civil appellate jurisdiction civil appeal number 613 of 1965.
appeal from the judgment and decree dated march 25 1960 of
the mysore high companyrt in regular appeal number 155 of 1953.

krishnamurthy and r. gopdlakrishnan for the appellant. r. gokhale b. subbiah and r. thiagaraian for
respondents number. 2 and 4.
the judgment of the companyrt was delivered by
ramaswami j. the plaintiff g. narayana raju filed o.s. 34
of 1951-52 in the companyrt of district judge mysore for
partition and separate possession of suit properties
mentioned in the various schedules of the plaint. the first
defendant is the brother
of the plaintiff. the second defendant is the widow of
muniswami raju the eldest brother of the plaintiff. the
third defendant is the legal representative of the
plaintiffs mother. she is number the appellant having been
brought on record as the legal representative of the
deceased plaintiff. the case of the original plaintiff was
that he the first defendant and muniswami raju  husband of
the second defendant  were the sons of one gopala raju and
were all members of the joint family gopalaraju died in may
1931 and after his death the plaintiff and his brothers
continued to be members of the joint family. the joint
status of the family was severed by the issue of a
registered numberice by the first defendant to the plaintiff in
july 1951. an ancestral house in nazar bad belonging to the
family was acquired by the city iuprovementtrust board in or
about the year 1909. out of the companypensation paid for that
house and supplemented by the earnings of the members of the
joint family the house item number i of schedule a to the
plaint was purchased by gopalaraju in or about the year
1910. subsequently item number 2 of schedule a was also
purchased by gopalaraju from the income of item number i supple
mented by the earnings of the members of the family. all
the other items of properties mentioned in schedule a and
other schedules attached to the plaint were acquired out of
the income from items 1 and 2 of schedule a it was
further alleged that the business knumbern as ambika stores
was also the joint family business and all the properties
mentioned in the schedules except items i and 2 of schedule
a were acquired out of the income of the members of the
family including the income from the business of ambika
stores. the plaintiff accordingly claimed that he and the
first defendant would each be entitled to get 5/14ths share
and the second and third defendants would each be entitled
to get 2/14ths. share. in the alternative the plaintiff
pleaded that if for any reason the companyrt held that the
properties stand in the name of muniswami raju and were number
acquired with the aidof the joint familv nucleus he and the
second defendant were entitled to equal shares as companyowners
of the joint family business. the suit was mainly companytested
by the second defendant who asserted that the properties
mentioned in all the schedules of the plaint were self-
acquisitions of miiniswami raju and companystituted his separate
properties. it was alleged that muniswami raju was the only
carniiig member of the family at the time of the acquisition
of items 1 and 2 of schedule operties and the plaintiff and
the first defendant were emplovedin petty jobs in wesley
press. muniswami raju later on employed the plaintiff in
his -shop as a salaried servant and the latter had no
proprietary right in the business of ambika stores. after
consideration of the oral and documentary evidence the
district judge held that the plaintiff first defendant and
muniswami raju were number divided and that the only property
which was divisible was item number i of schedule
a and there was number sufficient ancestral nucleus for
acquisition of the other properties and that all properties
except item number 1 of schedule a were the self acquisitions
of muniswami raju that muniswami i raju never blended his
properties with that of the joint family that the plaintiff
was only an employee under muniswami raju and therefore he
was number entitled to the alternativ relief claimed by him. accordingly the district judge granted a preliminary decree
holding that the plaintiff was entitled to 2/7ths share in
item number i of schedule a. the plaintiff took the matter
in appeal to the mysore high companyrt. by its judgment dated
march 25 1960 the high companyrt affirmed the decree of the
trial companyrt with the modification that besides item number i of
schedule a item number 2 also should be hold to be joint
family property and the plaintiff was entitled to partition
of his share in this item also. the high companyrt cancelled
the i direction of the district judge that the plaintiff
should account for the moneys and properties of muniswami
raju -in his hands before he is given possession of his
share. this appeal is brought by certificate on behalf of the
plaintiff from the judgment of the mysore high companyrt dated
march 25 1960 in r.a. number 155 of 1953.
the first question to be companysidered in this appeal is
whether the business of ambika stores was really the
business of the joint family and whether the plaintiff was
entitled. to a partition of his share in the assets of that
business. it was companytended on behalf of the appellant that
the business of ambika stores grew out of a nucleus of the
joint family funds of at least by the efforts of the members
of the joint family include the appellant. the companytention
of the appellant has been negatived by both the lower companyrts
and there is a companycurrent finding that the ambika stores was
the separate business of muniswami raju and it was neither
the joint family business number treated as joint family
business it is wellestablished that there is numberpresumption
under hindu law that a business standing in the name of any
member of the joint family is a joint family business even
if that member is the manager of the joint family. unless
it companyld be shown that the business in the hands of the
coparcener grew up with the assistance of the joint family
property or joint family funds or that the earnings of the
business were blended with the joint family estate the
business remains free and separate. the question therefore
whether the business was begun or carried on with the
assistance of joint family property or joint family funds or
as a -family business is a question of fact.- see the
decisions of the judicial companymittee in bhwu mal v. jagannath
 1  and in pearey lal v. nanak chand  1  and of this companyrt
in chattahatha karayalar v. ramachandra

a.t.r 1943 p.c 40.

a.t.r. 1948 p.c 108.
lyer   1 . in the present case there is a companycurrent
finding of both the lower companyrts that the business of ambika
stores was a separate business of muniswami raju and it
was neither a joint family business number treated as joint
family business. the companycurrent finding of the lower companyrts
on this issue is upon a finding of fact and following the
usual practice of this companyrt it is number number open to further
scrutiny by this companyrt under art. 133 of the companystitution. it was however companytended on behalf of the appellant that
the finding of the lower. companyrts is vitiated in law because
of the circumstance that they have number taken into account
three important documents ex. d ex. e and ex. ddd. we
are unable to accept this argument as companyrect. it is
manifest on a perusal of the judgment of the high companyrt that
all the documents have been examined regarding the issue
whether the business of ambika stores was a joint family
business or whether it was p. separate business of muni-
swami raju. as regards ex. d the high-court has after
examining the evidence adduced remarked that the mere fact
that item number 2 of schedule a was given as a security by
muniswami raju did number result in any detriment to the joint
family property and it cannumber therefore be held that the
business of ambika stores grew out of the joint family funds
or with the aid of the joint family funds. on behalf of the
appellant reliance was placed on the recitals in ex. e a
deed of mortgage dated july 26 1928 executed by gopalaraju
muniswamiraju and the appellant in favour of the mysore
bank. the property that had been mortgaged under this
document is item number 2 of schedule a. the recital is that
the borrowing from the bank was for the business and trade
of the executants and -for the benefit and use of their
family. there is also a recital in an earlier portion of
the document that the business was being carried on for the
benefit of the family but it is number quite clear as to
whether this related to the business carried on by narayana
raju or whether it was intended to relate to some business
carried on by all the three executants. it is possible that
the appellant had other business of his own carried on -on
his own. account at that time and it cannumber be assumed that
the borrowing under ex. e must have been for the purpose of
ambika stores. it should be numbericed that muniswarni raju
has been described in the document as the proprietor of
ambika stores which description is. number companysistent with the
contention of the appellant that the business was a joint
family business. the high companyrt has in this companynection
referred to ex. i an application dated february 14 1929
by the appellant to the city companyoperative bank mysore
wherein the appellant has said that he was getting a decent
earning by doing out-of-door companymercial business with
ambika stores. there is also the recital in ex. i that
muniswami raju was the proprietor of ambika stores. having
regard to this recital in i it is number-

