite and ascertainable, then, although they are in Joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family.
It was held that the position was not different under the Wealth tax Act.
The matter was brought to this Court on appeal and it was conceded by Solicitor General appearing for the Commissioner of Wealth tax that as the property was the individual property of the 1102 deceased, it devolved on his heirs in severalty.
It was held that as each of them took a definite and separate share in the property, each of them was liable, in law, to pay wealth tax as an individual.
While upholding the decision of the High Court it was however observed by this Court that it was not necessary to decide, in that case, whether a Dayabhaga family could be considered as a Hindu undivided family within the meaning of section 3 of the Act.
That decision is Commissioner of Wealth tax, West Penal vs Gauri Shankar Bhar.
In the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the .
It will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959.
For reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property.
Eac coparcener therefore took a defined share in the property and was the owner of his share.
Each such defined shar thus "belonged" the coparcener.
It was his "net wealth" within the meaning of section 2(m) of the Act and was liable to wealth tax as such under section 3.
The High Court was therefore right in answering the reframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs.

dataset_name: IN-Abs

summary/full:
Rejecting the respondents ' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them from their father and were liable to separate assessment of wealth tax, the Wealth Tax Officer assessed them as a Hindu Undivided Family.
On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co sharers separately.
On further appeal, the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu Law in respect of family property and each member thereof had no definite share in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu Undivided Family.
On reference, the High Court held in favour of the assesses.
Dismissing the appeal to this Court, ^ HELD: Dayabhaga means partition of heritage.
A Dayabhaga male 's wife or sons or daughters have no ownership in his property during his lifetime.
Ownership of wealth is vested in the heirs by the death of their father, when they become co heirs and can claim partition.
The heritage of a Dayabhaga male does not become the joint property of the heirs or of the joint family on the demise of the last owner but becomes the fractional property of the heirs in well defined shares.
That is why partition in Dayabhaga is defined as an act of particularising ownership.
In Dayabhaga, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.
While Mitakshara is known as the School of "aggregate ownership", Dayabhaga is known as the school of "fractional ownership".
The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabhaga it is unity of possession, not unity of ownership at all.
Under the Dayabhaga school every coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in.[1099D G: 1100B H] Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick, 6 M.I.A. 526 at p. 553.
Hindu Law by Colebrooke p. 9. 2.
Law relating to the Joint Hindu Family (Tagore Law Lecrures) by Krishna Kamal Bhattacharya p. 168 and 3.
Principles of Hindu Law by Mulla (14th Edition) p. 348.
Hindu Law & Usage, by Mayne,11th Edition 364, approved.
(i) Under section 3, the liability of wealth tax arises in respect of the net wealth of the assesses.
The term "net wealth" means all the assets belonging to the assesses, on the valuation date.
The expression "belong" according to the Oxford Dictionary means "to be the property or rightful possession of".
[1098G H] (ii) The liability to wealth tax arises out of ownership of the asset and not otherwise.
Mere possession or joint possession unaccompanied by the right to or ownership of property would, therefore, not bring the property within the 1097 definition of "net wealth", for it would not then be the asset belonging to the assesses.
[1099C] In the instant case, the property in question was the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the .
The coparcenary had unity of possession but not unity of ownership on the property.
Each coparcener took a defined share in the property and was the owner of his share.
Each such defined share thus belonged to the coparcener.
It was his net wealth within the meaning of section 2(m) of the Wealth Tax Act and was liable to wealth tax, as such, under section 3.
[1102C D] Commissioner of Wealth tax West Bengal vs Gouri Shankar Bhar, explained.


judgement:
Criminal Appeal No. 88 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 7th January, 1954 of the Allahabad High Court in Criminal Appeal No. 377 of 1953 connected with Criminal Revision No. 461 of 1953 arising out of the Judgment and Order dated the, 17th November, 1952 of the Court of Additional Sessions Judge at Meerut in Session Trial No. 113 of 1952.
B.B. Tawakley, (K. P. Gupta, with him), for the appellant.
K.B. Asthana and C. P. Lal, for the respondent.
September 28.
The Judgment of the Court was delivered by BOSE J.
The only.
question here is about sen. tence.
74 584 The appellant Bed Raj and another, Sri Chand, were jointly charged with the murder of one Pheru.
