judgement:
ivil Appeal No. 1072 of 1976.
From the Judgment and Order dated the 2.2.1973 of the Madhya Pradesh High Court in First Appeal No. 19 of 1966.
T.U. Mehta, S.N. Singh and T.N. Singh for the Appellants.
V.A. Bobde, Uday U. Lalit, S.K. Gambhir, A G. Rat naparkhi, Ms. Vandana Kakre and R.A. Roman for the Respond ents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave under article 136 of the Constitution of India arises against the decree and judgment dated February 2, 1978 in First Appeal No. 10 of 1966 of the M.P. High Court at Gwalior Bench.
Krishna Rao @ Lala Saheb, for short "respondent" laid the Civil Suit No. 9 A of 1962 before the Addl.
District Judge, Gwalior for partition of the plaint schedule 1 to 3 properties in equal moiety and allotment of one such share to him.
648 Pending this appeal he died and his legal representatives are on record.
The Trial Court by its judgment and decree dated January 31, 1966 granted preliminary decree for parti tion of half share in schedule 1 and 2 and half share in the movable property, namely compensation amount, jewellery and utensils as found in the inventory prepared by the Nazir except the stridhana property of 3rd defendant i.e. mother of appellants Nos. 1 and 2.
The High Court while confirming the decree of the Trial Court directed the respondent to bring into hotch potch his jewellery and the appellants to have a half share therein and dismissed the appeal and the cross objections.
The admitted facts are that one Ghanshyam Sadashiv Baxi Saheb, for short 'Ghanshyam 1 ' was the common ancestor.
He had two sons by name Yesaji 1 and Phatoji.
Yesaji 1 had a son by name Ramakrishna, whose son was Yesaji @ Baba Saheb for short Yesadji2.
Yesaji 2 rendered meritorious military service to Ranaji Scindhia and in recognition thereof the Raja of Gwalior granted permanent Jagir of Chandurpura village under exhibit D 20, together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment and succession from generation to generation.
By virtue thereof the ownership, possession and enjoyment was continued successively for seven generations upto Dwarkanath by rule of primogeniture.
Ghanshyam @Tatya Saheb for short Ghanshyam 2 had two sons by name Dattatraya Rao @ Bapu Saheb for short Dattatraya 1 and the respondent.
Dwarkanath was the son of Dattatraya 1.
The appellant, Dattatraya @ Prakash and Pradip @ Anil, appellants Nos. 1 and 2 are sons of Dwarkanath Aruna Bai, third defendant is his widow.
Ghansh yam 2 died on June 20, 1909.
Dattatrya 1 died on February 6, 1926 and Dwarkanath died on May 19, 1956.
Dwarkanath being minor on his succession to the estate the court of wards took over management and the respondent was appointed as a Superintendent.
On death Of Dwarkanath since appellants 1 and 2 were minors Aruna Bai, their moth er, initially managed the estate with the assistance of the respondent.
Subsequently the respondent came into full control and management till date of suit.
The respondent filed the suit for partition in the year 1962 pleading that all the plaint schedule 1 to 3 properties are coparcenary and he is entitled to a half share therein.
The respondent received maintenance from Jagir income at the rate of Rs. 125 per month.
In the written statement, the appellants, while admit ting the geneology, their residential house at Gwalior as ancestral; they dis 649 puted the nature of the properties as joint family, states of the respondent and the appellant as coparceners.
They admitted that till death of Ghanshyam 2 in 1909 the family was joint and thereafter they were separated by mess and residence in the year 1929.
The house M No. 626 Holka No. 101 at Gwalior was the residential old house but the Veran dah and two rooms on both sides were constructed by Datta traya 1.
The shops in the back side of iron gate at Kampoo Road were not existing during life time of Ghanshyam 2, but the lands were purchased by Dattatraya 1 with the Jagir income and the shops and .the rooms were constructed with the Jagir income.
It was also pleaded that four shops situ ated on eastern side of iron gate were constructed by the appellants ' mother from the compensation of the Jagir lands and the personal amount belonging to them.
Jeherin Araji lands were purchased by Dattatraya 1 from his personal amounts.
The rooms situated on eastern side of Shashikala Ranglekar was purchased and constructed during the minority of Dwarkanath from the income of the Jagir.
The property adjacent to the gate on the north of the Bada namely two rooms, gate, the pucca house along with the well were con structed from the income of the Jagir by Dattatraya 1.
The pator on the south side of the stair case was constructed by Dwarkanath from Jagir 's income, Pucca walls adjacent to the quarters and the southern side of the main residential Bada are estate properties and as per law and.
custom of Gwalior State Dwarkanath became the owner of the property.
The respondent has no right to a share but had only right to maintenance.
After the death of Ghanshyam 2 the respondent continued to receive maintenance from his brother Datta traya 1 who continued in possession and enjoyment of the Jagir as his personal property.
The respondent had right to share only in the private property.
The residential house except Verandah and two rooms shown as No. 1, 2 and 3 in the enclosed map belong to the family and those three items belong to Dattatraya 1.
Accordingly it is their plea that the Jagir being impartible estate is the separate and self acquired properties of Dattatraya 1 and Dwarkanath by rule of primogeniture and the concept of coparcenary and joint family status are inapplicable to it.
The respondent has no share therein, but has only right to maintenance as a junior member of the family as per the law and custom of Gwalior State.
It was further pleaded that the respondent and his wife were given jewellery at the time of their marriage.
The jewellery found by Nazir belong to the family of the appel lants and some of them are stridhana of 3rd defendant.
The respondent is not entitled to any share therein or in the utensils.
The trial court found that till date of death of Ghanshyam 2 in 650 1909, he was Jagirdar.
Dattatraya 1 and Dwarkanath succeeded as Jagirdars by rule of primogeniture.
After the abolition of the Jagir compensation was paid to Dwarkanath during his life time as the eldest member of the family, and the appel lant No. 1 also had been paid balance of the compensation.
If a joint family possesses property which was admittedly joint the presumption would be that the property continued to be joint and the burden lies upon the member who claims and separate property to plead and prove it as separate or self acquired property.
The respondent was living jointly with his brother Dattatraya 1.
Number of sale deeds show the purchase made by Dattatraya 1. that old pators and two shops were remodelled by the court of wards.
The purchase of the plots by Dattatraya 1 and constructions made thereon by him on the ancestral lands are the joint family properties.
The Bada at Gwalior is the residential house and was not a part of the grant in exhibit D 20.
Therefore, the residential Bada on the Kampoo Road is an ancestral property of the family.
Whatever accretions were made therein must be deemed to be incorporated for the benefit of the family unless it is specifically shown that it was self acquired and separate property by Ghanshyam 2 or Dattatraya 1 or Dwarkanath.
After the abolition of the Jagir Dwarkanath received compensation.
The four shops constructed also form joint family property.
The properties given under exhibit D 20 in the village Chandupu ra are the Jagir properties.
This is also ancestral and impartible property.
There is no evidence to show that out of the Jagir income received, any property purchased or constructed were kept as separate properties.
Therefore, whatever accretions made by Dattatraya 1 for Dwarkanath or Aruna Bai are joint family properties.
It was also found that the respondent did not make any contribution, nor improved the properties.
As there is no evidence to show that Dattatraya 1 treated the income of the property as his separate income, the plaint schedule 1 properties are ances tral properties.
The Jagir compensation received from time to time also form the joint family properties.
The relations between the family was smooth and cordial till 1962.
There was no partition earlier thereto.
Merely because succession to the Jagir was governed by the rule of primogeniture, it did not clothe the Jagir with the incidence of separate and self acquired property.
Therefore, they are joint family properties liable to partition.
The jewellery except the stridhana of third defendant are joint family properties.
The High Court substantially upheld the findings of the trial court.
It held that rule of primogeniture and survi vorship was introduced by the Manual of Jagirdars of the Gwalior State (Qwaid Jagirdaran) in the year 1913 (Samwat 1970) and with the abolition of the Jagir in 1951 under the Madhya Bharat Aboli 651 tion of Jagir Act 28, 1951 (Samwat 2008) for short 'the Act ', ' the properties became the ancestral Hindu Joint Family properties and they are partible, irrespective of the fact in whose name it was entered either as Bhumidar in revenue papers or Jagirdar.
The rooms constructed in the ancestral Bada are accretions to the ancestral house and became part and parcel of it.
There is no evidence that the money spent for construction came from separate or own funds of the appellants.
All the rooms became accretions to the ancestral property and became joint family property.
The jewellery are joint family properties to the extent found by the Trial Court and are liable to partition.
The compensa tion paid under the Act also belongs to the joint family property.
It directed to bring into hotch potch the jewel lery of the respondent for partition in equal shares.
Shri T.U. Mehta, learned senior counsel for the appel lants, contended that the courts below erred in holding that the properties are joint family properties, liable to parti tion.
Since it is a Jagir grant, as per the custom and law, the eldest male member succeeds by rule of primogeniture and survivorship.
Therefore, they are the separate properties of the eldest descendant, subject to right of maintenance by the junior members of the family.
