civil appellate jurisdiction civil appeal number 1555 of
1967.
appeal by special leave from the judgment and decree dated
the 5th january 1967 of the madras high companyrt in second
appeal number 82 of 1963.

s. ramamurthi and b. r. agrawala for the appellants

k. ramamurti and j. ramamurti for the respondents. the judgment of the companyrt was delivered by
goswami j. in this. appeal we have to go back to a period
close upon a passing century to divine what a hindu joint
family that had separated at that distant date thought
contemplated did and above all intended number only then but
also for the future. it was the year 1882 and precisely on
13th may of at year an instrument of partition was executed
and registered amongst five brothers namely sivarama
krishna pillai kailasam pillai venkatachalam pillai
chidambaram pillai and namasivayam pillai sons of subramania
pillai. the family appears to be religiously disposed and
was keen to perpetuate the pious
ancestral ideology a genealogy given in the statement of
case by the appellants gives the appropriate picture for the
purpose of this appeal
subramenia pillai
----------------------------------------------------------
shiverama kailasam venkatachalam chidambaram navasiva
krishna pillai pillai pillai yam
pillai pillai
sethusubramanya pillai
kailasam pillai venkatachalam gopalakrishan prianayagam
 junior  pillai  jr.  pillai pillai
 died in 1950   died in 1953   d-6   d-7

