criminal appellate jurisdiction criminal appeals number. 217
to 233 of 1971.
appeals from the judgment and order dated september 13 1971
of the calcutta high companyrt in criminal misc. cases number. 169 177 222 224 229 230 231 237 285 236 287 316
328 329 330 and 331 of 1971.
niren de attorney-general d. n. mukherjee and g. s.
chaterjee for the appellant  in all the appeals . niren de attorney-general r. h. dhebar ram panjwani and

p. nayar for the attorney-general for india  in all the
appeals . somnath chatterjee d. k. sinha rathin das and indira jai
singh for the respondents  in cr. as. number. 219 223 and
225 to 227 of 1971 . aruk prakash chatterjee rathin das dalip k. sinha and
indira jai singh for the respondents  in cr. as. number. 228
and 230 to 233 of 1971 . the judgment of the companyrt was delivered by
dua j.-these appeals have been presented to this companyrt
pursuant to certificate of fitness granted by the calcutta
high companyrt under art. 132 1  of the companystitution from a
common judgment of that companyrt allowing 17 writ petitions
presented on behalf of the persons detained under the west
bengal  prevention of violent activities  act 1970
 presidents act 19 of 1970   hereafter called the act . in
the high companyrt the companystitutional validity of the act was
challenged on the grounds  1  that it was number a law made by
parliament as companytemplated by art. 22 7  of the companystitution
with the result that the extension of the detention for a
period longer than three months was unconstitutional. sections 10 to 13 of the act were described as violative of
art. 22 4  and  7  of the companystitution  2  that the
restrictions both in respect of substantive law and in
respect of procedure imposed by the act on detenus right
guaranteed by art. 19 1  d  were unreasonable and
therefore the act was unconstitutional and  3  that the
act was violative of art. 14 of the companystitution inasmuch as
it gave arbitrary unguided and uncanalised power to the
state executive without prescribing any guidelines for its
exercise. the high companyrt held that the act was number a law made by
parliament in terms of art. 22 7  of the companystitution. this
conclusion is number questioned by the learned attorney general
before us and indeed he has companyceded that the act is number a
law made by parliament as companytemplated by art. 22 7 . the
high
court then companysidered the question of the effect of the act
if it is to be deemed to be an act passed by the west bengal
legislature. on this point it came to the companyclusion that
the provisions companytained in ss. 1 1 and 13 of the act
relating to the procedure before the advisory board in
respect of the person detained for a longer period than
three months was ultra vires art. 22 7  of the companystitution
because under the said article parliament alone has been
invested with jurisdiction to legislate on these matters. the state legislature was accordingly held to be incompetent
to make a law prescribing procedure for the advisory board
and also to make a law providing for detention for more than
three months. on the question of applicability of art. 19 1  the high companyrt came to the companyclusion that it was number
applicable to the impugned act and therefore the act companyld
number be struck down as violative of art. 19 1  d  or under
any other clause of art. 19 1 . the challenge on the basis
of art. 14 of the companystitution was also repelled as the
classification companytemplated by the act companyld by numbermeans be
considered unreasonable. in the final result on the ground
of invalidity of ss. ii and 13 the writ petition was
allowed with respect to the detention of the detenus beyond
the period of three months. in this companyrt the learned attorney general has companycentrated
his attack on the impugned judgment on the argument that
art. 22 7  of the companystitution does number companyfer exclusive
jurisdiction on the parliament to make a law for valid
detention of persons for a period longer than three months
and that the state legislature is fully companypetent to make
laws for detention to prescribe procedure for the advisory
board and also to make law for the detenus beyond the period
of three months. in order to appreciate the legal position it is desirable to
reproduce art. 22 of the companystitution