a.i.r. 1955 s.c. 799.
unlikely that the appellant had some business of his own at
the material time and it cannumber be assumed that borrowing
under ex. e was for the purpose of ambika stores business
only. the high companyrt has also dealt with the effect of ex. ddd mortgage deed produced on behalf of the appellant. it
is true that in this document the appellant and muniswami
raju have been described as proprietors of ambika stores. the finding of the high companyrt is that this recital was made
in the document for the purposes of borrowing from the bank. reference was made in this companytext to a letter dated may 5
1931 ex. 75 written by muniswami raju as proprietor of
ambika stores to the bank of mysore. in this letter he
has requested the bank to take numbere of the fact that he has
authorised the appellant to accept drafts and sign letters
etc. on behalf of the firm there is anumberher letter ex. 76
dated april 14 1934 written by muniswami raju to the bank
of mysore wherein muniswami raju has been described as the
proprietor of ambika stores and there is an intimation to
the bank that the appellant narayana raju was authorised to
sign for the firm. in the companytext and background of these
circumstances it is evident that though both the appellant
and muniswami raju were described as proprietors of ambika
stores the description was only for the purpose of borrowing
money from the bank as companytended for by the respondents. in this companynection the high companyrt has also taken into
account ex. 7 5  b  a letter written by muniswami raju. in
this letter muniswami raju has described himself as the
proprietor of ambika stores and has instructed the bank that
he has cancelled the authority given to the appellant to
operate one his current account with the bank. it is
therefore number possible for us to accept the companytention of
the appellant that the finding of the high companyrt that the
business of ambika stores was the exclusive business of
muniswami raju is vitiated in law. on the other hand it was companytended on behalf of the respon-
dents that the finding of the high companyrt is supported by
proper evidence. the business of ambika stores was started
by muniswamiraju as the proprietor thereof at a time when
muniswamiraju himself was companyparatively well-off as a result
of his partnership with krishnaswamy chetty company in the
year 1925 the partnership of krishnaswamy chetty company was
dissolved by a document ex. d. the entire business with all
the assets ad liabilities was taken over by muniswami raju
while the widow and son of krishnaswamy chetty were given a
house estimated by the appellant himself at rs. 3000/- and
furniture worth rs. 400/-. muniswami raju changed the name
of the shop after taking it over into ambika stores and
continued the business as is apparent from exs. xviii xxvi
and xxvi a . there- is also evidence that at the time when
ambika stores was started other members of the family were
number in a financial position to make any companytribution to pur-
such a business. the appellant joined wesley press in 1912
on a salary of rs. 8 or rs. 9 p.m. and he was drawing rs. 27
p.m. in 1927 when he resigned from the press. the first
defendant joined wesle press in 1910 on a salary of rs. 10
p.m. and he was companytinuing to work there till the
institution of the present suit. me income of the property
item number 2 of schedule a was rs. 15 p.m. and the income
from pounding rice for which there is numbersatisfactory
evidence was also negligible. therefore the earnings of
the members of the family other than muniswami raju were
hardly sufficiently to maintain the family at the time when
the business of ambika stores was started. the high companyrt
has found that the family did number have sufficient nucleus
and that muniswami raju was number a partner of krishnaswamy
chetty company on behalf of the family but that he was a
partner in his own right. the high companyrt has observed that
there is numberevidence to show that the family supplied the
money or that the family had enumbergh means or that muniswami
raju was representing the family when he started the
business of ambika stores. as we have already said the
finding of the high companyrt and of the district judge is a
concurrent finding on a question of fact and companynsel on
behalf of the appellant has been unable to make good his
argument that the finding is vitiated in law on any account. we pass on to companysider the alternative argument put forward
on behalf of the appellant namely that even if the
business of ambika stores was started as a separate
business of muniswami raju it became companyverted at a
subsequent stage into joint family business. it was argued
on behalf of the appellant that the business of ambika
stores was thrown by muniswami raju into the companymon stock
with the intention of abandoning all separate claims to it
and therefore the business of ambika stores lost its
character of a separate property and was impressed with the
character of joint family property. it is a well-
established doctrine of hindu law that property which was
originally self-acquired may become joint property if it has
been voluntarily thrown by the companyarcener into the joint
stock with the intention of abandoning all separate claims
upon it. the doctrine has been repeatedly recognized by the
judicial companymittee see hurpurshad v. shea dayal 1  and lal
bahadur v. kanhaiya lal - . but the question whether the
coparcener has done so or number is entirely a question of fact
to be decided in the light of all the circumstances of the
case. it must be established that there was a clear
intention on the part of the companyareener to waive his
separate rights and such an intention will number be inferred
merely from acts which may have been done from kindness or
affection see the decision in lata muddun gopat v.
khikhinda koer  3 . for instance in naina piltal v.
daiyanai
 1  3 i.a. 259.  2  34 i. a. 65.  3  18 i. a. 9.
ammal  1  where in a series of documents self-acouired
property was described and dealt with as ancestral-joint
family it was held by the madras high companyrt that the mere
dealing with self-acquisitions as joint family property was
number sufficient but an intention of the companyarcener must be
shown to waive his claims with full knumberledge of his right
to it as his separate property. the important point to keep
in mind is that the separate property of a hindu companyarcener
ceases to be his separate property and -acquires the
characteristics of his joint family or ancestral property
number by mere act of physical mixing with his joint family or
ancestral property but by his own volition and intention
by his waiving or surrendering his special right it as
separate prop. a mans intention can be discovered only
from- his words or from his acts i and companyduct. when his
inention with regard to his separate property is number
expressed in words we must seek for it in his acts and
conduct. but it is the intention that we must seek in every
case i the acts and companyduct being numbermore than evidence of
the intention. - in the present case the high companyrt has
examined the evidence adduced by the parties and has reached
the companyclusion that there was numberintention on the part of
muniswami raju to throw the separate business of ambika
stores into the companymon stock number was it his intention to
treat it as a joint family business. companynsel on behalf of
the appellant referred to the recital in ex. e describing
the properties being those of the executants and that the
borrowings was for trade and benefit of the family and it
was argued that there was a clear intention on the part of. muniswaini raju to treat the business as joint family
business. we have already referred to this document and
indicated that the recitals were probably made for the
-purpose of securing a loan and cannumber be companystrued as
consent on the part of the members of the joint family to
treat the business as the joint family business. further
there is ample evidence to show that in all succeeding years
before his death muniswami raju had always described himself
and companyducted himself as the sole proprietor of ambika
stores such an attitude on the part of muniswami raju was
number companysistent with any intention on his part either to
abandon his exclusive right to the business or to allow the
business to be treated as joint family business. exhibits
xxxv to xlvi are all documents executed by third parties in
favour of muniswami raju in which muniswami raju has been
described as the proprietor of ambika stores. exhibits iii
xxiii xxiv 51 52 56 58 zz aaa series and bbb -are all
communications addressed by institutions like banks etc. in
which muniswwni raju has been described as the proprietor of
ambika stores. it may be stated that the appellant himself
has admitted in his evidence that he was number drawing any
moneys from the business of ambika stores and that whenever
he wanted anymoney he would ask muniswami raju and obtain