Despite they being members of the undivided Hindu Joint Family, the concept of copar cenership cannot be applied to Jagir estate.
The respondent having had the benefit of maintenance right through, is not entitled as coparcener to a partition of the plaint sched uled properties as the joint family properties.
The jewel lery are the exclusive property of the appellants/defend ants Shri Bobde, learned senior counsel for the respondent argued that though the Jagir was granted tO the named indi vidual, the recitals therein unmistakably point to the fact that, it is to be enjoyed by the family from generation to generation.
It would, therefore, be the coparcenary proper ty.
Appellants and the respondent being governed by the Mitakshara Law are entitled to equal moiety.
The jewellery is the joint family property.
There is no partition at any time.
It was further contended that after the abolition of the Jagir under the act, Dwarkanath or appellants received compensation and the properties were acquired from the income of the compensation.
The properties therefore, are impressed with joint family character and are partible.
Thus the decree for partition is not illegal.
The facts, as found or not disputed in the pleadings, are thus: Admittedly, Chandurpura village was granted as Jagir under Sanad (exhibit D 20) and thereafter the family lived in Gwalior for several gen 652 erations in the Bada.
Certain accretions or incorporations were made to the properties of the family from out of the income derived from the estate or compensation received under the Act.
Dattatraya 1, Dwarakanath and 3rd defendant improved the properties.
The respondent, right through, received maintenance from the estate and did not contribute anything for the improvement of the estate.
He had his education from the maintenance granted from the estate and became a Judicial Officer.
After the abolition of the Jagir under the Act compensation received also was used to build shops.
The Jagir remained indivisible and impartible and devolved successively for seven generations on the eldest male lineal descendant and it continued till Dwarkanath 's death in 1956.
They are governed by Mitakshara Hindu Law and rule of primogeniture.
Under the Act the Jagir lands were resumed and Jagir was abolished.
During the management of the estate by the Court of Wards, the respondent admittedly worked as Superintendent.
The family remained undivided till date of suit.
There is no evidence that any Jagirdar in particular, Dattatraya 1 or Dwarkanath treated the accre tions as separate or self acquired property.
From these facts the question emerges whether the plaint schedule properties are coparcenary.
In our view, the Courts below fell in serious misconceptions of law.
Qwaid Jagirda ran only recognised and reiterated the existing law or custom of impartibility and indivisibility of Jagir, etc.
and succession by rule of primogeniture.
High Court also committed error in holding that impartibility came to an end with the abolition of Jagir under the Act and that earlier thereto and subsequent to the Act the properties were copar cenary.
Neither court appreciated the correct legal posi tion.
In Chapter 25 of Mayen 's Hindu Law, 12th Edition, at page 1065, paragraph 744 it is stated that liability to partition is an ordinary feature of joint family property, but it must not be supposed that joint property and partible property are mutually convertible terms.
If it were so, an impartible estate could never be joint property.
There are estates which by special law or custom descend to one member of the family, generally the eldest, to the exclusion of the other members and which are impartible, though they are joint property, in the eye of the law, belonging equally to the other members; and their rights are hedged in by a number of restrictions or limitations.
The common instances of this class are the ancient zamindaries . or feudatory estates held on military service tenure such as . . royal grants . . services such as Jagirs . 653 In Baijnath Prasad Singh vs Tej Bali Singh, 48 Indian Appeals 195=AIR the Judicial Committee held that succession to impartible estate will be regulated according to the ordinary rule of Mitakshara Law.
and that the respondent being a person who in joint family would, being eldest of the senior branch, with head of the family, is the person designated in this impartible estate to occupy the gaddi.
Accordingly it was held that rule of primogeni ture would apply and not the ordinary rule of Mitakshara Law of survivorship that would be applicable to impartible estate.
In Katama Natchiar vs Raja of Shivganga; [1863] 9 Moore Indian Appeals, 588 (P.C.) the Board held that the Zamindari is admitted to be in the nature of a principality .of im partible and capable of enjoyment by only one member of the family at a time and that therefore Mitakshara law of suc cession of the eldest male member would be applicable.
In Sartai Kuari & Anr.
vs Deoraj Kuari, 15 Indian Appeals, 51 the Board held that there was no co parcenary in impartible estate.
Pratap Chandra Deo vs Jagdish Chandra Deo, 54 Indian Appeals 289=AIR ruled that there is no co ownership in an impartible estate and that, therefore, no right of coparcenary.
survivorship would arise in an impart ible estate.
In Anant Bhikkappa Patii vs Shankar Ramchandra Patii, AIR 1943 P.C. 196 at 201 it was held that: "Now an impartible estate is not held in coparcenary, though it may be joint family property.
It may devolve as joint family property as separate property of the last male owner.
In the former case, it goes by survi vorship to that individual, among those male members who in fact and in law are undivided in respect of 'the 'estate, who is singled out by the special custom.
e.g., lineal male primogeniture.
In the latter case, jointness and survivorship are not as such in point; the estate devolves by inheritance from the last male owner in the order prescribed by the special Custom or according to the ordinary law of inheritance as modified by the custom.
" In Amrendra Man Singh vs Sanatan Singh, 60 Indian Appeals 242=AIR it was held that the zamindari proper ty belonged to the adopted son as to the last male owner.
Thus it is settled law that succession to an impartible estate is 654 governed by rule of primogeniture and the eldest male member of the family would succeed by survivorship to the imparti ble estate.
It is seen from the record and it is not contro verted even across the Bar that for seven successive genera tions, the Jagir estate descended on the eldest male member of the family by rule of primogeniture.
The question then is whether the Jagir is partible as Hindu Joint Family property.
In Shiba Prasad Singh vs Rani Prayag Kumari Debi & Ors., 59 Indian Appeals 351=AIR relied on by Sri Mehta, Sir Dinshan Mulla, speaking for the Board held that impartibility is essentially a creation of custom.
In .the case of ordinary joint family property, the members of the family have (1) the right of partition, (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of mainte nance, and (4) the right of survivorship.
The first of these rights cannot exist in the case of an impartible estate though ancestral, from the very nature of the estate.
The second and the third are incompatible with the custom of impartibility.
To this extent the general law of Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self acquired and separate property.
But the right of survivor ship is not inconsistent with the custom of impartibility.
This right, therefore, sail retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property.
Though the other rights which a co parecener acquires by birth in joint family property, no longer exist, the birth right of the senior member to take by survivorship still remains.
(emphasis supplied) Nor is this right a mere succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband 's estate.
It is a right which is capable of being renounced and surrendered.
Therefore, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate.
It is not sufficient to show a separation merely in food and worship.
In Chinnathayi @ Veeralakshmi v, Kulasekara Pandiya Naicker & Anr.
1 this Court held that the right to bring about partition of an.
impartible estate cannot be inferred from the power of alienation that the holder there of may possess.
In the case of an impartible estate the power to divide it amongst the members does not exist, though the power in the holder to alienate it is there.
This Court further held that: 655 "To establish that an impartible estate has ceased to be joint family property for pur poses of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate.
In each case, it is incumbent on the.
plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant 's branch in the estate was determined so that it became the separate property of the last holder 's branch.
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and intention to impress upon the zamindari the character of separate property." In Shiba Prasad Singh 's case it was further held thus: "surely then the property will pass not as his separat property, but by survivorship as joint property devolu tion by survivorship being another incident of an impartible estate.
The .fact is that when self acquired property is incorporated with an ordinary joint family estate the pro perty so incorpo rated is impressed with all the incidents whic attach to an ordinary joint family estate and when self acquired property is incorporated with an ancestral impartible estate the property so incorporated is im presse with all the incidents which attach to an ancestral impart ble estate.
The mere possi bility therefore of the holder alienating the property after incorporation is no reason for denying to him the power which the Hindu law gives him of changing the mode of descent to his property.
Nor is there anything in that rule of law which is incon sistent with the custom of impartibility." Accordingly it must be held that the impartible estate though descends by rule of primogeniture and survivorship on the eldest male member of the family, it must also be proved that the junior members gave up expressly or by implication his right to a share therein.
The further question is whether it is competent to the holders ofan ancestral impartible estate to incorporate with the estate other properties acquired or incorporated by him or them with the income ofthe impartible estate.
In Smt.
Rani Prabha Kumari Dibi vs Jagdish Chunder Dhabal, 29 Indian Appeals 82=ILR 29 Calcutta 433 (P.C.) 656 the question was regarding succession to an ancestral im partible estate and four Mauzas that has been purchased on behalf of the last holder out of the savings of the estate.
The Board held that there must be evidence to establish the intention of the holder express Or implied to incorporate the property as part of the estate.
Though the collection of the rents was by the estate servant and the papers were kept in the estate, the Board held that the evidence was not sufficient to hold that the Raja intended to incorporate the four mauzas with ancestral estate for the purpose of his succession.
The 4 Mauzas must, therefore, follow the rule of Mitakshara as to self acquired property.