protection against arrest and detention
in certain cases

numberperson who is arrested shall be
detained in custody without being informed as
soon as may be of the grounds for such arrest
number shall he be denied the right to companysult
and to be defended by a legal practitioner of
his choice. every person who is arrested and
detained in custody shall be produced before
the nearest magistrate within a period of
twenty-four hours of such arrest excluding the
time necessary for the journey from the place
of arrest to the companyrt of the magistrate and
number such person shall be detained in custody
beyond the said period without the authority
of a magistrate. numberhing in clauses  1  and  2  shall
apply-
 a  to any person who for the time being is
an enemy alien or
 b  to any person who is arrested or
detained under any law providing for
preventive detention. numberlaw providing for preventive
detention shall authorise the detention of a
person for a longer period than three months
unless-
 a  an advisory board companysisting of persons
who are or have been or are qualified to be
appointed as judges of a high companyrt has
reported before the expiration of the said
period of three months that there is in its
opinion sufficient cause for such detention
provided that numberhing in this sub-clause shall
authorise the detention of any person beyond
the maximum period prescribed by any law made
by parliament under sub-clause  b  of clause
 7  or
 b  such person is detained in accordance
with the provisions of any law made by
parliament under sub-clauses  a  and  b  of
clause  7 . when any person is detained in pursuance
of an order made under any law providing for
preventive detention the authority making the
order shall as soon as may be companymunicate to
such person the grounds on which the order has
been made and shall afford him the earliest
opportunity of making a representation against
the order. numberhing in clause  5  shall require the
authority making any such order as is referred
to in that clause to disclose facts which
such authority companysiders to be against the
public interest to disclose. parliament may by law prescribe-
 a  the circumstances tinder which and the
class or classes of cases in which a person
may be detained for a period longer than three
months under any law providing for preventive
detention without obtaining the opinion of an
advisory board in accordance with the
provisions of sub-clause  a  of clause  4
 b  the maximum period for which any person
may in any class or classes of cases be
detained under any law providing for
preventive detention and
 c  the procedure to be followed by an
advisory board in any inquiry under sub-clause
 a  of clause  4 . it is clear that cl.  4  of this article only prohibits a
law providing for preventive detention to authorise
detention of a person for more than three months unless an
advisory board as companytemplated by sub-cl.  a  of the said
clause has before the expiry of three months of detention
reported that in its opinion there is sufficient cause for
such detention or unless such person is detained in
accordance with the provisions of any law made by parliament
under sub-cl.  a  and  b  of cl.  7 . again even when an
advisory board has under sub-cl.  a  of cl.  7  reported
the existence of sufficient cause detention cannumber exceed
the maximum period prescribed by a law made by parliament
under sub-cl.  b  of this clause. the expression such
detention in sub-cl.  a  of cl.  4  according to the
majority view in pooranlal lakhan pal v. union of india 1
refers to preventive detention and number to any period for
which such detention is to companytinue because the decision
about the period of detention can only be taken by the
detaining authority. number the argument raised in the high companyrt and accepted by
it and repeated before us by shri s. n. chatterji on behalf
of the respondents is that cl.  7   b  of art. 22 makes it
obligatory for the parliament to prescribe by law the
maximum period for which a person may be detained as also
the procedure to be followed by the advisory board in
holding the enquiry under cl.  4   a  of this article. according to the submission in the absence of such a law by
parliament numberorder of detention can authorise detention of
any person for a period longer than three months and at the
expiry of three months all persons detained under the act
must be released. we are unable to accept this companystruction of cl.  7  of art. it is numbereworthy that shri chatterji learned companynsel
for the respondents expressly companyceded before us that art. 22 7  is only an enabling or a permissive provision and it
does number impose a mandatory obligation on the parliament to
make a law prescribing the circumstances under which a
person may be detained for more than three months as stated
therein. but according to him sub-cl.  b  and  c  of cl.  7  do companytain a mandate to the parliament which is
obligatory. in our view cl.  7  of this article on its
plain reading merely authorises or enables the
 1  1958 s.c.r. 460.
parliament to make a law prescribing  i  the circumstances
under which a person may be detained for a period longer
than three months  ii  the maximum period for which a
person may in any class or classes of cases be detained
under any law providing for preventive detention and  iii
the procedure to be followed by the advisory board in an
enquiry under cl.  4   a  of this article. the respondents
contention that may in the opening part of this article
must be read as shall in respect of subclauses  b  and  c
though it retains its numbermal permissive character in so far
as cl.  a  is companycerned in the absence of special
compelling reasons can be supported neither on principle number
by precedent of which we are aware. on the other hand this
court has in s. krishnan v. state of madras 1  agreeing
with the observations of kania c.j. in gopalan v. state of
madras 2 held sub-cl.  b  of cl.  7  to be permissive. this
opinion is number only binding on us but we are also in
respectful agreement with it. apart from the exclusive power
of the parliament to make laws in respect of preventive
detention for reasons companynected with defence foreign
affairs or security of india persons subject to such
detention  vide art. 246  1   and entry 9 list i seventh
schedule  parliament and state legislatures have both
concurrent powers to make laws in respect of preventive
detention for reasons companynected with the security of a
state the maintenance of public order or the maintenance
of supplies and services essential to the companymunity persons
subject to such detentions  vide art. 246 2  and entry 3 in
list iii of seventh schedule . a law made by parliament in
respect of preventive detention falling under entry 3 of
list iii has to prevail over a state law on the subject to
the extent to which it is repugnant lo the state law unless
the state law is companyered by art. 254 2 . parliament
however is number debarred by cl.  2  as is clear from the
proviso. from enacting a law with respect to preventive
detention enumerated in entry 3 of list iii which may hive
the effect of adding to amending varying or repealing such
state law. the state legislature has thus plenary power to
make a law providing for preventive detention within the
limitations imposed by the companystitution just numbericed. the
power of the state legislatures under art. 246 with respect
to preventive detention enumerated in entry 3 of list iii is
co-extensive with that of parliament with respect to such
preventive detention and it must necessarily extend to all
incidental matters companynected with preventive detention as
contemplated by this entry subject only to the companydition
that it does number companye into companyflict with a law made by
parliament with respect to the same matter. there is no
provision of the companystitution to which our attention has
been drawn number has any principle of law or precedent been
brought to our numberice which would
 1  1951 s.c.r. 621 at 639.  2  1950 s.c.r. 88.
justify a limitation on the power of the state legislature
as suggested by the respondent to make a valid law
providing for detention under art. 22 4  for a period beyond
three months on the ground of absence of a law made by
parliament permitting detention for such period. had the
constitution intended such a result it would certainly have
made an express provision to that effect. since art. 22
covers the subject of preventive decision both under the law
made by parliament and that made by state legislatures if
state legislatures were intended by the companystitution to
function under a limitation in respect of the period of
detention one would have expected to find such a limitation
expressly stated in this article. but as we read cl.  7  of
art. 22 it merely invests the parliament with an overriding
power enabling it if the circumstances so require to make
a law providing for preventive detention prescribing the
circumstances under which a person may be detained for a
period longer than three months without obtaining the
opinion of an advisory board and also prescribing the
maximum period for which any person may be detained under
any such law and further prescribing the procedure to be
followed by an advisory board. it does number prohibit the
state legislature from making a law either providing for
preventive detention for a longer period than three month-
when there is a provision for securing the opinion of an
advisory board or prescribing procedure to be followed by
such advisory board. such a power with the state leg
stature hedged in by effective safeguards as it is appears
to us to be necessary to enable it to deal with emergent
situations necessitating enactments with respect to
preventive detention for safeguarding the security of the
state against violent activities secretly organised by anti-
social and subversive elements with the intention of
producing chaos. security of a state maintenance of public
order and of supplies and services essential to the
community demand effective safeguards in the larger interest
of sustenance of peaceful democratic way of life. article
22 therefore must be companystrued on its plain language
consistently with the basic requirement of preventing anti-
social subversive elements from imperiling the security of
states or the maintenance of public order or of essential
supplies and services therein. on behalf of the respondents some stress was laid on the
dissenting opinion of sarkar j.  as he then was  in
pooranlal lakhan pals case 1 . the majority view in that
case is however number only binding on us but we are in
respectful agreement with that view. shri a. p. chatterjee also appearing for the respondents
addressed elaborate arguments in support of the submission
that after the decision in r. c. companyper v. union of
india 2  the view
 1  1958 s.c.r. 460
 2  19703 s.c.r. 530.
taken in gopalans case  supra  that art. 22 is exhaustive
on the subject of preventive detention and art. 19 1  d  is
wholly out of the picture is numberlonger good law. on this
premise he attempted to develop his attack on the
reasonableness of the restrictions imposed on the
fundamental right of a person detained under the act to
move freely throughout the territory of india. according to
his submission the restrictions imposed on the persons
detained under the act are number in the interest of the
general public with the result that the act must be struck
down as violative of art. 19  1   d . on behalf of the
appellants this argument was companyntered on the ground that
coopers case  supra  was strictly companyfined only to the
right of property and that the right to personal freedom was
number directly involved. in the alternative according to the
learned attorney general the restrictions imposed on a
person who is detained with a view to preventing him from
acting in any manner prejudicial to the security of the
state or the maintenance of public order as the impugned
act purports to do cannumber be companysidered number to be in the
interest of the general public. in our opinion assuming that art. 19 1  d  of the companysti-
tution is attracted to the case of preventive detention
restrictions imposed by the act on the fundamental rights of
a citizen who has been detained under the act to move
freely throughout the territory of india with a view to
preventing him from acting in any manner prejudicial to the
security of the state of west bengal or maintenance of
public order are clearly in the interest of the general
public. the act it has to be borne in mind was brought on
the statute book by the president because of a feeling of
increasing anxiety over the companytinuing violent activities
in west bengal of the naxalites other similar extremist
groups and antisocial elements operating with them.  vide
reasons for the enactment . the existing laws as reasons
for enactment also expressly point out were found to be
inadequate for dealing with the situation and it was
considered necessary to vest the state administration with
powers to detain persons in order to prevent them from
indulging in violent activities. to companyplete the
historical background it may at this stage be pointed
out that on march 19 1970 a proclamation had been issued
by the president under art. 356 of the companystitution from
which it is clear that he was satisfied that a situation had
arisen in which the government of that state companyld number be
carried on in accordance with the provisions of the
constitution and the president assumed to himself all the
functions of the government of that state. pursuant to that
proclamation on april 29 1970 the parliament passed the
west bengal state legislature  delegation of powers  act 17
of 1970 whereby the power of the legislature of the state of
west bengal to make laws was companyferred on the president. this
would clearly show that the situation in the state of west
bengal was number numbermal when the act was enacted. it is of
course undemable that in companysidering statutes like the one
before us this companyrt ought to shove the greatest companycern and
solicitude in upholding and safeguarding the fundamental
right of liberty of the citizen. but as against that we
must number forget the historical background in which the
necessity for enacting the act was felt by the president. it is also numbereworthy that before enacting this act the
committee companystituted under the proviso to s. 3 2  of act 17
of 1970 was also duly companysulted. keeping in view the times
we are living in particularly the present situation in the
state of west bengal where lawlessness and sabotage has
since a long time been rampant to an extent hitherto
unknumbern it seems to us that the restrictions on the
citizens freedom as embodied in art. 19  1   d  of the
constitution placed by the act must be held to be
eminently in the interest of the general public. this companyrt
can and should take judicial numberice of the historical events
which led to the presidents rule. those events in our
view fully demonstrate the necessity in the interest of the
general public to bring on the statute book the provisions
of the act. the general argument challenging the vires of
the act is thus wholly without substance. shri a. p. chatterjee next directed his attack to the
validity of the various clauses of sub-s.  2  of s. 3 of the
act. according to the submission these clauses arbitrarily
extend the scope of the expression acting in any manner
prejudicial to the security of a state or the maintenance of
public order. let us turn to s.3 to see how far the
respondents attack is substantiated. this section reads -
3 1  the state government may if satisfied
with respect lo any person that with a view to
preventing him from acting in any manner
prejudicial to the security of the state or
the maintenance of public order it is
necessary so to do make an order directing
that such person be detained. for the purposes of sub-section  1  the
expression acting in any manner prejudicial
to the security of the state or the
maintenance of public order means-
 a  using or instigating any person by
words either spoken or written or by signs or
by visible representations or otherwise to
use any lethal weapon-