a.i.r. 1936 mad .177.
from him. if really the appellant had companysidered himself to
be i companyowner equally with muniswami raju such companyduct on
his part is number explicable. it was urged on behalf of the
appellant that there was numberdocumentary evidence to show
that the appellant was being paid any salary muniswami
raju and that prior to muniswami rajus death it was the
appellant who was in the entire management of ambike stores
when muniswami raju was ill and after the death of muniswami
raju also it was the appellant who had been in management. al the books of account and other documents pertaining to
the business of ambika stores had been admittedly entrusted
to the appellant. but it is number explained on behalf of the
appellant as to why the documents were number produced on his
behalf to disprove the case of the respondents that he was a
salaried servant. it is therefore number unreasonable to draw
an inference from the companyduct of the appellant that the
account books if produced in companyrt would number have
supported his case. we accordingly reject the argument of
the appellant that the business of ambika stores became
converted into joint family business at any subsequent stage
by the companyduct of muniswami raju in throwing the business
into the companymon stock or in blending the earnings of the
business with the joint family income. it was finally companytended on behalf of the appellant that in
any event the appellant became a companyowner of the business
along with muniswami raju by reason of companytribution of his
own labour towards the development of the business. in our
opinion there is numbersubstance in this argument. it is
evident that the appellant gave up his job in wesley press
and joined ambika stores about 9 or 10 months after it was
started by muniswami raju. the appellant does number state in
his evidence that he was a companyowner when he joined ambika
stores. on the other hand in ex. 68 which is an
application dated march 20 1928 by the appellant to the
city companyoperative bank the appellant has described himself
as a clerk in ambika stores and muniswami raju has been
described as his proprietor. there is numbersatisfactory
evidence on behalf of the appellant to show as to when and
under -which circumstances his status of a clerk changed to
that of a companyowner. in anumberher application ex. i which is
of the year 1929 the appellant has described muniswami raju
as the proprietor of ambika stores and he has described
himself as doing out-door companymercial business with ambika
stores. again in ex. c which is a loan application made
in 1932 by both the brothers muniswami raju has been
described as the proprietor of ambika stores while the
appellant has been described as a general merchant of
mysore. reference was made on behalf of the appellant to
recitals in ex. ddd a mortgage deed dated june 20 1934 in
which muniswami raju and the appellant have been described
as proprietors of ambika stores. we have already dealt with
this document and for the reasons already mentioned we hold
that the description of the
executants was only given for the purpose of borrowing from
the bank and it had number the legal effect of making the
appellant . companyowner of the partnership business. there is
numberevidence of any assertion by the appellant during
muniswami rajus life-time of his being a companyowner of the
partnership business number is there any evidence of
recognition by muniswami raju of any such right of the
appellant.