In Janki Pershad Singh vs Dwarka Pershad Singh, 40 Indian Appeals 170=ILR 35 Allahabad 391 P.C. the movable and immovable properties acquired from the income of the estate and were incorporated as part of the estate, yet the Board held that the question whether the properties acquired by an owner becomes part of the ancestral estate for the purpose of the succession would be considered from the intention of the holder of the es tate.
It was held, on facts, that no sufficient evidence was adduced to establish such an intention.
In Murtaza Husain Khan vs Mohd. Yasin Ali Khan, 43 Indian Appeals 269=AIR as regards immovable properties the same view.
was reiterated.
In Jagdamba Kumari vs Wazir Narain, 48 Indian Appeals 195=AIR the Board held that the income of ancestral impartible estate was the absolute properties of the owner of the estate and not an accretion to the estate as in the case of ordinary joint family estate.
While reversing the judgment of the High Court it held: "It is possible that this confusion is due to the consideration of the position with regard to an ordinary joint family estate.
In such a case the income, equally with the corpus, forms part of the family property, and if the owner mixes his own moneys with the moneys of the family as, for example, by putting the whole into one account at the bank, or by treating them in his accounts as indistin guishable his own earnings share with the property with which they are mingled the character of the joint family property; but no such considerations necessarily, apply to the income from impartible property." In Jagdamba Prasad 's case the Board held that the income received is the absolute property of the owner of the im partible estate and it does not attach to the estate as does the income of ordinary ancestral estate attaches to the estate.
While immovable property can be impressed with the impartible estate "movable property cannot".
It 657 was further held that the income received is the absolute property of the owner of the estate it derives and in no way from the property he might have by his own saving.
It is wrong assumption to make that the income of the property of that nature is so effected 'by the sources from which it came that still retains itself original character.
In Commission er of Income tax, Madras vs Honble Sri Ravu Swetachalapati Ramakrishna Ranga Rao, Rajah of Babbili, the full Bench held that the income received by the holder of the impartible estate was not received as.
a member of the Hindu Undivided Family.
The income is.
his and the junior members have no right therein.
In Shiba Prasad 's case (1932), the Board held that it is possible to incorporate immovable property as a part of the estate, but movable properties are the separate properties and they cannot be incorporated and the doctrine of incorporation does not apply in the words thus: "The rule of succession in such a case.is recognised by the State as part of the law of family, though it is no more than the result of a course of conduct of individual subjects of the State constituting the family.
"Under the Hindu system of law, clear proof of usage.
" even if it be a family usage "will outweigh the written text of the law;" In Commissioner of Income tax, Punjab vs Dewan Bahadur Dewan Krishna Kishore, Rais, Lahore, SirGeorge Rankin speaking, for the Board, held that when a family governed by the Mitakshara, by custom the rule of primogeniture controls the devolution of impartible proper ty, the custom of impartibility does not touch the succes sion since the right of survivorship is not inconsistent with the custom; hence the estate retains its character.
of joint family property and devolves by the general law upon the person who, being in fact and in law joint in respect of the estate, is also the senior member in the senior line.
Hence a holder of the estate receiving income from house property cannot be said to be the owner of such property.
It is the joint family that is the owner and, therefore, he cannot be assessed as an individual in respect of such income.
In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur & Ors.
vs Shri Pushavathi Visweswar Gajapathi Raj & Ors ; it was held that immov able property subsequently acquired also would become im partible and ceases to be partible and becomes impartible but the theory of incorporation cannot apply to movable property.
In ease there is a family custom even in respect of movable properties, as per the custom those movable pro 658 perties also become part of impartible estate.
Incorporation is a matter of intention.
It is only where evidence has been adduced to show the intention of the acquirer to incorporate the property aCquired by him with the impartible estate of which he is the holder, then an inference can be drawn about such incorporation.
The question, therefore, is one of intention of acquirer.
By custom in the family the jewellery would be treated to form part of the regalia which belong to the holder of the estate and then would form part of impart ible estate.
In that case as per custom in the family cer tain jewellery were treated as part of impartible estate and belonged to the estate.
The income of an impartible estate thus is not income of the undivided family but is the income of the present holder, notwithstanding that he has sons or brothers from whom he is not divided.
The fact that the son 's or brother 's right to maintenance arises out of the eldest brother 's possession of impartible estate and is .a right to .be maintained out of the estate, do not make it a right of a unique or even exceptional character or involve the conse quence at Hindu Law that the income of the estate is not the holder 's income.
Income is not.
jointly enjoyed by the party entitled to maintenance and the party chargeable nor can it be said that the respective chances of each son to succeed by survivorship make them all co owners of the income with their father or make the holder of the estate a manager on behalf of a Hindu family of which he and they are the male members of the family.
It is equally well settled law that the holder of im partible estate can incorporate other properties belonging to him with that estate so as to make them also impartible and descendable to a single heir by survivorship.
It is one of intentions to be proved as a fact whether the accretions are his separate properties or incorporated as part of impartible estate.
The intention may be express or implied by conduct or treatment of the properties.
In Muttu Baduga nadha Tevar vs Periasami @ Udayana Tevar, 23 Indian Appeals 128 (P.C,) the Privy Council held that the doctrine of representation between the father and his three lineal descendants has been on the assumption that he is reborn in them and the eldest to exclude his brother is continued to his lineal male heirs.
In Ravi Janardhana Krishna Ranga Rao vs State of Madras, AIR 1953 Madras 185 relied on by Sri Mehta, it was held that in the case of an estate to which the incident of impartibility attaches.
by custom, custom supersedes the general Mithakshara law excepting in the matter of devolution of the property by right of survivor ship.
When an impartible estate was aCquired by the Govt.
under the 659 .
Madras Estates (Abolition and ConVersion into Ryotwari) Act compensation received retains the incident of impartibility attached to the estate and the principle that conversion would not alter the nature ofthe estate is universal.
In Thakore Shri Vinayasinghji vs Kumar Srinatwarsinghji & Ors.
,[1988] (Supp.) SCC 133 relied on by the appellants, this court held thatthere is no restraint on the power of alienation of the holder of theimpartible estate.
There is a right of survivorship by birth to the seniormembers of the family, but in all other respects it is clothed with thein cidents of self acquired and separate property with the holder ofimpartible estate and unlimited right of acquisi tion not only by transferbut by will.
In Sri Raja Rao Venka ta Mahipati Gangadara Rama RaoBahadur vs Raja of Pittapur, 47 Indian Appeals 354=AIR and in Maharajah of Jeypore & Anr.
vs VikramaDeo Garu, 52 Indian Cases 333=AIR the Board alsoheld that apart from custom and from near relationship to the holder,the junior members of the family have no right to maintenance out ofthe income of the impartible estate.
It is also thus well settled law that the right of joint enjoyment which is ordinary incident to a coparcenary, where the joint estate is partible, is excluded by the rule of primogeniture and impartibility.
The income of an impartible estate and the accumulation of such income are the absolute .property of the holder.
The immovable properties would be incorporated with impartible estate.
It must be proved that the holder had impressed the immovable proper ties as part of the estate.
But the movable properties will not.
Movables are not an accretion to the estate as in the case of an ordinary joint family estate.
It is seen that the grant of Chandurpur Jagir was in perpetuity and the enjoyment is from generation to genera tion Geneology abstracted hereinbefore establishes that devolution by survivorship to the eldest male member contin ued till time of Dwarakanath and the respondent received only maintenance from the Jagir estate.
What was implicit, was made explicit by Quaid Jagirdaran issued in Samwat 1970 by the Maharaja Scindhia of Gwalior State.
In paragraph 2 thereof it has been stated that Jagir grant shall be indi visible and impartible property.
In paragraph 2 of the preamble it is stated that the Jagir in its entirily would continue in the family in which they were conferred.
Thus it is indivisible and impartible and succeeded by lineal eldest descendent of the family by rules of primogeniture.
660 Chandarpura Jagir was granted under exhibit D 20 with 100 Bighas of lands and the buildings situated therein, accre tions made in such estate out of its income are impartible estate governed by the rule of primogeniture and was suc ceeded by Dwarkanath as last eldest male descendant in the family.
Therefore, they were not the joint family properties but are separate properties of Dwarkanath and the respondent has no right to a share therein as a coparcener.
The other lands acquired from the income thereof stand incorporated as part of the Jagir and are not partible.
Section 9 of the Act recognises the existing legal position and that the Junior member has only right to maintenance and directs payment thereof out of the compensation amount and creates a charge thereon.
Therefore, the properties enumerated in items 1 to 3 and 5 of schedule 2 are not partible.
The preliminary decree in that regard is set aside.
There appears to be dispute regarding item 4.
So it is left out to be decided in separate proceedings.
Both the courts found as a fact that the accretions were from out of the income of the Jagir.
Schedule 1 ances tral residential Bada and other properties situated at Gwalior are not covered by the sanad exhibit D 20.
Admittedly, all the, members of the joint family lived therein.
The prior partition in 1929 set up by the appellants was negated by the courts below.