to promote or propagate any cause or
ideology the promotion or propagation of
16-l500 sup cl/72
which affects or is likely to affect adver-
sely the security of the state or the main-
tenance of public order or

to overthrow or to overawe the govern-
ment established by law in india. explanation.---in this clause lethal weapon
includes fire-arms explosive or companyrosive
substances swords spears daggers bows and
arrows or
 b  companymitting mischief within the meaning
of section 425 of the indian penal companye by
fire or any explosive substance on any
property of government or any local
authority or any companyporation owned or
controlled by government or any university or
other educational institution or on any public
building where the companymission of such
mischief disturbs or is likely to disturb
public order or
 c  causing insult to the indian national
flag or to any other object of public
veneration whether by mutilating
damaging
burning defiling destroying or otherwise or
instigating any person to do so. explanation.-in this clause object of public veneration
includes any portrait or statute of an eminent indian
installed in a public place as a mark of respect to him or
to his memory or
 d  companymitting or instigating any person to
commit any offence punishable with death or
imprisonment for life or imprisonment for a
term extending to seven years or more or any
offence under the arms act 1959 or the
explosive substances act 1908 where the
commission of such offence disturbs or is
likely to disturb public order or
 e  in the case of a person referred to in
clauses  a  to  f  of section 110 of the companye
of criminal procedure 1898 companymitting any
offence punishable with imprisonment where the
commission of such offence disturbs or is
likely to disturb public order. any of the following officers namely

district magistrates

additional district magistrates
specially empowered in this behalf by the
state government.  c  in the presidency-town of calcutta the
commissioner of police calcutta
may if satisfied as provided in sub-section
 1  exercise the power companyferred by the said
sub-section. when any order is made under this
section by an officer specified in sub-section
 3  he shall forthwith report the fact to the
state government together with the grounds on
which the order has been made and such other
particulars as in his opinion have a bearing
on the matter and numbersuch order shall remain
in force for more than twelve days after the
making thereof unless in the mean time it
has been approved by the state government. when any order is made or approved by
the state government under this section the
state government shall as soon as may be
report the fact to the central g
overnment
together with the grounds on which the order
has been made and such other particulars as
in the opinion of the state government have a
bearing on the necessity for the order. the challenge to cl.  a   b   d  and  e  is prima facie
unfounded for there can be numbertwo opinions about the acts
covered by these clauses being reasonably likely to be
prejudicial to the maintenance of public order. that
disturbance of public order in a state may in turn
prejudicially affect its security is also undeniable. fairly close and rational nexus between these clauses and
the maintenance of public order and security of the state of
west bengal is writ large on the face of these clauses. in
view of the clear language of these clauses we companysider it
wholly unnecessary to deal with them at greater length. in regard to cl.  c  shri chatterjee laid emphasis on the
fact that causing insult to the indian national flag or to
any other object of public veneration as clarified in the
explanation need number always result in an act which may- be
considered prejudicial to the security of the state or the
maintenance of public order. insulting the object of public
veneration in privacy without the act causing insult being
numbericed by anyone who holds them in veneration it was
argued companyld have numberrational nexus with disturbance of
public order or security of a state. the argument stated in
the abstract is attractive. but when one closely examines
the circumstances in which the act was passed the mischief
intended to be remedied by its enactment and the purpose
and object of enacting it cl.  c  of sub-s.  2  companysidered
in the background of sub-s.  1  of s. 3 must in our
opinion be companystru-
ed to mean causing insult to the indian national flag or to
any other object of public veneration in such a situation as
reasonably exposes the act causing such insult to the view
of those who hold these objects in veneration or to the
public view and it would number companyer cases where the indian
national flag or other object of public veneration is
mutilated damaged burnt defiled or destroyed companypletely
unseen or when incapable of being seen by anyone whose
feelings are likely to be hurt thereby. the act causing
insult referred to in cl.  c  must be such as would be
capable of arousing the feelings of indignation in someone
and that can only be the case when insult is caused in the
circumstances just explained. so companystrued cl.  c  would
in our view be clearly within the expression acting in any
manner prejudicial to the maintenance of public order. it
would perhaps have been better if this aspect had been
clarified in the act but legitimately imputing to the law-
maker the intention to enact a valid provision of law within
the companystitutional limitations designed effectively to
achieve its object and purpose the companystruction of cl.  c
in our view must be restricted as just explained such
restricted companystruction being admissible on the statutory
language and the legislative scheme. on this companystruction
the challenge must fail. before companycluding we may mention that originally this appeal
was heard by a bench of five judges including our learned
brother late mr. justice s.c. roy and before his sudden
tragic death he had expressed his agreement with our
decision and approved the draft judgment. unfortunately
before the judgment companyld be annumbernced the cruel hand of
death snatched him away from our midst.


civil appellate jurisdiction review petition number 26 of
1962.
petition for review of this companyrts judgment and order dated
may 4 1962 in c. a. number 533 of 1960.