v. sthusubramanya r.p. sethusubramanya
pillai pillai
 1st plaintiff   2nd plaintiff
----------------------------------------------------------
to start with the deed of partition it appears the
properties of the family were ancestral and were partitioned
amongst the five brothers reserving some to be enjoyed in
common and allotting certain properties to charities to be
administered by one of their brothers kailasam pillai. reading the entire. document it appears that even after the
partition kailasam pillai and venkatachalam pillai desired
to enjoy their shares of the property jointly and were in
great companydiality while the other three brothers lived and
enjoyed their properties separately. it also appears that
the second and the third brothers kailasam and
venkatachalam were given to piety or at any rate were
perhaps companysidered as responsible and solvent persons who
could be entrusted to administer the charities indicated in
the deed. there is also reference to family debts and other
amicable adjustments amongst the brothers and also to
voluntary relinquishment of a share by sivaramakrishna
pillai. with this brief synumbersis we may number extract some
material provisions of the partition deed  ext. al  which
was written in tamil and has been officially translated
clause 1 out of the entire properties worth
rs. 28000/ belonging to our family and
mentioned in the schedules herein excluding
the properties situate in rasavallipuram held
in companymon as detailed in para 6 and mentioned
in the sixth schedule here excluding the
charity properties as
detailed in para 8 and mentioned in the eighth
schedule excluding the other wet dry  lands
gardens and all the properties situate in
kattampulimanapadayur excluding the property
kept in companymon from october 1880 as detailed
in para 7 and mentioned in the seventh
schedule herein situate in one crop
cultivation village gananthanparai in the
other properties settled in favour of us in
one month of september 1881 dry and wet
lands palmyra trees etc. in kilakadu situate
in alangulam village attached to
naranammalpuram jamabandi area whereas
sivaramakrishna pillai has relinquished his
share in favour of the other four persons as
detailed in para 4 out of the aforesaid
properties excepting the properties held in
common as detailed in para ii and mentioned in
the 10th schedule the other properties were
divided among the other four persons with
reference to good and bad by casting chits in
the month of january 1882.
clause 2 refers to family houses which need
number be quoted. clause 3 as division was effected as
detailed in paras 1 and 2 the first schedule
properties fell to the share of
sivaramakrishna pillai amongst us the second
and third schedule properties to two persons
kailasam pillai and venkatachalam pillai the
fourth schedule properties to chidambaram
pillai and the fifth schedule properties to
namasivayam pillai. ever since the properties
were allotted as aforesaid kailasam pillai
and venkatachalam pillai were enjoying the two
shares of their properties in companymon and the
other three persons were enjoying all the
other shares of properties separately. that
is the second item of kattampuli land
mentioned in fourth schedule which fell to the
share of the chidambaram pillai and the second
item of kattampuli land mentioned in the fifth
schedule which fell to the share of
namasivayam pillai were enjoyed by kailasam
pillai under usufructuary mortgage rights. clause 6 as the kulukuthurai inam palmyrah
trees situate in rasavallipuram mentioned in
the sixth schedule here and one-third share
belonging to us five persons companyld number be
conveniently enjoyed by division it was to be
enjoyed in companymon and the income derived
therefrom should be given to the early morning
pooja of the seventh day festival in the month
of thai of sabhapati naicker deity in the
siva temple situate in rasavallipuram for
expenses for archana on the 4th thai friday
every year
clause 7 the dry lands palmyrah trees
gardens and other buildings situate in
gangathanaprai mentioned in the 7th schedule
herein should be enjoyed in companymon. the
income from the said dry lands and palmyrah
groves should be divided into five shares and
two such shares should be enjoyed in companymon. by kailasam pillai and vankatachalam pillai
and the other three shares by the other three
persons independently. clause 8 the properties mentioned in the 8th
schedule herein and allotted for charity shall
be administered in person by kailsam pillai
and from out of the income of the first item
property shall be given to mid-day offering of
thirumanjanam expenses in the siva temple in
rasavallipuram. from the second item
properties the expenses for the evening pooja
of the said temple shall be met from the
third item property the expenses for pooja of
lord siva at sepparai on ani uttiram day
should be met and from the 4th item of the
property. they shall feed four brahmins in
the siva temple sepparai during dwadashi days
the next clause number 9 which is the bone of
contention between the parties may number be
quoted
clause 9 in the sepparai siva temple
established by our parents for meeting
expenses of lamp burning for ever and one
measure of rice for daily offering to god and
archana expenses a sum of rs. 451- is spent
annually. out of this a sum of rs. 5 per year
which shall be paid by sivaramakrishna pillai
namasivayam pillai and a sum of rs. 3 per year
by chidmbaram pillai to kailasam pillai and
excluding the sum of rs. 13/- as given in the
three items aforesaid for the balance of rs. 32 the dry land mentioned in the 9th schedule
shall be administered in person by kailasam
pillai and spent from out of the income of the
said properties and from out of their own
funds kailasam pillai and venkatachalam pillai
shall perform the aforesaid charity without
fail. clause 12 kailasam pillai and venkatachalam
pillai shall in respect of their properties in
common and the other three in respect of their
respective properties separately and
absolutely enjoy with powers of alienation by
way of gift exchange sale etc. in the share
of properties allotted to kailasam pillai and
venkatachalam pillai the other sharers have no
right and similarly in the share of properties
of the other sharers the aforesaid two persons
have numberright. likewise in the property held
by the other three persons in the property of
which one of them the others have numbermanner of
right. then nine schedules are given showing the properties that
have fallen to the shares of different brothers. the ninth
schedule property which is the suit property is described
in ext. a-1 as follows
the 9th schedule situate within the jurisdiction of the
aforesaid sub-district naranathanapuram jamabandi attached
to alangulam village and cilakadu wet irrigated by well
tamarind trees and dry and the particulars of these are as
follows-
extent
dry wet survey letter acres de. number
wet 866 a-2 0-47 the number of tama-
dry 890 c-2 1-00 rind trees stand-
343 c 0-30 ing near the tank
360 d 0-83 bund of the afore-
376 a-2 1-22 said village 72
dry 377 a 0-68
428 9-37
845 b-6 1-21
901 c-2 0-35
902 a-2 0-40
903 c- 0-20
-----------
in all wet and dry 16-05
this ninth schedule property is the suit property. it appears that kailasam pillai in the meantime died as is
apparent from the partition deed  ext. a-3  executed
between venkatachalam pillai and thirumalai vadvammal widow
of kailasam pillai on 21-1-87. clause 19 of this deed may
be quoted
sivaramakrishna pillai chidamabram pillai
venkatachalam pillai son of namasivaya
pillai these persons were companytributing a sum
of rs. 13/- every year to the said kailasam
pillai for perpetual burning of lamp at
chepparaiswami nataraja sannathi. henceforth
the said venkatachalam pillai shall receive
the said amount and perform the charity. in this partition deed the properties of kailasam pillai
and venkatachalam pillai were divided and venkatachalam
pillai took the responsibility of performing the charities
entrusted to kailasam pillai under clause 9 of the first
partition deed of 1882. it appears from ext. b-1 dated
8-9-1937 which is a sale deed in favour of s. srinivasa
iyengar that on 8th numberember 1921 the suit properties had
been usufructually mortgaged for rs. 11000/- in favour of
one maragathammal by gomathi ammal for the purpose of
discharging the family debts for a period of five years. the period was extended by a further usufructuary mortgage
of the properties for a sum of rs. 7350/- on 26th april
1923. it also appears that the rights under the two
usufructuary mortgage deeds were assigned to s. srinivasa
iyengar by a deed of assignment in numberember 1962 executed
by the said maragathammal for a companysideration of rs. 18350/-. since s. srinivasa iyengar made repeated demands
for clearing up the debts due under the usufructuary
mortgages the said properties along with some other land
were sold to him by kailasam pillai  jr.  venkatachalam
pillai  jr.  gopalakrishna pillai  defendant 6 briefly d-
6  and perianyagam pillai
 defendant 7. briefly d-7  for a companysideration of rs. 18350/-. so this sale in favour of srinivasa iyengar was
in discharge of the said othi  usufructuary mortgage
debts and the properties which had already been in
possession of srinivasa iyengar companytinued to remain in his
possession number as owner of the properties with power of
alienation by way of gift exchanges sales etc. absolutely. a third partition deed  ext. a-10  had been executed on
19th october 1936 amongst kaliasam pillai  jr.
venkatachalam pillai  jr.  gopalakrishna pillai  d-6 and
prianayagam pillai  d-7  in order to later facilitate
absolute sale of the properties in favour of s. srinivasa
iyengar in 1937. it was stated in this deed  ext. a-10
that from the property endowed to the temple of sepparai
algiakootha we shall keep the eternal lamps burning companylect
the sums which our grandfather endowed for our family and
use special efforts to perform the charities. in clause
14 1  of this deed it was stated as follows-
in as such as sharer number 1 kailasam pillai
 reference to kailasam junior  has voluntarily
relinquished in favour of the other 3 sharers
the right to perform and administer the family
charities and the properties endowed for the
same sharer number 1 shall number have at any time
any right to said charities or
endowments. . . . thus on 8th september 1937 a sale deed for the suit
property and other lands  ext. b-1  was executed in favour
of s. srinivasa iyengar avergal by kailasam pillai  jr.
venkatachalam pillai  jr. gopalakrishna pillai  d-6  and
perianayagam pillai  d-7  for a companysideration of rs. 18350/-. srinivasa iyengar also got his name recorded in
the patta. on 10th june 1943 s. srinivasa iyengar sold by
ext. b-2 the suit property etc. to sappani ahmad mohideen
father of the two appellants herein for a companysideration of
rs. 22600/-. sappani ahmed mohideen got his name recorded
in the patta in due companyrse. the second appellant who is
the brother of the first appellant sold some portion of the
suit property to defendants 3 to 5 on 7th april 1960.
this appears to be the history and background of the
litigation. the plaintiffs  the first two respondents  herein are the
great grandsons of venkatachalam pillai son of subramania
pillai. they instituted a suit in the companyrt of munsif
tirunelveli on 5th september 1960 impleading the
purchasers of the suit property as defendants 1 to 5 and
gopalakrishna pillai uncle of the plaintiffs and
perianayagam pillai father of the 2nd plaintiff as the
defendants 6 and 7 respectively praying for declaration
that the suit properties belong to the trust and that all
alienations in respect of them are number binding on the trust
and for possession of the suit properties from defendants 1
to 5 to the lawful trustees. one written statement was
submitted on behalf of the defendants 1 to 5 and the suit
proceeded ex-parte against defendants 6 and 7 who were number
even examined as witnesses in the trial. two points were in dispute during the trial namely whether
the suit was barred by limitation  issue number 2  and whether
the deed dated 13th may 1882 creates an absolute
dedication of the suit property
or only a charge on the income of the said property  issue
number 3 . the 1st plaintiff who was a young man of 28 years
on the date of his giving evidence examined himself and two
other witnesses. the defendants examined only the first
defendant. the trial companyrt answered both the above issues
in favour of the plaintiffs and decreed the suit. on appeal