Though Dattatraya 1 and Dwarkanath improved the properties from the income of Jagir estate as part of the joint estate, there is no evidence to establish that either Dattatraya 1 or Dwarkanath treated those proper ties as their separate or self acquired properties.
Both the courts found as a fact that accretions formed part of.
the joint.
family properties.
Equally there is no evidence that the respondent had given up his share therein either ex pressly or by implication by conduct.
His assertion to be a coparcener and the properties to be coparcenary shows that he continued to claim to be a member of the joint family and admittedly the properties are joint.
The accretions stood blended with ancestral joint family properties.
Under section 3 of the Act what was resumed was only Jagir lands.
Resumption means taking back what was given; what was re sumed are the lands and not the property of a person from whom it was taken by the rightful owner.
Therefore.
what was resumed is the right, title and interest in the Jagir lands covered by the provisions of the Act and compensation was paid in lieu thereof.
Under section 5(b)(i) notwithstanding the vesting in the State under section 4 thereof all Open enclosures used for . . domestic purposes and in continuous possession for 12 years immediately before the date of the resumption; (II) all open house sites purchased for valuable consideration; (III) all private 661 buildings, places of worship, wells, etc.
situated in . house sitespecified in clause (I) and (II); (IV) all groves wherever situated andlands appurtenant thereto shall continue to belong to and be held by the Jagirdar and be settled on him; (V) all 'tanks, trees, private wellsand buildings in the occupied lands shall continue to belong to or beheld by the family.
Thus it is clear that all private properties including buildings in the jagir belong to or held by the Jagirdar remained to bethe property of the Jagirdar.
All private properties in the Jagir otherthan impartible Jagir, therefore, rem 'ained to be joint family property.
We, therefore, hold that schedule I properties are partible.
The pre liminary decree for partition of them are Upheld. ' It is seen that 100 bighas of land in Chandurpura was granted as Jagir.
What had remained after the Act is hardly 5.41 bighas.
So the rest of the lands, obviously, was re sumed by the Government, under the Act.
By operation of section 18 of the Act it is Jagirdar who is entitled toreceive compensation money payable under the Act.
Therefore, themon ey received towards compensation of Jagir lands also retains thecharacter as impartible.
Under the Act by operation of section 19 of the Act the Jagirdar is declared to be pucca tenant of Khudkhast lands of Dwarkanath.
From the impugned judgment it is clear that there are plethora of precedents of Madhya Pradesh High Court that after the abolition of the estates under the Act the lands became joint family properties which received approval from Anant Kibe & Ors.
Purushottam Rao & Ors., [1984] (Suppl.) SCC 175 relied on by Sri Bobde.
There in this court held that the combined effect of sections 158(1)(b) and 164 of the M.P. Land Revenue Code was that the incident of impartibility and the special mode of Succession by the rule of primogeniture which were granted in terms of the grant of inam lands under the Jagir Manual stood extin guished.
Bhumiswami right was conferred on the holder of the land i.e. Dwarkanath In Madhya Bharat Land Revenue and Tenancy Act, 1950 by operation of sections 54(7), 69 and 82 the lands become the pucca tenancy of Bhumiswami i.e. Dwarka nath.
Therefore, the devolution of the right of puccatenancy is by succession opened to the appellants Nos. 1 and 2.Accordingly we hold that Item 2, 3 and 5 of schedule 2 lands become the properties of the appellants.
Cash grant of item 1 in schedule 3 of a sum of Rs.6895.00 is to the family the respondent had already received maintenance as a Junior member from the family and so he is not entitled again to a share therein.
The decree is accordingly set aside.
Regarding item 2 by operation of section 18 of the Act the Jagirdar is entitled to it and that, 662 therefore, the respondent had no share 'therein.
The jewel lery and utensils being movable properties are separate and personal propertiesbelonging to the appellants.
Admittedly the respondent was, given jewellery at his marriage etc.
Therefore, the jewellery and utensils are not liable to partition.
The decree for partition of them is set aside.
The appeal is partly allowed.
The judgment and decree of the trial court as confirmed by the High Court to the extent of all the items in schedule 1 for partition in two equal shares and allotment of one such share to the respondent is confirmed.
The decree for partition of schedule 2 and 3 and of the jewellery and utensils is set aside.
The appeal is allowed to the above extent, but parties are directed to bear their own costs.
Y.L. Appeal patly allowed.

summary/full:
One Yesaji 2, ancestor of the parties rendered meritori ous military service to Ranaji Scindia and in recognition thereof, the Raja of Gwalior granted permanent jagir of Chandurpura village together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment and succession from generation to generation.
By virtue thereof, the ownership, possession and enjoyment was continued successively for seven generations upto Dwarkanath by rule of primogeniture.
Dwarkanath was the nephew (broth er 's son) Of the respondent and father of appellant Nos. 1 and 2.
Dwarkanath being minor at the time of his succession to the estate, the court of wards took over the management and the respondent was appointed as Superintendent and on his death, since appellants 1 and 2 were minors Aruna Rai, their mother, initially managed the estate with the assist ance of the respondent and subsequently the respondent came into full control and management.
The respondent filed a suit for partition .in the year 1962 of the plaint schedule 1 to 3 properties in equal moiety and allotment of one such share to him.
He pleaded that the properties are coparcenary joint family properties and he is entitled to a half share therein.
The respondent received maintenance from the jagir income at the rate of Rs.125 per month.
The appellants defendants disputed the nature of the properties as joint family, status of the respondent and the appellants as coparceners.
They referred to various accretions made to the jagir estate by their father and mother and pleaded that the jagir being an impartible estate is the separate and self acquired properties of Dattatraya 1 Dwarkanath by rule of primogeniture and the concept of coparcenary and joint family status ' are inapplicable to it, and that the respond ent has thus no share therein, but has only a right of maintenance as per the law and the Custom of Gwalior State.
It was also added that the respondent and his wife were given jewellery at.
the time of their mar 645 riage which belonged to the family of the appellants and some of them are stridhana of the 3rd defendant; the re spondent had no share therein or in the utensils etc.
The trial court found that till the date of death of Ghanshyam 2 in 1909, he was jagirdar.
Dattatraya 1 and Dwarkanath suc ceeded as Jagirdars by rule of primogeniture.
After the abolition of the Jagir, compensation was paid to Dwarkanath during his life time as the eldest member of the family and the appellant No. 1 also had been paid balance of compensa tion.
If a joint family possesses property which was admit tedly joint, the presumption would he that the property continued to be joint and the burden lies upon the member who claims as separate property to plead and prove it as separate or self acquired property.
On this reasoning, the trim court granted preliminary decree for partition of half share in schedule 1 and 2 and half share in the moveable property viz., compensation amount jewellery and utensils.
The High Court substantially upheld the findings of the trial court.
It held that rule of primogeniture and survi vorship was introduced by the Manual of Jagirdars of the Gwalior State (Qwaid Jagirdaram) in the year 1913 and with the abolition of the Jagir in 1951 under the Madhya Bharat Abolition of Jagir Act 28, 1951, the properties became the ancestral Hindu Joint family properties and they are parti ble, irrespective of the fact in whose name it was entered either as Bhumidar in revenue papers or Jagirdar.
The High Court while confirming the decree of the trial court, di rected the respondent to bring into hotch potch his jewel lery and the appellants to have a half share therein and accordingly dismissed the appeal and the cross objections.
Hence this appeal by the appellants defendants by special leave.
Partly allowing the appeal, this Court, HELD: Liability to partition is an ordinary feature of joint family property, but it must not be supposed that joint property and partible property are mutually converti ble terms.
[652F] Succession to an impartible estate is governed by rule of primogeniture and the eldest male member of the family would succeed by survivorship to the impartible estate.
[653H 654A] The impartible estate, though descends by rule of primo geniture and survivorship on the eldest male member of the family, it must also be proved that the junior members gave up expressly or by implication his right to a share therein.[655G] The income of an impartible estate is not income of the undivided 646 family but is the income of the present holder, notwith standing that he has sons or brothers from whom he is not divided.
The fact that the son 's or brother 's right to maintenance arises out of the eldest brother 's possession of impartible estate and is a right to be maintained out of the estate, do not make it a right of a unique or even excep tional character or involve the consequence at Hindu Law that the income of the estate is not the holder 's income.
Income is not jointly enjoyed by the party entitled to maintenance and the party chargeable nor can it be said that the respective chances of each son to succeed by survivor ship make them all co owners of the income with their father or make the holder of the estate a manager on behalf of a Hindu family of which he and they are the male members of the family.
[658C E] The right of joint enjoyment which is ordinary incident to a coparcenary, where the joint estate is partible, is excluded by the rule of primogeniture and impartibility.
The income of an impartible estate and the accumulation of such income are the absolute property of the holder.
The immova ble properties would be incorporated with impartible estate.
It must be proved that the holder had impressed the immova ble properties as part of the estate.
But the movable properties will not.
Movables are not an accretion to the estate as in the case of an ordinary joint family estate.
[659E].
The grant of Chandurpur Jagir was in perpetuity and the enjoyment is from generation to generation.