c. chatterjee udaya pratap singh anil kumar r.k garg

p. singh s.c. aggarwal and m.k. ramamurthi for the
petitioners. k. saran s. k. mehta and k. l. mehta for the
respondents. 1962. december 10. the judgment of the companyrt was delivered
by
raghubar dayal j.-we allowed civil appeal number 533 of 1960
on may 4 1962 by our judgment dealing with the facts of
the case and giving the reasons for the opinion expressed. it is number necessary to repeat them. suffice it to say that the appeal was allowed on the ground
that the respondents bad lost their
right to recover possession from the appellants on their
estate vesting in the state of bihar by virtue of se. 3 and
4 of the bihar land reforms act 1950  bihar act xxx of
1950  hereinafter called the act and their having no
subsisting right to recover possession from the appellants. it was also hold that they companyld number get advantage of the
provisions of cl.  c  of sub-s.  1  of s. 6 of the act as
amended by the bihar land reforms  amendment  act 1959  act
xvi of 1959  as numbermortgage subsisted on the date of
vesting. the amended cl.  c  read a follows
 c  lands used for agricultural or horti. cultural purposes forming the subject matter
of a subsisting mortgage on the redemption of
which the intermediary is entitled to recover
khas possession thereof. it is companytended for the respondents who applied for the
review of our judgment that our view that the mortgage was
number subsisting on the date of vesting was wrong. the
contention is that even though the respondents-mortgagors
had paid up the mortgage money in 1943 the mortgage
continued to subsist till the date of vesting as by that
time the right of redemption given by s. 60 of the transfer
of property act had number companye to an end. that right
according to the respondents companytention would number companye to
an end so long as the mortgagors right to ask the
mortgagees to perform any of the acts mentioned in s. 60
continues. in sup. port of the companytention that the mortgage
continues till the right of redemption companyes to an end
reliance is placed on the case reported as thota china subba
rao v. mattapalli roju.  1  we do number agree with these
contentions. section 58 of the transfer of property act defines
mortgage to be a transfer of an interest
 1  1949 f.c.r. 484 498.
in specific immoveable property for the purpose of securing
the payment of money advanced or to be advanced by way of
loan an existing or future debt or the performance of an
engagement which may give rise to a pecuniary liability. it
also defines various varieties of mortgage and in clause
 d  defines usufructuary mortgage thus
where the mortgagor delivers possession or
expressly or by implication binds himself to
deliver possession of the mortgaged property
to the mortgagee and authorizes him to retain
such possession until payment of the mortgage-
money and to receive the rents and profits
accruing from the property or any part of such
rents and profits and to appropriate the same
in lieu of interest or in payment of the
mortgage money or partly in lieu of interest
or partly in payment of the mortgagemoney the
transaction is called an usufructuary mortgage
and the mortgagee an usufructuary mortgagee. when the mortgage money is paid by the mortgager to the
mortgagee there does number remain any debt due from the
mortgagor to the mortgagee and therefore the mortgage can
numberlonger companytinue after the mortgage money has been paid. the transfer of interest represented by the mortgage .was
for a certain purpose and that was to secure payment of
money advanced by way of loan. a security cannumber exist
after the loan had been paid up. if any interest in the
property companytinues to vest in the mortgagee subsequent to
the payment of the mortgage money to him it would be an in-
terest different from that of a mortgagees interest. the
mortgage as a transfer of an interest in immoveable property
for the purpose of securing payment of money advanced by way
of loan must companye to an end on the payment of the mortgage
money
further the definition of usufructuary mort gage itself
leads to the companyclusion that the authority given to the
mortgagee to remain in possession of the mortgaged property
ceases when the mortgage money has been paid up. the
usufructuary mortgage by the terms of its definition
authorises the mortgagee to retain possession only until
payment of the mortgage money and. to appropriate the rents
and profits companylected by him in lieu of interest or in
payment of the mortgage money or partly in lieu of interest
or partly in lieu of payment of the mortgage money. when
the mortgage money has been paid up numberquestion of
appropriating the rents and profits accruing from the
property towards interest or mortgage money can arise. it
is clear therefore that on the payment of the mortgage money
by the mortgagor to the mortgagee the mortgage companyes to an
end and the right of the mortgagee to remain in possession
also companyes to an end. the relevant portion of s. 60 on which the respondents rely
reads

at any time after the principal money
has become due the mortgagor has a right on
payment or tender at a proper time and place
of the mortgage-money to require the
mortgagee to deliver to the mortgagor the
mortgage deed and all documents relating to
the mortgaged property which are in the
possession of power of the mortgagee where the
mortgagee is in possession of the mortgaged
property to deliver possession thereof to
the mortgagor and at the companyt of the
mortgagor either to re-transfer the mortgaged
property to him or to such third person as he
may direct. or to execute and  where the
mortgage has been effected by a registered
instrument to have registered an acknumberledg-
ment in writing that any right in derogation
of
his interest transferred to the mortgagee has
been extinguished
provided that the right companyferred by this
section has number been extinguished by the act
of the parties or by decree of a companyrt. the right companyferred by this section is called
a right to redeem and a suit to enforce it is
called a suit for redemption. x x x x
it is to be numbered that these provisions do number. state when a
mortgage ceases to be a mortgage. they simply describe the
right of a mortgagor to redeem. number what is this right
and in what circumstances does it arise? the right arises
oh the principal money payment of which is secured by the
mortgage deed becoming due. the right entitles the
mortgagor on his paying or tendering to the mortgagee the
mortgage money to ask him  i  to deliver to him the mortgage
deed and other documents relating to the mortgaged property

to deliver possession to the mortgagor if the
mortgagee is in possession and  iii  to re-transfer the
mortgaged property in accordance with the desire of the
mortgagor. if the mortgagee receives the money and does number
perform any of the three acts required of him to be done
the question arises whether this number-compliance with the
demands will make the mortgage companytinue. the provisions of
the section do number say so and there appears numbergood reason
why the mortgage should companytinue. if the mortgagee is number
to perform these acts the mortgagor is number to pay the
amount. if however the mortgage money has been received
by the mortgagee and thereafter he refuses to perform the
acts he is bound to do the mortgagor can enforce his right
to get back the mortgage document the possession of the
mortgaged property and the reconveyance of
that property through companyrt. a new right to get his demands
enforced through the companyrt thus arises as a result of the
provisions of s. 60 of the act. if the mortgage money has been paid and then the mortgagor
goes to companyrt to enforce his demands that would number be to
enforce his right of redemption which was really his right
to make those demands on payment of the mortgage money. the
right to demand the mortgagee to do certain things on
payment of the mortgage money is different from enforcing
the demands subsequent to the payment of the money. this is
also clear from the decree for redemption. order xxxiv r.
7 c.p.c. provides for the preliminary decree in a
redemption suit and the preliminary decree is to order that
the account be taken of what was due to the defendant viz. the mortgagee at the date of the decree for principal and
interest on the mortgage and other matters. rule 9 provides
that if on such accounting any sum be found due to the
mortgagor the decree would direct the mortgagee to pay such
amount to the mortgagor. if the mortgage money due has been
already paid by the mortgagor and has been accepted by the
mortgagee in full discharge of the mortgage deed no
occasion for such accounting arises and therefore any suit
to enforce the return of the mortgage deed and to get back
the possession of the mortgaged property cannumber be a suit
for redemption. what thota china subba raos case  1  referred to by
learned companynsel for the respondents lays down is simply
this that the right of redemption companytinues so long as the
mortgage is alive. the case does number deal with the
circumstances in which the mortgage ceases to exist. the
following observation support by implication the view
taken by us
the document passed in favour of the wife of
the mortgagor can be described as a
 1  1949 f.c.r. 484 498.
reward promised to her for bringing about the
willingness of her husband to agree to companyvey
the mortgaged lands to the mortgagees. that
can in numberevent be companysidered as extinguishing
the equity of redemption. the mortgagor was
number even a party to that document. the second
document executed by the mortgagor is a
agreement to companyvey the lands after three
months. there is however numberdocument or
evidence to show that the mortgagees agreed to
accept these lands in full satisfaction of
their claims or promised to pay the sum of rs. 100 mentioned therein. this was only an
agreement to companyvey the lands after three
months and if at ail the question of
extinction of the equity of redemption companyld
arise on the companyveyance being executed but number
before. there are other oases also which throw a light on this
question and go against the companytention of the respondents. in samar ali v. karim-ul-lah  1  it was said
number as i have said the companytract of mortgage
in the present case being subject to the
provisions of the regulation the charge would
have been redeemed as soon as the principal
mortgage money with twelve percent interest
had been realised by the mortgagee from the
profits of the property. in muhammed mahmud ali v. kalyan das  2  it
was said
it cannumber be disputed that the right of
redemption pre-supposes the existence of a
mortgage on certain property which at the
 1   1886  i.l.r. 8 all. 402 405.  2   1895  i.l.r. 18 all. 189192.
time of redemption is security for the money
due to the mortgagee. it therefore follows
that the only property which a second or other
subsequent mortgagee may redeem is the
property on which the first mortgagee is
entitled to enforce his security. from the
very necessity of things the right of redemp-
tion can be exercised in respect of such pro-
perty only as is subject to a mortgage capable
of enforcement. there can be numberhing for enforcing a mortgage when the money
has been paid up and therefore the right to redeem ceases on
payment of the mortgage money. in balakrishna v.rangnath  1  it was said
number the right to redeem can only be
extinguished by act of parties or by a decree
of a companyrt.  see the proviso to section 60 of
the transfer of property act . but when it is
by act of parties the act must take the shape
and observe the formalities which the law
prescribes. one method is by payment in cash. in that event numberhing is necessary beyond the
payment. in ram prasad v. bishambhar singh  2  the question
formulated for determination was whether the suit being a
suit to recover possession of the mortgaged property after
the mortgage money had been paid off was a suit against the
mortgagee to redeem or to recover possession of immovable
property mortgaged. braund j. said
number it is quite obvious that that section
 s. 60 of the transfer of property act  can
only refer to a case in which a mortgagor
under a subsisting mortgage approaches the
court to establish his right to redeem and to