The Sessions Judge convicted Bed Raj under section 304, Indian Penal Code, and sentenced him to three years ' rigorous imprisonment.
He acquitted Sri Chand.
I Bed Raj appealed to the High, Court and that Court, on admitting the appeal for hearing, issued notice to the appellant to show cause why the sentence should not be enhanced.
The appeal and the revision were heard together.
The appeal was dismissed and the High Court enhanced the sentence to ten years.
Now, though no limitation has been placed on the High Court 's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along, well known judicial lines.
The only question before us is whether those lines have been observed in the present case.
The facts that have been found by the Sessions Judge and accepted by the High Court are to be found in the opening paragraph of the learned Sessions Judge 's judgment.
They are as follows: "Roop Chand, the son of Bed Raj accused, was removing the dung.
of the bullocks of Pheru deceased from an open space near his cattle shed.
Pheru protested to, the boy and turned down the basket in which the boy had put the dung.
The two accused who are brothers then came to the scene from their own cattle shed which was near by and there was an exchange of abuses between them and Pheru.
The accused Sri Chand then caught hold of Pheru by the waist and Bed Raj accused took out a knife and stabbed him in 3 or 4 places.
The knife was then left sticking in the neck of the deceased and the accused ran away".
The assault occurred about 8 o 'clock on the morning of the 23rd February 1952.
Pheru was removed to the hospital and the Medical Officer Dr. Fateh Singh examined him and found that he was suffering from shock.
He found three injuries on his person: 585 all "simple".
He gave the following description of them: right side lower part.
(2) Incised wound: 1 " x 1/3" X1/3" right deltoid region frontal and lower part above downward.
(3) Incised wound 1/2" X 1/6" X 1/4"Epigastric region".
He said "When Pheru was admitted in the hospital he was under shock but his condition was not dangerous.
When Pheru came he could speak.
He was not unconscious.
As he was under shock no report was made for recording his dying declaration.
I cannot give the definite cause of death.
I cannot tell if sucH an InjurY can cause death.
There was no Haemorrhage from Pheru 's neck after his arrival in my hospital.
Speaking:of the inJurieis, the doctor said "Injuries 2 and 3 on the person of Pheru which were incised wounds were not punctured.
It was not possible to inflict them from a sharp pointed weapon".
The appellant was also examined by the doctor and a slight simple injury, which could have; been caused by a simple blunt weapon, was discovered.
This indicates that there was a scuffle between the appellant and the deceased, in which the appellant was hit over the nose and, up to a point, bears out what the appellant says in his defence, namely that Pheru was beating the appellant 's son Rup Chand; he went there and tried to extricate Rup Chand; Pheru started beating him (the appellant) and he, the appellant, received a flat blow on the nose.
The depth of the injury on Pheru 's neck was I of an inch.
In this connection the doctor says "A knife can penetrate 1 1/2 or 2 inches in a case of deliberate stabbing".
Pheru died about 12 45 A.M. on the 24th February 1952, that is to say, about 16 or 17 hours after the assault.
The post mortem was conducted by another doctor, Dr. J. K. Dwivedi.
Describing the injury on the neck the only one we need consider as the other two were slight he said that clotted blood was present all round injury No, 1, and, that 586 "the:right side dome of pleura is punctured under injury No. 1 and clotted blood present all round it.
Upper lobe of right lung (appex) is punctured for 1/4" X 1/4" X 1/2".
Clotted blood present over the lung surface all round the punctured area.
A branch of the external jugular vein was divided in right side neck under injury No. I. Death was due to shock, and haemorrhage as a result of injury to neck".
In cross examination he said "It was possible and impossible also that the bleeding could be stopped.
Such injury as injury No. I are more likely to cause death".
After reviewing the evidence 'the learned Sessions Judge held "It is evident that the whole scene took just a few moments.
Both of the accused must have been in a moment of heat and before either of them could think of doing any act, the whole thing was over. .
That the injuries with the knife were likely to cause death is clear but they were caused at a time when the parties were in a heat and there was a sudden fight and no room for premeditation".
Because of this, and seeing that there was no reason to infer pre concert, he acquitted the other accused, and by reason of those circumstances he considered that three years would be sufficient punishment and sentenced the appellant accordingly.