Geneology ex tracted herein before establishes that devolution by survi vorship to the eldest male member continued till time of Dwarkanath and the respondent received only maintenance from the Jagir estate.
What was implicit was made explicit by Qwaid Jagirdaran issued in Samvat 1970 by Maharaja Scindia of Gwalior State.
[659F G] Thus it is indivisible and impartible and succeeded by lineal eldest descendent of the family by rules of primogen iture.
[659H] Baijnath Prasad Singh vs Tej.
Bali Singh, 48 Indian Appeals 195 A.I.R. 1921 P.C. 62; Katama Natchiar vs Raja of Shivganga, [1863] 9 Noore Indian Appeals, 588 (P.C.); Sartaj Kuari & Anr.
vs Deoraj Kuari, 15 Indian AppealS, 51; Pratap Chandra Deo vs Jagdish Chandra Deo, 54 Indian Appeals 289 A.I.R. 1927 P.C. 159; Anant Shikkappa Patil vs Shankar Ramchandra Patil, A.I.R. 1943 P.C. 196 at 201; Amrendra Man Singh vs Sanatan Singh, 60.
Indian Appeals 142 A.I.R. 1933 P.C. 155; Shiba Prasad Singh vs Rani Prayag Kumari Debi & Ors., 59 Indian Appeals 351 A.I.R. 1932 P.C. 216; Chin 647 nathayi @ Veeralakshmi vs Kulasekara Pandiya Naicker & Anr.
, ; ; Smt.
Rani Prabha Kumari Bibi vs Jagdish Chunder Dhabal, 29 Indian Appeals 82=ILR 29 Calcutta 433 P.C.; Janki Pershad Singh vs Dwarka Pershad Singh, 40 Indian Appeals 170=ILR 35 Allahabad 391 P.C.; Murtaza Husain Khan vs Mohd. Yasin Ali Khan, 43 Indian Appeals 269=A.I.R. ; Jagdamba Kumari vs Wazir Narain, 48 Indian Appeals 195=A.I.R. ; Commissioner of Income tax, Madras vs Honble Sri Ravu Swetachalapati Ramakrishna Ranga Rao, Rajah of Babbili, ; Commissioner of Income tax, Punjab vs DeWan Bahadur Dewan Krishna Kishore, Rais, Lahore, A.I.R. 1941 P.C.120; Mirza Raja Shri Pushava thi Viziaram Gajapathi Raj Manne Sultan Bahadur & Ors.
vs Shri Pushavathi Visweswar Gajapathi Raj & Ors., ; ; Muttu Baduganadha Tevar vs Periasami @ Udayana Tevar, 23 Indian appeals 128 P.C.; Ravi Janardhana Krishna Ranga Rao vs State of Madras, A.I.R. 1953 Madras 185; Tha kore Shri Vinayasinghji vs Kumar Srinatwarsinghji & Ors., [1988] (Supp.) S.C.C. 133; Sri Raja Rao Venkata Mahipati Gangadara Rama Rao Bahadur vs Raja of Pittapur, 47 Indian Appeals 354=A.I.R. ; Maharajah of Jeypore & Anr.
vs Vikrama Deo Garu, 52 Indian Cases 333=A.I.R. 1919 P.C. 126; Anant Kibe & Ors.
vs Purushottam Rao & Ors., [1984] (Suppl.) S.C.C. 175, referred to.


judgement:
vil Appeal Nos.
" 5061 62 of 1985.
From the Judgment and Order dated 24.9.
1985 of the Sikkim High Court in W.P. No. 1 of 1983.
K. Swami, T. Topgay, A. Subba Rao (N.P.) B. Parthasarthi and Pari jar Sinha for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The Sikkim State Civil Service (here inafter called the 'Service ') was constituted with effect from July 1, 1977 by the rules framed under article 309 of the Constitution of India, called the Sikkim State Civil Service Rules, 1977 (hereinafter called the 636 'Rules ').
The question for our consideration in these ap peals is whether the special recruitment made by the State Government in the year 1981/82 and the consequent appoint ment of 29 officers to the service is violative of the rules and as such is liable to be quashed.
The Sikkim Government by a notification dated September 16, 1981 decided to make special recruitment to the service on the basis of written examination cum viva voce test.
The notification mentioned 'exigencies of service ' as a ground for holding the special recruitment.
As a result of the selection, 29 officers were appointed to the service by an order dated December 13, 1982.
Dorjee Tshering Bhutia who was working as Under Secre tary to the Government of Sikkim competed for the selection but failed.
He challenged the notification dated September 16, 1981 and the consequent selection by way of a writ petition under Article 226 of the Constitution of India before the Sikkim High Court.
The learned single Judge of the High Court allowed the writ petition and quashed the notification and the selection.
At the relevant time there being no division bench in the Sikkim High Court to hear the appeal, the State of Sikkim and the selected candidates have, against the judgment of the Learned Single Judge, come up to this court via Article 136 of the Constitution of India.
Hence these two appeals.
Before dealing with the points involved in the appeals it is necessary to notice the provisions of the rules in some detail.
Rule 3 deals with the initial constitution of the service.
It provides that the persons holding the posts mentioned therein would be deemed to be members of the service on the enforcement of the rules.
Rule 4 which pro vides for the method of recruitment to the service is as under: 4.
Method Of Recruitment to the Service: (1) Recruitment to the service after the publishment of these rules shall be by the following methods, namely: (a) Competitive Examinations to be held by the Commission; (b) Selection from among persons serving in connection with the affairs of the State of Sikkim.
(2) The proportion of vacancies to be filled in any year in accordance with clauses (a) and (b) above, shall be 50:50 respectively: 637 Provided that the number of persons, recruited under ClauSe (b) above, shall not at any time exceed 50 percent of the total strength of the Service (3)Notwithstanding anything contained in sub rule (I) if in the opinion of the Government exigencies of the service So re quire, the Government may, after consultation with the Commission, adopt such method of recruitment to the Service other than those specified in the said sub rule, as it may by Notification in this behalf, prescribe.
Rule 5 provides for the constitution of a Selection Committee, consisting of Chairman, Sikkim Public Service Commission and three other officers, to make recruitment under Rule 4(1)(b).
Under Rule 6 the merit list prepared by the Selection Committee is to be forwarded to the Sikkim Public Service Commission for its final approval, Rule 8 lays down that the competitive examination for recruitment to the service is to be conducted by the Sikkim Public Service Commission.
Rule 9, 10 and 11 provide for eligibili ty and other qualifications for admission to the competitive examination.
Rule 12 states that the decision of the Commis sion as to the eligibility or otherwise of a candidate for admission to the competitive examination shall be final.
The Rules provide for two methods of recruitment, com petitive examination and by selection from amongst persons serving in connection with the affairs of the State of Sikkim.
In respect of both these methods, it is the Sikkim Public Service Commission which is the authority Under the Rules to make recruitment to the service.
The competitive examination is to be held by the Commission.
The Selection Committee for recruitment under Rule 4(1)(b) is to be pre sided over by the Chairman of the Public Service Commission and finally the merit list has to be approved by the Public Service CommissiOn.
It is thus Obvious that the Rules can only operate through the Sikkim Public Service Commission.
Without the existence of a Public Service Commission in the State of Sikkim the Rules could not have become functional.
It is not disputed that on July 1, 1977 when the Rules came into force there was no Public Service Commission in the State.
It was for the first time that one Shri K.R.K. Menon was appointed as chairman Of the Commission by a notifica tion dated November 20.
1981 and he took over as such on January 11, 1982.
It is, thus, the admitted position that from July 1, 1977 till January 1.1, 1982 the Public Service Commission in the State of Sikkim had.not been constituted and as such was not functioning.
638 On August 10, 1981 a Cabinet Memorandum was issued by the Sikkim Government suggesting the necessity of inducting officers working with the Sikkim Government into the service by way of selection.
The reasons for holding the said selec tion as stated in the memorandum are as under.
"Officers, who had not been considered for induction into the Sikkim State Civil Service at its initial constitution in 1977, have been representing from time to time for induction into the Sikkim State Civil Service.
Presently these Officers have been grouped in the cate gory of 'GENERAL '.
In order to give them chance for appointment to the State Civil Service, the Government may consider the modalities for selection and the determination of seniority of the officers as proposed in the draft Notification and the draft order enclosed.
The following salient points are submitted for the consideration of the cabi net.
" The Memorandum was considered by the Cabinet in its meeting held on September 1, 1981 and it was decided to hold a written examination and viva voce test for selection to the Service.
Consequently, the notification dated September 16, 1981 was issued, the operative part of which is repro duced hereunder: "NOTIFICATION In pursuance of sub rule (3) of rule 4 of the Sikkim State Civil Service Rules, 1977, the Government being of opinion that the exigencies of the Service as require, hereby adopts the method written examination cum viva voce test as a method of recruitment to the service for that purpose constitutes a Selec tion Committee and prescribe the conditions of eligibility and regulation of seniority among the selected officers as follows: 1.
Constitution of the Selection Committee.