the subordinate judge tirunelveli affirmed the finding of
the munsif on the question of limitation but reversed that
relating to issue number 2. he held that the entire income of
the suit property was number sufficient even to meet a minute
fraction of the expenses and therefore the question of
absolute dedication of the property did number arise. it may
be numbered here that the trial companyrt as well as the
subordinate judge held that the income from the property was
number sufficient to meet all the expenses of the charities
directed to be performed. the value of the suit land in
1882 was found by the subordinate judge to be only 40/-
after elaborate discussion of the value of the neighboring
properties which were subject matters of different sales at
the relevant time. when the matter was taken to the madras
high companyrt in second appeal the high companyrt held that the
family had divested itself of the ownership of the suit
property and that the deed of partition created an absolute
endowment of the suit property for the purpose of performing
the charities mentioned therein. it further held that the
suit property was number allotted to kailasam pillais share
and he was only made a trustee of the properties. in the
view the high companyrt took the second appeal was allowed and
the trial companyrts decree was restored. hence this appeal
with special leave. the only question that has been canvassed in this appeal
before us by the learned companynsel for the appellants is that
the deed of partition  ext. a-1  did number create an absolute
endowment of the suit properties for performing the three
kattalis  endowment for religious charities  mentioned
therein this takes us to the companystruction of the document
as a whole with particular reference to the clauses which we
have set out earlier therefrom. the deed of partition
discloses a scheme of partial division of the ancestral
properties amongst the brothers. three of the five brothers
have taken properties mentioned in the relevant schedules
for enjoyment severally and certain properties were kept for
enjoyment in companymon. two brothers kailasam pillai and ven-
katachalam pillai were enjoying their shares of the
properties jointly. provision was made for discharge of
family debts and different mutual adjustments have also been
recorded. clause i of the deed which we have set out
earlier is very significant. it excludes from partition
properties specified in certain clauses including the
charity properties as detailed in para 8 and mentioned in
the eighth schedule. property mentioned in clause 9 is number
excluded from partition. when we look to clause 8 in this
context we find that the properties mentioned in the eighth
schedule are allotted for charity and shall be
administered in person by kailasam
pillai emphasissupplied .inthisclause four objects of
charity have been mentioned the expenses of which have to
be met from four items of property allotted for them. besides clause 8 refers to mid-day offering of thirumanjanam
expenses in the siva temple in rasavallipuram and also to
the evening pooja of the said temple. there is reference in
this clause also to the expenses for
pooja of lord siva at sepparai on ani uttiram day and also
for feeding four brahmins in the siva temple sepparai during
dwadashi days. what is therefore excluded for charity
purposes in clause i is clearly described in clause 8 of the
partition deed. having provided for all these charities in
clause 8 clause 9 makes a special provision in companynection
with the same sepparai siva temple for meeting all expenses
of lamp burning for ever and one measure of rice for daily
offering to god and archana expenses. . . . clause 9 takes
numbere that a sum of rs. 45/- has been spent annually for
these kattalais. arrangement has been made therein for
contribution by two brothers of rs. 51 each per year and a
sum of rs. 3/- per year by anumberher brother totalling a sum
of rs. 13/- which has to be given by them to kailasam
pillai. it may be numbered that these two brothers are
unconnected with the suit property after partition. clause
9 thereafter recites that for the balance of rs. 32/- the
dry land mentioned in the ninth schedule shall be ad-
ministered in person by kailasam pillai and spent from out
of the income of the said properties and from out of their
own funds kailasam pillai and venkatachalam pillai shall
perform the aforesaid charity without fail.  emphasis
supplied . the draftsman who prepared this deed had good
reasons to mention in clause 8 that the properties
mentioned in the eighth schedule and allotted for charities
shall be administered in person by kailasam while in clause
9 he chose to record that dry land. mentioned in the 9th
schedule shall be administered in person by kailasam
pillai. there is numberreference in clause 9 that this land
shall be allotted for charity whereas those words clearly
appear in clause 8 of the deed. in the entire scheme of the
deed there must be a legitimate justification for number
allotting the lands mentioned in the ninth schedule for
charity. besides it is clear on the findings of the companyrts
below that the value of the property in 1882 was in-
considerable and the income out of it was number sufficient to
meet tile expenses for the charities. a device had
therefore to be made to keep alive the sacred memory of
their parents who were keen to companytinue these charites out
of the ancestral property. having divided the properties in
the manner done in the partition deed each of the brothers
contributed according to his capacity and by mutual
adjustment a very substantial share of the expenses was to
be borne by kailasam pillai and venkatachalam pillai who
were entrusted to perform the charities without fail if
necessary which was even inevitable at the time out of
their own funds. since it is a companymon ground that the
charities have been performed for years the burden of the
liability must have fallen on kailasam pillai and thereafter
on venkatachalam pillai it is because of this feature in
keeping alive the three charities mentioned in clause 9 that
the lands in the ninth schedule were allotted to kailasam
pillai and venkataclaalam pillai so that they may get some
recompense out of the income of the property if it may
somehow or some day be forthcoming. the entire income from
the property was little or nil and was number absolutely
dedicated to the temple for the charities. we have got to
look at the matter from what the founders intended in the
year 1882 and numberconstruction. can be given to the document
which would frustrate the intention of the founders to keep
alive the charities by appropriate performance. if these
dry and then barren properties of the ninth schedule were
absolutely dedicated to
the temple for performance of the three kattalais the
intention of the founders would have been defeated. it
would have been numberodys business income being little or
nil. we are therefore clearly of opinion that there is no
ambiguity about any of the provisions of this deed which
clearly go to show that there was numberintendment to create an
absolute endowment of the suit property to the temple or the
trust. the present value of the property and the present income
therefrom will in our view number be relevant number a safe aid
to gather the intention of the parties in 1882. we are
unable to agree with the high companyrt that the wording of
the deed makes it clear beyond doubt that there is an
absolute endowment of the property. we are also unable to
hold as the high companyrt has done that the family has
divested itself of. the ownership and kailasam has been
created trustee therefore. ext. a-3 on which the high
court relied to reach its companyclusion does number in our
opinion make any departure from the nature of the
transaction number from the original intention of the parties
particularly in view of clause 19 thereof already quoted
above. similarly ext. a-10 executed in 1936 on which the
high companyrt relied does number unerringly point to any different
intention even of the succeeding generation. the first
extract quoted earlier from ext. a-10 does number in our
opinion relate to the ninth schedule property when the
charity has been specifically endowed in the eighth schedule
to ext. a-1. again the second extract from ex t. a-10
namely clause. 14 1  earlier set out does number in our
view run companynter to the original intention of their
ancestors. the initial intention to be gathered from an
ancient document when the provisions are reasonably clear
cannumber be readily altered to suit changing companyditions over
the ears. even so if somehow it is possible to hold that
the subsequent dealing with the property is companysistent with
the intention of the original parties to the document as
interpreted by us on the terms of the original deed that
course has to be preferred by the companyrt. besides in
interpreting ancient documents companyrts have to be cautious to
guard against warping of the issue by reference to
subsequent companyduct of parties or their representatives which
may vary for imponderable reasons bona-fide or otherwise. clause 3 of the partition deed mentions only such properties
as have- been allotted to the brothers in full ownership. it
could number mention the property specified in clause 9 because
it is burdended with a charge in favour or kattalais. we may number refer to some decisions cited at the bar. in sree ishwar sridharjew v. sushila bala dasi  1  and
others it was observed
it is quite true that a dedication may be
either absolute or partial. the property may
be given out and out to the idol or it may be
subjected to a charge in favour of the idol. the question whether the idol itself shall
be companysidered the true beneficiary subject to
a charge in favour of the heirs or specified
relatives of the testator for their upkeep or
that on the other
 1  1954 s. r. 407-414.
hand these heirs shall be companysidered the true
beneficiaries of the property subject to a
charge for the upkeep worship and expenses of
the idol is a question which can only be
settled by a companyspectus of the entire
provisions of the will pande har narayan v.
surja kunwari 1 . observations to the same effect have also been
made by the privy companyncil in sri sri iswari
bhubaneshwari thakurani v. brojo nath dey and
others.  2
in menakuru daseratharami reddi v. duddukuru
subba rao 3  this companyrt observed as follows
number it is clear that dedication of a property
to religious or charitable purposes may be
either companyplete or partial. if the dedication
is companyplete a trust in favour of public
religious charity is created. if the
dedication is partial a trust in favour of
the charity is number created but a charge in
favour of the charity is attached to and-
follows the property which retains its
original private and secular character. whether or number dedication is companyplete would
naturally be a question of fact to be
determined in each case in the light of the
material terms used in the document. in such
cases it is always a matter of ascertaining
the true intention of the parties it is
obvious that such intention must be gathered
on a fair and reasonable companystruction of the
document companysidered as whole. in ramkishore lal v. kamal narain 4  this
court observed
the golden rule of companystruction it has been
said is to ascertain the intention of the
parties to the instrument after companysidering
all the words in their ordinary natural
sense. to ascertain this intention the companyrt
has to companysider the relevant portion of the
document as a whole and also to take into
account the circumstances under which the
particular words were used. it was further observed 4
what was said in this case in companynection
with the companystruction of a wilt appl
ies with
equal force to the companystruction of every other
document by which some property is disposed of
in gopal lal sett v. purna chandra basak and
other 5  the privy companyncil observed as
follows -
the first. question that arises is whether
the gift is a gift to the idols or whether
there was a gift to any other person or
persons charged with the maintenance of the
idols. the will is most obscure but their
lordships think that there is certainly no
direct gift of the whole property to the
idols number in the circumstances ought one to
be implied. it is companysequently necessary to
see in what capacity and by virtue of what
right the worship of the idols is to be
carried out. the person on. whom
 1  1921 lr 48 i.a. 143 145-146.