This was on 17 11 1952.
The appellant filed an appeal to the High Court on 1.8 12 1952 and that Court thereupon issued notice to him to show cause why the sentence I should not be enhanced.
The High Court directed enhancement on 7 1 1954.
On the same day the State Government ordered the release of the appellant on probation, under section 2 of the U.P. Prisoners ' Release on Probation Act, 1938, for the full term of the sentence imposed by the Sessions Court.
We are not concerned with the State Government 's order except in so far ' as it indicates the view that that Government took of the antecedents and conduct in prison of the appellant, matters that are also relevant for consideration by a Court 587 when determining a, question of sentence ' a prisoner can only be released on probation under that Act if the State Government is satisfied "from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison".
These facts were not known to the High Court when it made its order of enhancement ' but it is a matter relevant for our consideration now that the appeal is before us.
Now the High Court accept the findings of the Sessions Judge about the circumstances in which the offence took place.
They agree that the attack was not premeditated and that there was a sudden quarrel and that the blows were inflicted in the heat of passion,.
They also say that there was counter abuse and they notice the abrasion on the appellant 's nose.
Despite this they hold that ' "it is possible that this injury was received by the appellant in the attempt of the deceased to resist the attack made by the appellant.
There was therefore no fight '.
This is a very half hearted finding and ignores the fact that the benefit of all doubts must be given to the accused.
If it was only "possible" that the injury was due to Pheru 's attempt to ward off an attack by the appellant, then it must be equally "possible" that it was received in the course of a, scuffle.
The appellant very definitely says in his examination that there was a fight and the abrasion on his nose which the doctor says was caused by a blunt weapon, bears out his version that Pheru struck him with his fist.
The circumstances also indicate that there must have been a scuffle.
Why else should it be necessary for the second accused to come and hold him down by the waist? When villagers or any man for that matter, come to blows after hot words and an interchange of abuse, there is nearly always resistance to the initial attack.
Very rarely does a man "turn the other cheek".
It must also be remembered that the incident started with the use of force by Pheru.
It was he who took hold of the basket of cow dung and 588 overturned it.
That occasioned the quarrel, and the finding is that there was abuse and counter abuse.
It was then that the second accused rushed in and caught Pheru by the waist.
That accused was acquitted because there was nothing to suggest that that was done in aid of the appellant 's intention to assault Pheru and he was absolved of all intention to assault on his own account; and the finding is that even the appellant had no such intention till the last moment.
If that was the case, then why should the second accused rush in and hold Pheru by the waist? If he had no intention to assault on his own account and none to assist the appellant in his assault, the only other reasonable conclusion is that he tried to stop a fight.
It would be fair in the circumstances to reach that conclusion, for the accused is as much entitled to the benefit of any doubt when a co accused is acquitted as in any other case.
In any case, it was incumbent on the High Court to reach a more definite finding than the one given before deciding to enhance the sentence.
The only reason that the learned Judges give is that Pheru was unarmed and as the attack was made with a knife it cannot be said that the appellant did not act in a cruel or unusual manner.
Nevertheless, they uphold the finding that the offence falls under section 304, Indian Penal Code, and not under section 302.
A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in Dalip Singh vs State of Punjab(1) and Nar Singh vs State of Uttar Pradesh (2).
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In our opinion, these principles have not been observed.
It is (1) ; , 156.
(2) ; , 241, 589 impossible to hold in 'the circumstances described that the Sessions Judge did not impose a substantial, sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence, manifestly inadequate.
In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.
Ordered accordingly.

summary/full:
A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In the circumstances and bearing all the considerations of the present case in mind it was impossible to hold that the Sessions Judge did not impose a substantial sentence.
The Supreme Court set aside the sentence imposed by the Court and restored that of the Sessions Judge as no adequate reason bad been assigned by the High Court for considering the sentence passed by the Sessions Judge as manifestly inadequate.
Dalip Singh vs State of Punjab ([1954] S.C.R. 145) and Nar Singh vs State of Uttar Pradesh ([1956] 1 S.C.R. 238), referred to.


judgement:
Civil Appeal No. 1521 of 1968 Appeal by special leave from the judgment and decree dated the 20th January, 1968 of the Court of Addl.