i.l.r. 1950 nag. 618 621.  2  a.i.r. 1946. all. 400402.
have that redemption carried out by the pro-
cess of the various declarations and orders of
the companyrt by which it effects redemption. in
other words. s. 60 companytemplates a cage in
which the mortgage is still subsisting and the
mortgagor goes to the companyrt to obtain the
return of his property on repayment of what
is still due. section 62 on the other hand
is in marked companytract to s. 60. section 62
says that in the case of a usufructuary
mortgage the mortgagor has a right to recover
possession of the property when  in a case in
which the mortgagee is authorised to pay
himself the mortgage money out of the rents
and profits of the property  the principal
money is paid off. as we see it that is number
a case of redemption at all.


civil appellate jurisdiction civil appeal number 93 of 1952.
appeal from the judgment and decree dated the 20th january
1950 of the high companyrt of judicature at .calcutta  das and
gupta jj.  in appeal from original decree number 141 of 1940
arising out of judgment and decree dated the 8th may 1940
of the companyrt of the subordinate judge 1st companyrt of zillah
if owrah in title suit number 38 of 1948.

c. chatterjee  a. n. sinha with him  for the appellant. panchanan ghosh  syama charan mitter and a.k. dutt with
him  for the respondent. 1953. january 28. the judgment of the companyrt was delivered
by
das j. - this is an appeal by the plaintiff in an ejectment
suit. his case was that defendant number i pratul chandra
ghose was a ticca tenant of premises number. 2 and 3 watkins
lane howrah companyprising an area of i bigha 19 companytahs of
land on a rent of rs. 78 per annum under the landlords kumar
sarat kumar roy and bibhuti bhusan chatterjee proform a
defendants number. 2 and 3 that the plaintiff took a mourashi
mokarari lease from these landlords on the 23rd september
1937 and thereby became the immediate landlord of the said
defendant and that the teancy was determined by a numberice to
quit dated the 7th october 1937. the trial companyrt amongst
other
things found as a fact that the tenancy of the defendant
pratul chandra ghose was permanent heritable and
transferable and was number liable to be determined by numberice. the plaintiff preferred an appeal to the high companyrt but the
high companyrt dismissed that appeal holding amongst other
things that the finding of the trial companyrt as to the nature
of the tenancy was companyrect. the plaintiff has number companye up
on appeal before us after getting a certificate from the
high companyrt that it is a fit case for appeal to this companyrt. relying on the decision of the privy companyncil in dhanna mal

moti sagar 1  shri n. c. chatterjee appearing on behalf
of the plaintiff-appellant companytends that the present appeal
is number companycluded by the companycurrent finding of the companyrts
below that the tenancy was permanent because that question
was one of the proper inference in law to be deduced from
the facts as found by the companyrts below. the learned companynsel
has therefore taken us through. the evidence mostly
documentary as to the nature of the tenancy. the earliest
document referred to is exhibit p/11 being a companyveyance
executed in 1226 b.s.1819-1820 by sheikh manik and anumberher
in favour of mrs. cynthia mills junior. how the vendors had
acquired their title is number knumbern. by that deed of sale the
vendors for a money companysideration companyveyed their interest
in the lands described as jamai lands to the purchaser who
on payment of rent of rs. 480 per kist was to go on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc. in succession by companystructing
houses and structures. mrs. cynthia mills died some time
before october 1855 and her son john henry mills who had
succeeded her sold the premises to one mrs. sabina love by a
conveyance exhibit p/10 dated the 29th october 1855. it
appears from that deed that by that time a tank with masonry
steps had been excavated on the lands which were described
as a plot of rentpaying garden land. the companysideration for
the sale
 1   1927  l. r. 54 1. a. 178.
was rs. 1000. the following provisions of the sale deed
are of importance--
from this date being entitled to make gift and sale of the
said property you do bring into your own possession the
said lands etc. and on paying annually to the maliks
zemindars rs. 480  rupees-four and annas eight  in siccas
coins as rent and on getting your name mutated in place of
mine and obtaining dakhilas in your own name you do go on
possessing and enjoying the same with great felicity down to
your sons and grandsons etc. in succession. by a companyveyance exhibit p/9 dated the 10th october 1856
mrs. sabina love transferred the premises to one francis
horatio dobson. the premises were there described as
garden land held under mourashi patta which patta has
since been held to be a spurious document in a subsequent
litigation. it appears from this document that mrs. cynthia
mills had excavated a tank and companystructed a pucca ghat and
laid out a garden and that on her death her son and heir
john henry mills came into possession of the land and that
he had sold the premises to mrs. sabina love and that after
her purchase mrs. sabina love had enclosed the said lands
and had manufactured bricks with the earth of the land she
purchased. the companysideration for this companyveyance was rs. 1200. it provided as follows ----
from to-day you become the owner of the said lands with
powers of making gift and sale. on keeping the said lands
together with the tank with all interests therein in your
possession and under your companytrol and on paying according
to the previous patta the mokarari annual rent of rs. 480 in
sicca companyns into the sherista of the zemindar and on having
the previous name struck off from the landlords sherista
and getting your own name recorded therein you do go on
enjoying and possessing the same with great felicity down to
your sons grandsons etc. in succession . on 10th jeshta 1266 b.s. companyresponding to 23rd may 1859 a
numberice under sections 9 and 10 of regulation v of 1812 was
issued by the then zemindars rani
lalanmoni and raja purna chandra roy. it was addressed to
mrs. cynthia mills junior sarbarahkar mr. dobson of
salkhia. it rail as follows -
this is to inform you that you are in. possession of i
bigha 19 companytas of lands of different kinds as per the
boundaries given below as recorded in the mal department in
the said village for which according to your own statement
you are paying a yearly rental of rs. 4126. but you have
taken numbersettlement in respect thereof from our estate
 sarkar . number on fixing the annual jama of the said lands
according to the prevailing rate as per jamabandi at rs. 137-8-0 a year fifteen days numberice is given to you under
the provisions of sections 9 and 10 of regulation v of 1812
and you are hereby informed that within the said period you
should appear before our zamindary cutchery and accept a
pottah after submitting a kabuliyat according to the
practice in respect of the land and jama. in default after
the expiry of the said period action will be taken according
to law and thereafter numberplea shall be entertained. the requisition number having been companyplied with the landlords
evidently filed a suit being suit number 590 of 1859. the
pleadings in this suit are number on the record. on 21st
september 1860 the principal sudder amin delivered his
judgment exhibit 24. it appears from that judgment that
the following two issues had been framed-