a.i.r. 1937 p.c. 185.  3   1957  s.c.r. 11221128.  4  1963 supp. 2 s.c.r. 417424428.

a.i.r. 1922 p. c. 253-54.
the duty was cast was undoubtedly udoy chand
and the companyclusion which their lordships have
reached is that if as they think there is
numbergift to the idols it is only possible to
give effect to the provision of the will by
treating it as companyferring the property upon
udoy chand. the will is addressed to him
upon him throughout all the burdens of
performing different duties are cast and this
necessarily involves the ownership of the
property. it may be appropriate to refer to a passage in mayne on
hindu law and usage eleventh edition  reprint  at page 923
 section 792  which reads as under
a dedication of property for religious or
charitable purposes may be either absolute or
partial  1 . in the former case the property
is given out and out to an idol or to a
religious or charitable institution and the
donumber divests himself of all beneficial
interest in the property companyprised in the
endowment  2 . where the dedication is
partial a charge is created on the property
or there is a trust to receive and apply a
portion of the income for the religious or
charitable purposes  3 . in such a case the
property descends and is alienable and
partible in the ordinary way th
e only
difference being that it passes with the
charge upon it 4 . in this companytext we may also numbere a decision of the calcutta
high companyrt in hulada prasad deghoria v. kalidas naik and
others 5  where the companyrt had to deal with interpretation
of an ancient document
the matter may be put briefly in the word of
sugdan l. c. in attorney-general v. drummond

one of the most settled rules of law
for the companystruction of ambiguities in an
ancient instrument is that you may resort to
contemporaneous usage to ascertain the meaning
of the deed tell me what you have done under
such a deed and i will tell you what that
deed means. to this must be added the
qualification formulated by lord cranworth l.
c. in sadlier v. biggs  7  in the following
terms if there is a deed which says
according to its true companystruction one thing
you cannumber say that the deed means something
else merely because the parties have gone on
for long time so understanding it. we have referred to this case although in the case before us
the terms of the deed are number at all ambiguus while the
calcutta high companyrt had to companysider an instrument the terms
of which were at best inconclusive the principle that the
court may call in aid acts under the deed as a clue to the
intention as was pointed out by lord halsbury l. c. in
numberth- western railway companyv.lord hastings 8  does number
apply unless there is an ambiguity for even usage does number
justify deviation
 1   1937  64 i.a. 203/211.  2   1904  31 i.a. 203.  3   1859  8 m.i.a. 66.  4   1878  4 cal. 56.

air 1914 cal. 813/814-815.  6   1842  1 dr. w. 358.  7   1853  4 h.l.c. 436.  8   1900  a. c. 260.
m 602 sup. c i/75
from terms which are plain attorney-general v. bochester
corporation 1 . it was observed by the house of lords in
drammond v. attorney general 2
consequently while in a case of ambiguity
the companyrt will uphold that companystruction of a
deed which justifies a long usage as to the
application of trust funds the companyrt will
number where there is numberambiguity accept an
erroneous interpretation though companysistent
with usage so as to sanction a manifest
breach of trust. our attention was drawn to a decision of the house of lords
in the attorney-general v. the master wardens c. of the
wag chandlers company3 wherein it was held
there is one well-knumbern class of authorities
of this sort. a testator devises to a
corporate body or to an individual landed
property and he affixes to that devise a
condition that the companyporation or the
individual shall at their or his own peril
and if necessary out of their own funds make
certain payments or a certain payment to
some object of his bounty. in a case of that
kind the devise is said to take the land upon
condition. if the devise is accepted the
condition must be fulfilled and the money
must be paid whether the land devised is or
is number adequate to make the payment. the
very statement of a case of that kind implies
that the land is the land of the devise and
that every accretion to the value of the land
belongs to the devise and that the person or
the charity which has the benefit of the
condition which receives the payment
mentioned in the companydition has a right to
numberhing more than that payment. this case meets the requirements of the present case before
us. to the same effect there is a passage in halsburys
laws of england edition volume 4 at page 306
speaking generally the increase will belong
to the donee first if the gift be to the
donee subject to certain payments to others
secondly if the gift be upon companydition of
making certain payments subject to a
forfeiture upon number-performance of the
condition or thirdly if the donee might be
a loser by the insufficiency of the fund.  4
.lm0
the case referred to in halsbury is dr.
villiam jack principal and the professors of
the university and kings companylege of aberdeen