Judicial Commr., Goa Daman Diu in Civil Appeal No. 213 of 1966.
U. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and section L. Setia, for the appellants.
V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.
The plaintiffs instituted a suit in the court of Judge of Quempem Comarca on February 27, 1961, in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property.
It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with minors (inventario), this plot was assigned to Bascora 's mother, Sitabai, towards her moiety in the estate.
On Sitabai 's death, the property devolved on the plaintiffs, Bascora and his six sisters.
Before the partition of the property among the legal heirs of Sitabai, Bascora 1069 acquired the rights from some of his sisters and became the owner of the suit property with other heirs.
Bascora 's parents had inherited this property from their ancestors.
The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so.
In the latter event, they shall be entitled to remove the super structures of the building raised by them.
Even so, the plaint goes on to say that Caetana Esperanca Fernandes, the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot.
On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors and now in their occupation.
On the above allegations, the plaintiffs prayed for a declaration that the plaintiff, Bascora, and the other heirs of his mother, Sitabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was constructed in the circumstances and subject to the terms mentioned in the plaint.
They further prayed that the defendants be directed to vacate the plot after removing the materials of their house.
The defendants denied the allegations and pleaded that it was Vishnu Bascora Sinai Narcornim, an ancestor of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875, at an annual rent of rupees 2/4/ .
It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time.
It was Pascoal da Costa who possessed the plot as his own and originally built one house on it but subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute.
On Pascoal de Costa 's death, in inventario proceedings, this property on November 16, 1920, was "consolidated in full ownership in the patrimony of the descendants of the said Pascoal da Costa." The defendants further aver in their written statement that the suit property has been in their "open, peaceful and continuous" possession including that of their predecessors in interest, as owners for a period of more than 50 years and that they have acquired title by prescription.
The trial court decreed the suit on April 30, 1966, directing the defendants to remove their superstructures on the land or in the alternative to receive from the plaintiffs Rs. 1084/ which was found to be the value of the materials of the house in question as per estimate of the experts appointed for the purpose.
On appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial court.
The defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1, 1070 1975, which has since been reported in AIR 1975 S.C. 1853, remanded the appeal to the Judicial Commissioner for a finding on the plea of prescription raised by the defendants by observing as follows: "The plea of prescription goes to the root of the matter.
It was raised by the defendants in their pleadings and the matter was put in issue.
It was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner, but was left undecided.
For the purpose of doing complete justice in the case, we think it necessary to have the advantage of the finding of the court below on this issue.
Accordingly, we remit this case to the Court of the Judicial Commissioner, Goa Daman and Diu with the direction that it should after rehearing the parties record a specific finding on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time.
The Judicial Commissioner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court.
In the meantime the appeal shall remain pending in this Court.
" We have actually taken the facts of this case from the above decision.
The Judicial Commissioner has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing.
After examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the suit property by prescription under the law in force at the relevant time.
During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we would have ordianily liked to refer.
Counsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception.
There is also reference to certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judicial Commissioner, Both the parties accept those articles as correct, although the original books are not before us.
In view of the earlier decision of this Court and after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea of prescription.
Since the original perpetual lease was not produced in court and a certified copy of the original translation of the perpetual lease issued on November 23, 1920, was alone produced, we have no reason to disagree with the conclusion of the Judicial Commissioner that the defendants failed to establish their plea of perpetual lease of, the land.
Before we may proceed further it will be appropriate to note that even the plaintiffs themselves laid a nucleus for the plea of adverse 1071 possession to be easily taken up by the defendants.
Para 5 of the plaint may, therefore, be quoted: "5.
Notwithstanding this, the mother and mother in law of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party, in a deed drawn up on 16 November, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of "Deulacodil tucda" or "Mordi" was partitioned, one third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate." Indeed this repudiation of title of the plaintiffs by the defendants gave rise to the cause of action.
We cannot accept the submission of Mr. Tarkunde on behalf of the respondents that the word "allege" in the above paragraph in the present tense makes any difference in the matter of the plea.
Not only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforcement to the plea of adverse possession when he stated thus: ". in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raised by defendant 's mother and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land.
He does not know what subsequent course his petition had. " Mr. Tarkunde submits that there might have been some dispute which, however, was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the earlier permissive arrangement.