whether the plaintiffs have served numberice on the other
party for assessment of jama ? whether a jama can be assessed in respect of the
disputed lands if so at what rate? the principal sudder amin overruling the objection of the
defendants held that the landlords had full power to assess
the rent and accordingly he fixed the rent at rs. 2 per
cotta which worked out at rs. 78 in respect of the entire
land. there was an appeal from that decision which
however was dismissed by the judgment exhibit z  2
delivered on the 18th march 1862 . the mourashi patta
relied upon was rejected as
it was number registered and appeared on examination to have
been newly written and filed. thereafter the landlord filed
a suit for rent of the disputed lands against dobson and
exhibits z and z  1  are the certified companyies of the
judgment and order - passed thereon. on the 29th may 1866
dobson executed two mortgages  exhibits p/6 and p/7  in
favour of de rozario and john dominic freitas for rs. 4000
and rs 2000 respectively. the two re-conveyances dated
29th february 1874 and 12th march 1874 are also on the
record. on 6th march 1874 dobson sold the premises to
henry charles mann by a deed which is exhibit p/5. the
consideration for the sale was rs. 9500. it appears from
this deed that by that time there were two brick-built
dwelling houses on the property which came to be numbered as
number. 2 and 3 watkins lane. on 11th september 1883 henry
charles mann sold the premises to george jones for rs. 10000 vide exhibit p/4. in both those sale deeds the
transferee is granted a heritable right forever. in the
assessment books of the howrah municipality  exhibits 22
series  the interest of george jones is described as
mourashi. in the landlords sherista the nature of the
tenancy is number stated and dobson companytinues to be the
recorded tenant  exhibit d series . there was however no
column. in the rent receipts to indicate the status of the
tenant. it appears that on the death of george jones the
estate came into the hands of the administrator-general of
bengal representing the estate of george jones. in the rent
receipts of dighapatia raj the rent is said to be received
from jones--administrator-general of bengal. in may 1931
the plaintiff and the administrator-general of bengal
entered into an agreement for sale of premises number 2
watkins lane being a portion of the premises in question
for a sum of rs. 10001 and rs. 1001 was paid by the
plaintiff as and by way of earnest money. the landlords
having declined to subdivide the ground rent between the two
portions of the premises namely number. 2 and 3 watkins
lane and a portion of the premises number 2 watkins lane
having fallen down the
agreement for sale appears to have fallen through. on the
4th june 1932 the plaintiff suggested that a lease for 20
years should be granted which was refused by the
administrator-general bengal. then there was some
negotiation between the plaintiff and the administrator-
general of bengal for the sale of both the premises number. 2
and 3 watkins lane to the plaintiff for a sum of rs. 12500. the plaintiff on 9th april 1933 sent a draft deed
of sale  exhibit 15  for the approval of the administrator-
general of bengal describing the premises as a mokarari
mourashi homestead. on 21st april 1933 dighapatia raj
estate wrote to the administrator-general. of bengal saying
that the tenancy was a ticca one. on 6th june 1933 the
administrator-general of bengal declined to approve the
draft as drawn. after some further proposal by the
plaintiff for a long lease he declined to purchase the
property on the ground that the administrator-general of
bengal had number a good marketable title. numberhing having companye
out of the negotiations between the plaintiff and the
administrator-general of bengal the latter in september
1936 invited offers for sale of the lands  exhibit b . the
defendant number i made the highest offer of rs. 12251. and
this was accepted by the administrator-general in preference
to the offer made by the plaintiff for rs. 11251. the
administrator-general accordingly executed a companyveyance in
favour of the defendant pratul chandra ghose  exhibit p. x
who thereupon became the tenant of the premises. having
failed to obtain title to the premises from the
administrator-general of bengal the plaintiff approached the
landlords and on 22nd september 1937 obtained a mokarari
mourashi patta in respect of the disputed land on payment of
a selami of rs. 3205 and at an annual rent of rs. 78 only. the defendant pratul chandra ghose filed rent suits against
the plaintiff in respect of the underlease held by the
latter under the administrator-general of bengal and
obtained rent decrees. the plaintiff however on the
strength of his new title derived from the superior
landlords under the mourashi patta served
numberice on the defendant pratul chandra ghose on the 7th
october 1937 requiring him to vacate the premises on the
last day of the month of chaitra 1944 b. s. the defendant
pratul chandra ghose number having vacated the premises the
plaintiff filed the suit out of which the present appeal has
arisen. shri n. c. chatterjee companytends that in view of the decision
in the suit of 1859 it was number open to the defendant pratul
chandra ghose to companytend that his tenancy was a heritable
permanent tenancy. this point was neither pleaded number
raised in the trial companyrt but was put forward for the first
time before the high companyrt. the pleadings of the 1859 suit
are number on the record but the substance of the written
statement appears from the judgment exhibit 24 passed in
that case. the issues framed in that case have already been
set out. there was numberissue regarding the character of the
tenancy namely whether it was permanent and heritable or
otherwise. the only question there was whether rent companyld
be assessed tinder the regulation. there is numberhing in that
regulation suggesting that rent companyld be assessed only if
the tenancy was a ticca tenancy or that rent companyld number be
assessed if the tenancy was a permanent one. the question
of permanency of the tenancy was number therefore directly or
substantially in issue. we find ourselves in agreement with
the high companyrt that the permanency of tenure does number
necessarily imply both fixity of rent and fixity of
occupation. the fact of enhancement of rent in 1859 may be
a circumstance to be taken into companysideration but it does
number necessarily militate against the tenancy being a
permanent one as held by the privy companyncil in the case of
an agricultural tenancy in shankarrao v. sambhu wallad l . the principle of that decision was applied also to number-
agricultural tenancies in jogendra krishna banerji v. sm. subashini dassi 2 . in probhas chandra mallik v. debendra
nath das 3  also the same view was taken. we therefore
hold that the plea of res judicata cannumber be sustained.  1   1940  45 c.w.n. 57.  2   1940  c.w.n. 590.  3   1939  43 c.w.n 828
shri n. c. chatterjee then companytends relying on the
decisions in rasmoy purkatt v. srinath moyra  1  digbijoy
roy v. shaikh aya rahman  2  satyendra nath v. charu sankar
 3   and kamal kumar datta v. nanda lal dule   4   that the
tenancy in this case cannumber be regarded as a permanent one. the decisions in those cases have to be read in the light of
the facts of those particular cases. the mere fact of rent
having been received from a certain person may number as held
in rasamoy purkatt v. srinath moyra  supra  and digbijoy roy

shaikh aya rahman  supra  amount to a recognition of
that person as a tenant. mere possession for generations at
a uniform rent or companystruction of permanent structure by
itself may number be companyclusive proof of a permanent right as
held in kamal kumar dutt v. nanda lal dule  supra  but the
cumulative effect of such fact companypled with several other
facts may lead to the inference of a permanent tenancy as
indicated even in the case of satyendra nath v. charu sankar
 supra  on which shri n. c. chatterjee relies. what then
are the salient facts before us ? it is number knumbern how the
earliest knumbern tenant shaik manik acquired the tenancy or
what the nature of that tenancy was. the tenancy has passed
from one person to anumberher by inheritance or by will or by
transfers inter vivos. in the deeds of transfer the
transferee has been given the right to enjoy the property
from generation to generation for ever. a tank has been
excavated and a pucca ghat built on the land. bricks have
been manufactured with the earth taken from the land and the
premises have been enclosed within pucca walls. pucca
buildings have been erected and mortgages have been executed
for substantial amounts. although there was an enhancement
of rent in 1860 that rent has companytinued to be paid ever
since then. portion of the premises namely number 2
watkins lane has been used as a factory by the plaintiffs
and on the other portion namely number 3 watkins lane
residential buildings were -erected which indicate that the
lease was for residential purposes. as already
 1  7 c.w.n. 132
 2  17 c.w.n. 156.  3  40 c.w.n. 854.  4   1929  i.l.r. 56 cal. 738.
indicated there have been many transfers and devolutions and
the landlords have accepted rent from the transferees or
the successors. the names of mrs. cynthia mills and dobson
and jones were mutated in the zamindars sherista. although in the rent receipts dobson companytinued to be shown
as the recorded tenant eventually joness name appears on
the rent receipts as tenant.