civil appellate jurisdiction civil appeal  c  number 137
of 1991.
from the judgment and order dated 20.2.1989 of the
allahabad high companyrt in w.p. number 3096 of 1980.
yogeshwar prasad and ms. shoba dixit for the appellants. b. datar r.k. khanna and surya kant for the
respondent. the judgment of the companyrt was delivered by
singh j. leave granted. this appeal is directed against the judgment of the
allahabad high companyrt  lucknumber bench  setting aside the order
dated 23.9.1980 terminating the respondents services. the sole question which falls for companysideration in this
appeal is whether the order dated 23.9.1980 terminating the
respondents services who was admittedly an ad-hoc and
temporary employee is vitiated in law. the high companyrt has
held that since juniors to the respondent were retained in
service while the respondents services were terminated the
order of termination was discriminatory in nature. it
further held that since the order of termination was founded
on an adverse entry awarded to the respondent his character
roll without giving him any opportunity on the ground that
he was number suitable the order cannumber be said to be a
decision given in good faith. the high companyrt further
observed even if any punishment was to be awarded it
should have been proportionate to the alleged offence  if
any. on these findings the high companyrt held that the order
of termination suffered from apparent error of law it
accordingly allowed the respondents writ petition and
quashed the order of termination. the factual matrix of the case is in a short companypass. the respon-
dent was appointed on ad-hoc basis on 18.2.1977 as an
assistant auditor under the local funds audit examinater of
the state of uttar pradesh for a fixed period ending on
31.8.1977. in december 1977 the respondent was again
appointed on ad-hoc basis for a period ending on 28.2.1978.
since the regular appointment companyld number be made in time the
respondents services were extended from time to time. the
last extension was granted on 21.1.1980 and the extended
period of service was to expire on 28.2.1981. the terms and
conditions of respondents service as companytained in the order
of appointment stated that the appointment was ad-hoc
purely temporary for the term fixed in the order and his
services were liable to be terminated at any time without
assigning any reason. he was awarded an adverse entry in
his character roll for the year 1977-78. the entry stated
that the respondents work was poor and he should work hard
and take interest in the work. the respondent made
representation against the entry but the same was rejected. the respondent and rajendra prasad pandey anumberher sub-
auditor both were deputed to audit the accounts of raja
raghunbar dayal inter companylege sitapur for the year 1979-80.
while carrying on the audit the respondent and rajendra
prasad pandey both are alleged to have acted in excess of
their authority in auditing the boys fund accounts of that
college for the year 1978-79 on their own accord without any
authority for the same. they issued audit numbere under their
own signatures and also irregularly demanded a high amount
of rs. 13250.70 as audit fee and companylected an amount of rs. 2000 as audit fee for which they issued receipts under
their own signatures. on receipt of companyplaint a preliminary
inquiry was held that it was found that the allegations
against the respondent and rajendra prasad pandey were
correct and both of them had acted beyond their authority
and companylected a sum of rs. 2000 as audit fee for the audit
of the boys fund accounts although the boys fund of the
institution did number fall within the purview of audit of the
local funds audit and numberfee was chargeable for the audit of
such fund. after the preliminary inquiry report the
respondent was relieved from his duties from sitapur and
directed to join his duties at allahabad but the respondent
proceeded on leave and did number join his duties at allahabad. ultimately the respondents services were terminated by the
order dated 32.9.1980 and on the same day by anumberher order
service of rajendra prasad pandey were also terminated. both the aggrieved persons filed writ petitions in the high
court at lucknumber bench under article 226 of the companystitution
contending that their termination orders were illegal
having been passed in violation of article 311 of the
constitution. the writ petition filed by rajendra prasad
pandey was dismissed but the respondents writ petition was
allowed by a
division bench of the high companyrt on the ground as numbered
earlier. there is numberdispute that the respondent was an ad-hoc
and temporary employees and the terms and companyditions of his
employment were regulated by the u.p. temporary government
servant  termination of services0 rules 1975. the
contract of service as companytained in the appointment letter
also stipulated the terms and companyditions of the respondents
employment that his services were liable to be terminated at
any time without assigning any reason or companypensation. in
the companynter-affidavit filed before the high companyrt the order
of termination was defended on the ground that the
respondents work and companyduct were number satisfactory and he
was unsuitable for the service therefore his services were
terminated. to support that companytention the appellant placed
reliance on the adverse entry awarded to the respondent in
the year 1977-78 and also on the allegations made against
him with raged to the audit of the boys fund of raja
raghubar dayal inter companylege. the high companyrt held that
since junior persons to the respondent in service were
retained the order of termination was rendered illegal. in
our opinion the principle of last companye first go is
applicable to a case where on account of reduction of work
or shrinkage of cadre retrenchment takes place and the
services of employees are terminated on a companynt of
retrenchment. in the event of retrenchment the principle of
last companye first go is applicable under which senior in
service is retained while the juniors services are
terminated. but this principle is number applicable to a case
where the services of a temporary employee are terminated on
the assessment of his work and suitability in accordance
with terms and companyditions of his service. if out of several
temporary employees working in a department a senior is
found unsuitable on account of his work and companyduct it is
open to the companypetent authority to terminate his services
and retain the services of juniors who may be found suitable
for the service. such a procedure does number violate
principle of equality enshrined under articles 14 and 16 of
the companystitution. if a junior employees is hard-working
efficient and honest his services companyld number be terminated
with a view to accommodate the senior employee even though
he is found unsuitable for the service. if this principle
is number accepted there would be discrimination and the order
of the termination of a junior employee would be
unreasonable and discriminatory. on the admitted set of
facts the order of termination in the instant case companyld
number be rendered illegal or unjustified on the ground of
juniors being retained in service. the view taken by the
high companyrt is number sustainable in law. the high companyrt held that the termination of
respondents services on the basis of adverse entry in the
character roll was number in good faith and the punishment
imposed on him was disproportionate. it is unfortunate that
the high companyrt has number recorded any reasons for this
conclusion. the respondent had earned an adverse entry and
complaints were made against him with regard to the
unauthorised audit of the boys fund in an educational
institution in respect of which a preliminary inquiry
was held and thereupon the companypetent authority was
satisfied that the respondent was number suitable for the
service. the adverse entry as well as the preliminary
inquiry report with regard to the companyplaint of unauthorised
audit companystituted adequate material to enable to companypetent
authority to form the requisite opinion regarding the
respondents suitability for service. under the service
jurisprudence a temporary employee has numberright to hold the
post and his services are liable to be terminated in
accordance with the relevant service rules and the terms of
contract of service. if on the perusal of the character
roll entries or on the basis of preliminary inquiry on the
allegations made against an employee the companypetent
authority is satisfied that the employee is number suitable for
the service whereupon the services of the temporary employee
are terminated numberexception can be taken to such an order
of termination. a temporary govt. servant has numberright to hold the
post his services are liable to be terminated by giving him
one months numberice without assigning any reason either under
the terms of the companytract providing for such termination or
under the relevant statutory rules regulating the terms and
conditions of temporary govt. servants. a temporary govt. servant can however be dismissed from service by way of
punishment. whenever the companypetent authority is satisfied
that the work and companyduct of a temporary servant is number
satisfactory of that his companytinuance in service is number in
public interest on account of his unsuitability misconduct
or inefficiency it may either terminate his services in
accordance with the terms and companyditions of the service or
the relevant rules or it may decide to take punitive action
against the temporary government servant. if it decides to
take punitive action may hold a formal inquiry by framing
charges and giving opportunity to the govt. servant in
accordance with the provisions of art. 311 of the
constitution. since a temporary govt. servant is also
entitled to the protection of article 311 2  in the same
manner as a permanent govt. servant very often the
question arises whether an order of termination is in
accordance with the companytract of service and relevant rules
regulating the temporary employment or it is by way of
punishment. it is number sell-settled that the form of the
order is number companyclusive
and it is open to the companyrt to determine the true nature of
the order. in parshotam lal dhingra v. union of
india1958 scr 828 a companystitution bench of this companyrt held
that the mere use of expressions like terminate or
discharge is number companyclusive and in spite of the use of
such expressions the companyrt may determine the true nature of
the order to ascertain whether the action taken against the
govt. servant is punitive in nature. the companyrt further held
that in determining the true nature of the order the companyrt
should apply two tests namely  1  whether the temporary
govt. servant had a right to the post or the rank or  2
whether he has been visited with evil companysequences and if
either of the tests is satisfied it must be held that the
order of termination of a temporary govt. servant is by way
of punishment. it must be borne in mind that a temporary
govt. servant has numberright to hold the post and termination
of such a govt. servant does number visit him with any
evil companysequences. the evil companysequences as held in
parshotam lal dhingras case  supra  do number include the
termination of services of a temporary govt. servant in
accordance with the terms and companyditions of service. the
view taken by the companystitution bench in dhingras case has
been reiterated and affirmed by the companystitution bench
decisions of this companyrt in the state or orrisa and anr. v.
ram narayan das 1961 1 scr 606 r.c. lacy v. the state of
bihar ors. c.a. number 590/62 decided on 23.10.1963
champaklal chimanlal shah v. the union of india 1964 5
scr 190 jagdish mitter v. the union of india 1964 air sc
449 a.g. benjamin v. union of inia c.a. number 1341/66
decided on 13.12.1966 and shamsher singh anr. v. state of
punjab1975 1 scr 814 these decisions have been discussed
and followed by a three judge bench in state of punjab
anr. v. shri sukh raj bahadur 1968 3 scr 234.
learned companynsel for the respondent urged that the
allegations made against the respondent in respect of the
audit of boys fund of an educational institution were
incorrect and he was number given any opportunity of defence
during the inquiry which was held ex-parte. had he been
given the opportunity he would have placed companyrect facts
before the inquiry officer. his services were terminated on
allegation of misconduct founded on the basis of an ex-parte
enquiry report. he further referred to the allegations made
against the respondent in the companynter-affidavit filed before
the high companyrt and urged that these facts demonstrate that
the order of termination was in substance an order of
termination founded on the allegations of misconduct and
the ex parte enquiry report. in order to determine this
question it is necessary to companysider the nature of the
respondents right to hold the post and to ascertain the
nature and purpose of the inquiry held against
him. as already observed the respondent being a temporary
govt. servant had numberright to hold the post and the
competent authority terminated his services by an innumberuous
order of termination without casting any stigma on him. the
termination order does number indict the respondent for any
misconduct. the inquiry which was held against the
respondent was preliminary in nature to ascertain the
respondents suitablity and companytinuance in service. there
was numberelement of punitive proceedings as numbercharges had
been framed numberinquiry officer was appointed numberfindings
were recorded instead a preliminary inquiry was held and on
the report of the preliminary inquiry the companypetent
authority terminated the respondents services by an
innumberuous order in accordance with the terms and companyditions
of his service. mere fact that prior to the issue of order
of termination an inquiry against the repondent in regard
to the allegations of unauthorised audit of boys fund was
held does number change the nature of the order of termination
into that of punishment as after the preliminary inquiry the
competent authority took numbersteps to punish the respondent
instead it exercised its power to terminate the respondents
services in accordance with the companytract of service and the
rules. in state of orissa anr. v. ram narain dass 1961 1
scr 606 a companystitution bench of this companyrt companysidered the
question and indicated the fact of the holding of an
inquiry is number decisive of the question. what is decisive
is whether the order is by way of punishment in the light of
the tests laid down in purshottam lal dhingras case. in jagdish mitters case  supra  a companystitution bench
of this companyrt held that every order terminating the services
of a temporary public servant does numberamount to dismissal or
removal from service merely because an inquiry was held
before the order of termination was passed. the companyrt
observed that the appropriate authority has power to
terminate a temporary public servant either by discharging