Mr. Tarkunde draws our attention to the following passage in the evidence of defendant No. 1: "In 1920 more or less, the plaintiff built a house in the plot in question and begun to stay there.
The same house was built very near the house where the deponent (that is the defendant No. 1) stays and which already existed at the time of that building.
The dependent was about 14 or 15 years old.
The grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent 's mother opposed the said building raised by the plaintiff.
The question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs, to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to reside therein.
The deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa.
" 1072 Apart from the fact that the above is hearsay evidence we are clearly of the view that the statement is not sufficient to annihilate the theory of repudiation of the title of the plaintiffs to the property.
It stands to reason that the defendants had been in continuous possession of the entire plot of land described in para 1 of the plaint which is a larger area including the portion where the house of the defendants stands.
In the year 1926 the plaintiffs sought to make their construction on the vacant portion of the land close to the defendants ' house which led to opposition and obstruction from the defendants.
At that time apparently the defendants later agreed to the construction by the plaintiffs and that seems to be the reference to the "amicable" solution in the above extract.
So far as the land on which the defendants had their house, there was no proof nor any evidence of any change on the part of the defendants to their open hostility to the plaintiffs ' title to the same.
The plaintiffs did not give any evidence of any such amicable solution.
On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the defendants.
The further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16, 1920, which copy was obtained as early as on December 22, 1920 goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs.
Mr. Tarkunde submits that there is no evidence that this document had been actually obtained by the plaintiffs, but production of the document without any explanation from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title.
Mr. Tarkunde also invited our attention to the statement of defendant No. 1 to the effect: "that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent (that is defendant No. 1) and other members of his family." This statement cannot be torn from the context of the alternative plea set up by the defendants.
This statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants.
According to the defendants the land had been in their occupation on perpetual lease from Vishnu Narcornim, the plaintiffs ' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent.
But it is the clear case of the plaintiffs that the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or authorised to lease out the same.
We, therefore, cannot accept the exaggerated importance to the above statement of the defendant No. 1 in his cross examination.
The Judicial Commissioner, however, rightly observed that "an overt act of possession to the knowledge of the plaintiffs and their 1073 ascendants must be shown to have taken palce.
" From the above discussion, we have no hesitation in arriving at the conclusion that the defendants have been able to establish the same and the Judaical Commissioner is not right in taking a contrary view.
According to Article 474 of the Portuguese Civil Code, "Possession is defined as holding or fruition of any thing or right.
Para 1.
The acts done by licence or permission do not constitute possession. " According to Article 505, things and rights are acquired by virtue of possession, just as obligations are extinguished by reason of not demanding their fulfillment.
The law lays down conditions and the period of time that are necessary for one as well as for the other thing.
This is called prescription.
Proviso.
The acquisition of things and rights is known as positive prescription; the discharge of the obligations by reason of not demanding their fulfillment is known as negative prescription.
" Article 528 reads thus: "In the absence of registration of possession or title of acquisition, prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years.
" Article 529 of the Code is as follows: "When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510." Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.
The Judicial Commissioner was not right in holding that possession of the defendants was permissive under the plaintiffs.
There is no evidence is against recognition by the defendants of any title the evidence is against recognition by the defendants of any title in the plaintiffs as such.
The Judicial Commissioner mistook the defendants ' admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding that the defendants failed to establish perpetual lease.
We are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920.
The fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs ' ancestor, does not affect the position in view of the plaintiffs ' avowed denial that Visnum Narcornim had anything to do with the land.
Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcomim 's heirs as such have sought 1074 eviction of the defendants from the land.
The plaintiffs do not accept Visnum Narcornim 's title to the land as their title.
The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornim 's title to the land and the plaintiffs ' title to the same.
The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiffs ' own ancestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.
The defendants in our opinion should be held to have acquired title to the said land by prescription.
There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is no question of application of the rule laid down under Article 510, relied upon by Mr. Tarkunde.
Article 510 reads thus: "One who possesses a thing in another 's name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title.
Sole para: The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio).
" According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in one 's own name or as of right connotes.
It is difficult to see how Article 510 can be attracted to the instant case.
The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs.
They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person.
Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants.
Article 510 is, therefore, clearly out of the way.