There shall be a Selection Committee comprising of the following officers, namely: 1.
Chief Secretary Chairman 2.
Home Secretary Member 639 3.
Development Commissioner Member 4.
Finance Secretary Member 5.
Establishment Secretary Member The Deputy Secretary in the Estab lishment Department shall act as the Secretary to the Selection Committee.
Functions of the Selection Committee The Selection Committee shall arrange to hold a written examination cum viva voce test for the eligible officers with a view to assess their suitability for appointment to Service.
Provided that any Officer who fails to obtain forty per cent of the total marks at the written examination cum viva voce test shall not be considered for appointment to Service.
Officers eligible to appear at the written Examination cum viva voce test (1) Every person who on the 1st clay of August, 1981 is a gazetted officer under the Government of Sikkim not possessing the technical qualifica tions as specified in the Notification Of the Government of Sikkim in the Establishment Department No. 350/GEN/EST dated 3rd Feb., 1978 shall be eligible to appear at the Writ ten examination cum viva voce test.
By a subsequent notification dated April 24, 1982 the constitution of the Selection Committee was changed and the Chairman, Sikkim Public Service Commission was made to preside over the Interview Board.
The merit list prepared as a result of selection was sent to the Sikkim Public Service Commission for approval and thereafter 29 officers were appointed to the service by a notification dated December 13, 1982.
Dorjee Bhutia challenged the notification dated Septem ber 16, 1981 and the consequent selection before the Sikkim High Court on the following grounds: 1.
The exercise of power, in issuing the impugned notifica tion, 640 under Rule 4(3) of the Rules was illegal as the requisite conditions namely the existence of exigencies of service and consultation with the Public Service Commission, were not satisfied.
The method of selection provided under the notification being contrary to the statutory rules was bad in law.
Rule 4(3) of the Rules was liable to be struck down on the ground of excessive delegation.
The Selection Committee was changed from time to time so much so that the Committee which took the written examina tion was different from the one which took the viva voce test.
The learned Advocate General appearing for the State of Sikkim raised the following points before the High Court: 1.
The rules, though enforced, were inoperative due to nonexistence of Public Service Commission in the State of Sikkim.
The Government could, therefore, issue the notifica tion in exercise of its executive power under Article 162 of the Constitution of India.
The conditions precedent for holding the selection under Rule 4(3) were satisfied.
Necessary opinion to issue the impugned notification was formed on the basis of the reasons contained in the Cabinet Memorandum dated August 10, 1981.
The High Court could not have gone into the sufficiency of reasons.
Consultation with the Public Service Commission under the Rules was directory.
In any case there being no Commission in existence it was not possible to do so.
Dorjee Bhutia having appeared in the written examination and the viva voce test was estopped from challenging the selection.
The writ petition was liable to be dismissed on grounds of laches.
The High Court rejected the arguments advanced on behalf of the State of Sikkim.
It was held by the High Court that the impugned notification was violative of the Rules, the Government could not have acted in its executive power when the statutory rules were holding the 641 field, the two conditions precedent under, Rule 4(3) of the Rules were mandatory, there was no material before the.
State Government to form an opinion that exigencies of service required the issuance of the impugned notification and the Public ServiCe Commission was not consulted.
On these findings the High Court quashed the selection and the consequent appointments.
The learned counsel for the appellant contended that the Rules came into force in the year 1977 which provided re cruitment to the service through the Public Service Commis sion.
The service constituted under the Rules consisted of the top ranking posts in the State Service.
It also served as a feeder cadre for appointments to the Indian Administra tive Service.
After its initial.
constitution no further appointments were made to the service under the Rules be cause in the absence of the Public Service Commission there was no mechanism to operate the Rules.
According to him when recruitment to the service was not made for a long period there were representations from number off officers seeking opportunity to enter the service.
It was under these circum stances that the cabinet decision to hold the special selec tion was taken and the impugned notification was issued.
The learned counsel vehemently contended that the Rules being inoperative the State Government was, within its executive power to issue the notification.
He also justified the Government action under Rule 4(3) of the Rules.
According to .him the. necessary opinion regarding existence of 'Ex igencies of Service ' was formed by the Government on the basis of the reasons contained in the Cabinet Memorandum (quoted above) and the High Court could not have gone into the sufficiency of the said reasons.
He further argued that the requirement of consultation with the Public Service Commission was directory and its non compliance could not have rendered the selection illegal.
The executive power of the State under Article 162 of the Constitution of India extends to the matters with re spect to which the legislature of the State has power to make laws.
The Government business is conducted under Arti cle 166(3) of the Constitution in accordance with the Rules of Business made by the Governor.
Under the said Rules the Government business is divided amongst the ministers and specific functions are allocated to different ministries.
Each ministry can, therefore, issue orders or notifications in respect of the functions which have been allocated to it under the Rules of Business.
642 The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature.
It is settled law that any order, instruction, direction or notification issued in exercise of the execu tive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity.
But in this case we are faced with a peculiar situation.
The Rules, though enforced, remained unworkable for about five years.
The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period.
There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years.
In the absence of any material to the contrary we assume that there Were justifiable reasons for the delay in constituting the Commission.
The executive power of the State being divided amongst various function aries under Article 166(3) of the Constitution of India there is possibility of lack of co ordination amongst var ious limbs of the Government working within their respective spheres of allocation.
The object of regulating the recruit ment and conditions of Service by statutory provisions is to rule out arbitrariness, provide consistency and crystilise the rights of employees concerned.
The statutory provision 's which are unworkable and inoperative cannot achieve these objectives.
Such provisions are non est till made operation al.
It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field.
When in a peculiar situation, as in.the present ease, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power.
The impugned notification to hold special selection 'was issued almost four years after the enforce ment of the Rules.
It was done to remove stagnation and to afford an opportunity to the eligible persons to enter the service.
In our view the State Government was justified in issuing the impugned notification in exercise of its execu tive power and the High Court fell into error in quashing the same.
The fact that the State Government purported to act under rule 4(3) of the Rules in issuing the impugned notifi cation is of no consequence.
When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was la belled under a different provision.
The view we have taken it is not necessary to go into any other question.
It is not disputed that after the con stitution of the Sikkim Public Service Commission, the Chairman of the Commission was made to preside over the Selection Committee which took the viva 643 voce test.
There after the merit list was sent to the Public Service Commission and the appointment of 29 appellants, in the year 1982, was made with the approval of the Commission.
The selection was thus finally approved by the Commission which is an independent authority.
No infirmity or illegali ty has been pointed out in the process of selection or in preparing the merit list.
We, therefore, allow the appeals, set aside the judgment of the High Court and dismiss the writ petition by Dorjee Tshering Bhutia.
There shall be no order as to costs.
G.N. Appeals al lowed.

dataset_name: IN-Abs

summary/full:
The Sikkim State Civil Service was constituted in 1977, under the Sikkim State Civil Service Rules, 1977.
The Rules provided for two methods of recruitment viz., competitive examination and selection from amongst persons serving in connection with the affairs of the State.
On the basis of representations from officers who were not being considered for induction into the service at.
its initial constitution, the Petitioner State decided to afford an opportunity to them.
On 16.9.81 the State Government issued a notification for special recruitment and constituted a Selection Commit tee.
Written examination cum viva voce test was adopted as the method of recruitment, and the Selection Committee prepared a merit list, on the basis of which 29 officers were appointed to the service in December, 1982.
The Respondent who was working as Under Secertary to the State Government compete in the test but was not successful.
He filed a Writ Petition before the High Court, challenging the notification dated 16.9.1981 and the consequent selec tion.
The main contention raised by him was that the exer cise of power under Rule 4(3) on the basis of which the said notification was issued, was illegal on the ground of exces sive delegation, since the requisite conditions of existence of exigencies of service and consultation with the Public Service Commission were not satisfied.
The Petitioner State contended that the Rules though 633 634 enforced, were inoperative since Public Service Commission was not in existence in the State, and the Government could issue the notification in exercise of its executive power under Article 162 of the Constitution of India; that the conditions precedent for holding the selection under Rule 4(3) were satisfied as the necessary opinion to issue the notification was formed on the basis of the reasons con tained in the Cabinet Memorandum dated 10.8.1981; that the consultation with the Public Service Commission under the Rules was directory and in any case the Service Commission was not in existence at the relevant time and that the Respondent having appeared in the written examination and viva voce test was estopped from challenging the selection.
Rejecting the contentions of the State, the High Court held that the notification was violative of the Rules and quashed the selection and the consequent appointments.
Aggrieved by the High Court 's decision, the State Gov ernment and the selected officers preferred the present appeals by special leave.
The same contentions as were raised in the High Court were urged before this Court.
Allowing the appeals, this Court, HELD: 1.
The State Government was justified in issuing the notification in exercise of its executive power and the High Court fell into error in quashing the same.
[642F] 2.
The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature.
It is settled law that any order, instruc tion, direction or notification issued in exercise of the executive power of the State which is contrary to any statu tory provisions, is without jurisdiction and is a nullity.