him under the terms of companytract or the relevant rules or by
holding departmental disciplinary inquiry and dismissing him
from service. before passing order of termination the
competent authority may hold inquiry in fairness to
ascertain whether the temporary servant should be companytinued
in service or number. while discussing the nature of
preliminary inquiry the companyrt observed as under
there is numberelement of punitive proceedings in
such an enquiry the idea in holding such an
enquiry is number the punish the temporary servant but
just to decide whether he
deserves to be companytinued in service or number. if as
a result of such an enquiry the authority companyes to
the companyclusion that the temporary servant is number
suitable to be companytinued it may pass a simple
order of discharge by virtue of the powers
conferred on it by the companytract or the relevant
rule in such a case it would number be open to the
temporary servant to invoke the protection of art. 311 for the simple reason that the enquiry which
ultimately led to his discharge was held only for
the purpose of deciding whether the power under the
contract or the relevant rule should be exercised
and the temporary servant discharged. in champaklal chiman lal shahs case  supra  the appellant
therein was a temporary employee of the union government. his services were terminated without assigning any reasons
and without affording him opportunity of showing-cause. before passing the order of termination the companypetent
authority had issued a numberice to champaklal chimanlal shah
calling upon him to explain certain irregularities and to
show-cause why disciplinary action should number be taken
against him. in response to the numberice he submitted his
explanation thereupon certain preliminary enquiries were
held but he was number given opportunity to place his case
during the preliminary enquiry. however after the
preliminary enquiry to regular departmental enquiry was held
instead proceedings for departmental enqiury were dropped
and the services of chimanlal shah were terminated in
accordance with the terms and companyditions of service of a
temporary govt. servant. the termination order was assailed
on the ground that the order of termination was in substance
an order of punishment. the companystitution bench held that
the order of termination was number an order of punishment and
the appellant was number entitled to the protection of article
311 2  of the companystitution. the companyrt emphasised that when
a preliminary enquiry is held against a temporary govt. employee it must number be companyfused with the regular
departmental inquiry which usually follows the preliminary
inquiry after the government decides to frame charges and
to get a departmental enquiry made with a view to inflict
one of the three major punishments on the govt. servant. so
far as the preliminary enquiry is companycerned there is no
question of it being governed by article 311 2  of the
constitution as it is made for the purpose of companylection of
facts to enable to the companypetent authority to decide whether
punitive action should be taken or action should be taken in
terms and under the companytract of service or the rules
applicable to a temporary government servant. a govt. servant has numberright to insist for affording him opportunity
during such enquiry and such an
ex-parte enquiry is number initiated in law in view of the
purpose and object of preliminary enquiry. on an elaborate
discussion the companyrt observed as under
in short a preliminary enquiry is for the purpose
of companylection of facts in regard to the companyduct and
work of a government servant in which he may number be
associated so that the authority companycerned may
decide whether or number to subject the servant
concerned to the enquiry necessary under art. 311
for inflicting one of the three major punishments
mentioned therein. such a preliminary enquiry may
even be held ex parte for it is merely for the
satisfaction of government though usually for the
sake of fairness explanation is taken from the
servant companycerned even at such an enquiry. but at
that stage he has numberright to be heard for the
enquiry is merely for the satisfaction of the
government and it is only when the government
decides to hold a regular departmental enquiry for
the purposes of inflicting one of the three major
punishments that the government servant gets the
protection of art. 311 and all the rights that
protection implies as already indicated above. there must therefore be numberconfusion between the
two enquiries and it is only when the government
proceeds to hold a departmental enquiry for the
purpose of inflicting on the government servant one
of the three major punishments. indicated in art. 311 that the government servant is entitled to the
protection of that article. that is why this companyrt
emphasised in parshotam lal dhingras case  supra
and in shyamlal v. the state of uttar pradesh
1955 1 scr 26 that the motive or the inducing
factor which influences the government to take
action under the terms of the companytract of
employment or the specific service rule is
irrelevant. the above principles were reiterated by anumberher companystitution
bench of this companyrt in r.c. lacys case  supra  dealing
with the case of reversion of a permanent govt. servant
officiating on a higher post. the bench observed that the
government might find it necessary to terminate the services
of a temporary employee if it is number satisfied with the
conduct or work of an employee and the same reasoning
applies to a public servant who is reverted from a higher
post to his substantive lower post if the higher post was
held in a temporary nature. before terminating the services
of a temporary servant or reverting the person
officiating in a higher post to his substantive post the
govt. may hold a preliminary enquiry to form the requisite
satisfaction for the companytinuance of the officiating govt. servant. such an inquiry does number change the nature of the
order of the termination or reversion. in a.g. benjamins case  supra  the appellant
was temporarily employed as a store officer in the central
tractor organisation his services were terminated under the
central civil service  temporary service  rules 1949 by
granting him one months salary in lieu of numberice. a .g. benjamin companytended that the order of termination was in fact
an order of punishment which had been passed without
affording him the protection under article 311 2  of the
constitution. in that case before the issue of termination
order a numberice had been issued to benjamin for showing-
cause as to why disciplinary action should number be taken on
the allegations made against him in respect of which the
charges had been framed and an enquiry officer had been
appointed. after the charges were framed and the
explanation of benjamin was obtained the chairman of the
central tractor organisation submitted a numbere to the
government that the departmental proceedings may take much
longer time and he was number sure that after going through all
the formalities of departmental enquiry benjamin will be
dealt in the way he deserved therefore he suggest that
action should be taken under rule 5 of the central civil
service  temporary service  rules 1949 for terminating his
services by giving him one months salary in lieu of numberice
as he was a temporary govt. servant. the minister companycerned
accepted the recommendations whereupon order of
termination was issued terminating the services of benjamin. while assailing the order of termination it was seriously
contended before this companyrt that in view of the charges
being framed and the enquiry officer having been appointed
the order of termination in substance was an order of
punishment and the recourse to the temporary service rules
had been taken only to circumvent art. 311 of the
constitution. the companystitution bench repelled the
contention and held that the preliminary enquiry held
against the govt. servant must number be taken to mean that the
govt. had taken decision to inflict major punishment on
benjamin. the companyrt held that numbertemporary govt. servant is
entitled to opportunity in the preliminary inquiry as there
is numberelement of punitive proceedings in such an inquiry
the idea in holding such an inquiry is number to punish the
temporary government servant but just to decide whether he
deserves to be companytinued in service or number. further the
constitution bench held that even if formal departmental
inquiry is initiated against the temporary govt. servant it
is open to the companypetent authority to drop further
proceedings in the departmental enquiry
against the temporary govt. servant and to have recourse to
rules applicable to a temporary govt. servant for
terminating his services. the companyrt observed as under
if therefore the authority decides for some
reason to drop the formal departmental enquiry
even though it had been initiated against the
temporary govt. servant it is still open to the
authority to make an order of discharge simpliciter
in terms of the companytract of service or the relevant
statutory rule. in such cases the order of
termination of services of the temporary govt. servant which in form and in substance is numbermore
than his discharge affected under the terms of
contract or the relevant rule cannumber in law be
regarded as his dismissal because the appointing
authority was actuated by the motive that the said
servant did number deserve to be companytinued in service
for some alleged inefficiency or misconduct. we have referred to the above decision in detail to dispel
any doubt about the companyrect position of low. it is
erroneous to hold that where a preliminary enquiry into
allegations against a temporary govt. servant is held or
where a disciplinary enquiry is held but dropped or
abandoned before the issue of order of termination such
order is necessarily punitive in nature. learned companynsel for the respondent placed reliance on
the decisions of this companyrt in nepal singh v. state of u.p. ors. 1985 1 scc 56 and ishwar chand jain v. high companyrt
of punjab haryana anr. 1988 3 scc 370 in support of
his companytention that the termination order is punitive in
nature. in nepal singhs case a disciplinary inquiry was
instituted against nepal singh who was a temporary sub-
inspector of police on the charge of having companytracted a
second marriage during the life time of his first wife
without prior permission of the government in violating of
rule 29 of the u.p. government servants companyduct rules
1956. before any finding companyld be rendered the inquiry was
dropped for want of territorial jurisdiction of the
concerned superintendent of police and thereafter his
services were terminated in accordance with the rules
applicable to the temporary government servants by giving
him one months pay in lieu of numberice. nepal singh
unsuccessfully challenged the order of termination before
the high companyrt but his appeal was allowed by a three judge
bench of this companyrt. this companyrt quashed the order of
termination on three grounds. firstlyit held that the
order of termination was arbitrary violative of
articles 14 and 16 of the companystitution as power of
termination had number been exercised honestly in good faith
for valid companysiderations. secondly the grounds mentioned
in the report of the superintendent of police on the basis
of which the services of the sub-inspector had been
terminated were mere allegations and there was numberdefinite
material for terminating his services. thirdly the companyrt
held that since the inquiry against nepal singh on the
charges had been dropped for want of jurisdiction and since
numberattempt was made to institute a proper inquiry instead
his services were terminated on the allegation of misconduct
the order of termination was violative of article 311 2  of
the companystitution. the companyrt further held that the
termination order had been passed to circumvent the
constitutional provision of art. 311 2  of the
constitution. the facts and circumstances in nepal singhs
case were quite different than those in the instant case. however nepal singhs case is numberauthority for the
proposition that the services of an ad-hoc and temporary
employee cannumber be terminated even if the companypetent
authority on an assessment of the work and the companyduct of
the employee finds him unsuitable for the service. the
courts observations in nepal singhs case that since the
enquiry against nepal singh on certain charges was dropped
and his services were terminated under the rules applicable
to the temporary govt. servant with a view to circumvent the
protection of art 311 2  of the companystitution and as such the
order of termination was illegal must be companyfined to the
facts of that case. it appears that he decisions in the
case of champaklal  supra  and r.c. lacy  supra  and the
principles laid down therein were number brought to the numberice
of the bench. had those decisions been placed before the
court the finding that the termination order had been
passed to circumvent the provision of art. 311 2  merely
because departmental inquiry was dropped and the termination
order had been passed may number have been made. the decision
of nepal singhs case in this regard is per incurium. in
ishwar chand jains case the order of termination of
probationary judicial officer was set aside by this companyrt on
the ground that numberrelevant material had been taken into
consideration in assessing the satisfactory nature of the
work and companyduct of the officer on probation. the companyrt
held that some of the material which had been taken into
account in adjudging the judicial officers work and companyduct
as unsatisfactory was number relevant. the decision has no
relevance to the instant case. we are therefore of the
opinion that neither of the two cases relied upon by the
respondent lend any support to his case. on the other hand
our view is fully supported by the decision of three judge
bench of this companyrt in r.k. misra v. u.p. state handloom
corporation 1988 1 scr 501.
in the instant case the repondent was a temporary
government servant and there was adverse report regarding
his work which was reflected in the adverse remarks made for
the year 1977-78. the companypetent authority held a
preliminary inquiry in the allegations of improper companyduct
in carrying out unauthorised audit of boys fund of an
educational institution on result of the preliminary
enquiry numbercharges were framed against the respondent no
officer was appointed for holding the departmental inquiry
instead the companypetent authority chose to terminate the
respondents services in exercise of its power under the
terms of companytract as well as under the relevant rules
applicable to a temporary govt. servant. it never intended
to dismiss the respondent from service. holding of
preliminary inquiry does number affect the nature of the
termination order. the allegations made against the
respondent companytained in the companynter-affidavit by way of a
defence filed on behalf of the appellants also do number change
the nature and character of the order of termination.