We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.
It is clear that the defendants ' ancestors and, after them, the defendants have been in possession of the land since 1875.
Title of the plaintiffs was repudiated openly in the year 1920.
The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ' ancestors.
The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920.
The 1075 passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.
It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).
Mr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants ' witnesses while describing the land in suit acknowledged it as "the plaintiffs ' land".
It may not be overlooked that the plaintiffs also have their own house on a part of the land.
We, therefore, cannot agree that the defendants ' witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession.
We may observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their house.
The appeal is, therefore, partly allowed.
The plaintiffs ' suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on it is concerned is dismissed.
The plaintiffs ' suit for declaration in respect of the remaining portion of the land, however, is decreed.
As there is no prayer for eviction of any person other than the defendants, that claim is rejected.
We express no opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relief has been claimed.
The judgment and decree of the Additional Judicial Commissioner to the extent indicated in this judgment are set aside.
There will be, however, no order as to costs.
P.H.P. Appeal allowed in part.

summary/full:
The respondent plaintiffs instituted a suit in 1961 in accordance with the Portuguese law then in force in those territories for ejectment of the defendant appellants from the suit property.
It was alleged in the plaint that on the death of father of the plaintiff No. 1.
Sadashiva the suit land was assigned to Sitabai mother of plaintiff No. 1 and that on the death of Sitabai the property devolved on the respondent No. 1 and his 6 sisters.
It was also contended that the house built on a portion of the land in dispute and occupied by the defendants should be removed by the defendants and the defendants should be directed to hand over vacant possession of the plot to the respondents.
The appellants in their written statement pleaded that the suit property was given on perpetual lease to the ancestors of the appellants and that no rent was paid for over 40 years.
The appellants further contended that the suit property was in their open peaceful and continuous possession including that of their predecessors in interest as owners for a period of more than 50 years and that the have acquired a title by prescription.
The trial court decreed the suit.
An appeal filed by the appellants before the learned Additional Judicial Commissioner was dismissed.
When the matter came up before this Court by special leave this Court remanded the matter to the court of the Judicial Commissioner for a finding on the plea of prescription raised by the appellants.
The learned Judicial Commissioner after remand came to the conclusion that the appellants have failed to prove the acquisition of full title to the suit property by prescription under the law in force at the relevant time.
The learned Judicial Commissioner also held that the appellants failed to establish their plea of perpetual lease.
Partly allowing the appeal.
^ HELD: (1) In view of the earlier decision of this, Court this Court would be justified in deciding the appeal only on the question of plea of prescription.
The appellants had been in continuous possession of the entire plot of land described in para 1 of the plaint which has a larger area including the portion where the house of the appellant stands.
In the year 1920, the respondents sought to make their construction on the vacant portion of the land close to the appellants ' house which led to opposition and obstruction from the appellants.
Later on, the appellants agreed to the construction by the respondents.
However, so far as the land on which the appellants had their house is concerned there was no proof nor any evidence of any change on the part of the appellants to their open hostility to the respondents ' title to the same.
The respondents did not give any evidence of any such amicable solution.
On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the appellants.
The further fact that the respondents annexed to the plaint a certified copy of the partition deed of 1920 which was obtained as early as in 1920 goes to show that they were fully cognizant of the public assertion by the appellants of their own title, to the land on which their house stands repudiating that of the respondents.
The learned Judicial Commissioner has erred in holding that the appellants have not been able to prove an overt act of possession to the knowledge of the respondents.
According to article 474 of the Portuguese Civil Code possession is defined as holding or fruition of anything or right.
The acts done by licence or permission do not constitute possession.
According to Article 505 things and rights are acquired by virtue of possession, just as obligations are extinguished by reason of not demanding their fulfillment.
The law lays down conditions and the period of time 1068 that are necessary for one as well as for the other thing and that is called prescription.
Under Article 528 of the Portuguese Code in the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years.
Under article 529 when the possession of immovable property or rights to immovable property has lasted for a period of 30 years prescription will operate.
Under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.
There is no evidence whatsoever for the conclusion of the Judicial Commissioner that the possession of the appellants was permissible under the respondents.
On the other hand, evidence is against recognition by the appellants of any title in the respondents.