In the instant case, the Sikkim State Civil Service Rules, 1977 though enforced, remained unworkable for about five years.
The Public Service Commission, which was the authori ty to implement the said Rules, was not in existence during the said period.
There is nothing on record to show as to why the Public Service Commission was not constituted during all those five years.
In the absence of any material to the contrary it is assumed that there were justifiable reasons for the delay in constituting the Commission.
The executive power of the State being divided amongst various function aries under Article 166(3) of the Constitution of India there is possibility of lack of co ordination amongst var ious limbs of the Government working within their respective spheres of allocation.
The 635 object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrari ness, provide consistency and crystalise the rights of employees concerned.
The statutory provisions which are unworkable and inoperative cannot achive these objectives.
Such provisions are non est till made operational.
It is the operative statutory provisions which have the affect of ousting executive power of the State from the same field.
When in a peculiar situation, the statutory provisions could not be operated, there was no bar for the State Government to act in exercise of its executive power.
The notification to hold special selection was issued almost four years after the enforcement of the Rules.
It was done to remove stagna tion and to afford an opportunity to the eligible persons to enter the service.
[642A E] 3.
The fact that the State Government purported to act under rule 4(3) of the Rules in issuing the notification is of no consequence.
When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labelled under a different provision.
[642G] 4.
After the constitution of the Sikkim Public Service Commission, the Chairman of the Commission was made to preside over the Selection Committee which took the viva voce test.
Thereafter the merit list was sent to the Public Service Commission and the appointment was made with the approval of the Commission.
The selection was thus finally approved by the Commission which is an independent authori ty.
There could be no infirmity or illegality in the process of selection or in preparing the merit list.
[642H; 643A B]


judgement:
vil Appeal Nos.
1339 40 of 1988.
From the judgment dated 7.7.1987 of the Madras High Court in W.P. Nos. 9781 and 10545 of 1986.
G.L. Sanghi, P.P. Rao, R. Mohan, R. Perumal, V. Krishna murthy, M.N. Krishnamani, V. Sekhar, K.V. Vishwanathan, T. Raja, S.R. Setia, P. Chaudhary, A. Mariarputham and M.A. Krishnamurthy for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
In these appeals by special leave, the legality of the judgment of the Madras High Court dated 7 July 1987 quashing the promotions made to the cadre of professors in law colleges in the State of Tamil Nadu has been called into question.
The appeals arise in the following circumstances: During the period from 197 1 to 1982 the Government appointed temporary junior professors in different law colleges in the State.
The appointments were made under Rule 10(a)(i)(1) of the Tamil Nadu State and SubOrdinate Services Rules, 1955 (Viz.
Preliminary and The General Rules) (hereinafter called 'the Rules ').
In 1979 the State Public Service Com mission invited applications for regular appointment of junior professors.
The temporary junior professors and others applied for the posts.
The Public Service Commission selected 25 candidates out of whom 21 were already working as temporary junior professors.
The selected candidates were arranged in the list called "approved list '. ' in the order of merit.
The list was prepared by the Public Service Com mission on 16 August 1983.
It was approved by the Government 'on 9 December 1983.
On 27 June 1985 the State Government made an order regularising the services of those 21 junior professors.
Their services were regularised with effect from the dates of original appointments as temporary junior professors.
On 10 September 1986 some of the junior professors were promoted and appointed as professors in the law colleges.
promotion was challenged before the Madras High Court on the ground that the claim of the seniors has been over looked ' It, was urged before the High Court that once the temporary services have been regularised retrospectively with effect from the date of entry in the service, the seniority should be reckoned by giving the benefit of regu larised service 621 notwithstanding the ranking in the approved list prepared by the Public Service Commission.
The High Court accepted that plea and queshed the promotion of professors and directed the Government to make a proper order of promotion in the light of the views expressed in the judgment.
The correctness of the judgment of the High Court has been assailed in these appeals.
We must first outline the necessary statutory provisions bearing on the question raised.
Section 10(a)(i)(1) provides as follows: "10.
Temporary appointments: (a)(i)(1) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the ap pointing authority may temporarily appoint a person, otherwise than in accordance with the said rules.
Rule 22 so far as relevant reads: "Reservation of Appointments Where the Spe cial Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, selection for appointment thereto shall with effect on and from the 7th June 197.1, in cases such selec tion is made by the Commission, and 8th Novem ber 1971, in other cases, be made on the following basis (a) The unit of selection for appointment, for the purpose of this rule, shall be one hun dred, of which ,eighteen shall be reserved for the Scheduled Castes and the Scheduled Tribes and thirty one shall be reserved for the Backward Classes and the remaining fifty one shall be filled on the basis of merit.
(b) The claims Of members of the Scheduled Castes and the Scheduled Tribes and the Back ward Classes shall also be considered for the fifty one appointments, which shall be filled on the basis of merit; and where a candidate 622 belonging to a Scheduled Caste, Scheduled Tribe or Back ' ward Class is selected on the basis of merit, the number of posts reserved for the Scheduled Castes and the Scheduled Tribes or for the BackWard Classes, as the case may be, shall not in any way be affected.
XXXXX XXXX XXXX Rule 23, so far.
as material, is as follows: "23(a)(i) Date of Commencement of probation of persons first appointment temporarily If a person appointed temporarily either under sub rule (a) or sub rule.
(d) of rule 10 to fill a vacancy in any service, class or cate gory otherwise than in accordance with the rules governing appointment thereto, such vacancy being a vacancy which may be filled by direct recruitment, is subsequently appointed to the service, class or category in accord ance with the rules, he shall commence his probation; if any, in such category either from the date of his first temporary appoint ment or from such subsequent date, as the appointing authority may determine.
XXXXX XXXXX XXXXX Provided that on the date so determined, the person possesses all the qualifications pre scribed for appointment to the service, class or category, as the case may be.
(ii) A person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation.
Where commencement of probation is ordered from a date earlier than the date of the order and if this has not been enabled by relaxation of any rule, he shall draw incre ments, including arrears, in the time scale Of pay applicable to him from such ' earlier date.
The appointing authority shall include a provision to this effect while issuing orders in all such cases.
Rule 35 omitting immaterial words, is in these terms: "35(a) The seniority of a person in a service, class or cate 623 gory or grade shall unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the T.N.P.S.C. or other appointing authoritY, as the case may be, subject to the rule of reser vation.
where it applies.
The date of com mencement of his probation shall be the date on which he joins duty irrespective of his seniority.
" , It is under these Rules the Public Service Commission invit ed applications for selecting candidates for direct recruit ment to the cadre of Assistant professors in Law.
The Public Service Commission prepared the list of selected candidates by following the reservation provided under rule 22.
The list was approved by the State Government. ' Rule 35(a) states that seniority of a person ' be determined by the rank 'obtained by him in the list of approved candidates drawn by the Public Service Commission subject to rule of reservation where it applies.
The contention urged for the respondents, is.
that since their temporary service as junior professors were regula rised, the regularised service should count for the purpose of determining, their seniority and not the rankings in the select ,list approved by the Government.
We find little substance in it.
The order of regularisation is in these terms: "ORDER DATED 27.6.1985 In G.O Ms. No. 2288 Education dated 9.12.1983 the Government approved the selection made by the Tamil Nadu Public Serv ice Commission of the 25 candidates mentioned therein for appointment by direct recruitment as Junior Professor in the Tamil Nadu 'Legal Educational Service These 25 candidates were appointed temporarily as from their taking charge 'in G.O.
Ms. No. 897 Education dated 11.7.
The Government have however, decided to appoint them, regularly with effect from, the dates on which, they were declared fully qualified to hold the post of Junior professor in the Law Colleges in Tamil Nadu prior to their selection by the Tamil.
Public.
Service.
Commission and appointment as Junior ,Profes sors,in Law Colleges with reference to their selection.
The Government accordingly direct that the services of the 21 individuals men tioned in 624 the Annexure to this order as Junior Profes sors in the Tamil Nadu Legal Educational Service, be regularised with retrospective effect from the dates noted against them.
The inter se seniority of the 21 candi dates.indicated in the annexure is in accord ance with the seniority fixed by the Tamil Nadu Public Service Commission.
The inter se seniority position will not be affected in any way with reference to the dates 'of regulari sation mentioned in column 3 of the annexure.
Under Rule 23(a)(ii) of the General Rules for State and Subordinate Services, the incum bents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date.
The increments already sanctioned to them, for their services as temporary.
junior professors prior to regular appointment, is ratified.
XXXXX XXXXX ' ' The first paragraph of the order refers to the selection of 25 candidates by the Public Service Commission for ap pointment as Junior Professors in the ' law colleges and their appointment with effect from their ' taking charges.
The second paragraph of the order deals with the regularisa tion of the services of/21 candidates out of 25 appointed.
The Government directed that the services of the 21 Junior Professors specified in the order be regularised with retro spective effect from the date noted against them.
In the third paragraph it is stated that the inter se seniority of the 21 candidates is in accordance with the seniority fixed by the Public Service Commission and the inter se seniority position will not be affected in any way with reference to the dates of regularisation of their services.