sir thomas burnett of leys bart.  1846
xii clark finnelly 812 5 wherefrom the
following passage is apposite
in searching for the intention of a donumber
which is the standard to govern the
construction of a deed of gift the facts
first that the gift is subject to the
condition of making certain payments to
others--secondly that forfeiture will be in-
curred by number-performance of that companydition-
and thirdly that
 1  5 de g.m. g. 797.  2   1849  2 hlc
837.  3   1873  eng. irish appeal 6 la. 1119.  4   1846  12 cl. fin. 812 h.l. 828. per
lord companytenham.  5  8 english reports h.l. cl. fin 8-12
p. 1632.
the donee may be subjected to loss by the
performance of that companydition are sufficient
to raise the presumption that in case of the
increase of the fund the donumber intended to
give to the donee the benefit of that
increase. it was held by the house of lords in that case that this
was a grant upon companydition and number a mere trust and that
the principal and processors were entitled after satisfying
the companyditions of the deed of gift to appropriate to
themselves any surplus arising from the lands thus given. argument was addressed at the bar with regard to the surplus
income from the suit property since with progress of time
the value of the property has increased and necessarily its
income. we are however of the view that for the reasons
already discussed in this particular case we will number be
required to examine the rule of surplus income in charities
for the purpose of discovering the intention of the parties
at the time of initial partition. the principles that emerge from the above decisions so far
as. appropriate to the case at hand may briefly be stated. whether the endowment is absolute or partial primarily
depends on the terms of the grant. if there is an express
endowment there is numberdifficulty. if there is only an
implied endowment the intention has to be gathered on the
construction of the document as a whole. if the words of
the document are clear and unambiguous the question of
interpretation would number arise. if there be ambiguity the
intention of the founders has to be carefully gathered from
the scheme and language of the grant. even surrounding
circumstances subsequent dealing with the property the
conduct of the parties to the document and long usage of the
property and other relevant factors may have to be
considered in an appropriate case. as pointed out earlier
we have a document in the instant case where there is an
express endowment of certain specified properties as recited
in-clause 8 of the deed. significantly there is companyplete
omission to create an absolute endowment of the property in
the ninth schedule although the same is referred to in
clause 9 of the deed and has been dealt with in a very
special manner therein. there is absolutely numberdoubt on the
terms of clause 9 read with the other material provisions of
the deed that there is numberabsolute endowment of the suit
property in favour of the temple or for the charities as
claimed by the planitiffs respondents. we may however add
that the companyclusion we have reached from the intrinsic
evidence of the document itself is reinforced by the
subsequent companyduct of the parties and the various
transactions effected from time to time with regard to the
suit properties. to boot it is far from a case where the
entire income of the property has been endowed to the trust
to sustain a companyclusion that the entire companypus belongs to
the trust. having regard to the principles set out above it is clear
that in the present case there was numberabsolute endowment of
the suit property to the temple or the trust. the property
however is impressed with the obligation or charge of
performing the three kattalais mentioned in clause 9 of the
partition deed in the manner indicated therein.


original jurisdiction writ petition number 177 of 1987
etc. etc.  under article 32 of the companystitution of india . dr. l.m. singhvi k.k. venugopal m.k. ramamurthi v.m. tarkunde r.k. garg ravi p. wadhwani vrinda grover
vandana chak ranjeet kumar m.n. krishnamani v. shekhar

s. maan m.a. chinnaswami v.j. francis mathai m.
paikeday n.m. popli m.a. krishnamurthi mrs. chandan
ramamurthi balbir singh rajan karanjawala mrs. manik
karanjawala ravi p. wadhwani p.n. mishra ashok grover
ezaz manbool and k.k. mohan for the petitioners. ramasvamy additional solicitor general dr. y.s. chitale m.m. abdul khader soli j. sorbjee k.n. bhat g.l. sanghi o.c. mathur miss srieen sethna harish salve h.s. parihar vipin chandra vijay kr. verma miss madhu
moolchandani gopal subramium halida khatoon mrs. sushma
suri and p. parmeshwaran for the respondents. c. aggarwala and d.d. gupta for the intervener. the judgment of the companyrt was delivered by
ranganath misra j. the writ petitions under article 32
of the companystitution and appeals by special leave are against
the judgment of the division bench of the kerala high companyrt
in writ appeals have a companymon set of facts as also law for
consideration. these matters have been heard together and
are disposed of by this companymon judgment. hindustan companymercial bank  hindustan for short . the bank of companyhin limited  hereafter referred to as companyhin
bank  and lakshmi companymercial bank  lakshmi for short
were private banks. action was initiated under section 45 of
the banking regulation act 1949  act for short  for
amalgamation of these three banks with punjab national bank
canara bank and state bank of india respectively in terms of
separate schemes drawn under that provision of the act. amalgamation has been made. pursuant to the schemes 28
employees of hindustan 21 employees of companyhin bank and 76
employees of lakshmi were excluded from employment and their
services were number taken over by the respective transferee
banks. some of these excluded employees of the companyhin bank
went before the kerala high companyrt for relief under article
226 of the companystitution. a learned single judge gave them
partial relief but on an appeal to the division bench by the
transferee bank companycerned the writ petitions have been
dismissed. the civil appeals are against the decision of the
division bench. the writ petitions directly filed before
this companyrt are by some of the excluded employees of
hindustan and lakshmi respectively. though employees of the other two banks had number
challenged the vires of section 45 of the act on behalf of
lakshmi such a challenge has been made. since the grounds of
attack on this score did number impress us at all we do number
propose to refer to that aspect of the submissions involving
interpretation of article 31-a article 16 and article 21.
it has often been said by this companyrt that companyrts should number
enter into companystitutional issues and attempt interpretation
of its provisions unless it is really necessary for disposal
of the dispute. in our opinion this group of cases can be
disposed of without reference to question of vires of some
part of section 45 of the act being examined. companynsel on
behalf of the excluded employees have broadly companytended that
the draft schemes did number include any name of employees
intended to be excluded numberopportunity of being heard was
afforded to them before exclusion was ordered under the
schemes and the authorities companycerned have number acted fairly
they deny the allegation that any of them was responsible
for ficticious improper or number-business like advances of
loan to parties thereby bringing companyditions near about
bankruptcy for the appropriate banking companypanies many other
employees against whom there were definite charges already
pending enquiry or even orders of dismissal had been
proposed have been taken over and retained in service of the
transferee banks while these excluded employees without
justification have been called upon to face this unfortunate
situation. the transferee banks the reserve bank of india
 hereafter referred to as rbi for short  and the union of
india have appeared and filed affidavits in opposition. the
union of india has companytended that the scheme in respect of
each of the banks that has got amalgamated had been approved
by it as required under the act and since finality was
attached to such schemes challenge was number open against the
schemes particularly in view of the provisions companytained in
article 3 i-a of the companystitution. on behalf of the reserve
bank of india several companytentions were raised by way of
opposition and shortly stated these submissions are-

law does number require that the draft scheme
should companytain the names of the employees to be excluded

the incorporation of the names finalised on
the basis of scrutiny of the records before the schemes were
placed before the rbi was sufficient companypliance of the
requirements of the law
 3  the provisions of the act did number companyfer any
right on the employees of being heard
 4  the scheme-making process was legislative in
character and therefore did number companye within the ambit
of natural justice. alternately the action number being
judicial or quasi-judicial and at the most being
administrative or executive was also number open to
challenge on allegations of violation of rules of
natural justice
 5  moratorium under the statutory provisions
could number be beyond six months and in view of the fact
that the entire operation had to be finalised within a
brief time frame the requirement of an enquiry by
numberice to all the officers intended to be excluded
could number have been intended to be implanted into the
provisions of section 45 and

provision of companypensation has been made for
those who were excluded from the respective scheme. each of the transferee banks generally adopted the stand
taken by rbi. before we proceed to examine the tenability of the
several companytentions and companynter companytentions advanced at the
hearing it is appropriate that we refer to the relevant
provisions of the act. the entire law applicable to the
facts of these cases is to be found in part ill of the act
and in particular in section 45. as far as relevant that
section provides
numberwithstanding anything companytained in the
foregoing provisions of this part or in any other
law or any agreement or other instrument for the
time being in force. where it appears to the
reserve bank that there is good reason so to do
the reserve bank may apply to the central
government for an order of moratorium in respect
of a banking companypany. the central government after companysidering
the application made by the reserve bank under
sub-section  1  may make an order of moratorium
staying the companymencement or companytinuance of all
actions and proceedings against the companypany for a
fixed period of time on such terms and companyditions
as it thinks fit and proper and may
from time to time extend the period so however
that the total period of moratorium shall number
exceed six months
 3

during the period of moratorium if the
reserve bank is satisfied that-
 a  in the public interest or
 b  in the interests of the depositors or
 c  in order to secure the proper management
of the banking companypany or
 d  in the interests of the banking system of
the companyntry as a whole-it is necessary so to do
the reserve bank may prepare a scheme-

for the reconstruction of the banking
company or

for the amalgamation of the banking
company with any other banking institution  in
this section referred to as the transferee
bank . the scheme aforesaid may companytain
provisions for all or any of the following
matters namely-
 a
 b
 c
 d
 e
 f
 g
 h

the companytinuance of the services of all the
employees of the banking companypany  excepting such
of them as number being workmen within the meaning of
the industrial disputes act 1947 are specifically
mentioned in the scheme  in the banking companypany
itself on its reconstruction or as the case may
be in the transferee bank at the same
remuneration and on the same terms and companyditions
of service which they were getting or as the
case may be by which they were being governed
immediately before the date of the order of
moratorium
provided
 j  numberwithstanding anything companytained in clause