We are, therefore, left with the long continuous and peaceful, possession by the appellants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the respondents to the land in 1920.
The fact that the appellants set up title in Vishnu Narcornim describing him as respondents ' ancestor does not affect the position in view of the respondents ' denial that Vishnu had anything to do with the land.
The Judicial Commissioner fell into an error by not keeping the distinction between Vishnu 's title and the respondents ' title.
The origin of ownership of land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the respondents ' own ancestors is that the appellants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.
The appellants have acquired title to the said land by prescription.
Since there is no proof of permissive possession under the respondents or their ancestors there is no question of application of Article 510.
The learned counsel for the appellants has confined his claim in this case only to the land on which appellants have their house.
The suit of the respondents so far as it relates to the portion of the land on which the appellants have their house is dismissed and in respect of the remaining portion of land is decreed.
[1070G, 1072A D, 1073A H, 1074A C, 1075D E]


judgement:
Civil Appeals Nos.
1076 1079 of 1971.
Appeals by special leave from the judgment and order dated the 8th January, 1970 of the Allahabad High Court in special appeals Nos.
965 to 968 of 1964.
V. M. Tarkunde, E.C. Agarwala and Miss Manik Tarkunde, for the appellant.
G. N. Dikshit, Shivapujan Singh, advocate for O. P. Rana, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of four civil appeals Nos.
1076 to 1079 of 1971 which have been filed by special leave by Ratna Sugar Mills Ltd. against the judgment of Allahabad High Court affirming on appeal the decision of the learned single Judge 1063 whereby the appellant 's four petitions under article 226 of the Constitution of India to challenge the order dated December 18, 1963 of the Board of Revenue directing the levy of holding tax under the U.P. Large Land Holdings Act, 1957 (U.P. Act No. 31 of 1957) (hereinafter referred to as the Act) on the land of the appellant for the assessment years 1365, 1366, 1367 and 1368 Fasli had been dismissed.
In 1951 the appellant acquired land measuring 277.08 acres situated in village Argupur Kalan, tehsil Shahganj, district Jaunpur.
According to the appellant, the said land was acquired for the purpose of setting up a factory for the production of paper and pulp.
A licence was granted to the appellant in that connection.
The appellant filed an application under section 143 of the U.P. Zamindari Abolition and Land Reforms Act for treating its land situated in village Agrupur Kalan as industrial land.
In the course of those proceedings, the Tahsildar submitted a report on August 24, 1959 as under: "As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs. 1495/ as annual land revenue.
It is recorded in the Mills from before Zamindari Abolition and Mills Authorities continue to pay the recorded land revenue to Government.
The whole area is lying Banjir and lies on both the sides of the railway line and Belwai Station.
It has not at all been brought under cultivation nor the Mill has derived any benefit from it.
It is really meant for industrial purposes but due to financial difficulties, they could not use it as such.
" The Sub Divisional Officer, however, rejected the application filed on behalf of the appellant under section 143 of the U.P. Zamindari Abolition and Land Reforms Act.
The result was that the land in dispute could not be declared to be land for industrial purpose.
Appeal filed by the appellant against the order of the Sub Divisional Officer was dismissed by the Collector.
While the proceedings under section 143 of the U.P. Zamindari Abolition and Land Reforms Act were pending, the Commissioner held for assessment years 1365 and 1366 Fasli in an appeal filed by the appellant that the land in dispute was meant for industrial purposes and had on that account remained uncultivated.
The appellant was held not liable to pay holdings tax for the land in dispute for the assessment years 1365 and 1366 Fasli.
Two revisions were filed by the State against the above order of the Commissioner.
Subsequently for the years 1367 and 1368 Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act.
The appellant filed two revisions to the Board of Revenue against that order of the Commissioner.
The four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963.
The revisions filed by the State were accepted by the Board, while those filed by the appellant were rejected.
The 1064 Board held that as the land held by the appellant was sirdari and not Bhumidari land, it could not be declared to be meant for industrial purposes.
The appellant was held liable to pay holdings tax for the land in question.
Four petitions under article 226 of the Constitution were thereupon filed by the appellant to challenge the order of the Board of Revenue.
The learned single Judge held that the land in dispute constituted land as defined in the Act and the appellant was liable to pay holdings tax for the same.