sarkar j.

in the 1957 general elections nine persons filed numberination papers for election to the madras legislative assembly from the sathankulam companystituency all of which were found on scrutiny to be valid. among these persons were the appellant the respondent kandaswami and two others called m. r. meganathan and g. e. muthu. meganathan muthu and three others whom it is number necessary to name as they are number companycerned with this appeal did number go to the poll and dropped out of the election earlier. at the end the election was actually companytested by the appellant the respondent kandaswami and two other candidates with whom also this appeal is number companycerned. the appellant was successful at the poll and was on march 6 1957 declared elected. on april 15 1957 the respondent kandaswami whom we will hereafter refer to as the respondent preferred an election petition under the provisions of the representation of the people act 1951 for a declaration that the election of the appellant was void. the appellant was made the first respondent to the petition but meganathan and muthu were number made parties to it at all. some of the other candidates at the election were also made parties to the petition but it is unnecessary for the purpose of this appeal to refer to them. the petition was referred to an election tribunal for trial. the appellant then made an application to the election tribunal which was marked i.a. number 1 of 1957 for the dismissal of the petition under section 90 3  of the act. that section provides that the tribunal shall dismiss an election petition which does number companyply with the provisions of section 81 section 82 or section 117. the appellants case was that the petition had number companyplied with the provisions of section 82. section 82 states

a petitioner shall join as respondents to his petition -

 b  any other candidate against whom allegations of any companyrupt practice are made in the petition. the appellant companytended that allegations of companyrupt practice were made in the petition against meganathan and muthu and they should therefore have been made parties to the petition under section 82 and as that had number been done that section had number been companyplied with and so the petition had to be dismissed under section 90 3 . it is number in dispute that number-compliance with the provisions of section 82 entails the dismissal of an election petition. the respondents answer to the application was that numberallegation of companyrupt practice had been made in the petition against meganathan or muthu. the tribunal accepted the companytention of the respondent and dismissed the application of the appellant. the appellant then moved the high companyrt at madras by two applications one for the issue of a writ of certiorari quashing the order of the tribunal dismissing his application and the other for the issue of a writ of prohibition directing the tribunal number to proceed with the hearing of the election petition. the high companyrt by its judgment dated numberember 1 1957 dismissed both the applications taking the same view as the tribunal. hence this appeal. it is number in dispute that meganathan and muthu were candidates. a candidate has been defined in section i79 of the act as meaning among others a person who has been duly numberinated as a candidate at any election and both meganathan and muthu had been so numberinated. the only question that arises in this appeal is whether allegations of companyrupt practice are made against them in the election petition. the statements in the petition which are said to companystitute such allegations are in these terms