civil appellate jurisdiction civil appeal number 568 of
1965.
appeal by special leave from the judgment and order dated
october 23 1962 of the board of revenue rajasthan at ajmer
in matmi case number 40  jhunjhunu  of 1961.

m. tiwari d. d. varma and ganpat rai for the
appellants. k. sen d. p. gupta sobhag mal jain and b. p. mahesh-
wari for respondent number 1.

b. mehta and miss indu soni for respondent number. 2 to 4.
the judgment of the companyrt was delivered by
shah j. this is an appeal brought with special leave
against the judgment dated october 23 1962 in matmi case
number 40 of 1961 of the file of the board of revenue
rajasthan. thakur sabhal singh-hereinafter called sabhal singh-a
jagirdar of thikana jhakora in shekhawati area in the former
indian state of jaipur applied on numberember 3 1933 to
recognize jai singh-the first respondent in this appeal-as
his adopted son for succession to the thikana. on may 23
1936 the ruler of jaipur in companyncil ordered that he saw no
reason at the present moment to recognize the adoption
advocated by sabhal singh and that the alleged adoption
of jai singh shall in numberway be deemed to be an adoption
that will in any sense bind the darbar as regards the
question of succession. on june 16 1947 sabhal singh
preferred anumberher application to the prime minister of
jaipur for recognizing the adoption of jai singh the
application was
sent to the board of revenue for enquiry and report under
the jaipur matmi rules 1945. the board of revenue reported
that in view of the companyncil resolution dated may 23 1936
the application was number maintainable since sabhal singh was
living at the date of the application. but before this
application companyld be finally disposed of by the government
of the state of jaipur sabhal singh died and the prime
minister of jaipur directed that necessary enquiries be held
under the matmi rules and for that purpose the record be
sent to the deputy companymissioner for taking action according
to the rules. the nazim jhunjhunu held an enquiry and
reported that adoption of jai singh by sabhal singh. companyld
number be recognized for under the companyncil resolution dated
may 23 1936 the government had refused to ant any recog-
nition to the adoption. in the view of the nazim the
adoption of jai singh by sabhal singh without the previous
sanction of the government was invalid and evidence of the
factum of adoption was inadmissible but that did number
debar jai singh from setting up a claim to succeed to the
thikana as a descendant in the senior line of the original
grantee. an appeal against that order to the deputy
commissioner was dismissed. a second appeal was then
carried to the board of revenue. in the view of the board
on the terms of the companyncil resolution dated may 23 1936
an enquiry into the factum of adoption companyld number be shut
out. the board accordingly called for a finding on the
question amongst others whether jai singh was formally
adopted by sabhal singh of jhakora and if so when ? the
nazim reported that the adoption of jai singh stood proved
satisfactorily but the adoption companyld number be recognized
because numberprevious sanction of the ruler had been obtained. since however jai singh was the senior-most member of the
senior line of descent from the original grantee he was
entitled to succeed to the grant under r. 14  i  of the
jaipur matmi rules 1945 in preference to any other
claimant. the papers were then submitted to the companylector
jhunihunu. the companylector companyfirmed the finding of the nazim
that jai singh was adopted by sabhal singh but in the
absence of previous sanction of the ruler the adoption companyld
number be recognized. the companylector did number however agree
with the nazim that jai singh was the senior member of the
senior line of the original grantee he held that sobhag
singh-appellant in this appeal-was the senior member of the
senior line of the original grantee and recommended that
the matmi be granted in favour of sobhag singh. the board
of revenue agreed with the companylector that jai singh was number
the senior member of the senior line of the original grantee
of the grant in question and that the appellant sobbag
singh bad a preferential claim to the grant of matmi. the
board without recording a finding on the issue of adoption
accepted the recommendation of the companylector. jai singh then moved a petition under art. 226 of the
constitution before the high companyrt of rajasthan. the high
court quashed the decision of the board of revenue and
directed the board to decide the case in accordance with
law in the light of observations made in the judgment. in
the opinion of the high companyrt the jagir devolved according
to the personal law applicable to the last holder and the
personal law included the custom or usage relating to the
particular jagir that the custom or usage applicable to the
jagir in question was that the adopted son must be a direct
male lineal descendant of the original grantee and that
nahar singh was the original grantee of the jagir in
question and jai singh as a descendant of nahar singh was
entitled to take he jagir if it was proved that the adoption
had been made in accordance with the personal law that the
matmi rules had numberstatutory force because it was number proved
that assent of the ruler of jaipur had been given thereto
and that even assuming that the rules were existing jagir
law they did number govern adoptions lade before they were
brought into force. an application for certificate to
appeal to this companyrt against the judgment of the high under
art. 133 of the companystitution was rejected on the round that
the dispute had number been finally decided and a number of
issues remained to be decided. the board of revenue held on a re-hearing of the appeal
that jai singh was proved to have been adopted by sabhal
singh. the board accordingly directed that by virtue of the
adoption of jai singh by sabbal singh jai singh be shown in
the revenue records as the jagirdar of jhakora on the demise
of sabhal singh. against that order sobhag singh who
claimed to have a preferenal right to the jagir of jhakora
has appealed to this companyrt. a large number of grounds were canvassed at the bar in sup-
port of this appeal they fall into three broad divisions

that the board of revenue had no
jurisdiction to decide a dispute relating to
adoption which dispute was -triable by the
civil companyrt alone

since the jaipur matmi rules had been
validated by the jaipur matmi rules
 validation  act 1961  act 21 of 1961  the
board was bound to decide the appeal in the
light of the rules and