The paragraph four of the order deals with the rights of the candidates to draw increments under rule 23(a)(ii) in the service rendered as temporary Junior Professors.
The High Court has stated that Rule 35(a) could not have been properly invoked by the State Government after the regularisation of :he services of the candidates and it would be against the very concept of order of regularisa tion.
It has been pointed out that by regularisaion the period of temporary service has been converted into a period of regular service and a deeming, fiction is introduced that the candidates whose services have been regularised retro spectively must be 625 treated for all purposes as being in regular service from the respective dates of regularisation.
In our opinion, the view.
expressed by the.
High Court not only runs counter to the terms of the order of the.
regularisation but also is inconsistent with Statutory principle of determining seniority under Rule 35(a).
In the first place the order of regularisation of the services 'of the candidateS expressly states that the inter se seniority of, the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commis sion and will not be affected in any way by the date of regularisation of services.
When the ' order of regularisa tion of temporary service itself denies such service for the purpose of determining seniority, the Court cannot count that service for the purpose of seniority.
Secondly, Rule 3.5(a) provides for determining the inter se seniority of the candidates selected by the Public Service Commission.
It states that the seniority of a person in a service, class or category or trade shall be determined unless he has been reduced to a lower rank as a punishment, by the rank ob tained by him in the list of approved candidates drawn by the Public Service Commission or other appointing authority as the case may be '.
Since the parties in these cases ap peared for selection before the Public Service Commission for regular recruitment as Junior Professors, the list of approved candidates prepared by the Public Service 'Commis sion in the order.of merit and accepted by the Government should be the basis for determining their inter se seniori ty.
It is not open to the parties to claim that their tempo rary service as Junior Professors upon regularisation should be counted for the purpose of determining the seniority in the cadre.
There is no rule supporting such contention.
The services rendered in the temporary post is available either for earning increments or for commencement of probation.
That would be clear from Rule 23(a).
Consistent with the Rule 23(a), the Government in the order of regularisation has directed that the incumbents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date.
The increments already sanctioned to them during their services as tempo rary Junior Professors prior to.regular appointment has been ratified by the said order.
The High Court was plainly in error in ignoring the statutory Rules and the terms and conditions of the order of regularisation of services.
Apart from that, Rule 10(a)(i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.
Such appointments are made otherwise than in accor 626 dance with the procedure prescribed under the Rules.
In the instant case the respondents were appointed temporarily and otherwise than in accordance with 'the Rules.
They were later selected along with others for direct ,recruitment.by the Public Service CommisSion.
They were not entitled to count their temporary service for seniority.
In A.P.M. Mayakutty etc, vs Secretary, Public Service Department etc., at 942 this Court observed that the serv ices rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop gap, emergency or fortuitous arrangement.
The present case cannot ' be an exception to this principle even though their temporary services have been regularised, since regularisation 'was only for limited purposes.
In any view of the matter the decision of the High Court cannot be sustained.
In the result the appeals are allowed and the impugned judgment is set aside with no order as to costs.
V.P.R. Appeals allowed.

summary/full:
The Government appointed temporary junior professors in different law colleges in the State under Rule 10(a)(1)(1) of the TamilNadu State and Subordinate Services Rules, 1955 during 1971 1982.
In 1979 the State Public Service Commission invited applications for regular appointment of junior professors.
The temporary junior professors and others applied for the posts.
The Commission selected 25 candidates out of whom 21 were already working as temporary junior professors.
On 16.8.1983, the selected candidates were arranged in the list called "approved list" in the order of merit prepared by the Commission which was approved by the Government on 9.12.1983.
On 27.6.1985 the State Government regularised the serv ices of the 21 junior professors with effect from 'the dates of original appointments as temporary junior professors.
Some of the junior professors were promoted on 10.9.1986 and appointed as professors.
The respondents challenged that promotion before the.
High Court contending that once the temporary services were regularised retrospectively with effect from the date of entry in the. service, the seniori ty should he reckoned by glvlng the benefit of regularised service notwithstanding the ranking in the approved list.
The High Court allowing the writ petitions directed the Govern 619 ment to make a proper order of promotion in the light of the views expressed in the judgment, against which appeals were made in this Court.
Allowing the appeals, this Court, HELD: 1.
The order of regularisation of the services of the candidates expressly States that the inter se seniority of the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commis sion and will not be affected in any way by the date of regularisation of services.
When the order of regularisation of temporary service itself denies such service for the purpose of determining seniority, the Court cannot count that service for the purpose of seniority.
[625B C] 2.
Since the parties in these cases appeared for selec tion before the Public Service Commission for regular re cruitment as Junior professors, the list of approved candi dates prepared by the Public Service Commission in the order of merit and accepted by the Government should be the basis for the determining inter se seniority.
It is not open to the parties to claim that their temporary service aS junior professors upon regularisation should be counted for the purpose of determining the seniority in the cadre.
[625D E] 3.
Rule 10(a)(i)(1) provides for making of temporary appointments.
Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules.
[625H 626A] 4.
In the instant case, the respondents were appointed temporarily and otherwise than in accordance with the Rules.
They were later selected along with others for direct re cruitment by the Public Service Commission.
They were not entitled to count the temporary service for seniority.
The services rented by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop gap, emergency or fortuitous arrangement.
Even though their temporary services have been regularised, since regularisation was only for limited purposes.
[626A C] A.P.M. Mayakutty etc.
vs Secretary, 'Public Service Department etc.
, at 942, followed.
The services rendered in the temporary post is avail able either for earning increments or for commencement of probation.
[625E F] 620


judgement:
Civil Appeal No. 1801 of 1974.
From the Judgment and Order ,dated 20.3.1974 of the Karnataka High Court in W.P. No. 1956 of 1971.
R.N. Narasimhmurthy, Novin Singh and M. Veerappa for the Appellants.
The appeal is by special leave.
Challenge is to the Judgment.
,of the Karnataka .High Court declaring Rule 8(1) of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy col lected within three years prior 2.8.1971 when the Writ Petition was filed.
Respondent, an excise contractor, had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises. 'He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 8(1) of the aforesaid Rules.
Respondent filed a writ petition before the Karnataka High Court chal lenging the vires of section 23(d) of the Mysore Excise Act, 1965 (hereafter 'Act ' for short) and Rule 8(1.) as being beyond the legislative competence of,the State Legislature.
The High Court did not accept the contention of the respondent in 'regard to section 23 but held that Rule 8(1) authorising the 'levy of a licence fee for the retail off shop was without authority of law.
Section 23(d), as far as relevant, provides: "23.
Ways of levying such duties Subject to such Rules regulating the time, place and manner, as may be prescribed, excise duty and countervailing duty under section 22 shall be levied in one or more of the follow ing ways, as may be prescribed, namely: 702 (a) . . . (aa) . . . . (b) . . . . . (c). . . . . (d)by fees on licences in respect of manufacture or sale of any excisable articles.
" Rule 8 made the rule making powers, under the Act, interalia, provides: "8.
Fee to be paid (1) The licence fee for the several kinds of licences shall be as follows, namely: (1) . . . . . (2). . . . . (3) . . . .
The High Court rightly did not accept the challenge to section 23(d) of the Act.
What is authorised under section 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles.
Rule 8(1) has obviously gone beyond the enabling provision in the section by requir ing a licence fee to be paid for the premises where the licence shop is located.
Such a fee would not have the support of section 23(d).
It is unnecessary to refer to prece dents for support for this conclusion.
It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made.
We find no merit in this appeal and it is, therefore, diismissed.
fore, dismissed.
Respondent did not appear inspite of service of appeal notice.
We make no of for costs.
G.N. Appeal dismissed.

summary/full:
The Respondent, a licencee under floe Karnataka Excise Act for selling liquor at an approved shop, flied a Writ Peti tion before the High Court challenging the vires of Section 23(d) of the Mysore Excise Act, 1965 and Rule 8(1) of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 as being beyond the legislative competence of the State.
The High Court negatived the contention of the Respond ent in respect of Section 23(d) of the Act but held that Rule 8(1) authorising tihe levy of licence fee for retail shop was without authority of law and dircted refund of the levy collected for three years prior to the filing of tiWrit Petition.
Aggrieved by the High Court 's decision, the appellant State has preferred the present appeal by special leave.
Dismissing the appeal, this Court, HELD: The High Court rightly did not accept the chal lenge to Section 23(d) of the Mysore Excise Act, 1965.
What is authorised under Section 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles.
Rule 8(1) of the Karnataka Excise (Sale of Iadion & Foreign Liquors) Rules, 1968 has obviously gone beyond the enabling provision in the section by requiring a licence fee to be paid for the premises where the licensed shop is located.
Such a fee would not have the support of Section 23(d).
It is unnecessary to refer to precedents for support for this conclusion.
It may be possible for the Legisla 701 ture to make a statutory provision for a liicence fee of the type contemplated under the Rules but without authority of the statute a rule of this type should not have been made.
[702E F]