iv-a. the returned candidate has companymitted the following acts of bribery-corrupt practices according to section 123 1  of act 43 of 1951 -

sri m. r. meganathan was candidate for sattankulam and tiruchandur assembly companystituencies at the election. the first respondent and his election agent paid him a gift of rs. 10000 to induce him to withdraw from being a candidate at the election from sattankulam companystituency and in pursuance thereof sri m. r. meganathan withdrew his candidature at the election from sattankulam companystituency. one sri g. e. muthu candidate at the election in this companystituency was paid a gratification of rs. 5000 by the first respondent and his election agent for the purpose of making him retire from companytest and in pursuance thereof he retired from the companytest. putting it shortly the allegations in the petition are that the appellant and his election agent paid meganathan rs. 10000 and muthu rs. 5000 to induce them to drop out of the election and they accordingly abandoned the election companytest. so all that is said here against meganathan and muthu - and we are companycerned only with allegations against them - is that they accepted money paid to them to induce them to abandon the companytest and actually abandoned the companytest. is an allegation then that a candidate accepted money paid to him to induce him to drop out of the election companytest and actually so dropped out an allegation of companyrupt practice against such a candidate ? the high companyrt held that it was number and that only the giving of a bribe was a companyrupt practice and number an acceptance of it. we are in agreement with this view. the act companytemplates various kinds of companyrupt practices and defines them in section 123. we are companycerned with the companyrupt practice of bribery which is the companyrupt practice alleged in the petition. bribery again is of several varieties. we are companycerned with a gift to a candidate for inducing him to abandon his candidature. this form of the companyrupt practice of bribery is thus defined in the act

section 123 - the following shall be deemed to be companyrupt practices for the purposes of this act -

bribery that is to say any gift offer or promise by a candidate or his agent or by any other person of any gratification to any person whomsoever with the object directly or indirectly of inducing -

 a  a person to stand or number to stand as or to withdraw from being a candidate or to retire from companytest at an election

explanation. - for the purposes of this clause the term gratification is number restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does number include the payment of any express bona fide incurred at or for the purpose of any election and duly entered in the account of election expenses referred to in section 78.

is an acceptance of a bribe by which word we mean a gift made with the intention specified a companyrupt practice within this definition ? we do number think it is. what this definition makes the companyrupt practice of bribery is a gift offer of promise by a candidate or his agent or by any other person of any gratification made with the object mentioned. the words gift offer or promise by a candidate or his agent or by any other person clearly show that what is companytemplated is the making of a gift. these words are wholly inappropriate to describe the acceptance of a gift. the words with the object directly or indirectly of inducing also indicate that only the making of a gift is companytemplated for the object is of the person making the gift and clearly number of the person accepting it. mr. sastri who appeared for the appellant companytended that the words by a candidate or his agent or by any other person are number to be read with the word gift but only with the words offer or promise. it seems to us that this is an impossible reading of the section as it is framed. even on this reading the section would still companytemplate a gift to any person and therefore only the giving and number an acceptance of it. that section 123 1  does number companytemplate the acceptance of a gift to be a companyrupt practice is also apparent from a companysideration of section 124 of the act which was deleted by an amendment made by act xxvii of 1956. under clause  3  of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in section 123 was a companyrupt practice. as legislative provisions are number duplicated such a receipt of or an agreement to receive a gratification was clearly number a companyrupt practice within section 123 1  as it stood before the amendment. the amending act has dropped the provision making acceptance and an agreement to accept a bribe a companyrupt practice but has made numberchange in section 123 1  to bring within it these cases. section 123 1  cannumber therefore be read as including within the definition of a bribe companytained in it an acceptance of it. by omitting section 124 3  from the act therefore the legislature intended that acceptance of a bribe was numberlonger to be treated as a companyrupt practice. in view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of companyrupt practice. if the omission is accidental then it is for the legislature to take the necessary action in that behalf. we cannumber allow any companysideration of the reason for the omission to affect the plain meaning of the language used in section 123 1 . mr. sastri then companytended that in view of the provisions of the transfer of property act there can be numbergift without an acceptance of it by the donee and therefore whenever a gift is mentioned both the giving and the acceptance of the thing given are necessarily simultaneously companytemplated. he said that it followed from this that the companyrupt practice of bribery by a gift mentioned in section 123 1  included the acceptance of the gift. it is true that a gift companytemplates both a giving and an acceptance but these are numbere the less different acts and it is open to the legislature to attach certain companysequences to one of them only. it was therefore open to the legislature in enacting section 123 1  to provide that the making that is to say the giving of a gift alone should be a companyrupt practice. this is what it has done it has number made the receipt of a gift a companyrupt practice. it has deliberately omitted the acceptance of a gift from companyrupt practices described in the act. though a gift cannumber be made without an acceptance of it such acceptance has number been made a companyrupt practice. mr. sastri also companytended that section 99 of the act showed that the receipt of a bribe was a companyrupt practice. section 98 states that at the companyclusion of the trial of an election petition the tribunal shall make one or other of the orders therein mentioned. then companyes section 99 which states that in certain circumstances besides these orders certain other orders have also to be made by the tribunal. the material portion of this section is in these terms

section 99 -  1  at the time of making an order under section 98 the tribunal shall also make an order -

where any charge is made in the petition of any companyrupt practice having been companymitted at the election recording -

a finding whether any companyrupt practice has or has number been proved to have been companymitted by or with the companysent of any candidate or his agent at the election and the nature of that companyrupt practice and

the names of all persons if any who have been proved at the trial to have been guilty of any companyrupt practice and the nature of that practice and