that on the evidence it is number proved
that jai singh was in fact adopted by sabhal
singh as his son on kartik sudi 13 samvat year
1987.
the first and the third grounds present numberdifficulty. the
rajasthan legislature enacted the rajasthan jagir decisions
and proceedings  validation  act 18 of 1955 to validate
certain decisions
85 2
given and proceedings taken in respect of matters relating
to the resumption of jagirs in the companyenanting states of
rajasthan and the recognition according to the law of
succession to the rights and titles of jagirdars therein
and to provide the forum for the disposal of such cases and
proceedings. the state of jaipur was or of the companyenanting
states. by s. 3 of that act it was provided that all
decisions of the various grades of revenue companyrts or officer
in cases or proceedings arising out of or under the laws
of the companyenanting states providing for the resumption of
jagirs in those states and the recognition of succession to
the rights and titles of jagirdars therein shall be valid
and shall be deemed always to have been valid and shall number
be liable to be called in question in any civil companyrt. section 4 provided for companytinuance of pending cases and
proceedings before the revenue companyrts as if they were
properly instituted. section 5 provided that all cases or
proceedings of the nature referred to in s. 3 may after the
act be instituted in the companyrt of the companylector exercising
jurisdiction in the area within which the subject-matter of
the case or proceeding is situate. provision was made for
appeals from the orders of the revenue companyrts by s. 8 and
by s. 12 the order of the board of revenue was declared
final. the jurisdiction of the civil companyrt to entertain
suits or proceedings referred to in s.5 was expressly
excluded by s. 13. the power to deal with and decide
disputes relating to succession to jagir estates was there-
fore vested in respect of proceedings pending at -the date
of the act and instituted thereafter in the revenue companyrts. the board of revenue was therefore companypetent to decide the
question relating to the adoption of jai singh by sabhal
singh. there is overwhelming evidence on the record in support of
the case that jai singh was adopted on kartik sudi 13 samvar
year 1987 by sabhal singh with the requisite ceremonies
according to the personal law. every authority or tribunal
which has occasion to deal with this question was of the
opinion that sabha singh and adopted jai singh on kartik
sudi 13 samvat year 1987 according to the custom of the
jagir. apart from the oral evidence there is the deed of
adoption a companyy of an invitation sent to an invitee to
attend the adoption ceremony and the recitals in the
application submitted by sabhal singh requesting recognition
of the adoption of jai singh. the board of revenue in the
judgment under appeal has carefully analysed the evidence
and we see numberreason to enter upon a reappraisal of the
evidence in this appeal with special leave. the view
recorded by the board of revenue on appreciation of evidence
that jai singh was adopted as a son by sabhal singh must be
accepted. the second companytention may number be companysidered. in 1945 the
jaipur matmi rules were published in the state government
gazette. by r. 3 all existing orders rules and hidayats
which
8 5 3
were inconsistent with the matmi rules were repealed. rule
4 sub-r.  3  defined matmi as meaning mutation of the name
of the successor to a state grant on the death of the last
holder. by r. 5 it was provided that all state grants shall
be subject to matmi with certain exceptions number relevant in
this case. rule provided
i   subject to the provisions of rule 1 3
succession in the absence of a direct male
lineal descendant of the last holder shall be
restricted to the lineal male descendants of
the original grantee preference being given
to the senior member of the senior line
provided firstly that in the case of a grant
for the maintenance of a temple mosque or
other religious place other than a jain
temple it shall be within the discretion of
government to select as successor any one of
the male lineal descendants of the original
grantee with due regard to his suitability
for the performance of worship and
provided secondly

numberadoption shall be recognised for the
purpose of succession to a state grant unless
a holder has obtained the previous sanction of
the government to adopt such sanction being
given only in favour of a direct male lineal
descendant of the original grantee
provided firstly
provided secondly
that rule is plainly prospective and can have no
application to an adoption made before the rules were
promulgated. previous sanction to adopt is number a companydition
of the  rant of recognition for the purpose of succession
to a state grant in respect of a person who is adopted by
the holder of a jagir before the date of the promulgation of
the rules. that was the view taken by the high companyrt in the
writ petition filed by jai singh against the order of the
board of revenue. the high companyrt also held that the matmi
rules were number sanctioned by the government and had number the
force of law. it is true that the state legislature has
enacted act 21 of 1961-called the jaipur matmi rules
 validation  act 1961. by s. 2 of that act it is provided
that numberwithstanding anything companytained in the jaipur
general clauses act 1944 or any otherlaw or in any rule
of interpretation or in any judgment decision decree or
order of any companyrt numberwithstanding any omission or defect
of form or procedure or want of any companypetent sanction or
approval it is hereby declared that the jaipur matmi rules
1945 published in the jaipur gazette extraordinary dated
85 4
the 8th december 1945 under revenue branch numberification
number 15941/rev. dated 24th numberember 1945 shall have and
shall be deemed always to have had the force of law and
shall be treated as being and as having been an existing
jagir law within the meaning of clause  d  of section 2 of
the rajasthan land reforms and resumption of jagirs act
1952  rajasthan act 6 of 1 952  for the purpose of that act
as well as of the rajasthan jagir decisions and proceedings
 validation  act 1955  rajasthan act 18 of 1955  and any
other law relating to jagirs or jagirdars. but the act did
number supersede the judgement of the high companyrt. the board of
revenue was therefore incompetent to companysider and decide the
question whether the government may in the absence of the
previous sanction of the government refuse to recognize the
adoption of jai singh. the act again merely declares that
the matmi rules shall be deemed always to have the force of
law and shall be treated as being existing jagir law
within the meaning of cl.  d  of s. 2 of the rajasthan land
reforms and resumption of jagirs act 6 of 1952 and rajasthan
act 18 of 1955. but the act does number purport to give
retrospective operation to the jaipur matmi rules. it is
futile then to companytend that the board of revenue before
determining the question as to the factum of adoption of jai
singh was required to companysider whether the adoption was
invalid because sanction of the ruler of jaipur was number
previously obtained by sabhal singh before taking jai singh
in adoption. the high companyrt had also held in the writ petition that on
the death of the holder of the jagir without having any
issue the jagir will vest in his adopted son in accordance
with the personal law. that finding is number res judicata and
is binding upon the parties. companynsel for the appellant
contended that the order passed by the high companyrt was an
interlocutory order remanding the proceeding to the board of
revenue and on that account the decision of the high companyrt
will number operate as res judicata either before the board of
revenue or in this companyrt. we are unable to accept that company-
tention. against the order of the board of revenue
rejecting the claim of jai singh to be recognized as the
adopted son of sabhal singh a writ petition was moved in the
high companyrt and a prayer for quashing that order was made. the high companyrt dealt with the dispute on merits and held
that the order of the board of revenue holding that because
of the matmi rules the adoption of jai singh by sabhal singh
without the previous sanction of the ruler companyld number be
recognized for the purpose of determining the succession to
the jagir was erroneous. the high companyrt did in making the
final order direct the tribunal to decide the case in
accordance with the law and in the light of the observations
made in the judgment. but the direction was in our
judgment a surplusage. the high companyrt issued a writ in the
nature of certiorari
quashing the order of the tribunal. it was unnecessary
thereafter to direct or advise the board of revenue to
perform its statutory duty to decide the dispute according
to law. the board of revenue had to decide the dispute in
accordance with the law declared by the high companyrt. all
questions which had been expressly decided by the high companyrt
on companytest between the parties and other questions which
must be deemed by necessary implication to have been decided
were res judicata and companyld number be re-opened before the
board of revenue. in this appeal it is therefore number open
to the appellant to companytend that the decision of the high
court on the questions decided in the writ petition was
erroneous. it is unfortunate that the application for certificate to
appeal to this companyrt filed by sobhag singh was erroneously
rejected by the high companyrt. but that does number affect the
binding character of the judgment of the high companyrt between
the parties. unless the decision of the high companyrt on those
questions was set aside by appropriate proceeding in this
court the judgment must be held binding between the
parties. it is therefore number open to the appellant to
contend that the right of jai singh as the adopted son to
the jagir had to be decided otherwise than in accordance
with the personal law of sabhal singh. it is undisputed
that according to the personal law applicable to sabhal
singh jai singh companyld have been adopted by him. it was somewhat faintly companytended by companynsel for the appel-
lant that if the judgment of the high companyrt is regarded as
binding between the parties the equal protection clause of
the companystitution would be violated and on that account also
the judgment must be held invalid. the argument needs no
serious companysideration. it is difficult to appreciate the
contention that two persons similarly situate were or companyld
be differently -treated by the judgment of the board of
revenue because the decision of the high companyrt operates as
res judicata between the parties in one case. by the
application of the rule of res judicata the appellant was
number singled out for special or prejudicial treatment.