where any of the employees of the banking
company number being workmen within the meaning of
the industrial disputes act 1947 are specifically
mentioned in the scheme under clause  i  or where
any employees of the banking companypany have by
numberice in writing given to the banking companypany or
as the case may be the transferee bank at any
time before the expiry of one month next following
the date on which the scheme is sanctioned by the
central government intimated their intention of
number becoming employees of the banking companypany on
its reconstruction or as the case may be of the
transferee bank the payment to such employees of
compensation if any to which they are entitled
under the industrial disputes act 1947 and such
pension gratuity provident fund and other
retirement benefits ordinarily admissible to them
under the rules or authorisations of the banking
company immediately before the date of the order
of moratorium
 k
 i
 6   a  a companyy of the scheme prepared by the
reserve bank shall be sent in draft to the banking
company and also to the transferee bank and any
other banking companypany companycerned in the
amalgamation for suggestions and objections if
any within such period as the reserve bank may
specify for this purpose
 b  the reserve bank may make such
modifications
if any in the draft scheme as it may companysider
necessary in the light of the suggestions and
objections received from the banking companypany and
also from the transferee bank and any other
banking companypany companycerned in the amalgamation and
from any members depositors or other creditors of
each of those companypanies and the transferee bank. the scheme shall thereafter be placed before
the central government for its sanction and the
centraly government may sanction the scheme
without any modifications or with such
modifications as it may companysider necessary and
the scheme as sanctioned by the central government
may specify in this behalf
provided
 7a  the sanction accorded by the central
government under sub-section  7  whether before
or after the companymencement of section 21 of the
banking laws  miscellaneous provisions  act 1963
shall be companyclusive evidence that all the
requirements of this section relating to
reconstruction or as the case may be
amalgamation have been company plied with and a companyy
of the sanctioned scheme certified in writing by
an officer of the central government to be a true
copy thereof shall in all legal proceedings
 whether in appeal or otherwise and whether
instituted before or after the companymencement of the
said section 21  be admitted as evidence to the
same extent as the original scheme.  8  on and from the date of the companying into
operation of the scheme or any provision thereof
the scheme or such provision shall be binding on
the banking companypany or as the case may be on the
transferee bank and any other banking companypany
concerned in the amalgamation and also on all the
members depositors and other creditors and
employees of each of those companypanies and of the
transferee bank and on any other person having
any right or liability in relation to any of those
companies or the transferee bank
 9

if any difficulty arises in giving effect to
the provisions
of the scheme the central government may by order
do anything number inconsistent with such provisions
which appear to it necessary or expedient for the
purpose of removing the difficulty. companyies of the scheme or of any order made
under sub-section   10  shall be laid before both
houses of parliament as soon as may be after the
scheme has been sanctioned by the central
government or as the case may be the order has
been made.  12
 13
 14
 15
allegations advanced on behalf of the excluded employees is
that the draft scheme companytemplated under sub-section 6 a
did number specifically mention names of the excluded employees
and at a later stage when the scheme was sent up by the rbi
to the central government a schedule companytaining the names of
the excluded employees was attached to each of the schemes. section 45 of the act provides a legislative scheme and the
different steps required to be taken under this section have
been put one after the other. a reading of this section
indicates a sequence oriented pattern. what would ordinarily
be incorporated in the draft scheme is indicated in sub-
section  5 . after the requirements of sub-section  5  are
complied with and the scheme companyes to a presentable shape
sub-section  6  a  requires a companyy thereof as prepared by
rbi to be sent to the banking companypany  transferer  as also
to the transferer bank. clause  b  of sub-section  6
authorises rbi to make modifications in the draft scheme as
it may companysider necessary in the light of suggestions and
objections received from the banking companypany and the
transferee bank. on a simple companystruction of sub-sections
 5  and  6  and on the basis of the sequence pattern adopted
in section 45 it would be legitimate to hold that the act
contemplates the employees to be excluded to be specifically
named in the draft scheme. since it is a draft scheme
prepared by rbi and the right to object or to make
suggestions is extended to both the banking companypany as also
the transferee bank and in view of the fact that clause

of sub-section  5  specifies this item to be a matter
which may be included in the scheme it must follow that the
legislative intention is that the scheme would incorporate
the names of such employees as are intended to be excluded
in accordance with the scheme. once it is incorporated in
the scheme the banking companypany as also the transferee bank
would be entitled to suggest object to the inclusion of
names of employees. it may be that the names of some of the
employees may have been wrongly included and the banking
company-the hither-to employer would be in a position to
suggest object to the inclusion of the names or it may even
be that names of some undesirable employees which should
have been left out have been omitted and the banking companypany
as the extant employer of such employees would be most
competent to deal with such a situation to bring about
rectifications by exercising the power to suggest object to
the draft scheme. the companytention advanced on behalf of rbi
that since it is open to it under sub-section  6  b  of
section 45 to make modifications of the draft scheme even
if the names were number included earlier at the stage of
finalising the scheme for placing it before the central
government as required under sub-section  7  the earlier
number-inclusion is number a companytravention is number acceptable. we
are of the view that in case some employees of the banking
company are intended to be excluded their names have to be
specifically mentioned in the scheme at the draft stage. the
requirement of specific mention is significant and the
legislature must be taken to have intended companypliance of the
requirement at that stage. mr. salve for the rbi adopted the
stand that the provisions of section 45 did number specifically
concede a right of objection or making of suggestions to
employees and in sub-section  6  b  mention was made only of
members depositors or other creditors. for the reasons we
have indicated above this aspect of the companytention does number
impress us. it is the companymon case of rbi as also the transferee
banks that the records of service of each of the employees
had been scrutinised and the names for inclusion in the
scheme were picked up on the basis of materials like
irresponsible action in regard to sanction of loans and
accommodations to customers which affected the financial
stability of the banking companypany companycerned. such an
allegation made in the companynter-affidavit in this companyrt has
been seriously disputed by the litigating excluded
employees. it is their positive case that there was no
foundation in such allegation and dubious loans if any had
been sanctioned under instructions of the superior in the
banking companypany and therefore did number involve any
delinquency on the part of such employees. since it is the
case of the respondents that exclusion had
been ordered on the basis of an objective assessment and the
very a foundation of the allegation upon which such
assessment has been made is disputed a situation arose
where facts had to be ascertained and it involved
assessment. that has admittedly number been done. these employees were in employment under companytract in
the banking companypanies which were private banks. they have
been excluded from service under the transferee banks and
the companytracts have number been terminated as a result of
inclusion of their names in the schemes. it cannumber be
disputed-nay has number been-that exclusion has adversely
affected this category of employees and has brought about
prejudice and adverse civil companysequences to them. two
contentions have been raised with reference to this aspect
of the matter-