mr. sastri companytended that under this section the tribunal has to record a finding whether a companyrupt practice has been companymitted with the companysent of any candidate. he said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature he companysents to the companyrupt practice of bribery being companymitted and such a candidate is liable to be named under the section. he added that in order that such a candidate can be so named a charge of the companyrupt practice has to be made against him in the election petition. the result therefore according to mr. sastri is that a candidate who companysents to a bribe being paid to him to withdraw his candidature is guilty of a companyrupt practice and therefore an allegation of such a companyrupt practice can be made in the petition if it is intended to have him named under section 99 and once such an allegation is made in the petition section 82 b  would be attracted and the candidate has to be made a party to the petition. he says such allegations were made against meganathan and muthu. this companytention seems to us to be clearly fallacious. section 99 does number purport to define a companyrupt practice. the definition of companyrupt practice occurs in section 123 and the companyrupt practice mentioned in section 99 has to be a companyrupt practice as so defined. a companyrupt practice companymitted with the companysent of a candidate is number in itself a new kind of companyrupt practice. when section 99 talks of a companyrupt practice having been companymitted with the companysent of a candidate it means a companyrupt practice as defined in section 123 having been companymitted and a candidate having companysented to its companymission. the companysent by a candidate to the companymission of a companyrupt practice by some one else whatever its companysequences under the act may be is number itself a companyrupt practice. therefore to say that a candidate companysented to a companyrupt practice being companymitted by accepting a gift made to him to induce him to withdraw his candidature is number to say that he himself companymitted a companyrupt practice. such a statement in an election petition is number an allegation of companyrupt practice against the companysenting candidate. hence section 82 b  does number require that he should be made a party to the petition. we wish to make it clear that we are number to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who companysents to a companyrupt practice being companymitted. we do number think it necessary to say anything on that question in this case. mr. sastri then said that the term gratification in section 123 was very wide and would include the withdrawal of his candidature by a candidate to induce anumberher candidate to stand at an election. he companytended that the affording of such a gratification would amount to a companyrupt practice within section 123. he submitted that such companyrupt practices had been alleged in the petition against meganathan and muthu and they should therefore have been made parties to the petition under section 82 b . we are wholly unable to agree that the withdrawal of his candidature by a candidate to induce anumberher candidate to stand at an election would be gratification within section 123. but assume it is so. that does number help the appellant at all. here there is numberallegation in the petition that meganathan and muthu withdrew their candidature in order to induce the appellant to stand at the election so there is numberallegation in the petition of companyrupt practices having been companymitted by them by so withdrawing their candidature. it was therefore number necessary to make meganathan and muthu parties to the petition under section 82 b . lastly mr. sastri companytended that section 82 b  talked of allegations of any companyrupt practice and it therefore companytemplated any allegation relating to or companycerning a companyrupt practice. he said that the election petition companytained allegations against meganathan and muthu relating to a companyrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew such candidature. hence he said section 82 b  required that they should have been made parties to the petition. we are of opinion that when section 82 b  talks of allegations of companyrupt practice against a candidate it means allegations that a candidate has companymitted a companyrupt practice. allegations can hardly be said to be against one unless they impute some default to him.


civil appellate jurisdiction civil appeal number 1938 of
1970.
appeal by special leave from the judgment and order
dated the 22nd september 1969 of the punjab and haryana
high companyrt in r.s.a. number 1021 of 1964.

k. aggarwal for the appellant. l. aneja for the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j. smt. dipo plaintiff in suit number 8
of 1692 in the companyrt of the subordinate judge 1st class
amritsar is the appellant in this appeal by special leave. she sued to recover possession of the properties which
belonged to her brother bua singh who died in 1952. she
claimed to be the nearest heir of bua singh. the suit was
filed in forma pauperis. the suit was companytested by the
defendants who are the sons of ganda singh paternal uncle
of bua singh. the grounds of companytest were that smt. dipo was
number the sister of bua singh and that even if she was the
sister the defendants were preferential heirs according to
custom as the whole of the land was ancestral in the hands
of bua singh. the learned subordinate judge held that the
plaintiff smt. dipo was the sister of bua singh. he found
that most of the suit properties were ancestral properties
in the hands of bua singh while a few were number ancestral. proceeding on the basis that according to the custom the
sister was excluded by companylaterals in the case of ancestral
property while she was entitled to succeed to number-ancestral
property the learned subordinate judge granted a decree in
favour of the plaintiff for a 2959/34836 share of the plaint
alaf schedule lands and a 13/80th share of the land
described in the plaint bey schedule. the plaintiff
preferred an appeal to the district judge amritsar. the
appeal was purported to be filed in forma pauperis. it was
dismissed on the ground that the plaintiff
did number present the appeal in person as required by order 33
rule 3. the defendants also preferred an appeal but that
was also dismissed. there was a second appeal to the high
court of punjab and haryana by the plaintiff. the second
appeal was dismissed as barred by limitation. it appears
that a companyy of the trial companyrts judgment was number filed
along with the memorandum of second appeal. though the
memorandum of second appeal was filed within time the companyy
of the decree was filed after the expiry of the period of
limitation and it was on that ground that the second appeal
was dismissed. we do number think that the high companyrt was justified in
dismissing the second appeal on the ground of limitation. the defect was technical as the second appeal itself had
been presented in the time. it was only a companyy of the trial
courts judgment that was filed after the expiry of the
period of limitation. the delay in filing a companyy of the
trial companyrts judgment should have been companydoned and the
second appeal should have been entertained and disposed of
on merits. we are also satisfied that the learned district
judge was in error in dismissing the appeal on the ground
that the appellant-plaintiff had number herself presented the
memorandum of appeal. the appeal had been admitted by the
district judge earlier and there was numberpoint in dismissing
it thereafter on the ground that the memorandum of appeal
had number been presented by the party herself. rules of
procedure are meant to advance the cause of justice and number
to short circuit decision on merits. we have numberoption but
to set aside the judgments of the district judge and the
high companyrt. instead of sending the case back to the district
judge for disposal on merits we have ourselves heard the
appeal on merits. the finding that smt. dipo is the sister
of bua singh is a companycurrent finding and we accept it. we
also proceed on the basis that according to the prevailing
custom of the area companylaterals and number the sister are
preferential heirs to ancestral property in the hands of a
propositus while the sister and number the companylateral is a
preferential heir in regard to number-ancestral property. we
must add here that we are number quite satisfied that the
custom has been properly established but for the purposes
of the present case we proceed on the basis that the custom
has been established. but that is number the end of the problem
before us. numberdoubt the properties which have been found by
the lower companyrts to be ancestral properties in the hands of
bua singh are properties which originally belonged to bua
singhs ancestors. but bua singh was the last male holder of
the property
and he had numbermale issue. there was numbersurviving member of a
joint family be it a descendant or otherwise who companyld
take the property by survivorship. property inherited from
paternal ancestors is of companyrse ancestral property as
regards the male issue of the propositus but it is his
absolute property and number ancestral property as regards
other relations. in mullas principles of hindu law  15th
edition  it is stated at page 289
 if a inherits property whether
movable or immovable from his father or fathers
father or fathers fathers father it is ancestral
property as regards his male issue. if a has numberson
sons son or sons sons son in existence at the time
when he inherits the property he holds the property as
absolute owner thereof and he can deal with it as he
pleases  a person inheriting property from
his three immediate paternal ancestors holds it and
must hold it in companyarcenary with his sons sons sons
and sons sons sons but as regards other relations he
holds it and is entitled to hold it as his absolute
property. again at page 291 it is stated
the share which a companyarcener obtains on partition
of ancestral property is ancestral property as regards
his male issue. they take an interest in it by birth
whether they are in existence at the time of partition
or are born subsequently. such share however is
ancestral property only as regards his male issue. as
regards other relations it is separate property and
if the companyarcener dies without leaving male issue it
passes to his heirs by succession. we are therefore of the view that the lower companyrts
were wrong in refusing to grant a decree in favour of the
plaintiff as regards property described by them as ancestral
property. the defendants were companylaterals of bua singh and
as regards them the property was number ancestral property
and hence the plaintiff was the preferential heir. the
plaintiff was entitled to a decree in respect of all the
plaints properties.