The order of the learned single Judge, as already mentioned, was affirmed on appeal by the Division Bench.
Before dealing with the question involved in these appeals, it would be appropriate to refer to the relevant provisions as well as the objects and reasons.
The Act was published on November 1, 1957 but according to sub section (3) of section 1, it was to be deemed to have come in force on the first day of July 1957.
The objects and reasons which were mentioned in the Bill were as under: "For securing successful implementation of the Second Five Year Plan, it has become necessary to augment the revenues of the State.
The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of post war zamindari era.
The principle of social justice enshrined in our Constitution also demands that disparities between agricultural incomes be reduced.
More efficient exploitation of agricultural lands is essential for increasing the food production in the State.
Those big holders who do not fulfil their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation.
With these objects in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.
The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3,600.
A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax.
The Bill is so designed as not to affect the small cultivator.
It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax.
" Section 3 of the Act is the charging section.
According to sub section (1) of that section, there shall, save as hereinafter provided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not exceed thirty acres.
Section 2(15) of the Act defines land as under: "(15) `land ' means land, whether assessed to land revenue or not, which is held or occupied for a purpose 1065 connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming and includes uncultivated land held by a landholder as such": The definition of land holder is given in section 2(16) and the same reads as under: "(16) 'land holder ' means (i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and (ii) any other person who holds or occupies land otherwise than as (a) an asami.
(b) a sub tenant.
(c) a tenant of sir, or (d) a sirtan.
and includes a manager or a principal officer, as the case may be: Explanation In this clause asami does not include an asami of Gaon Samaj:" The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force.
It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P. Imposition of Ceilings on Land holdings Act, 1961 as from June 30, 1961.
In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable to pay holding tax on the said land.
The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming.
The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the contentions are not well founded.
The land in dispute is shown to be Banjar land in the revenue records.
Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated.
The appellant holds the land as a sirdr.
An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub Divisional Officer in this respect was affirmed on appeal by the Collector.
A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.
It is, therefore, apparent that after the order which was 1066 made on the appellant 's application under section 143 of the U.P. Zamindari Abolition and Reforms Act, the appellant cannot be said to hold the land in dispute for industrial purpose.
The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry farming.
The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax.
The definition of the "land" includes uncultivated land held by a land holder as such.
The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder.
We see no sufficient ground to take a different view.
In any case even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used.
The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh vs State of Uttar Pradesh & Anr., is wide enough to include all lands whether agricultural or not.
The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production.
The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
There is no merit in these appeals and the same are dismissed with costs.
One hearing fee.
M.R. Appeals dismissed.

summary/full:
The appellant acquired some land in district Jaunpur, for setting up a factory, but did not use the land for such purpose.
Under the U.P. Large Land Holdings Act, 1957, he was required to pay holdings tax for the assessment years 1365 to 1368 Fasli.
The appellant 's application section 143 of the U.P. Zamindari Abolition and Land Reforms Act, for treating his land as industrial land was rejected by the Sub Divisional Officer.
On appeal, the Collector affirmed the order.
In further appeal to the Commissioner, the appellant succeeded as regards the years 1365 and 1366 Fasli.
The State filed revision petitions.
Subsequently the Commissioner held that the appellant was liable to pay holdings tax for the years 1367 and 1368 Fasli.
The appellant also preferred revision applications.
The Board of Revenue decided all the revision petitions in favour of the State, holding that the appellant 's land was "sirdari" and not bhumidari, and it could not be meant for industrial purposes.
The appellant 's petitions under Article 226 of the Constitution were rejected by a Single Judge of the High Court on the ground that the disputed land constituted "land as defined in the Act, and that he was liable to pay the tax.
On appeal, the Division Bench of the High Court affirmed the order.
It was contended before this Court that the land is held for industrial purposes, and is not "land" under sec.
2(15) of the Act.
Dismissing the appeals, the Court, ^ HELD: The appellant holds the land as a sirdar.
Permission to use the land in question for industrial purposes was not granted.
The word "lands" used in the Act is wide enough to include all lands whether agricultural or not.
The appellant cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
[1065 G, 1066C D] Raja Jagannath Baksh Singh vs State of Uttar Pradesh and Another, ; , referred to.