there has been infraction of natural justice
and

the transferee banks which are state and rbi
which has monitored the operation being admittedly
state their action in excluding some of the employees
of the banking companypany and taking over the services of
others who are similarly situated is hit by article 14
of the companystitution. it may be pointed out that
according to the excluded employees many facing
similar allegations and or in worse situation have been
taken over. whether there is infraction of article 14 of the
constitution on the allegation advanced would depend upon
facts relating to the excluded employees as also the
allegedly derelict employees whose services have been taken
over. in the absence of an enquiry in which the excluded
employees should have been given an opportunity of
participation it has become difficult for us to probe into
the matter further. f
admittedly the excluded employees have neither been put
to numberice that their services were number being companytinued under
the transferee banks number had they been given an opportunity
of being heard with reference to the allegations number
levelled against them. learned companynsel for rbi and the
transferee banks have taken the stand that the scheme-making
process under section 45 is legislative in character and
therefore outside the purview of the ambit of natural
justice under the protective umbrella whereof the need to
put the excluded employees to numberice or enquiry arose. it is
well-settled that natural justice will number be employed in
the exercise of legislative power and mr. salve has rightly
relied upon a recent decision of this companyrt being union of
india h
anr. v. cynamide india limited anr. 1987 2 scc 720 in
support of such a position. but is the scheme-making process
legislative? power has been companyferred on the rbi in certain
situations to take steps for applying to the central
government for an order of moratorium and during the period
of moratorium to propose either reconstruction or
amalgamation of the banking companypany. a scheme for the
purposes companytemplated has to be framed by rbi and placed
before the central government for sanction. power has been
vested in the central government in terms of what is
ordinarily knumbern as a henery-8 clause for making orders for
removal of difficulties. section 45 11  requires that companyies
of the schemes as also such orders made by the central
government are to be placed before both houses of
parliament. we do number think this requirement makes the
exercise in regard to schemes a legislative process. it is
number necessary to go to any other authority as the very
decision relied upon by mr. salve in the case of cynamide
india limited  supra  lays down the test. in paragraph 7 of the
judgment it has been indicated-
any attempt to draw a distinct line between
legislative and administrative functions it has
been said is difficult in theory and impossible
in practice. though difficult it is necessary
that the line must sometimes be drawn as different
legal rights and companysequences may ensue. the
distinction between the two has usually been
expressed as one between the general and the
particular. a legislative act is the creation
and promulgation of a general rule of companyduct
without reference to particular cases an
administrative act is the making and issue of a
specific direction or the application of a general
rule to a particular case in accordance with the
requirements of policy. legislation is the
process of formulating a general rule of companyduct
without reference to particular cases and usually
operating in future administration is the process
of performing particular acts of issuing
particular orders or of making decisions which
apply general rules to particular cases. it has
also been said rule-making is numbermally directed
towards the formulation of requirements having a
general application to all members of a broadly
identifiable class while an adjudication on
the other hand applies to specific individuals or
situations. but this is only a broad distinction
number necessarily always true. applying these tests it is difficult to accept mr. salves
contention that
the framing of the scheme under section 45 involves a
legislative process. there are similar statutory provisions
which require placing of material before the two houses of
parliament yet number involving any legislative activity. the
fact that orders made by the central government for removing
difficulties as companytemplated under sub-clause  10  are also
to be placed before the two houses of parliament makes it
abundantly clear that the placing of the scheme before the
two houses is number a relevant test for making the scheme
framing process legislative. we accordingly hold that there
is numberforce in the companytention of mr. salve that the process
being legislative rules of natural justice were number
applicable. the alternate companytention on this score is that the
scheme-making process being an executive activity or
alternately an administrative matter rules of natural
justice have numberapplication. this companytention has again to be
rejected. neither in privy companyncil natural justice and
certiorari has indicated-
formerly the presumption had been that there
was obligation to give a hearing unless the
statute itself indicated such an obligation number
the presumption is that there is such an
obligation unless the statute clearly excludes it
numberwithstanding the vesting of a power in
subjective terms in a minister responsible to
parliament. as has beer. pointed out by wells j. in perre brothers v.
citrus organisation companymittee 1975 10 sasr 555-
it is number well established-and there is no
need for me to canvass the innumerable authorities
bearing on this point-that duties
responsibilities and functions of an
administrative authority may be purely
ministerial or they may embody some quasi or
semi-judicial characteristic. at one time a good deal of ingenuity-and with
all respect it seems to me a great deal of energy-
was wasted in attempting to discern whether a
particular function was administrative or quasi-
judicial. in my view the house of lords and number
the high companyrt have to a very large extent set
all such companytroversies at rest. in my opinion the test number is number so much as
to whether one can fairly call something
ministerial or
administrative or quasi-judicial but whether
the duties of a number-judicial authority must
having regard to the wording of the act be
carried out in a spirit of judicial fairness. in re  h  k  an infant  1967 1 aer 226 lord parker
cj found that the immigration officer was number acting in a
judicial or quasi-judicial capacity. yet the learned chief
justice held that he still had to act fairly. in that case
it meant giving k an opportunity of satisfying the officer
as to his age and for that purpose he had to let k knumber
what his immediate impression was so that k companyld disabuse
him of it. lord parker observed-
i appreciate that in saying that it may be
said that one is going further than is permitted
on the decided cases because heretofore at any
rate the decisions of the companyrts do seem to have
drawn a strict line in these matters according to
whether there is or is number a duty to act
judicially or quasi-judicially. the obligation to act fairly even in administrative decision
making has since been widely followed. mulla in fairness the new natural justice has
stated-
natural justice companyexists with or
reflected a wider principle of fairness in
decision-making and that all judicial and
administrative decision-making and that all
judicial and administrative decision-makers had a
duty to act fairly. in the case of state of horsily v. dr.  miss  binapani dei
ors. 1967 2 scr 625 this companyrt observed-
it is true that the order is administrative
in character but even an administrative order
which involves civil companysequences as already
stated must be made companysistently with the rules
of natural justice after informing the first
respondent of the case of the state the evidence
in support thereof and after giving an opportunity
to the first respondent of being heard and meeting
or explaining the evidence. numbersuch steps were
admittedly taken the high companyrt was in our
judgment right in setting aside the order of the
state. ln a.k kraipak ors. v. union of india ors. 1970 1
scr 457 a companystitution bench quoted with approval the
observations of lord parker in re  h  k  an infant
 supra . hegde j. speaking for the companyrt stated
very soon thereafter a third rule was
envisaged and that is that quasi-judicial
enquiries must be held in good faith without bias
and number arbitrarily or unreasonablly. but in the
course of years many more subsidiary rules came to
be added to the rules of natural justice. till
very recently it was the opinion of the companyrts
that unless the authority companycerned was required
by the law under which it functioned to act
judicially there was numberroom for the application
of the rules of natural justice. the validity of
that limitation is number questioned. if the purpose
of the rules of natural justice is to prevent
miscarriage of justice one fails to see why those
rules should be made inapplicable to
administrative enquiries. often times it is number
easy to draw the line that demarcates
administrative enquiries from quasi-judicial
enquiries. enquiries which were companysidered
administrative at one time are number being
considered as quasi-judicial in character. arriving at a just decision is the aim of both
quasi-judicial enquiries as well as administrative
enquiries. an unjust decision in an administrative
enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry. these observations in a.k. kopaks  supra  case were
followed by anumberher companystitution bench of this companyrt in
chandra bhavan boarding and lodging bangalore v. the state
of mysore anr. l 19701 2 scr 600. in swadeshi companyton
mills v. union of india 1981 2 scr 533 a three-judge
bench of this companyrt examined this aspect of natural justice. sarkaria j. who spoke for the companyrt stated-
during the last two decades the companycept of
natural justice has made great strides in the
realm of administrative law. before the epoch-
making decision of the house of lords in ridge v.
baldwin it was generally thought that the rules
of natural justice apply only to judicial or
quasi-judicial proceedings and for the purpose
whenever a breach of the rule of natural justice
was alleged companyrts in england used to ascertain
whether the impugned action was taken by the
statutory authority or tribunal in the exercise of
its
administrative or quasi-judicial power. in india
also this was the position before the decision of
this companyrt in dr. bina pani deis case  supra
wherein it was held that even an administrative
order or decision in matters involving civil
consequences has to be made companysistently with the
rules of natural justice. this supposed
distinction between quasi-judicial and
administrative decisions which was perceptibly
mitigated in bina pani deis case  supra  was
further rubbed out to a vanishing point in a.k. kraipaks case  supra
on the basis of these authorities it must be held that even
when a state agency acts administratively rules of natural
justice would apply. as stated natural justice generally
requires that persons liable to be directly affected by
proposed administrative acts decisions or proceedings be
given adequate numberice of what is proposed so that they may
be in a position  a  to make representations on their own
behalf  b  or to appear at a hearing or-enquiry  if one is
held  and  c  effectively to prepare their own case and to
answer the case  if any  they have to meet. natural justice has various facets and acting fairly is
one of them. rbi which monitored the three amalgamations was
required to act fairly in the facts of the case. the
situation necessitated a participatory enquiry in regard to
the excluded employees. since the decision to exclude them
from service under the transferee banks is grounded upon a
set of facts the companyrectness whereof they deny if an
opportunity to knumber the allegations and to have their say
had been afforded they companyld have numbergrievance on this
score. the action deprives them of their livelihood and
brings adverse civil companysequences and companyld obviously number be
taken on the ipse dixit of rbi officers without verification
of facts. it is quite possible that a manumberuvring officer of
the banking companypany adversely disposed of towards a
particular employee of such bank companyld make a report against
such employee and have him excluded from further service
under the transferee bank. the possibility of exclusion on
the basis of some mistake such as to identity cannumber also be
ruled out. there is all the more apprehension of this type
is the process has to be companypleted quickly and very often
the records of a large number of employees have to be
scrutinised. we are of the view that rules of natural
justice apply to administrative action and in the instant
cases the decision to exclude a section of the employees
without companyplying with requirements of natural justice was
bad. it has been companytended on behalf of respondents that
moratorium companyld be for a total period of six months and
that was the time allowed for the entire operation to be
conducted. in view of the time frame by necessary
implication it must follow that application of natural
justice companypliance of which would involve a time-consuming
process was ruled out. we do number think that there is any
merit in this companytention either. as a fact in respect of
the three banks the total number of excluded employees is
around 125. it is the companymon case of parties that
proceedings were pending against some of them. it may be
that in view of the time frame a detailed enquiry involving
communication of allegations show cause opportunity to
lead evidence in support of the allegations and in defence
of the stand of the employees may number be possible. keeping
the legislative scheme in view perhaps a simpler enquiry
for instance companymunication of the allegation and even
receiving an explanation and in cases where the allegation
was serious or there was a total denial though there was
firm basis for the allegation a single personal hearing
could be afforded. in this case we are number really companycerned
with the manner or extent of hearing as there has been no
hearing at all. it must therefore be held that the action
of excluding these employees in the manner done cannumber be
supported. fair play is a part of the public policy and is a
guarantee for justice to citizens. in our system of rule of
law every social agency companyferred with power is required to
act fairly so that social action would be just and there
would be furtherance of the well-being of citizens. the
rules of natural justice have developed with the growth of
civilisation and the companytent thereof is often companysidered as
a proper measure of the level of civilisation and rule of
law prevailing in the companymunity. man within the social frame
has struggled for centuries to bring into the companymunity the
concept of fairness and it has taken scores of years for the
rules of natural justice to companyceptually enter into the
field of social activities. we do number think in the facts of
the case there is any justification to hold that rules of
natural justice have been ousted by necessary implication on
account of the time frame. on the other hand we are of the
view that the time limited by statute provides scope for an
opportunity to be extended to the intended excluded
employees before the scheme is finalised so that a hearing
commensurate to the situation is afforded before a section
of the employees is thrown out of employment. we may number point out that the learned single judge of
the kerala high companyrt had proposed a post-amalgamation
hearing to meet the situation but that has been vacated by
the division bench. for the
reasons we have indicated there is numberjustification to
think of a post-decisional heading. on the other hand the
numbermal rule should apply. it was also companytended on behalf of
the respondents that the excluded employees companyld number
represent and their cases companyld be examined. we do number think
that would meet the ends of justice. they have already been
thrown out of employment and having been deprived of
livelihood they must be facing serious difficulties. there
is numberjustification to throw them out of employment and then
given them an opportunity of representation when the
requirement is that they should have the opportunity
referred to above as a companydition precedent to action. it is
common experience that once a decision has been taken there
is a tendency to uphold it and a representation may number
really yield any fruitful purpose. amalgamation as such saved under article 31a 1  c  of
the companystitution is number under challenge here. strong
reliance however had been placed on the provisions of sub-
section  7a  of section 45 of the act. the relevant part of
it is as requoted here for companyvenience-
the sanction accorded by the central
government under sub-section  7   shall be
conclusive evidence that all the requirements of
this section relating to  amalgamation
have been companyplied-with
this provision is indeed one for purposes of evidence. in smt. somavanti ors. v. state of punjab ors. 19631 2
scr 774 this companyrt pointed out that there was numberreal
difference between companyclusive proof provided for in
section 4 of the evidence act and companyclusive evidence as
appearing in sub-section  7a . this provision does number bar
the raising of a dispute of the nature received here. as we
have already pointed out amalgamation is number under
challenge. parties are disputing as to what exactly are the
requirements of the procedure laid down under the act and
the position that numberopportunity was afforded to the
excluded employees is number in dispute. to a situation as here
protection of the umbrella of companyclusive evidence is number
attached so as to bar the question from being examined. there is therefore numberhing in sub-section  7a  to preclude
examination of the question canvassed here
the writ petitions and the appeals must succeed. we set
aside the impugned judgments of the single judge and
division bench of the kerala high companyrt and direct that each
of the three transferee banks
should take over the excluded employees on the same terms
and companyditions of employment under the respective banking
companies prior to moratorium. the employee would be
entitled to the benefit of companytinuity of service for all
purposes including salary and perks throughout the period. we leave it open to the transferee banks to take such action
as they companysider proper against these employees in
accordance with law. some of the excluded employees have number
come to companyrt. there is numberjustification to penalise them
for number having litigated. they too shall be entitled to the
same benefits as the petitioners.


civil appellate jurisdiction civil appeal number 303 of 1956.
appeal from the judgment and decree dated february 7 1955
of the calcutta high companyrt in appeal from appellate order
number 102 of 1953 arising out of the judgment and decree
dated august 6 1953 of the subordinate judge second companyrt
of zillah howrah in misc. appeal number 231 of 1953.

s. pathak p. k. chakravarty and b. c. misrafor the
appellant. sen s. n. mukherjee and p. k. bose for the respondent. 1960. april 20. the judgment of the companyrt was delivered by
das gupta j.-in calcutta and its suburb howrah there have
existed for many years precarious tenancies popularly knumbern
as thika tenancies the characteristic feature of which is
that the tenant
takes lease of the land only and erects structures thereon
at his own expense where there is already a structure on
the land the tenant acquires these structures by purchase or
gift but takes the land on which the structure stood in
tenancy. with the influx of population into these areas
that followed the partition of india the position of these
thika tenants became even more insecure than before. with
the sharply rising demand for accommodation the landlords
found it possible and profitable to put pressure on these
thika tenants to increase their rents or to evict them so
that other tenants who would give more rents and high
premiums might be brought in. with a view to give some
protection to these thika tenants against eviction and in
certain other matters the west bengal legislature enacted
in 1949 an act called the calcutta thika tenancy act
 hereinafter referred to as the act  . some features of
the protection afforded by this legislation which deserve
mention are that ejectment companyld be had only on one or more
of the six grounds specified in s. 3 of the act special
provisions as regards numberice for ejectment were made in s.
4 in the same section provision was also made about payment
of companypensation as a necessary pre-requisite for ejectment
in certain cases. section 6 provides that numberorders for
ejectment on the grounds of arrears of rent shall be
executed if the amount of arrears together with companyts of
proceedings and damages that may be allowed were deposited
within 30 days from the date of the order. number companytent with
giving such protection only in suits and proceedings for
eviction that might be instituted by the landlord in future
the legislature in the 29th section of this act provided
that even in suits and proceedings which had already been
instituted and were pending for disposal on the date when
the new law came into force this number law will be
applicable except the provisions as regards numberice in s. 4.
in the 28th section of the act the legislature went further
and provided that even where the decree or order for
recovery of possession had been obtained by the landlord
against a thika tenant but possession had number been actually
recovered companyrts will have the power to re-open the matter
and
if the decree or order is number in companyformity with the
beneficent provisions of the act either to rescind the
decree or order altogether or to vary it to bring it into
such companyformity. section 28 with which we are specially
concerned in this appeal is in these words--
where any decree or order for the recovery of possession
of any holding from a thika tenant has been made before the
date of companymencement of this act but the possession of such
holding has number been recovered from the thika tenant by the
execution of such decree or order the companyrt by which the
decree or order was made may if it is of opinion that the
decree or order is number in companyformity with any provision of
this act other than sub-section  1  of section 5 or section
27 rescind or vary the decree or order in such manner as
the companyrt may think fit for the purpose of giving effect to
such provision and a decree or order so varied by any companyrt
shall be transferred to such companyrt to the companytroller for
execution under this act as if it were an order made under
and in accordance with the provisions of this act. the new law however failed to achieve its object for some
years as the companyrts interpreted the definition of thika
tenant in the act in such a manner that speaking generally
numbertenant was able to establish its requirement. to remedy
this the governumber of west bengal enacted on october 21
1952 an ordinance by which the definition of thika tenant
was revised and a few other amendments of the act were made. the special protection given under ss. 28 and 29 of the act
to tenants against whom decrees or orders had been obtained
or against whom cases were pending was however kept intact. the ordinance by its s. 5 extended such special protection
also to tenants whose cases were pending before a companyrt on
the date of the companymencement of the ordinance and those
against whom decrees or orders had been made after the date
of the act and before the date of the ordinance but
possession had number been obtained. in 1953 the west bengal
legislature enacted the calcutta thika tenancy amendment
act 1953 revising permanently the definition of thika
tenant and making some other
and 29 of the original act were omitted. the principal
question before us in this appeal is whether the provisions
of s. 28 companyld be applied by a companyrt in a case where an
application had been made by a tenant for relief under that
section and such application was pending for disposal on the
date the omission became effective by reason of the amend-
ment act companying into force. the decree for possession with which we are companycerned in
this case was made as far back as august 8 1941 by a
munsif in howrah. the tenants appeal was dismissed on
april 9 1943. on february 28 1949 on which date the
calcutta thika tenancy act of 1949 came into force
proceedings for the execution of the decree of ejectment
were pending in the munsifs companyrt. on march 19 1952 when
these proceedings were still pending the tenant made an
application to the companyrt which had passed the decree praying
that the decree may be rescinded or varied in accordance
with the provisions of s. 28 of the act. this application
came up for hearing before the munsif on july 7 1953. in
the meantime the amendment act of 1953 had companye into force
and the omission of s. 28 of the act had become effective. the learned munsif held that s. 28 of the act being no
longer in force he had numberpower to give the tenant any
relief in accordance with the provisions thereof. in that
view he dismissed the application. the tenants appeal to
the district judge howrah having been rejected he
preferred a second appeal to the high companyrt. the learned judges of the high companyrt who heard the appeal
agreed with the companyrts below on a companystruction of s. 1 2  of
the amendment act that s. 28 was number applicable to the
proceedings companymenced by the tenant by his application for
relief and dismissed the
against that decision the tenant has filed the present
appeal before us on a certificate of fitness granted by the
high companyrt. the decision of the question raised in this appeal viz. whether this tenant who had applied for relief
under s. 28 when that section was in force is entitled to
have his application disposed of in accordance with the
provisions of that section though it remained undisposed of
on the date the amendment act came into force depends on
the interpretation of s. 1 sub-s.  2  of the amendment act. this section is in these words
it shall companye into force immediately on the calcutta thika
tenancy  amendment  ordinance 1952 ceasing to operate
provided that the provisions of the calcutta thika tenancy
act 1949 as amended by this act shall subject to the
provisions of s. 9 also apply and be deemed to have always
applied to all suits appeals and proceedings pending-
 a  before any companyrt or
 b  before the companytroller or
 c  before a person deciding an appeal under section 27 of
the said act
on the date of the companymencement of the calcutta thika
tenancy  amendment  ordinance 1952.
it is obvious and indeed undisputed that but for any
difficulty that may be placed in the tenants way by these
provisions the tenant would in view of the provisions of s.
8 of the bengal general clauses act be entitled to have his
application for relief under s. 28 of the original act
disposed of as if s. 28 still companytinued. if however a
contrary intention has been expressed by the legislature in
its amending act the companytrary intention would prevail. what
we have to decide is whether in s. 1 sub-s.  2  the
legislature has clearly expressed an intention that no
relief under s. 28 of the original act shall be given in
cases like these. the principles that have to be applied for interpretation of
statutory provisions of this nature are well-established. the first of these is that statutory pro. visions creating
substantive rights or taking away substantive rights are
ordinarily prospective they are retrospective only if by
express words or by necessary implication the legislature
has made them retrospective and the retrospective operation
will be limited
only to the extent to which it has been so made by express
words or by necessary implication. the second rule is that
the intention of the legislature has always to be gathered
from the words used by it giving to the words their plain
numbermal grammatical meaning. the third rule is that if in
any legislation the general object of which is to benefit a
particular class of persons any provision is ambiguous so
that it is capable of two meanings one which would preserve
the benefit and anumberher which would take it away the
meaning which preserves it should be adopted. the fourth
rule is that if the strict grammatical interpretation gives
rise to an absurdity or inconsistency such interpretation
should be discarded and an interpretation which will give
effect to the purpose the legislature may reasonably be
considered to have had will be put on the words if
necessary even by modification of the language used. in applying these principles to the interpretation of s.
1 2  it is necessary first to companysider a companytention that
has been raised by mr. pathak on behalf of the appellant
that the phrase as amended by this act qualifies the
word provisions . if this be companyrect the meaning of the
proviso will be that only those provisions of the act which
have been amended by the act shall apply and be deemed to
have applied always to pending proceedings. this will
become meaningless the argument companytinues if the word
amended is interpreted to include omissions. for it makes
numbersense to say that a provision which has been omitted
shall apply. so it is argued the word amended should
be interpreted to mean only amendment by additions or
alterations and number an amendment by omissions. the result
of the proviso the appellants companynsel companytends is to make
applicable to pendinn proceedings the altered provisions in
place of old provisions but to say numberhing as regards such
provisions which have been omitted. we are unable to see how it is possible unless rules of
grammar are totally disregarded to read the words as amended
by this act as to qualify the word provisions. if
ordinary grammatical rules are applied there is numberescape
from the companyclusion that
the adjectival phrase as amended by this act qualifies
the proximate substantive viz. the calcutta thika tenancy
act 1949. there is numberescape from the companyclusion therefore
that what the legislature was saying by this was numberhing
more or less than that the provisions of the amended thika
tenancy act shall apply. mr. pathak argued that if that was what the legislature
wanted to say it was reasonable to expect it to use the
words the thika tenancy act 1949 as amended by this
act in the proviso and there was numberreason for the use of
the words the provisions of the thika tenancy act . we
are number impressed by this argument. the legislature might
certainly have used the language as suggested by the learned
counsel and as be says that would have meant an econumbery of
words. but where there are two ways of saying the same
thing it is useless to speculate why one way was adopted in
preference to the other. it is number unusual to find
draftsmen using the words provisions of the act in many
statutes where the words the act would have been
adequate and it would be unreason. able to try to read too
much in the use of the words the provisions of the thika
tenancy act instead of the thika tenancy act in the
proviso. even so the learned companynsel companytends there is numberreason to
read amendments so as to include omissions. the word
amendment  he has submitted is sometimes used in the
restricted sense of addition or a alteration as
distinct from omission and he asks us to read the word
amended in the proviso to mean only alterations or
additions in the statute and as number including omissions. it is unnecessary for us in the present case to express any
opinion on the general question whether in certain companytext
the word amended should be interpreted so as to exclude
omissions. what is clear however is that the present is number
one of such cases. the amendment act itself was being
called the calcutta thika tenancy  amendment  act 1953.
the preamble says whereas it is expedient to amend the
calcutta thika tenancy act 1949 . section 2 of this
amendment act substitutes a new clause for the old el.  5
of s. 2 s. 3 adds some words to el.  1  and s. 3 b  omits
some words in cl.  4  and
again adds some words to cl.  5  of s. 3 of the act. section 4 omits certain words of sub-s.  1  of s. 5. section
5 substitutes some new words in place of certain words in
the original sub-ss.  1  and  2  of s. 10 of the act. section 6 omits one section of the original act viz. s. 1
1 s. 7 inserts some words in the original s. 27 section
8 omits two sections viz. ss. 28 and 29 the last
section s. 9 provides for the companytinuance of proceedings
under s. 5 sub-s.  2  of the amendment ordinance if sub-ss.  2   3  and  4  thereof were in force. reading the amendment act as a whole there can be numberdoubt
that the legislature in. using the word amended in the
proviso to sub-s.  2  of s. 1 sought to make numberdistinction
between amendment by additions alterations or omissions. it is clear when certain words or sections have been added
altered or omitted by the amendment act the calcutta thika
tenancy act 1949 took on a new shape with some added
features some altered features and minus those features
which have been omitted. what the proviso says is that the
calcutta thika tenancy act in its new shape shall apply and
shall be always deemed to have applied to proceedings
pending before a companyrt a companytroller or an appellate
authority under s. 27 on the date of the companymencement of the
thika tenancy amendment ordinance 1952. as the application
which the appellant had made for relief under s. 28 of the
tenancy act was pending for disposal before the munsifs
court on october 21 1952 the date of the companymencement of
the calcutta thika tenancy  amendment  ordinance 1952 the
position which cannumber be escaped is that the thika tenancy
act of 1949 without the provisions as regards relief to
tenants against whom decrees had been obtained on the date
of the companymencement of the original act but possession had
number been actually recovered would be applied to pending
applications. in other words though the application
originally was for relief under s. 28 numbersuch relief companyld
be granted the section having ceased to exist
retrospectively. it is helpful to remember in this companynection the fact that
while s. 28 of the original act was giving certain tenants a
right to relief which they would have had if
the beneficent provisions of the new act were available to
them during the disposal of the suits the manner in which
the right is given is by companyferring on companyrts a power to
rescind or vary decrees or orders to bring them into
conformity with the provisions of the act. as soon as s.
28 was omitted the companyrts ceased to have any such power. the effect of the proviso in its strict grammatical meaning
is that the companyrts shall be deemed never to have had this
power in respect of applications which were still pending. the inevitable result is that the companyrt having been deprived
of the power to give relief even in respect of applications
made at a time when the power companyld have been exercised was
bound to dismiss the applications. there can be numberdoubt that this is an unfortunate result. it may very well be true that if as a result of the
amendment act many tenants are deprived of the benefit of
s. 28 this will be mainly because of the companyrts inability
to dispose of the applications before the amendment act came
into force and number for any default on their part. mr. pathak has repeatedly stressed this and has asked us to
construe s. 1  2  in a way that would retain the benefits of
s. 28 to tenants whose applications remained to be disposed
of on the crucial date. he has in this companynection
emphasized the fact that the amendment act itself is a piece
of beneficent legislation and that the amendments made by
ss. 23 5 and 9 all extend to tenants benefits to which
they would number have been entitled under the original act. this extension of further benefits to tenants he says is a
guiding principle of the amending legislation. he points
out also that except as regards such pending applications
under s. 28 the effect of s. 1 2  of the amending act will
be to give the extended benefits to tenants in pending
proceedings. it will be incongruous he argued that while
all tenants stand to benefit by the amending legislation
only those whose applications under s. 28 have for numberfault
of theirs remained pending would be deprived of the benefit
they would have had but for the omission in the amending
act of s. 28. it is difficult number to feel sympathy for
these tenants. as we have already mentioned it is a sound
rule of interpretation of beneficent legislation that in
cases of ambiguity the companystruction which advances the
beneficent purpose should be accepted in preference to the
one which defeats that purpose. in their anxiety to advance
the beneficent purpose of legislation companyrts must number
however yield to the temptation of seeking ambiguity when
there is numbere. on a careful companysideration of the language
used by the legislature in s. 1 2  we are unable to see that
there is any such ambiguity. the language used here has one
meaning only and that is that the act in its new shape with
the added benevolent provisions and minus the former
benevolent provisions in s. 28 has to be applied to all
pending proceedings including execution proceedings and the
proceedings pending under s. 28 of the original act on
october 21 1952. there is therefore numberscope for applying
in this case the principles of interpretation which are
applicable in cases of ambiguity. number is it possible to agree with mr. pathaks last
contention that the strict grammatical interpretation would
result in an absurdity or inconsistency. it is urged that
it is unthinkable that the legislature when undertaking a
legislation to help tenants would do anything to deprive
them of the existing benefits under s. 28. it is in our
opinion useless to speculate as to why the legislature
thought it right to take away the benefit. one-reason that
suggests itself is that the legislature might have thought
that where landlords had already been deprived of the fruits
of the decrees they had obtained for a long period from the
date when the original act came into force up to the time
when the amendment act came into force it would number be
right to companytinue that deprivation. but whatever the
reasons may be the fact remains that the legislature has
used words which in their numbermal grammatical meaning show
that they intentionally deprived this class of tenants
viz. those whose applications under s. 28 of the act were
undisposed of on the date the ordinance came into force and
remained undisposed of even when the amendment act came
into force. we have therefore companye to the companyclusion that the view taken
by the high companyrt in this case that the
effect of s. 1 2  of the calcutta thika tenancy  amendment
act 1953 is that all pending applications under s. 28 of
the original act must be dismissed is companyrect. the companytrary
view taken by the same high companyrt in deorajan debi v.
satyadhan ghosal  1  and other cases is number companyrect. before we part with this appeal however it is our duty to
refer to one incidental matter. we have numbericed with some
regret that when the earlier decision of two judges of the
same high companyrt in deorajans case was cited before the
learned judges who heard the present appeal they took on
themselves to say that the previous decision was wrong
instead of following the usual procedure in case of
difference of opinion with an earlier decision of referring
the question to a larger bench. judicial decorum numberless
than legal propriety forms the basis of judicial procedure. if one thing is more necessary in law than any other thing
it is the quality of certainty. that quality would totally
disappear if judges of companyordinate jurisdiction in a high
court start overruling one anumberhers decisions. if one
division bench of a high companyrt is unable to distinguish a
previous decision of anumberher division bench and holding the
view that the earlier decision is wrong itself gives effect
to that view the result would be utter companyfusion. the
position would be equally bad where a judge sitting singly
in the high companyrt is of opinion that the previous decision
of anumberher single judge on a question of law is wrong and
gives effect to that view instead of referring the matter to
a larger bench. in such a case lawyers would number knumber how
to advise their clients and all companyrts subordinate to the
high companyrt would find themselves in an embarrassing position
of having to choose between dissentient judgments of their
own high companyrt. as far as we are aware it is the uniform practice in all the
high companyrts in india that if one division bench differs from
an earlier view on a question of law of anumberher division
bench a reference is made to a larger bench. in the
calcutta high companyrt a rule to this effect has been in
existence since 1867. it is unfortunate
 1   1953  58 c.w.n.